California Family Code section 760 establishes that in general all property ( and money) acquired during the marriage is community property. Thus, in the case of a divorce, a family court has to decide at what point the marital community terminated thereby allowing the individuals to acquire separate property. This date is often referred to as the “date of separation”.
There is a two pronged test that the family court will apply in determining a date of separation. The court will look first at the subjective intent of the parties, and then secondly the court will examine the objective evidence that the marriage has come to an end.
For example, If an individual has come to the conclusion that there marriage is over, never to be rekindled, and they have no intent to stay married, that person has the subjective intent required for the date of separation test.
Once subjective intent is established, the court will look to objective factors to support the purported subjective intent. For example, a court might look to whether the individuals have separated their finances, or whether they are still having sexual relations, or whether they are still celebrating valentines day or an anniversary. These factors are objective factors the court will look at to determine if a complete and final separation has occurred. Historically, there is not any one factor that the courts treat as dispositive of separation, with possibly the only exception being marriage counseling, as it is illogical to conclude that a marriage is completely over, when the parties are ostensibly participating in a program intended to restore or heal a marriage. However Marriage of Davis Changes this.
This year the California Supreme Court made a landmark ruling in the case Marriage of Davis. In this case the California Supreme Court laid out a bright line rule that if a married couple continues to live together, the date of separation has not yet occurred. Thus, even if a couple believes their marriage is over, and acts like their marriage is over, if they continue to live together, the California Supreme Court has ruled that the date of separation has not occurred yet.
This is a major change in California family law, as it has been common for couples to continue to live together after a marriage has ended, due to practical or financial considerations. Further, family law attorneys for decades have convinced the family court judges that although their client is still living with their spouse, the date of separation has occurred and therefore property acquired no longer belongs to a marital community, but rather is separate property.
While Marriage of Davis holds that separation has not occurred while the couple is still living together, the revere is not true. That is, just because people are living apart does not mean they are separated. It is possible for couples to live totally apart and for the marital community to remain intact.