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Living separate and apart in the family home

Under California law, the separate property of each spouse is differentiated from the community property of the couple. The California Family Code states that all property obtained by each spouse during the marriage is community property “except as otherwise provided by statute.” One of the statutes is Family Code 771, which says that the earnings of one spouse at a time when the spouses are not living together are considered to be the separate property of that spouse.

However, consider the case of whether a couple is considered to be “living separate and apart” while residing in the family home. The spouses may be separated, or even divorced, but wish to continue living in the same home for the sake of the children or for financial reasons.

In this particular case, the trial court ruled that although the couple resided in the same home, upon the date of separation, they were “living separate and apart,” and each spouse’s earnings were his and her separate property. This ruling was in the wife’s favor because she earned significantly more than her husband, and wished her earnings after 2006, the date of separation, to be considered her property.

However, the California Supreme Court interpreted the Code literally, and relied on the plain meaning of the statute, specifically that living “separate and apart” means living in another place. Thus, even though each spouse lived in separate quarters of the same home, their individual earnings were community property until such time as when one spouse moved to a different location.

There was a concurring opinion that was written by two justices, who agreed with the ruling but differed as to the way in which the majority of the Court arrived at their decision. The concurring justices believed that in modern society, there are situations in which both spouses would prefer to be divorced but feel that they have to live in the same home due to such economic considerations as loss of employment, foreclosure or other financial reasons. In their Opinion, the justices stated that it is possible for married couples to live “separate and apart” in the same home provided that the spouses have a living arrangement that explicitly indicates that the marriage has ended.

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