Metropolitan News-Enterprise


Wednesday, July 27, 2016


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Brown Signs Family Law Bill Defining ‘Date of Separation’

Legislation Backed by Attorney Groups Abrogates High Court Ruling From Last Year




Gov. Jerry Brown has signed legislation redefining “date of separation” for purposes of distributing community property.

The governor Monday gave his approval to SB1255, by Sen. John Moorlach, R-Costa Mesa. The law, which is effective Jan. 1, will amend the 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.

The legislation expressly abrogates In re Marriage of Davis (2015) 61 Cal.4th 846. A unanimous high court held in that case that a married person cannot be considered separated, and thus permitted to keep his or her earnings as separate property, while continuing to live with his or her spouse.

Moorlach said in a release that the bill—which passed the Senate unanimously and the Assembly with only four dissenting votes—would broaden judicial discretion and allow the court to consider all relevant evidence in determining the parties’ intent with regard to date of separation, in accord with most of the pre-Davis case law.  It “makes an important change for couples who have various reasons for living under the same roof while going through a divorce, whether they are financial or revolve around discreet family issues,” the author said.

[Davis] makes divorce proceedings even more trying on families than it already is,” Moorlach. “It means a divorcing couple cannot live in the same house to reduce costs or co-parent their children during divorce proceedings if they want to keep their finances separate.”

Davis Opinion

Chief Justice Tani Cantil-Sakauye wrote in Davis that lower courts erred in holding that a couple living essentially separate lives under the same roof in order to continue parenting their children together could be considered separated under Family Code §771(a).

The statute says “[t]he earnings and accumulations of a spouse. . . while living separate and apart from the other spouse, are the separate property of the spouse.”  It provides an exception to §760, which declares that the earnings of married persons are community property if no exception applies.

SB 1255 adds §70 to the Family Code. The new section defines “date of separation” as “the date that a complete and final break in the marital relationship has occurred, as evidenced by” both an expression by either spouse of intent to end the marriage, and conduct consistent with that intent.

In Davis, the wife filed for divorce in 2008 but the parties lived in the same residence until July 2011. The husband claimed that as the date of separation, while the wife contended the parties separated in 2006, when she told her husband the marriage was over.

She had started working fulltime around her claimed separation date, whereas her husband left his job around that time. The trial court and Court of Appeal sided with the wife, but the high court disagreed, citing the holding of In re Marriage of Norviel (2002) 102 Cal.App.4th 1152 that physically living apart is “an indispensable threshold requirement” for separation under §771(a). 

Concurrent Opinion

While all of the justices joined Cantil-Sakauye’s opinion, Justice Goodwin H. Liu, joined by Justice Kathryn M. Werdegar, added a concurrence suggesting that courts may consider “relevant changes in historical context since 1870” and find that couples who “have a living arrangement that clearly and objectively signals a complete and final termination of the marital relationship” are living separate and apart in the same dwelling. “Neither the Legislature nor this court has foreclosed [that] possibility,” Liu wrote.

SB 1255, which was supported by the American Academy of Matrimonial Lawyers, Southern California Chapter; Association of Certified Family Law Specialists; Association of Family Conciliation Courts; Executive Committee of the Family Law Section of the State Bar; and Family Law Section of the Beverly Hills Bar Association, abrogates the Norviel holding as well.

Legislative analyses said no objections to the bill were received.


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