While blame boy is looking through is textbooks here's the definitions for you:
California Family Code Section 771 - provides that a spouse's earnings and accumulations received while living separate and apart from the other spouse are characterized as separate property.
However, you may be surprised by the extent and nature of the evidence required to show a permanent separation.
The judicial search for a marital separation date is fact-driven. Courts resolving date-of-separation disputes consider a range of factors and behavior. A notable case in point is In re Marriage of Baragry,1 in which the California Second District Court of Appeal reviewed the trial court's determination that the parties separated on the date the husband moved out of the family home in August 1971. The wife had contended that the separation date was October 1975, the date the husband filed his petition for dissolution of marriage.
In this case the court sided with the husband however, The court of appeal reversed the finding of the early date of separation. The appellate court explained that simply living in separate residences was not enough to constitute a separation. Nor was the absence of a sexual relationship or the fact of the husband's cohabitation with his girlfriend a controlling factor. The court was troubled by the "captain's paradise" that the husband had created and held that such behavior should not be rewarded: "During the period that spouses preserve the appearance of marriage, they both reap its benefits, and their earnings remain community property.
In the nearly 20 years that have elapsed since Baragry, the appellate courts have been consistent in demanding clear proof of a permanent separation and in preventing people from taking advantage of their ambiguous living arrangements.
Because there was no 'clear proof' that the couple had been separated, either legally or permanently, the appeals court reversed.
A separation, in general, is defined as the termination of legal cohabitation. A separation usually takes place when the parties physically separate, such as one party moving out of the family residence, or out of the marital bedroom. Once this physical separation has occurred, the parties are deemed to be separated. However, if the parties choose to become “legally separated”, this can be accomplished by the filing of an action for Legal Separation.
