In re Marriage of Davis - One Partner Must Move Out of the Marital Home to Legally Separate In California

In re Marriage of Davis (2015) 61 Cal. 4th 846,  the California Supreme Court ruled that a couple must live in separate residences in order for earnings and any assets acquired by either party to be considered separate property. This ruling clarified the law with regard to what is the date of separation by establishing a bright-line rule that requires one person to move out of the marital home to legally separate in California.

The court explained that in a marital dissolution proceeding, a court determines the division of property between the spouses by first characterizing the parties‘ property as community property or separate property. (In re Marriage of Valli (2014) 58 Cal.4th 1396, 1399.) 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, the court considered whether a couple may be living separate and apart, for purposes of section 771(a), when they live together in the same home and the court decided that the answer was "no." The California Supreme Court held that the statute requires the spouses to be living in separate residences in order for their earnings and accumulations to be found to be separate property.

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