Date of Separation Fixed by Senate Bill 1255 – Update to Marriage of Davis

Date of Separation in California Fixed by Senate Bill 1255

Senate Bill 1255, authored bySenator John Moorlach(R-Costa Mesa), was signed into law by Governor Brown on July 25, 2016 and will be effective on January 1, 2017. Senate Bill 1255 was a prompt and rapid legislative response to the appellate court’s ruling inIn Re Marriage of Davis (2015) 61 Cal.4th 846.

Back in February we wrote an article on how the date of separation was determined inCalifornia Divorce cases.Daviscreated a bright line rule for date of separation in California Divorce cases. This bright line rule created serious problems and changed how family law attorneys approached this very important determination.

The facts of the Davis case are common in the current economic climate and because every family is different – the facts of each case deserved individualized review. The Davis ruling removed the discretion of the court to consider the entirety of each situation, and forced a decision based on only one factor – when the parties stopped living under the same roof. Under Senate Bill 1255, the court can consider this as a factor, but it is no longer a bright line rule. SB 1255 re-opens the door for the court to come to the correct, fair decision on date of separation determinations.

SENATE BILL 1255 – COUPLES CAN LIVE SEPARATELY UNDER THE SAME ROOF

A summary from SB 1255 author Senator John Moorlach’s website further explains the significance of the new legislation:

Senate Bill 1255 would amend the California Family Code to allow for a couple to be considered “living separate and apart” while still living under the same roof for purposes of establishing a date of separation as a precursor of divorce.

WHY IS THE DATE OF SEPARATION IMPORTANT?

The date of separation is important because that is the date when the assets are divided, including income, retirement plans, and debt. The date of separation is when a spouse’s half interest in the other spouse’s income, investments, and retirement plans ends. Most debt incurred by a spouse after the date of separation is the responsibility of that spouse.

The date of separation when the parties still live together is difficult to ascertain, this led to disagreements in court as to what the true date was. The California Supreme Court established a “bright line” rule in Davis – the date of separation is when the parties live apart.

The Davis decision made it easier for the courts but did not make it easier for spouses who were making the best of a difficult situation by living together. The parties had to go back to doing a cost analysis of setting up a new home in order to establish a clear “date of separation” to protect their income and retirement monies. Davis did not care that a shared living arrangement could be the result of dire financial straits for one or both of the spouses.

FAMILY CODE SECTION 70 – NEW DEFINITION OF DATE OF SEPARATION

The California Legislature addressed this problem by writing a new law that abrogated Davis. California Family Code Section 70 now defines “date of separation” to mean the date that a complete and final break in the marital relationship has occurred, as evidenced by the spouse’s expression of his or her intent to end the marriage and conduct that is consistent with that intent. The court is now directed to take into account all relevant evidence in determining the date of separation. Family Code Section 70 directs a court to take into account all relevant evidence in determining the date of separation. Under this law, living under the same roof is not a bar to establishing a date of separation, merely a factor to consider in the court’s analysis.

Tierney Law Group, PC is a California based law firm specializing in Family Law. TM can be reached at 925-362-3364 or [email protected].