As a family law attorney in both Arizona and California, I am often asked about community property. When does your ex-spouse stop having a claim to your property and earnings? The answer depends upon the state in which your divorce is filed.
In Arizona, the rule is clear: any property, including wages, which you acquire after a petition for divorce or legal separation has been served remains your own separate property, if that petition results in a decree of dissolution or separation). See A.R.S. #25-213.
The California rule, however, is more complicated: the earnings and accumulations of a person living “separate and apart” from his or her spouse are separate property of that person. See California Family Code #771. This gives a California attorney more latitude to argue whether the spouses were truly separated, and what their intent was. One creative attorney even managed to convince both a trial judge and the California Court of Appeals that spouses living in the same house could be considered living “separate and apart” if they intended to later separate. The Supreme Court of California eventually reversed this decision. In re Marriage of Davis, 352 P.3d 401, 189 Cal. Rptr. 3d 385 (2015) (citations omitted). Currently, California law requires spouses living in separate residences to be considered “separate and apart”.
In response to the Davis decision, a bill was introduced in the California State Senate last month to amend the California Family Code by removing the “separate and apart” language and replacing it with “date of separation”, defined as the date a complete and final break in the marital relationship occurred. A judge would be authorized to take into account all relevant evidence to determine the date of separation. If enacted, this bill would shift California law back towards a more flexible definition of community property.
If you are contemplating divorce or legal separation, it is important to consult with a knowledgeable community property attorney regarding your community property rights. The divorce attorneys at Rowley Chapman & Barney stay updated on changes in the law and can help you protect your property rights in a divorce. Call us today at (480) 833-1113 we can help you.
