Family law: Spouses ‘living separate and apart’ — Jim Porter |

Family law: Spouses ‘living separate and apart’ — Jim Porter

I hope you’re not interested in this Law Review column. We write about family law – and marital wages following a separation by the husband and wife. Here’s the scoop.

Separate/Community Property

California law distinguishes between separate property of one spouse and community property of both spouses.

The California Family Code (or as my brother called it, Unfamily law), recites that all property acquired by the spouses during the marriage is community property “except as otherwise provided by statute.”

One such statute is Family Code 771 which provides: “The earnings and accumulations of a spouse … while living separate and apart from the other spouse, are the separate property of the spouse.”

Today’s case considers whether a couple can be “living separate and apart” while still living in the family home.

By the way, another code provides that inheritances by one spouse during the marriage remain separate property.

If you bring separate property to the marriage and do not comingle it with other community assets, it generally remains separate property.

Separate property is generally that spouses’ solely owned property, while community property is owned equally by the spouses — including on dissolution of the marriage, formerly called a divorce. In case you were wondering.

Living Separate and Not Apart

Keith Davis and Sheryl Jones Davis were married in 1993. Sheryl filed for dissolution in 2008. Long story short, they did not really get along but wanted to stay together “for the kids.”

They had their own rooms and their own bank accounts. Sheryl listed the date of their separation as 2006. Keith listed the date of separation as 2011, the date Sheryl moved out of the home.

Sheryl made much more money than Keith after 2006, so it was to her advantage if they were living separate and apart starting in 2006 because all of her earnings after 2006 would be her separate property.

If they were living separate and apart starting in 2011 when she moved out, then hers and Keith’s earnings up to 2011 would be community property. Each entitled to half. Got that?

The Question

The question for the trial court was whether Keith and Sheryl absolutely had to be living apart, not in the same residence, to be living “separate and apart,” after which they keep their own earnings. Could they be living separate and apart under one roof?

The trial court went with Sheryl, ruling that she and Keith were living separate and apart even though they were in the same home, so Sheryl’s high earnings after 2006 were hers. The Court of Appeal agreed.

Keith appealed to the California Supreme Court, so this is an important ruling by the Big Court, which by the way, after Governor Jerry’s recent appointees, is a changed Court.

Plain Meaning

The California Supreme Court, following an exhaustive analysis of the original 1870 legislation, ruled they were compelled by the literal reading of the Code, the plain meaning of the statute: living “separate and apart” means apart in a different location, a different home.

So Keith’s and Sheryl’s individual earnings while they were still married but living in separate quarters in their home continued to be community property owned by both until Sheryl vacated.

Concurring Opinion

Two justices wrote a Concurring Opinion, which means they agreed with the end result of the majority of the Court but differed about how the justices got there.

The concurring justices, and I think I agree with them policy-wise, despite the obvious advantage of having a “bright line” decision as the Supreme Court delivered (living separate and apart means apart), felt that in today’s society there are times when both spouses clearly want to be divorced but need to reside in the same residence as “room mates” because of a foreclosure, limited finances, job loss or other compelling economic factors.

The justices wrote that marital couples could be living “separate and apart” (in the same place) if the “spouses have a living arrangement that clearly and objectively signals a complete and final termination of the marital relationship.”

Porter the Bore

Unfortunately, this situation comes up fairly frequently, so I bored you with the particulars. My specialty.

Jim Porter is an attorney with Porter Simon licensed in California and Nevada, with offices in Truckee, Tahoe City and Reno. Jim’s practice areas include: real estate, development, construction, business, HOAs, contracts, personal injury, mediation and other transactional matters. He may be reached at or

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