## Facts

- Richard and Barbara Baragry married in 1956 and had two children.
- After a quarrel, the husband moved out of the family home on August 4, 1971, later living with an employee/girlfriend.
- Despite living elsewhere, the husband had frequent contact with the family, including eating dinner at the family home multiple times per week and keeping his mailing address there.
- The parties continued many marital incidents: family vacations, social events together, holiday contact, affectionate cards and gifts, and the husband’s public representation that the parents resided together.
- The parties filed joint income tax returns, and the husband maintained voter registration at the family home address.
- The husband paid household bills and supported the family; the wife continued to provide household services such as laundering his clothes.
- The parties had no sexual relations after August 4, 1971; the wife wanted reconciliation, and the husband did not clearly state he would not reconcile.
- The husband filed a petition for dissolution on October 14, 1975; characterization of his earnings between 1971 and 1975 depended on the separation date.

## Issues

1. Under former Civil Code § 5118, were the parties “living separate and apart” as of August 4, 1971, such that the husband’s later earnings were separate property?
2. Was the husband estopped from asserting a separation date earlier than October 14, 1975 based on his conduct holding out the marriage as continuing?

## Decision

- The Court of Appeal reversed the trial court’s finding that the separation date was August 4, 1971.
- The court held the evidence did not overcome the presumption that the marriage and marital community continued until the dissolution petition was filed on October 14, 1975.
- The husband’s earnings from August 4, 1971 to October 14, 1975 were community property.
- Given its holding on the statutory separation question, the court did not need an extended estoppel ruling, though the husband’s conduct was relevant to whether a legal separation occurred.

## Legal Principles

- “Living separate and apart” requires more than separate residences; it requires a complete and final break in the marital relationship, including a present intent not to resume marital relations, shown by words and conduct.
- A valid marriage is presumed to continue; a party asserting an earlier termination of the marital community bears a substantial evidentiary burden.
- Lack of sexual relations and physical move-out, standing alone, do not establish legal separation when spouses continue core incidents of marriage (economic support, shared social identity, public holding out, and ongoing family life).
- The separation date controls whether post-separation earnings are community or separate property; courts look to the totality of conduct to prevent retroactive reclassification inconsistent with the parties’ maintained marital relationship.

## Conclusion

Because the husband continued to support the family, maintain regular family and social ties, and hold the relationship out publicly as intact, the parties were not “living separate and apart” before the dissolution filing; the marital community therefore continued through October 14, 1975, making the husband’s intervening earnings community property.


In re Marriage of Baragry, 73 Cal. App. 3d 444, 140 Cal. Rptr. 779 (Cal. Ct. App. 1977)