Separating is in the Mind of the Separator

Sheryl and Keith Xavier Davis (known as Xavier) were married on June 12, 1993. They have two children from their marriage: a daughter born in 1995 and a son born in 1999. After the birth of their son, they stopped being sexually intimate and sharing "date time" together. In 2001 (according to Xavier) or 2004 (according to Sheryl), they began sleeping in separate bedrooms.

According to Sheryl, she believed the marriage was actually over in 2000, but stayed with Xavier for the sake of the children. Both parents were from two-parent households, and they wanted that same environment for their children. They did not want the children to experience parent-separation anxiety.

In June, 2006, Sheryl told Xavier that the marriage was over. However, they would continue to live together in the same house and each would be responsible for one-half of the household living expenses. She cancelled their joint credit cards and even created a spread sheet of expenses and their portions of them. She also informed him that whatever was left over from their respective paychecks was their own separate property. For the next two years they each deposited one half of the household expense monies into a joint account (that Sheryl used to pay the bills), and put the rest of their money in their own separate accounts.

In December of 2008, Sheryl filed for dissolution of marriage. She stated the date of separation was June 1, 2006. In February of 2009, Xavier responded citing the date of separation as January 2, 2009. (Even though going through a divorce, Sheryl and Xavier lived in the family home until Sheryl moved out in July of 2011.) The date of separation was important in determining what was community property and the distribution of community property in dissolution proceedings.

The trial court bifurcated the dissolution request; meaning Xavier and Sheryl were no longer married and free to marry others, but the issue of the date of separation and other issues would be decided separately.

Because of Sheryl's move-out date, Xavier amended his response to dissolution to show the date of separation as July 1, 2011.

The trial court found the date of separation to be June 1, 2006, and Xavier appealed.

The appellate court affirmed the trial court holding that a separation date was determined by the intent of one of the parties to a permanently "parting of the ways" and conduct showing a final and complete marital breakup. Sheryl informed Xavier of her intent to end their marital relationship in 2006, and her conduct was always consistent with her intent. The fact that she did not move out of the family home was not inconsistent with her intent.

One final note: this case is currently up for review before the California State Supreme Court, and the law may be affirmed and remain the same, or the Supreme Court may change it.

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