For many years, California Divorce Attorneys in Los Angeles have fought ferociously in Family Court over the issue of when – exactly – is the “Date of Separation” in a case where the divorcing spouses continue to dwell in the same house.
But now, finally, the California State Legislature has spoken. If Husband and Wife both intend to get a divorce, and have ceased sleeping together and comingling funds as well as “fun,” then they can be legally “Separated,” even if they are living under the same roof.
In an acknowledgment of the weak California economy, and the consequent housing shortage, as well as the public policy of not unnecessarily causing one of the divorcing spouses to become “Homeless” … usually the Husband … Governor Jerry Brown has signed legislation — SB 1255 — which will take effect in January 2017, allowing divorcing couples to be considered legally “Separated,” while still living in the same house.
Under prior California Case Law, the fact that the couple lived under the same roof was usually taken as an indication that they were not legally “Separated.”
The nuances of what the couple did – or did not do – while living under the same roof could alter the Family Court’s decision as to their legal status, e.g., the sharing of credit cards and bank accounts, the giving and receiving of gifts, and even the exchange of written thank you notes and greeting cards, could well have been determining factors.
The status of the couple in terms of sharing of debt may be of crucial importance as well. Generally, the martial status of the couple will determine the character of the debt at the time it was incurred.
The status of the couple’s children will also need to be considered.
We welcome the new legislation by the State of California, because children generally do better if both parents are present in the home, unless the situation involves violence or abuse, or is totally untenable in other ways. Divorce is not pleasant for anyone involved, whether parents or children.
Perhaps you’ve seen the 1989 movie, “War of the Roses,” in which a Divorce Attorney, played by Danny DeVito, and with the movie having also been Directed by Danny DeVito, recalls and describes to his new client – who is thinking of divorcing his wife – the sad story of Mr. and Mrs. Rose, whose horribly contentious Divorce ends very badly. At the end, DeVito advises his potential new client, listen … why don’t you just go home, take your wife out to a nice restaurant for dinner, go back home, each of you going to a different room, on a different floor … and just don’t argue about anything … and … as Rodney King famously suggested, “just get along.”
And by the way, if you still think that the process of divorcing will be pleasant, definitely think again. Because if you think you and your Attorney can have a private conversation outside the Family Court, then think again. There may well be listening devices placed near the entrance, with various government entities tuning-in to your conversation. A Federal Judge in Northern California has ruled that this practice was “unsettling,” but “not illegal.” The Federal Court found that the eavesdropped individuals did not take steps to ensure their privacy. This makes little sense. It forces people to conduct audio sweeps prior to starting a conversation.
The Federal Court found that audible conversations in public areas could not provide the conversants with a reasonable expectation of privacy. The court felt that a person could hear the conversations and report back to prosecutors.
However, the one thing the Federal Court missed is that if a person sees someone near them listening, they can at least take heed, and perhaps move locations or change the volume of their conversation accordingly.
In the case of a concealed recording or transmitting device, no such protection is provided.
Let the lessons be clear … watch what you say, and where you say it; and, starting in January of 2017, you can live under the same roof with the spouse that you are divorcing, and still be considered as legally “Separated,” if, and only if, you do not sleep together, do not exchange holiday gifts or greeting cards, and … as at the Courthouse, always watch what you say !
Perhaps the best advice to a Divorcing Couple, both at home, and at the Courthouse … is … JUST DON’T SPEAK … AT ALL !