## Facts

- In 1988, Allen Jaschke and Amina Jaschke married.
- In February 1993, Allen overheard Amina speaking by phone with a man Allen believed to be her lover.
- Allen immediately moved out of the marital home and filed a petition for dissolution of marriage.
- Not long after moving out, Allen moved back into the marital home but slept in a separate bedroom.
- The parties’ conduct indicated a partial reconciliation; Allen bought Amina intimate apparel.
- On May 17, 1993, a default judgment dissolving the marriage was entered.
- On May 24, 1993, Allen purchased a large walnut orchard, which later generated profits.
- In early June 1993, Amina moved to set aside the default judgment; the parties reconciled, and the court ultimately set aside the judgment and dismissed the dissolution action on October 1, 1993.
- On December 7, 1993, Amina moved out of the marital home.
- On December 15, 1993, Amina filed a new petition for dissolution.
- The trial court found the parties were separated from February to June 1993, reconciled beginning in June, and separated again in December 1993; applying Family Code § 771, it characterized property acquired during the February–June interval, including the walnut orchard and its profits, as Allen’s separate property.
- Amina appealed, arguing that a temporary separation followed by reconciliation did not trigger § 771.

## Issues

1. Does a temporary separation of spouses, later followed by reconciliation, constitute “living separate and apart” under Family Code § 771 such that earnings and property acquired during that period are separate property?

## Decision

- The Court of Appeal held that Family Code § 771 does not apply to a temporary separation that is not complete and final.
- The court reversed the trial court’s judgment to the extent it applied § 771 to the February–June 1993 interval.
- Because the February–June separation was followed by reconciliation and dismissal of the dissolution action, the walnut orchard purchased during that interval could not be treated as Allen’s separate property under § 771.
- The matter was remanded for further proceedings consistent with the court’s interpretation of § 771.

## Legal Principles

- Family Code § 771 makes a spouse’s earnings and accumulations separate property only while the spouses are “living separate and apart.”
- “Living separate and apart” requires more than a short-lived estrangement or trial separation; it requires a separation that is complete and final.
- A separation sufficient for § 771 turns on intent to end the marital relationship, shown by objective conduct consistent with that intent.
- Later reconciliation and vacatur of dissolution proceedings are strong evidence that an earlier break was not complete and final, and therefore does not trigger § 771’s separate-property rule.
- Because § 771 is an exception to the community-property framework during marriage, it is applied only when the statutory condition—living separate and apart in a complete and final sense—is met.

## Conclusion

The court ruled that Family Code § 771 does not convert earnings or acquisitions into separate property during a temporary marital break that later ends in reconciliation; because the Jaschkes’ February–June 1993 separation was not complete and final, the trial court erred in treating the walnut orchard purchased during that period as Allen’s separate property under § 771.


Marriage of Jaschke, 50 Cal. Rptr. 2d 658 (1996)