The answer to that question up until July 19, 2015 of this year would have been maybe (or it depends on the facts). The answer to that question became an emphatic “no” on July 20, 2015, with the California Supreme Court’s decision of In re Marriage of Davis (2015) 61 Cal.4th 846.
The Court summarized the issue and holding as,
Family Code section 760 provides that all property acquired by the spouses during the marriage is community property -[e]xcept as otherwise provided by statute.‖ One such statute is Family Code section 771, subdivision (a) (section 771(a)), which provides that -[t]he earnings and accumulations of a spouse . . . , while living separate and apart from the other spouse, are the separate property of the spouse.‖ In this case we consider whether a couple may be -living separate and apart,‖ for purposes of section 771(a), when they live together in the same home. We conclude the answer is no.
The facts did not appear to be in dispute. The parties were married in 1993 and had two kids. The second one was born in 1999. And it was around the birth of the second child when they stopped being a “couple.” No more sex and no more dates. They basically stayed together for the sake of the kids. (Sounds familiar?) They maintained separate bank accounts, but also kept their joint bank account for household expenses. This basically continued until Dec. 30, 2008, when wife filed for divorce. Wife, however, did not move out of the family home until July 2011. Wife claimed the date of separation was 2006. Husband claimed it was July 2011. The trial court and the appeals court both agreed with the wife that by 2006 they were basically living separate and apart. Therefore, ruling that the date of separation is June 1, 2006. The Supreme Court disagreed and reversed. Why?
The statute is clear.
“As noted earlier, section 771(a) states that - [t]he earnings and accumulations of a spouse . . . , while living separate and apart from the other spouse, are the separate property of the spouse.‖ (Italics added.)”
Legislative history is clear.
From this survey of the history of section 771(a) and its predecessor statutes, as judicially construed, we are convinced that the Legislature intended the statutory phrase -living separate and apart‖ to require both separate residences and accompanying demonstrated intent to end the marital relationship. Consistent with the statute‘s history and the developed standard articulated by the case law, we hold that -living separate and apart‖ refers to a situation in which spouses are living in separate residences and at least one of them has the subjective intent to end the marital relationship, which intent is objectively evidenced by words or conduct reflecting that there is a complete and final break in the marriage relationship.
Public Policy argument goes to changing the law (not misinterpreting the law)
The wife had some good public policy arguments. Many couples (especially women) stay in these types of “roommate” situations out of necessity. They cannot afford their own places. They cannot afford rent, let alone first and last month’s rent combined as a deposit to move in. However, the Supreme Court responded, “Wife‘s arguments are not without weight. However, it bears repeating that the issue before us is a question of interpretation of a community property statute. Our goal in construing statutory language is to give effect to the Legislature‘s intent and purpose.” The other public policy argument is that “a bright-line rule, as husband points out, promotes fairness by providing a measure of predictability to the parties and their attorneys, as well as clear guidance to judges.”
So basically the legislature can change this tomorrow if it wants to. But until then, the Supreme Court ruled, they are bound by the plain meaning of the statute (and they found that the legislative history supports that reading).
So in light of Davis how is one to protect him or herself? Can one still live with their ex and preserve the date of separation by stipulation? Given how recent this case is, the applicability of it is still being discussed. Therefore, the need for legal advice specific to your fact pattern is exceedingly important.
If you need help and you find yourself in the above situation, please contact us for an appointment serving most Southern California Courts. Call now for an appointment with an attorney to discuss your date of separation and the options in a divorce or separation. It costs nothing to talk to an attorney.