Do you need to be living in separate residences to be considered "Separated" from your Spouse under the California family law?

Family Code 760 provides that all property acquired by the spouse during the marriage is community property. That means each spouse has a half interest on any assets that are acquired during the marriage, with certain exceptions, since it is generally characterized as community property. On the same token, Family Code 771(a) provides that earnings and accumulations of a spouse while living “separate and apart” from the other spouse, are the separate property of the spouse. How about the situation where the couple continues to live together due to economic reasons like roommates. Is a couple living “separate and apart” under family code 771(a) when they continue to live together in the same home even though they no longer live their lives like married couple?

The California Supreme Court, in a recent case In re Marriage of Davis, 61 Cal 4th 4th 846 (2015), held that the phrase “living separate and apart” in the California family code refers to a situation in which spouses are living in separate residences and at least one of them has the subjective intent to end the marital relationship, abrogating In re Marriage of Johnson, 134 Cal. App.3d. 148. Prior to this decision, the date of “separation” occurs only when the parties have come to a parting of the ways with no present intent to resume their marriage and their conduct evidences a complete and final break in the marital relationship. The Court would consider all of the relevant evidence regarding whether the parties’ conduct evidences a complete and final break in the marital relationship. Living in separate residences, although a factor to be considered, was not required for a separation.

In re Marriage of Davis involved husband and wife married in 1993. The couple had 2 children. Couple stopped having sexual relationship in 1999. Wife moved to another bedroom in the house either in 2001 or 2004. Husband and wife attended children’s activities but used separate cars. On June 1, 2006 wife announced she was “through” with the marriage. Wife believed couple were acting simply as roommates after 2006. Wife increased her earnings after this date while husband left his job. Parties continued to live in the marital home and went on vacation together. Wife filed for divorce in 2008. Wife moves out of the marital residence on July1, 2011. Wife alleges date of separation of June 1, 2006. Husband alleges a date of separation of July 1, 2011. The trial court and the court of appeal found June1, 2006 as the date of separation. The California Supreme Court reversed the decision holding that living in separate residences “is an indispensable threshold requirement for a finding that spouses are “living separate and apart” for purposes of section 771(a). The interpretation aligns with the common understanding of the words, the statutory history of the provision, and legitimate public policy concerns.

The In re Marriage of Davis decision now requires the parties to be living in separate residences as a prerequisite to a separation. In IRMO Davis, the California Supreme Court looked into the plain meaning of the statute, the legislative intent and history of the statute, and the case law in interpreting the term “separate and apart.” The California Supreme Court looked into the wording and legislative intent of family code 771(a) by tracing it back to a 145 year old predecessor statute enacted in 1870 “ An Act to Protect the Rights of Married Women in Certain Cases.” Section 4 of the 1870 act provided a procedure for a wife who was “living separate and apart” from her husband to sell her real property without joining with her husband by stating in a declaration ”her own place of residence that is “separate and apart from her husband” which strongly suggests that the statute was directed at a situation where the spouses had physically separated and the wife in fact had her own residence. The Supreme Court also relied on the holding in the Norviel case which held that living apart physically is an indispensable threshold requirement to separation, whether or not it is sufficient, by itself to establish separation. The date of separation is one of the most litigated issues in a divorce case since it directly affects the characterization and division of community property. This case changes that analysis and may create problems in its practical application to the realities of contemporary families.

Please note that this article is not legal advice and is not intended as legal advice. The article is intended to provide only general, non-specific legal information. This article is not intended to cover all the issues related to the topic discussed. The specific facts that apply to your matter may make the outcome different than would be anticipated by you. This article does create any attorney client relationship between you and the Law Offices of Kenneth U. Reyes, APLC This article is not a solicitation.

Attorney Kenneth Ursua Reyes is a Certified Family Law Specialist. He was President of the Philippine American Bar Association. He is a member of both the Family law section and Immigration law section of the Los Angeles County Bar Association. He is a graduate of Southwestern University Law School in Los Angeles and California State University, San Bernardino School of Business Administration. He has extensive former CPA experience prior to law practice. LAW OFFICES OF KENNETH REYES, APLC. is located at 3699 Wilshire Blvd., Suite 747, Los Angeles, CA, 90010. Tel. (213) 388-1611 or e-mail or visit our website at

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