One of the most hotly contested issues in many divorce proceedings—the date of separation— drives when the partners to marriage can claim their respective incomes as separate property. This is a vitally important question that can substantially change each person’s financial standing well into the future.

California Family Code § 760 provides that property acquired during a marriage is considered community property that is subject to equitable distribution in a divorce unless another law provides otherwise. One major exception to this conglomeration of community property applies after the spouses are separated. This exception is located in California Family Code § 771.

Last year, the California Supreme Court considered whether a couple could be considered separate even though they were living in the same house. In the case, the couple was married in 1993 and had two kids during the 1990s. They stayed together but at some point started sleeping in separate bedrooms. There were also several other indicators of their separateness, such as the following:

• driving separately to their children’s activities;
• the husband washing his own laundry; and
• the separation of their financial affairs.

Despite these indicators, the two continued to live together. The wife received her mail and telephone calls at the couple’s home, and she did not change the address on her driver’s license.

The wife argued that the two had been functioning as roommates and were separated as of 2006 despite continuing to live together. The husband argued that they did not truly separate until much later, in 2011. The trial court agreed with the wife and found the date of separation to be 2006. The court of appeals affirmed, and the husband filed an appeal.

The California Supreme Court first considered the language of the law regarding the date of separation as it related to a claim of separate property: “[t]he earnings and accumulations of a spouse . . ., while living separate and apart from the other spouse, are the separate property of the spouse.” The court determined that the plain meaning of this language seemed to require the “occupation of separate residences.”

The court also considered the legislative history of the law and later legislative developments. The court ultimately held that a couple was not considered to be living separate and apart unless two conditions were met: (1) they were living in separate residences; and (2) at least one of the partners had a “subjective intent to end the marital relationship” that was “objectively evidenced by words or conduct.”