They’re not yet divorced, but Ben Affleck and Jennifer Garner may not actually even be separated, under a new California law, says one high-profile divorce lawyer who has worked on similar cases.
Ben and Jen separated last summer after 10 years of marriage, and still haven’t filed divorce papers, but their separation has become very murky because Ben still resides at the family residence. Even though it’s a good thing for the couple’s three kids, him sleeping in the guest house blurs the “date of separation” under the law.
Before July 2015, that date was the exact day a married couple can be considered “living separate and apart,” even if they continued to reside in the same home, “but only for the sake of the children, convenience, or other practical reasons.”
But the California Supreme Court changed the law last year in a case titled Marriage of Davis. Under the new rules, spouses “must live in separate residences in order for their earnings and accumulations to be their separate property.”
As Jennifer Riemer, an attorney with Walzer Melcher LLP in Los Angeles, explains, a judge may decide Ben and Jen must continue to share assets and earnings because Ben still lives at the family home.
“Basically before [the law changed] the date of separation was when the community property ceases, which is important because if one person is expecting a big bonus, or is filming a movie, those earnings would not be that person’s separate property, because they are not considered separated,” Jennifer says. “Before, even if they were living in the same house, generally a date determined the start of separation. The importance was you could still be living together and be officially separated.”
Which is not the case any longer. And it gets even more specific. With Ben and Jen, it’s not clear if a judge would determine the guest house to be a separate residence.
“Does that mean separate homes, is the guest house close to the house, that can all be challenged in court,” Jennifer says. “If it’s a separate home across the property maybe that’s more convincing [that they’ve been living separately] there’s no clear answer.”
So for the past year, while Ben has been living with the family, any projects he has been working on may pay out half to Jennifer if it’s murky what the date of separation was. And same with Jennifer’s work.
“They could be entitled to more of each other’s money,” Jennifer says.
Family law attorneys say it’s creating confusion and most want the law to go back to what it was before last year.
“It could go back,” says Jennifer, which makes sense because more often than not people are staying in the same house at least for a little while following a split.
“Before you could live in the same house and as long as the marriage is over it’s not a problem. The kids and everyone want to be comfortable. The law says being separated means being physically separated, but so many couples continue to live together. They are nervous of losing time with the kids, until custody is established.”
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