California Date of Separation Law Changes … Again
By signing Senate Bill 1255 yesterday, California Governor Jerry Brown redefined the state laws regarding Date of Separation, again.
SB 1255, or what some people are calling the “anti-Davis” bill drastically changes the law judges are to consider when deciding whether or not a marriage has ended for good.
The bill, authored by Sen. Moorlach (R-Costa Mesa), defines the Date of Separation as “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.”
Why is the Date of Separation Important?
Property and Debt. The Date of Separation is important because it determines your property rights. You and your spouse only accumulate community assets and debt during your marriage. You stop accumulating community property and debt at your date of separation.
Therefore, any property or debt you acquire after your date of separation is considered the separate asset of the man or woman who acquired it during that time. Community property and debt is divided equally at divorce, while separate property and debt belongs solely to the man or woman who acquired it.
Spousal Support. Another reason the date of separation is important is because it greatly impacts the duration one’s spouse could receive spousal support. In a short term marriage, a spouse typically has the right to obtain support for up to half the duration of the marriage. A short term marriage is a marriage that lasts less than ten years. In a long term marriage, support may be ordered indefinitely. Therefore, if your marriage lasted around ten years or more, your date of separation can be of great consequence.
Date of Separation Before July 2015
Before the California Supreme Court decided Marriage of Davis last year, Date of Separation was determined as the date that parties began living separate and apart. The trial court would examine the intent of the parties, as well as their objective conduct, to determine whether they were “living separate and apart.”
At the time, family law attorneys and many trial courts were operating under the assumption that couples could “live separate and apart” while still living under the same roof, so long as the separation was proven with other evidence, such as separating finances, ceasing communications, no longer enjoying intimate relations, attending events separately, and telling friends and family you were separated.
Date of Separation After Marriage of Davis
Everything changed about a year ago, today, when a unanimous California Supreme Court decided Marriage of Davis. The court held that “living separate and apart” means what it says. In other words, parties must live in separate residences in order to determine a Date of Separation.
While understanding the Court’s desire to create a bright line rule, and apply a strict interpretation of the law, many family law attorneys considered the opinion a mistake. Today, many couples separate but, for one reason or another, cannot live in separate households. Some couples actually get divorced while living under one roof.
Date of Separation Today
With the passage and signing of SB 1255, the legislature and the Governor have in essence reversed the California Supreme Court, and re-opened the door for the family courts to reconsider other evidence of separation, beyond simply whether or not one of the parties moved out.
California Family Code section 70 will now read:
(a) “Date of separation” means the date that a complete and final break in the marital relationship has occurred, as evidenced by both of the following:
(1) The spouse has expressed to the other spouse his or her intent to end the marriage.
(2) The conduct of the spouse is consistent with his or her intent to end the marriage.
(b) In determining the date of separation, the court shall take into consideration all relevant evidence.
(c) It is the intent of the Legislature in enacting this section to abrogate the decisions in In re Marriage of Davis (2015) 61 Cal.4th 846, and In re Marriage of Norviel (2002) 102 Cal.App.4th 1152.