The recent California Supreme Court decision in Marriage of Davis has generated much conversation within the family law community over the past couple of months. Members of our organization spent more than a week discussing it on the listserv. For those of you who may have missed it, the Supreme Court held that “living separate and apart” in Family Code section 771(a) requires that parties actually live in separate residences. The Court of Appeal in Davis disagreed with the earlier appellate decision in In re Marriage of Norviel, 102 Cal. App. 4th 1152 (2002). The Norviel decision stated that living separate and apart meant living in separate residences. The Davis court disagreed with the Norviel holding and affirmed the trial court’s finding of a date of separation while the parties were still living in the same residence prior to an actual physical move-out. The Supreme Court reversed the Davis court and stated that the Norviel court was correct.
I thought it was interesting that within the decision, the Supreme Court commented on the lack of response to Norviel by the bar, bench, and legislature as acceptance of the holding. It caused me to think back to that time period, 2002. I do remember when the decision was rendered and that there was some talk about legislation to address the issue, but there was no consensus on the language. Eventually, the discussion petered out and it seemed like a lot of us, including the courts, were not viewing the holding as a bright line rule. The Supreme Court reiterated in Davis that it is indeed a bright line rule. Many of us think that this should not be “the rule” and that the law should allow for separation to occur even if the parties are in the same residence (although the Court did say in Footnote 7 and in the concurrence that it is possible for separate residences to be established under the same roof; it is unknown what circumstances may constitute such a finding), as economic and child related issues may dictate for some parties.
Chief Justice Cantil-Sakauye stated in the opinion: “There appears to have been no reaction from the bench or bar subsequent to the Norviel decision contending that the Norviel majority had introduced a sudden new rule that was legislatively unintended and unworkable. No movement to promote the position of the Norviel dissent seems to have materialized…” Although the Court goes on to comment that the inaction of the legislature does not imply legislative approval of the decision, it certainly appears that the Court did interpret the inaction as significant.
I do not know at this time what, if any, action will be taken with regard to the Davis decision by the family law community in general or by our organization in particular. We are a very diverse group with wide ranging opinions and viewpoints and consensus can be difficult to obtain. ACFLS has a subcommittee of the Legislative Advisory Committee working on possible affirmative legislation to draft language for the Board’s consideration. If we cannot obtain consensus on draft language and therefore do not act, does our inaction mean that we agree with the decision?
The Supreme Court may certainly think so.
Our lead article in this issue is an in-depth discussion on the Davis case that includes sections on the plain meaning of “living separate and apart,” on statutory construction, on the use of the phrase in six other family law statutes, on practical tips, and on the latest news on what our organization and others are doing to intelligently move Family Code section 771 to reflect our changing society. ■