Marriage of Davis

*849 Opinion

In a marital dissolution proceeding, a court determines the division of property between the spouses by first characterizing the parties’ property as community property or separate property. (In re Marriage of Valli (2014) 58 Cal.4th 1396, 1399 [ 171 Cal.Rptr.3d 454 , 324 P.3d 274 ].) Family Code section 760 provides that all property acquired by the spouses during the marriage is community property “[ejxcept as otherwise provided by statute.” One such statute is Family Code section 771, subdivision (a) (section 771(a)), which provides that “[t]he earnings and accumulations of a spouse . . ., while living separate and apart from the other spouse, are the separate property of the spouse.” In this case we consider whether a couple may be “living separate and apart,” for purposes of section 771(a), when they live together in the same home. We conclude the answer is no. The statute requires the spouses to be living in separate residences in order for their earnings and accumulations to be their separate property. Because the Court of Appeal concluded otherwise, we reverse its judgment.

I. FACTUAL AND PROCEDURAL BACKGROUND

Keith Xavier Davis (husband) and Sheryl Jones…

Concurring. — I agree with today’s opinion that the phrase “living separate and apart” in Family Code section 771, subdivision (a) (hereafter section 771(a)) “refers to a situation in which spouses are living in separate residences and at least one of them has the subjective intent to end the marital relationship, which intent is objectively evidenced by words or conduct reflecting that there is a complete and final break in the marriage relationship.” (Maj. opn., ante, at p. 864.) I also agree that it remains open “whether there could be circumstances that would support a finding that the spouses were ‘living separate and apart,’ i.e., that they had established separate residences with the requisite objectively evidenced intent, even though they continued to literally share one roof.” (id. at p. 864, fn. 7.) I write separately to note that in addressing that question, courts should understand the purpose of section 771(a) in light of relevant changes in historical context that have occurred since 1870 when the Legislature enacted the original version of the statute.

The phrase “living separate and apart” first appeared in an uncodified 1870 statute titled “An Act to protect the…

I. FACTUAL AND PROCEDURAL BACKGROUND

Keith Xavier Davis (husband) and Sheryl Jones Davis (wife) were married on June 12, 1993. They have two children, a daughter born in August 1995 and a son born in November 1999. Wife filed for dissolution on December 30, 2008. At trial on the issue of the date of their separation, wife described the couple‘s marriage as turbulent. She testified that they stopped being sexually intimate after their son was conceived in 1999. They never went on a ―date‖ after their son was born. The parties disagreed as to when they stopped sharing a bedroom in their marital home. Husband testified wife moved to another bedroom in 2001; wife testified this happened in 2004. Their trial testimony indicates that they both attended the children‘s activities, but traveled to the locations by separate cars. Wife did her own and the children‘s laundry. Husband did his laundry. Both parties prepared meals, but wife would not prepare something different for husband if he was dissatisfied with the meal she made for herself and the children. The parties took some family vacations together, but also took separate vacations. In deposition testimony, wife claimed that by…