Currently divorcing spouses or couples considering divorce better consult a lawyer soon—a newly enacted statute has changed the method by which California courts determine a married couple’s “date of separation.”  On July 25, 2016, the governor of California, Jerry Brown, signed SB 1255 (aka the “anti-Davis legislation”), a bill which amends California Family Code § 771 and adds section 70 to the Family Code.  As a result, the existing standard that governs a married couple’s “date of separation” has been changed.  Previously, Family Code § 771 instructed that spouses were not separated until they were “living separate and apart”—a phrase which courts interpreted to mean “living in separate residences.”  With the passing of SB 1255 though, spouses may now be considered “separated” even if they share a common residence.

A couple’s legal “date of separation” is important because it determines the point at which a spouse’s earnings and accumulations are no longer considered “community property” and instead, are considered a spouse’s own “separate property.”  In turn, the difference between community and separate property is important because absent a written agreement stating otherwise, all community property must be evenly divided between divorcing spouses.

SB 1255’s nickname—the “anti-Davis legislation”—came about because of the case its creation abrogates:  In re Marriage of Davis.  In July 2015, the Davis court held that “living in separate residences ‘is an indispensable threshold requirement’ for a finding that spouses are ‘living separate and apart,’” or in other words, for determining a “date of separation.”  However, the Davis court didn’t create new law—it merely affirmed what it believed was the California legislature’s intention when it coined the phrase “living separate and apart” many years ago.

To ascertain the legislature’s intent, the Davis court had to do go back 146 years to 1870 when the phrase was first used in a statute that protected the rights of married women.  Similarly to section 771, the 1870 Act did not define “living separate and apart.”  However, according to the Davis court, section four of the 1870 Act suggests that the legislature intended for the phrase to require separate residences: a wife, who was “living separate and apart” from her husband and wished to sell her real property without joining her husband, had to record a declaration that included a description of “her own place of residence” and a statement that “she is a married woman, living separate and apart from her husband.”

Additionally, when the California legislature repealed a number of Family Code sections in 1969, it created a new statute (section 5118) that reproduced the 1870 Act language.  Once again though, the legislature provided no specific definition of “living separate and apart.”  The Davis court reasoned that the legislature’s continued use of the phrase—without defining it—expressed its satisfaction with earlier judicial interpretation of the language.

Further, the Davis court also relied on a notable 2002 case—In re Marriage of Norviel—which concluded that “living apart physically is an indispensable threshold requirement to separation, whether or not it is sufficient, by itself, to establish separation.”  Therefore, relying on legislative history and case law, the Davis court affirmed the Norviel holding—spouses had to live in separate residences before they could be considered separated.

While the Norviel and Davis courts may have correctly discerned the original meaning of “living separate and apart,” our modern legislature took issue with their holdings and in response, passed SB 1255.  The bill expressly abrogates Norviel and Davis, and rather than provide a specific definition for “living separate and apart,” the legislature did away with the phrase all together.  Instead, section 771 (the modern statute that contained the disputed language) now uses the phrase “after the date of separation” to determine when a spouse’s accumulations and earnings transition from “community” to “separate” property.  In turn, newly added section 70 defines “date of separation” as a “complete and final break” that is evidenced by two factors: 1) a spouse has expressed his or her intent to end the marriage to the other spouse, and 2) the conduct of the spouse is consistent with his or her intent to end the marriage.  Further, section 70 requires that a court look at all “relevant evidence” when making the above determination.

This statutory change was spurred on by Senator John Moorlach (R-Costa Mesa), the author of SB 1255.  He believed it was necessary to change the Family Code language because many spouses wish to separate legally in order to protect their personal finances, but also, wish to continue sharing a residence in order to save costs during their divorce.  Thus, SB 1255 should better reflect the reality of modern divorce experiences.

While the amended Family Code sections do provide clarity and allow couples more post-separation flexibility, it is important to note that SB 1255 may not be the end of legal disputes about separation dates—in the coming years, case law will further refine section 70.  Additionally, couples in the process of a divorce should not let SB 1255 pass by them unnoticed because when the new law goes into effect on January 1, 2017, it may retroactively apply to any cases pending on that date, but this issue still needs to be resolved and addressed by the Family Courts in California. Look for another blog post on this topic specifically. However, consulting now with your attorney to develop a “date of separation” strategy is in your best interest.

If you are considering a legal separation or divorce, please contact the experienced family law attorneys at Lonich Patton Erlich Policastri—we can help you navigate the effects of SB 1255 and answer any questions you may have about how the new law will impact your divorce.  The sooner you understand how SB 1255 will affect your current or impending legal plans, the better you can prepare for the new rule when it goes into to effect on January 1, 2017.

Lastly, please remember that each individual situation is unique, and results discussed in this post are not a guarantee of future results.  While this post may detail general legal issues, it is not legal advice.  Use of this site does not create an attorney-client relationship.

Sources: 

2016 Cal. Legis. Serv. Ch. 114 (S.B. 1255)

In re Marriage of Davis (2015) 61 Cal.4th 846

In re Marriage of Norviel (2002) 102.Cal.App.4th 1152