After 10 years of marriage, Ben Affleck and Jennifer Garner are calling it quits. Ben isn’t exactly moving into a dog house however; reportedly he’s moving into a guest house on their property.
Thankfully, Bennifer are part of the current movement dubbed “Conscious Uncoupling” which is less destructive and less expensive than old-fashioned litigation. Reportedly, they’re going to mediate or utilize the Collaborative Law Model wherein the attorneys are barred from going to court. They could literally save millions in unnecessary legal fees by avoiding court.
If Ben and Jen are able to keep their cool and stay in a consensual dispute resolution model, they will not be subject to a judge’s scrutiny of Ben’s new living arrangements which nicely illustrate one of the biggest changes to hit California Family Law in decades.
First some background: Almost everything a couple acquires from the date they’re married to their “Date of Separation” is community property. So if forced to divide that property in court, each party gets half.
On the other hand, everything a party acquires prior to marriage and after their “Date of Separation” is their separate property. So in a divorce you’re supposed to get half of the community property and all of your separate property.
Because the Date of Separation cuts off property sharing rights, it can be very important when parties have significantly different earnings or are separated for an extended period of time. Years of earnings you thought would not be shared might end up being shared based on what a judge determines to be the “Date of Separation.”
For many years now in California, if both Parties thought they were separated, and acted like they were separated, the court would generally find they were separated. If the parties couldn’t agree to the date they separated, they could present the court with evidence to prove their state of mind. This could include separating their finances, or telling friends and family they were separated, or moving out. But there was no consistency. Instead, judges would weigh evidence on a case-by-case basis.
There have been cases where a husband moved into the guest house but the judge found the couple were still married because the wife continued to do his laundry. In other cases, couples could continue to share a house for the kids or to save money, but the judge found other evidence that proved they were separated.
But the Appellate Court’s finding in July’s Marriage of Davis now requires that somebody move out in order to establish a Date of Separation. So in a case where a couple have moved into separate rooms even if they separated their finances and told people they were separated, the judge could determine they’re still together. The Appellate Court was not clear on whether or not moving into a guest house on the same property will suffice, but if Ben and Jennifer can avoid court and settle things between themselves and their attorneys, it won’t matter.
Couples who mediate or collaborate can agree to things no judge can order. And they can save tens of thousands of dollars in the process.
Thanks for reading,
Ty Supancic, Esquire
The Law Collaborative, APC
e: info@thelawcollaborative.com
t: 818-348-6700
f: 818-348-0961
