The Legal Implications of Separation


In California Family Law, there are five “states” relating to individuals and couples: “single”, “married”, “partners”, “separated” or “divorced”. There are two types of separation, the first, a legal separation is obtained using the same Judicial Council Forms used for a divorce (a different box is checked). A Legal Separation allows a couple to live separately and apart yet remain married or in a partnership. Neither spouse may remarry or enter into a domestic partnership and similar to divorce parties may divide assets, remain a dependent to file joint tax returns, and retain benefits through the other’s health insurance. However, parties cannot share post separation earnings or contributions to tax deferred pension/retirement accounts and property acquired post separation is not presumed to be community property. In short, legal separation has serious repercussions, which brings us to the second definition of legal separation.


Family Code Section 771(a) states that “The earnings and accumulations of a spouse, … while living separate and apart from the other spouse, are the separate property of the spouse.” Meaning separation can be achieved by entering a “state of mind” defined as a “parting ways with no present intention of resuming marital relations” with your spouse. It was possible to remain under the same roof (albeit in different rooms) “for the good of the children,” while still maintaining the state of mind necessary to be “separated”. However, a recent California Supreme Court Case IRMO Marriage of Davis changed this second definition.


In Marriage of Davis the couple stopped sharing a bedroom, had their own bank accounts, and in every way they were simply “staying together for the kids” but otherwise living separate lives. Nonetheless they lived under the same roof. So does that mean they’re not living “separate and apart” as stated in Family Code Section 771(a)? According to the California Supreme Court even if a couple lead entirely separate lives, if they live under the same roof, even out of necessity, they cannot be considered separated. As a result a spouse that might want to move out of the family home but can’t afford, lest the entire couple — and their kids — be thrown out on the street, are forced to remain married or put their family’s stability in jeopardy.

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