Under state law, income and property each spouse has during the marriage is considered community property to be divided between them in a divorce.
However, that changes when they separate, and each spouse gets to keep whatever they earn.
SAN FRANCISCO (AP) – California couples thinking about ending their marriage got guidance Monday from the state Supreme Court: They must live in different homes to qualify as legally separated and keep some of their income from their spouse during any divorce proceedings.
Similarly, a spouse’s debts incurred after date of separation are his/her separate debts. The ultimate test is the parties’ subjective intent and all evidence relating to it is to be objectively considered by the court.” However, in 2015, the California Supreme Court clarified that under Family Code section 771, “living separate and apart” referred to a situation in which at least one spouse has the subjective intent to end the marital relationship (2015) 61 Cal.4th 846 [352 P.3d 401, 189 Cal.
The California Supreme Court must have been frustrated and drew a strict line in the sand – the date of separation is when the parties live apart.
The decision made it easier for the trial courts but did not make it easier for spouses who were making the best of a difficult situation by living together.
At issue in Monday’s ruling was whether a couple that continues to live in the same home can qualify as separated for purposes of dividing assets. After reviewing the history of the law governing separation and assets, the court said it was convinced the Legislature intended for there to be separate residences as well as an accompanying demonstrated intent to end the marital relationship.
“The Supreme Court says no matter if people are seeing other people or have separate bank accounts, if they’re still in the same house they cannot be separated,” said Andy Cook, a family law attorney in San Diego who has been following the case.