In re Marriage of Davis (2015) 61 Cal.4th 846, reversed an appeals court ruling that found a date of separation occurred prior to one spouse moving out of the family home.
Wife asserted the parties had been living separate lives since 2006, when she delivered a list of financial demands to Husband. Husband did not deny receiving the demands, but asserted the separation did not occur until 2009, when Wife filed her petition. Wife did not actually move out until 2011.
Wife argued that such a ruling would cause financial hardship, to no avail. The Supreme Court stated it was up to the legislature to amend Family Code Section 771(a), which requires spouses to be living “separate and apart” in order to claim their earnings are their separate property.
Many judges accept the date of filing, or at least the date of serving the Petition, as the separation date. As you contemplate the state of your marriage, remember the early filing birds have a better chance of keeping their own goodies!