How Does In-Home Separation Work in California?

Hossein Berenji, Nov 24, 2023

California is one of the states that recognize legal separation. However, when couples separate, they must typically live apart. Otherwise, they continue accumulating marital assets that would be subject to community property laws during a divorce.

However, the cost of living in California can be too high for some couples to move into separate residences. They may need to share some living expenses to be able to pay for basic needs. Therefore, what happens if you try to accomplish an in-home separation in California?

Living Together During Legal Separation in Los Angeles, CA

It has only been about six years since California changed its law regarding living together during legal separation. Before the change, couples living together while separated faced problems when they filed for dissolution of marriage.

In 2015, the California Supreme Court case of In re Marriage of Davis decided that spouses cannot qualify as legally separated if they live together in the same residence. In that case, the date of separation for dividing assets was set at the date that they no longer remained in the same home, even though they had agreed to divide their finances and lives five years earlier.

Unfortunately, California judges interpreted the decision to mean that physical separation was a key element in determining the date of separation.

However, California later enacted a law that clarified when a couple is living separate and apart. California Family Code §70 adopted a definition of a couple’s date of separation, considering when the marital relationship ended instead of when the couple moved into separate homes.

The law now requires judges to consider other factors when determining the date of separation for community property division.

The law requires that there be a final and complete break in the marital relationship for the couple to be legally separated, as evidenced by:

  • A person must tell their spouse in clear terms that they intend to end the marriage; and,
  • The person’s conduct must be consistent with their stated intent to end the marriage.

Therefore, suppose a person tells their spouse they want to end their marriage or the couple discusses a breakup. Then, the person moves into another room in the home and ceases all intimate relations with their spouse. Additionally, the person separates their finances and assets from their spouse and begins living as a single individual.

In the above situation, a court may decide that the date the spouse indicated they wanted to end the marriage and moved into another room is the date of separation. The situation fulfills both of the requirements for legal separation. The spouse expressed their desire to end their marital relationship, and their conduct supported their assertion.

Should We Continue to Live Together if We Want to Legally Separate in California?

If you follow the requirements of California Family Code §70, you can legally separate and live under the same roof. However, living together after legal separation can complicate matters.

In a legal separation or a divorce, the court must decide the date of separation to divide the couple’s finances and marital assets. California is a community property state. Therefore, all marital assets are divided 50-50 between the spouses.

Under community property rules, almost all income and property acquired from the marriage date through the separation date is marital property. If you still live together, it could be difficult to identify which assets are subject to community property rules. A judge could rule that an asset you purchased after the separation is marital property.

Furthermore, if you have children, living together during separation can complicate child support calculations. Who pays child support when you share the same home and divide expenses? Additionally, would either spouse be entitled to alimony in this situation?

Property division, support payments, and child custody might not be the only issues impacted by living together after separation. Other issues could significantly complicate a divorce case when either spouse decides to file a petition for dissolution of marriage.

Get Legal Advice Before You Decide to Live Together After a Legal Separation

There may be valid reasons and benefits for living in the same home with your spouse after you file for legal separation. You may have a child with special needs that would benefit from having both parents under the same roof. Living together in the same house after separation might be financially sound in some situations.

However, you need to protect your best interests, which means ensuring you have the income and assets you will need when you decide to file for divorce and move out. Working with a Los Angeles legal separation lawyer is the best way to do that.

An attorney can help you prepare documents and take steps to set a firm date for legal separation. If you are considering in-home separation, talk with a lawyer as soon as possible about separation agreements, cohabitation agreements, and other legal options.

Contact a Beverly Hills Family Law Lawyer Today

If you’re going through a legal separation, you need a strong team on your side fighting for your rights. Call Berenji & Associates Divorce Lawyers today to know how we can assist you.

Beverly Hills Office
9465 Wilshire Blvd #333
Beverly Hills CA 90212
(310) 271-6290

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550 S. Hill Street STE 1467
Los Angeles, CA 90013
(213) 985-3007