Most legally separated couples want to live in different residences, but this isn’t always possible or practical, especially when the marriage involves small children. For various reasons, many couples continue living under the same roof while legally separated. This situation can become uncomfortable for both parties, but it doesn’t necessarily have to be. There are things you and your ex-spouse can do to make cohabitation work, as well as to protect your legal rights if you decide to file for divorce. Here’s what to do if this is your circumstance in California.
Get Your Legal Ducks in a Row
In a legal separation agreement, the California courts divide property (as if you got a divorce). The date of separation plays an important role in this process, as it will determine what is community property and what is shared property. California abides by community property rules for divorce or legal separation cases. This means that a marriage or domestic partnership creates one legal “community” between two people. Any property either party acquires while in the community of marriage becomes shared property. Debt accumulation works the same way – it becomes community debt.
Community property will include any assets, incomes, or debts between the two parties, but will not include gifts or inheritance. After a party legally separates, they are no longer a “community.” From this point on, each party’s accumulated assets and debts are his/her own, and not shared properties.
California Laws on Legal Separation Recently Changed
Previously, the law in California made it so that two spouses could not qualify as legally separated if they still lived together in the same residence. Under a precedent set by the California Supreme Court case of In re Marriage of Davis, a couple would only be viewed as legally separated on the date that they no longer lived in the same home, regardless of when they divided their lives and finances.
However, California lawmakers changed the law to no longer require physical separation as an element of legal separation. The passing of California Family Code §70 changed the definition of a couple’s date of separation to when they considered the marital relationship over rather than when the couple stopped living together. Now, judges in California consider other factors besides living arrangements when determining the date of a couple’s separation.
Have a Clear Date of Separation
During asset division, the date of separation is important. The courts will split community property equally between both parties but will not touch money, assets, or debts incurred by either party after the date of separation. This is “separate property” that belongs to you alone.
To protect your assets during a legal separation and/or divorce, make the date of separation clear between you and your ex-spouse. State law requires a complete and final end to the marital relationship for a couple to achieve legal separation. Tell your spouse in clear terms that your marriage is over. Then, act in a way that matches this intention.
Making the date of separation apparent while still living together can be tricky. You will need evidence of your separation that you can show to the court. To accomplish this, start living as separately as possible under the same roof. You can benefit from actions such as separating your finances, sleeping in different beds, avoiding vacations and social outings together, and planning separate futures.
Your date of separation will be easier to prove if you live in different rooms, don’t prepare each other’s meals or do each other’s laundry, stop wearing wedding rings, and use separate bank accounts. Let people close to you know that you two are no longer living as a married couple and are separated within one residence. The clearer you make your date of separation, the better.
Personal and Emotional Impact of Cohabitating
Legal ramifications are not the only consideration you should make when deciding whether or not you should move out during your period of separation. You should also consider the potential emotional and relationship impacts of continued cohabitation. Your living arrangement could inflict great emotional stress on you and your family during an already tumultuous time.
Living together means that you must share a living space, which can infringe on your privacy and make it harder to move on. Cohabitation may also require you to determine who will pay rent and household costs. These issues could create conflicts that make it more difficult to reach a settlement agreement with your spouse should your legal separation later become a divorce.
Continuing to live together may make it more difficult to explain your situation to friends and family members. This includes any children involved in the marriage, who may assume reconciliation is a possibility since you still live together. Cohabitating after separation can also complicate emotional boundaries, potentially resulting in reconciliation.
Make Cohabitation as Pleasant as Possible
Now that you’ve done what you can to protect your separate property, focus on making your new living arrangement as comfortable as possible for you and your ex-spouse. First, figure out where your separation is going. If you and your spouse plan on remaining legally separated and not divorced, think of a long-term living arrangement that works for both of you. If you decide to continue living in the same home for whatever reason, follow these tips:
- Be discreet about new boyfriends/girlfriends in your life. You may have separated because of another person, but there’s no need to flaunt your new relationship while still living with your ex-spouse.
- Create guidelines. Compromise with your ex to create living arrangements that work for both of you. Discuss who will pay which bills, how mealtimes will work, who will clean what parts of the house, etc.
- Get help from a neutral third party. If you and your ex cannot agree on something within your living arrangement, get an objective party to come in and assist.
When in doubt about your legal separation or living arrangement, speak to a Sacramento family attorney. There are many considerations you’ll need to think about in this situation. A lawyer can help you protect your best interests.
Get Legal Advice Before Cohabitating After Separation
Continuing to live with your spouse after deciding to end your marriage can be risky. The best way to protect your rights during the legal separation or divorce process is by hiring an attorney in Sacramento. An experienced divorce lawyer in Sacramento can help you establish a date of separation despite the fact that you still live together. Your lawyer can help you present evidence of a breakup to the courts, such as separated finances.
Your attorney can give you advice on how to keep your separate property separate, such as creating your own bank account and avoiding the commingling of your assets, while you still live with your spouse. An attorney can also guide your family through issues that may become complicated by cohabitation, such as child support and alimony. Your lawyer can protect your best interests regardless of your living arrangements.
To speak to an experienced family law attorney in Sacramento about your case, contact Boyd Law to request a free consultation. We will fight for your rights throughout a legal separation.
