FAM § 771

California Family Code § 771 - Earnings after separation are separate property

Family Code § 771 makes a California spouse's earnings and accumulations after the date of separation their separate property, along with those of minor children in their custody.

Official text FAM § 771 — California

(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.

Text as published in the 2026 snapshot of the code.

Source: Vaquill Open US Law, compiled from official state publishers (huggingface.co), reproduced under license CC BY 4.0.

Read this provision at the official source →

What it actually says

Section 771(a) provides that the earnings and accumulations of a spouse — and of the minor children living with or in the custody of that spouse — after the date of separation of the spouses are the separate property of the spouse. It is short, and it makes the date of separation one of the most consequential facts in a California divorce.

Everything earned before that date is community property under § 760; everything earned after it belongs to the earner. A bonus, a commission, a share award or a sale that lands on one side of the line rather than the other can move a great deal of money, which is why the date is contested far more often than the rule. Separation is not simply the day someone moved out: the Family Code defines the date of separation by reference to a complete and final break in the marital relationship, shown by one spouse expressing the intent to end the marriage and by conduct consistent with that intent, and couples can separate without either of them leaving the house.

The word "accumulations" is wider than "earnings" and covers what the post-separation earnings become. Subdivision (b) is a narrow carve-out: the earnings and accumulations of an unemancipated minor child from a contract of the type described in § 6750 — the statute governing contracts for artistic, creative and athletic services by minors — remain the sole legal property of the child. Establishing the date of separation on the evidence, and characterising anything that straddles it, is squarely a matter for a family lawyer.

When it applies

A bonus or commission paid after one spouse moved out
Income earned during a long gap between separating and filing
One spouse continuing to run the business alone after separation
A dispute about when the marriage actually ended
A couple who separated while still living in the same house
Savings built up in the year before the divorce was filed

What this section does not say

It does not fix the date of separation. That is defined elsewhere in the Family Code and is decided on evidence of intent and conduct, not by the day someone moved out.
It does not affect what was earned before. Earnings up to the date of separation remain community property under § 760.
It does not cover income from community assets. Post-separation income produced by property that is still community does not become separate merely because the spouses have separated.
It does not decide support. Post-separation earnings being separate property does not mean they are ignored when spousal or child support is calculated.
It does not make an asset separate because it was received later. What matters is when it was earned or accumulated, not when it was paid.

Worked examples

Invented situations, written to show how the wording bites. They are not real cases, not judgments and not precedent, and nothing here predicts what would happen in yours.

Illustrative example

One spouse moves out in the spring and a bonus for the preceding year is paid in the autumn. The other says half of it is community property.

How the wording applies

Section 771 makes earnings and accumulations after the date of separation the separate property of the earning spouse. The fact this hinges on is when the bonus was earned rather than when it was paid: a bonus for work done before the separation is community, and one rewarding performance after it is not, so the award terms decide it.

How the parties settled it

The bonus is apportioned by reference to the period it covers, using the employer's own statement of the award period, and the community share is divided equally.

Illustrative example

A couple stop functioning as a couple but continue living in the same house for another year for financial reasons. They disagree about when the marriage actually ended.

How the wording applies

The section makes the date of separation decisive without defining it, since that comes from elsewhere in the Family Code and is decided on evidence of a complete and final break, shown by intent and by conduct. It hinges on conduct rather than address, meaning separate finances, separate rooms and what was said to family and friends, which is why the date is contested far more often than the rule.

How the parties settled it

The parties agree a separation date supported by the bank records and the household arrangements, and apply it consistently to earnings, savings and debts across the whole division.

How courts have read it

Decisions construing this provision. The question and the summary are ours; the quoted sentence is the court's own words, taken from the published opinion. These are the decisions in our corpus, not every decision there is, and nothing here predicts any other case. Reported 1991 to 2017.

Davis v. Davis, 61 Cal. 4th 846 (2015)

Supreme Court of California

What the court had to decide

Whether a couple may be 'living separate and apart,' for purposes of section 771(a), when they live together in the same home.

What it held

No, the statute requires the spouses to be living in separate residences in order for their earnings and accumulations to be their separate property.

In the court's words

The statute requires the spouses to be living in separate residences in order for their earnings and accumulations to be their separate property.

Norviel v. Norviel, 102 Cal. App. 4th 1152 (2002)

Court of Appeal

What the court had to decide

Does the statutory phrase 'living separate and apart' in Family Code section 771 require the spouses to reside in different places?

What it held

The court held that living apart physically is an indispensable threshold requirement to separation, meaning spouses must reside in different places to be 'living separate and apart' under the statute.

In the court's words

We conclude that living apart physically is an indispensable threshold requirement to separation, whether or not it is sufficient, by itself, to establish separation.

Source: Caselaw Access Project, CC0 1.0 Universal (public domain dedication).

Related sections

FAM § 760 Property acquired during marriage is community (FAM § 760) FAM § 770 Inheritance is separate property under FAM § 770 FAM § 2550 Equal division of community estate – FAM § 2550

That's the law. Now let's settle your problem.

Say what is happening. A neutral mediator hears your side and the other party's, and walks you both to a written agreement. In the advanced settings you can ask for the decision to be reasoned on the California Codes.

This is with

Or open a session directly and invite the other party.

We copy this text from the official publisher and re-check it against that source on every page load, but we cannot guarantee it is complete, current or free of error, and we accept no liability for any reliance on it. An amendment can take effect before a consolidation catches up. The publisher's own copy is linked below; where the two differ, it is the official one that counts.

This page reproduces the text of FAM § 771 in force at the date shown and explains it in general terms. It is not legal advice and takes no account of the circumstances of your case, which can change the answer completely. For a live dispute, for limitation periods, and before taking any step in court, consult a qualified lawyer in California.

← All California law pages