We are filing for divorce, but we are still living together. What is our date of separation? 

With the cost of living in San Jose and the Bay Area, many people cannot afford to move out and stay under the same roof while going through divorce. In San Jose in particular, it is the high rent that keeps couples who are going through divorce under the same roof until their assets and debts are divided and each gets enough “capital” to move out and start over. Other factors that keep San Jose divorcing couples under the same roof is anxiety over new and not so comfortable living arrangements as well as stability for the children. Inevitably, the question comes up: when is our date of separation if we are still living in the same home?

California Family Code section 771(a) reads: “The earnings and accumulations of a spouse and the minor children living with, or in the custody of, the spouse while living separate and apart from the other spouse, are the separate property of the spouse.”  In re. Marriage of Davis, a case that was decided in 2015, the California Supreme Court held that Family Code section 771(a) requires spouses to be living in separate homes for their earnings to be considered separate property.  Under Davis,the date as of which the spouse’s earnings and accumulations will be characterized as separate property is the date one spouse establishes a separate home.

The Davis case established a rule which makes establishment of an individual residence a requirement for “separation” under Family Code section 771(a).  Unfortunately, this ruling leaves many people who going through a divorce in San Jose in a difficult situation.  On one hand, moving out may not be affordable. On the other hand, leaving the home is necessary to cut off the community property characterization of income and savings as well as shortening the length of the marriage.


Written by Ekaterina Berman, a San San Jose divorce and family immigration lawyer. My goal is to provide experienced and caring representation in family law matters to every client.

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