THURMAN'S DIVORCE TIPS -
FAMILY CODE SECTION 771 AND THE PERILS OF PHYSICAL SEPARATION
While Family Code section 771 may protect earnings of a spouse during periods
of physical separation, whether in fact a physical separation has occurred
is often not nearly as clear-cut as one might expect - partly because
spouses or domestic partners are often suffering a high degree of emotional
volatility that causes them to repeatedly hook-up with the other, which
can create factual issues of whether they meet the criteria set forth
in the published appellate court decisions as to what is legally required.
This can lead to expensive discovery and litigation, the longer the parties
remain "separated" but fail to file for a Legal Separation or
Dissolution. Also, later reconciliations can have the consequence of wiping
out the benefits of prior separation.
Also, in my Palm Springs divorce practice I often see parties who indeed
have separated but one voluntarily contributes to the support and household
expenses of the other - sometimes for many years - without bothering to
reach a written agreement or to file for Requests for Orders. In such
situations, consider that you may be gifting away whatever you contribute,
which may be a shock once you finally are ready to end the legal relationship.
At a minimum, you are guaranteeing that the case will cost you more to
secure your reimbursement rights.
Ambivalence is understandable, but it will cost you!
Family Code section 771 has been amended effective 1/1/17, as a result
of the legislative reversal of our Supreme Court's
Davis ruling, which is blogged in detail on our site. The former statute referred to
spouses "living separate and apart." The new version is below.
CALIFORNIA FAMILY CODE
Section 771. Earnings and accumulations of spouse and minor children after
date of separation
(a) The earnings and accumulations of a spouse and the minor children living
with, or in the custody of, the spouse, after the date of separation of
the spouses, are the separate property of the spouse.
(b) Notwithstanding subdivision (a), the earnings and accumulations of
an unemancipated minor child related to a contract of a type described
in Section 6750 shall remain the sole legal property of the minor child.