Family Code 771 Explains What Happens with a Spouse or Child's Post Separation Money

Family Code 771 is about earnings and accumulations after the date of separation

Family Code 771 reads:

"(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."

Family code 771 states a spouse's post date of separation earnings and accumulations and that of minor children who live with or are in custody of that spouse are separate property, belonging solely to the spouse.

This means income or assets acquired by the spouse or minor children after date of separation are not part of the marital estate. Separate property is usually awarded to the spouse to whom the property belongs.

Family Code 771 is not as straightforward as you may think

The word "acquired" adds a complexity to Family Code 771. Many people think the word "acquired" refers only to "when" the asset was received. That is not correct.

For example, if property is purchased during the marriage with community property money but received after the date of separation, that property was acquired during the marriage, not after separation.

Family Code 771 carves out another exception for earnings of a child per a contract

If an unemancipated minor child is involved in a contract of a type described in Section 6750 of the Family Code, their earnings and accumulations from that contract remain the sole legal property of the minor child.

Section 6750 is a lengthy code section so we will not cover it here. We suggest you read it to understand the types of contracts to which Family Code 771 refers.

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