Unintended consequences

In 2007, as many of 80 percent of family law cases involve at least one unrepresented litigant. Elkins v. Superior Court, 41 Cal.4th 1337 (2007). The Elkins court was relying on 2004 statistics, long before the 2008 recession made even more people unable to afford attorneys. The court held that all family law litigants have the right to present evidence, and that those rights can't be cut off by local procedural rules.

Elkins concerned the rights of individual litigants. But the court made clear that it was ruling on societal questions as well, pointing out that failure to deal with important issues by allowing litigants to present their evidence and arguments reduces confidence in courts and the legal system. The court also stressed the importance of courts hearing all the relevant evidence on important issues, quoting Witkin, California Evidence: "One of the elements of a fair trial is the right to offer relevant and competent evidence on a material issue. ... denial of this fundamental right is almost always considered reversible error." 3 Witkin, Cal. Evidence Presentation at Trial, § 3 (4th ed. 2000). The court added: "Ordinarily, parties have the right to testify in their own behalf [citation omitted], and a party's opportunity to call witnesses to testify and to proffer admissible evidence is central to having his or her day in court."

But this all changed in July, when the state Supreme Court ruled that regardless of the evidence of the intent of the parties, or of their actual conduct, no married couple in the process of a divorce could be legally determined to have "separated" so long as they continued to live under one roof. In re Marriage of Davis, S215050. It doesn't matter if they live in separate rooms, or agree to be in the house or use the kitchen or washer and dryer at separate times. To the Davis court, it didn't matter that the husband was rehabbing a second house the family owned with the agreed intent that he would move into it as soon as it was ready. All of the parties' evidence and intent was irrelevant.

Davis held that California Family Code Section 771(a), which includes what the court called a legal "term of art" requiring people to be "separate and apart" before they could be living legally "separate." It is essential that the 80 percent of family law litigants who are unrepresented by counsel understand this legal "term of art" as they move their cases through the court system.

The relevant legal term of art was crafted in 1870, when married women couldn't vote, couldn't control their own property, and couldn't appear in court without their husbands or their husbands' permission. The legal term of art was written into a law to empower women when their husbands were absent. The Davis court observed that the law provided protection to women in circumstances when they could not rely on absent husbands.

Between 1870 and 2015, the Legislature never saw fit to define the term "separate and apart". So the Davis court decided to define it. Although acknowledging that it is a specialized "term of art" for law, the court used common dictionary definitions for the words in the phrase. The American Heritage Dictionary and the Oxford English Dictionary both use the word "apart" to define the word "separate", and the word "separate" to define the word "apart." Neither dictionary requires any physical distance to define either "apart" or "separate.".

But neither of these dictionaries was sufficient for the Davis court. The court looked to Webster's dictionary, which also uses the two words to define each other, but which includes a spatial component in some of multiple definitions for each word, again not making physical distance a requirement of the definition.

Webster's original dictionary, published in 1828, says that to "separate" means "to disunite; to divide; to sever; to part, in almost any manner" (first of nine meanings), and that "apart" means "In a state of distinction, as to purpose, use or character" (second of four meanings). Again, no physical separation was required, according to a dictionary that California legislators might have considered in 1870 when drafting the law.

If any of the 80 percent of unrepresented family law litigants go to a dictionary to try to understand what they read of the law, they will be misled. They will think in terms of their agreements to separate emotionally, to use separate rooms, separate times in the kitchen etc. Few will think that they need to know specialized legal terms of art to know when they have "separated".

The Davis court wanted to give litigants clarity and certainty, and, as the 1870 legislators had done, to protect those in marriages who lack economic power (mostly women). With their "bright line" rule requiring physical separation, no matter the economic condition of the parties, they sought to eliminate the subjective question that might have been posed by the "right to offer relevant and competent evidence on [the] material issue" of the date of separation.

It will be some months before we get appellate decisions applying Davis's "bright line" rule. But we have begun to get trial court decisions. Some trial courts interpret the Davis rule to mean that they can't award pendent lite support to a needy spouse so long as she remains in the same house as her divorcing husband. So she won't have the funds to move out. Trial courts may find that Davis prevents them from awarding the poorer spouse attorney's fees, to make possible the legal work that might establish a legal date of separation.

In the classic model of good intentions gone awry, Davis may have the result of disempowering those whom the court sought to protect. By withholding any funds at the start of a divorce, the financial dominant spouse can now force the weaker spouse to stay in the family residence, proceed without legal representation, and potentially suffer whatever abuse, physical or emotional the dominant spouse chooses to inflict.

Appellate decisions in 2016 will further clarify Davis's reach. But it seems clear that without legislative action to clarify the meaning of "separate and apart", the California Supreme Court has given monied spouses a major tool for avoiding other obligations of the Family Code, even the emotional abuse proscriptions of the In re Marriage of Nadkarni, the noteworthy Court of Appeals case that clarified California law to make clear that emotional abuse, without physical violence, constitutes domestic violence. 173 Cal.App.4th 1483 (2009).