La Jolla family law

Separated Under One Roof in a Rented Home

California law sets a date of separation without requiring a move out. How Family Code sections 70 and 6324 apply to spouses sharing a rented La Jolla home.

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Two coffee mugs at opposite ends of a small kitchen table in morning light.

Yes. In California, spouses can separate while still living in the same home. Family Code section 70 sets the date of separation by a complete and final break in the marriage: one spouse has told the other they intend to end it, and that spouse's conduct is consistent with that intent. Moving out is not required.

Most people facing this have already made the hard decision. What they have not worked out is how to carry it out while sharing one rented apartment or house. In La Jolla, the median gross rent is $2,854 (U.S. Census Bureau, American Community Survey 2020-2024 5-year, table B25064). In ZIP 92037, 29.9% of housing units are in buildings of five or more units (U.S. Census Bureau, American Community Survey 2020-2024 5-year, table B25024). Rents at that level mean a second lease often has to wait, so the marriage ends in practice before anyone moves out. The questions below cover what that means legally: when the separation counts, what happens to the home and the rent in the meantime, and how the court process runs from here.

What It Means to Be Separated While Sharing a Home in California

Section 70 does not mention a separate address. Under section 70(b), the court considers all relevant evidence, so two people under one lease can still show the complete and final break the section describes.

"Separated" and "legally separated" are different things. Being separated describes the end of the relationship in fact. A legal separation is a court proceeding. It starts with its own petition and ends in a judgment, and the marriage itself continues afterward. Spouses who separate under one roof have not legally separated unless they file for it.

For a family living in La Jolla, a divorce or legal separation is generally filed in the Central Division of the Superior Court of California, County of San Diego, at the Central Courthouse, 1100 Union Street, San Diego, CA 92101. California law governs the case, including the two sections that matter most here: section 70 on the date of separation and section 6324 on who uses the home while the case is open.

If You'd Like a Confidential Consultation

Separating under one roof raises questions that a general answer cannot settle. What evidence shows the date of separation in this household? What would a section 6324 request ask for, given this lease and these bills? How do the disclosure and waiting-period clocks fit the timing of a move? A consultation covers those facts: what was said and when, how money has been handled since, who is on the lease, and whether children are involved. The firm practices California family law only.

For those who want to talk through how these rules apply to a shared rented home, La Jolla Family Law Advocates offers confidential consultations on request.

Frequently asked questions

Can you be legally separated in California while still living in the same home?

You can be separated while living in the same home. The section 70 test turns on what was said and done, not on who sleeps where or whose name is on the mailbox. A formal legal separation is different, because it requires a court case.

What is the "date of separation" and why does it matter?

The date of separation is the day the marriage reached a complete and final break, as section 70 defines it. It matters because, unless the spouses agree otherwise or the Family Code provides otherwise, the court divides the community estate equally under Family Code section 2550. The community estate means the property and debts the spouses share as a married couple, and the date of separation is often a key line in deciding what belongs to it. Because so much can turn on that date, spouses who share a home sometimes disagree about when the break actually happened.

How do you prove a date of separation when you are still living together?

Both parts of the section 70 test need support, and the court looks at all relevant evidence. When the spouses share a home, that evidence can include messages in which one spouse said the marriage was over, separate bank accounts, separate bedrooms, and the way each spouse presented the relationship to friends and family. No single fact settles the question. The evidence is weighed together.

Is property valued as of the date of separation?

No. Under Family Code section 2552, the court values assets and debts as near as practicable to the time of trial. On 30 days' notice and for good cause, the court may value some or all of them at a date after separation and before trial. The date of separation affects what is shared. It does not freeze the value of what is shared.

What is the difference between being separated and being legally separated in California?

Being separated is a fact about the relationship. Being legally separated is the result of a court case. A legal separation begins with a petition. As sections 2550 and 2104 show, it carries the same property division and the same financial disclosure duties as a divorce, but the judgment leaves the spouses married. Couples who share a home can be in either position, or in neither.

Can one spouse be ordered to leave the shared home during a divorce?

The court has authority over who uses the home during the case. Family Code section 6324 allows the court to issue an ex parte order, meaning an order requested on short notice rather than at a regular hearing, that sets the temporary use, possession and control of the parties' real or personal property. The same order can also address payment of liens or other encumbrances that come due while it is in effect. An order that removes a spouse from the home is a different order, under Family Code section 6321, which section 2045(b) makes available while a divorce is pending. Under section 6321(b), an ex parte order of that kind requires a showing of all of the following: the spouse who will stay has a right under color of law to possession of the home; the spouse to be excluded has assaulted or threatens to assault the other spouse, a person in that spouse's care, custody and control, or a minor child of the parties or of the other spouse; and physical or emotional harm would otherwise result. Whether an order is made, and what it says, depends on the facts the court has in front of it.

What if both spouses are on the lease — can one still get exclusive use of the home?

Section 6324 refers to property "of the parties." Its words do not require that one spouse hold the property alone before the court can decide who uses it. A home leased jointly by both spouses can therefore come before the court on a section 6324 request. How the court rules depends on the circumstances of the household.

Who pays the rent while spouses are separated under one roof?

The lease is a contract with the landlord, and a section 6324 order does not rewrite it. A section 6324 order addresses the spouses' use of the property while it is in effect, and the same section lets that order address payment of liens or other encumbrances coming due during that period. How rent and other household bills are handled between the spouses in the meantime depends on the facts presented to the court. Separately, the way money has been handled since the break can be part of the evidence the court weighs on the date of separation.

Do financial disclosures still have to be exchanged if spouses are living together?

Yes. Family Code section 2104 makes no exception for a shared address. Each spouse serves a preliminary declaration of disclosure with the petition or response, or within 60 days of filing it, under section 2104(f). That deadline can be extended by written agreement or by court order. The declaration lists all assets and debts, includes tax returns filed in the past two years, and comes with an income and expense declaration.

Is a period of separation required before a divorce in California?

The length of the separation does not control when a divorce becomes final. Under Family Code section 2339, no judgment ending the marriage is final until six months have passed. That period runs from the date the summons and petition are served or the date the respondent appears in the case, whichever occurs first. The court may extend that period for good cause.

Does living together after filing for divorce restart the six-month waiting period?

No. Section 2339 ties the six months to service or appearance, and sharing a home is not part of that rule. Living together can matter elsewhere in the case. If the spouses' conduct does not match a stated intent to end the marriage, that conduct is evidence the court considers in deciding the date of separation under section 70.

Does California require a period of separation before filing for divorce?

None of the rules covered here makes a period of separation a condition of filing. The six-month rule in section 2339 concerns when a judgment ending the marriage can become final, not when a petition can be filed. Spouses still sharing a lease in La Jolla can file while living together. In that case, section 70 decides the date of separation and section 2339 decides the timing of the final judgment.

What happens to custody and visitation when parents are still in the same home?

Parents sharing a home often agree informally on a daily routine with the children. Once custody or visitation is contested in a court filing, Family Code section 3170 requires the court to set the contested issues for mediation. In San Diego County that is child custody recommending counseling with the court's Family Court Services. Under section 3183(a), the counselor may, except as provided in section 3188 and consistent with local court rules, make a recommendation to the court if it is first given to the parties and their attorneys, including counsel for any minor children, in writing before the hearing. Family Court Services says that if no agreement is reached, the Family Court Counselor makes a recommendation to the court and the hearing proceeds. The judge decides. Domestic violence cases are handled under a separate written protocol approved by the Judicial Council (section 3170(b)).

Attorney Contributor: Amy J. Lass | California Bar No. 246779

Amy J. Lass contributes legal expertise and reviews selected legal content for accuracy. General information only — not legal advice.

Published: November 9, 2026

Sources

California Family Code § 70 — California Legislative Information
California Family Code § 6324 — California Legislative Information
California Family Code § 2339 — California Legislative Information
California Family Code § 2104 — California Legislative Information
California Family Code § 2550 — California Legislative Information
California Family Code § 2552 — California Legislative Information
California Family Code § 3170 — California Legislative Information
California Family Code § 3183 — California Legislative Information
Superior Court of California, County of San Diego — Superior Court of California, County of San Diego

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