Jim Porter: When is a married couple separated? | SierraSun.com

Jim Porter: When is a married couple separated?

Last week you faithful readers recall that we discussed the law of waiving spousal support in a prenuptial (pre-marriage) agreement. I dutifully put you on notice that I did not know what I was talking about, family law not being one of my practice areas.

Not drawing a single Letter to the Editor correcting the advice, I am emboldened to write yet another family law column. The last, I promise.


Before we get started on our Law Review in proper, let me digress with a sidebar on marriage advice I was given on the day of my marriage. So there we were, the lovely Marianne and moi standing at the end of the pier at Brockway on the North Shore.

As the minister so to speak David Fenimore was concluding the ceremony, from a passing ski boat came this loud advice: “Don’t do it!” It was way too late to cancel, so we went ahead.

I occasionally quip, “It was the luckiest day of Marianne’s life,” which is uniformly met with, “I think you got that backwards.” End of sidebar.


Sheryl and Xavier (justices use first names in family law cases) were married on June 12, 1993. Their second child was born in November 1999. That’s when they stopped being sexually intimate. Bummer. They did not go out on any “dates” after that.

They both made a lot of money. In 2006 they started depositing their earnings into separate bank accounts, contributing some into a joint bank account to pay for household expenses and their children’s needs.

On June 1, 2006, Sheryl announced to Xavier her intent to end the marriage. She presented him with a financial ledger that itemized household expenses. Each was to contribute their salaries equally to run the home and fund the kids’ expenses and keep the rest.

Sheryl filed for dissolution in 2008 and moved out of the family home in July 2011. All that time they interacted only when necessary for the children.

The question in this case was what is the date of their separation. As you will see, it makes a difference as to whether their earnings from work are separate or community property.


Sheryl claimed they separated on June 1, 2006. Xavier, who had little income after 2006, claimed they were separated on July 1, 2011 – the approximate date Sheryl moved out of their home. Here’s why it makes a difference.

Family Code Section 771 recites: “The earnings and accumulations of a spouse … while living separate and apart from the other spouse, are the separate property of the spouse.”

Until the date of separation, each spouse’s earnings are jointly owned by both parties, everything goes into the kitty so to speak. If you are the big money earner in the relationship and you’re heading towards a dissolution, an early separation works to your advantage.


As this Court of Appeal pointed out, the Family Code does not define separation.

In the absence of a definition, we look to case law, what judges have previously ruled to establish the law.

Older cases held that to be separated, the parties had to be physically separated, not living under the same roof. Xavier favored that argument.


The Court of Appeal in this Alameda County case disregarded the old case law and determined that all of the factors bearing on the parties’ intent to stay married or not are important, and that physical separation is but one factor to consider in determining the date of separation.

“Simply stated, the date of separation occurs when either of the parties does not intend to resume the marriage and his or her actions bespeak the finality of the marital relationship.”


The Court ruled that when Sheryl imposed strict segregation of the spouses’ individual finances and announced the marriage was over in June 2006, “It was at this point that the parties’ dysfunctional relationship devolved to where they had essentially become roommates and coparents maintaining separate finances and cooperating only to the extent necessary to maintain the household and cover their children’s expenses. In all other respects, their social relationship is limited to basic interaction undertaken solely for the sake of their children.”

It was at that point in 2006, not later when Sheryl moved out, that the parties were separated and their earnings became their own separate property, no longer community property.

Again, I hope this is not of any particular interest to you.

Jim Porter is an attorney with Porter Simon licensed in California and Nevada, with offices in Truckee and Tahoe City, California, and Reno. He may be reached at porter@portersimon.com or http://www.portersimon.com. Find them on Facebook.

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