Family Court: Characterizing Property
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§3.03 Living Separate and Apart Defined

“Living separate and apart” means that the parties' physical separation is a result of a breakdown in the marital relationship. For you to determine that the parties are living separate and apart, you must find both of the following [Marriage of Norviel (2002) 102 CA4th 1152, 1158-1162, 1164; Marriage of Von der Nuell (1994) 23 CA4th 730, 735-736]:

  • At least one spouse entertains the subjective intent to end the marriage; and
  • There is objective conduct evidencing a complete and final break, which must include living apart physically.

One case suggests that parties may live apart physically while still occupying the same dwelling if the evidence demonstrates unambiguous, objectively ascertainable conduct amounting to a physical separation under the same roof. [Marriage of Norviel (2002) 102 CA4th 1152,1164.]

On the other hand, the fact that the husband and wife live in separate residences is not determinative if there is no evidence that the parties came to a parting of the ways with no present intention of resuming marital relations. [Marriage of Baragry (1977) 73 CA3d 444, 448.]

CautionCAUTION: Watch for developments in this area. The California Supreme Court has taken up on review the Marriage of Davis case (S215050) to determine whether, for the purpose of establishing the date of separation under FC §771, a couple may be “living separate and apart” when they live in the same residence.

The test for determining the parties’ actual date of separation is whether at least one of the the parties intended to end the marriage and whether there was objective conduct bespeaking the finality of the marital relationship. [See In re Marriage of Manfer (2006) 144 CA4th 925, 928.]

How Would You Rule?

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