In July of 2015, the California Supreme Court in the case Marriage of Davis set a bright line rule as to when a “date of separation” occurs between divorcing couples. That date is very important, because as of the date of separation, in general, the earnings of the parties are their respective separate property and property acquired after that date by either party is considered to be that party’s separate property. The court in Davis said that an “indispensable threshold requirement” of a date of separation is that the couple must be living in separate residences.
The impact of the Davis decision is problematic in a number of ways.
It is not uncommon for couples to continue to live in the same house
while going through the divorce proceeding due to economic reasons,
reasons relating to how to deal with their divorce with their
children, and other practical reasons. Under Davis, they could live
separate lives in different rooms of the same house and still not be
considered “separated”. They could file for divorce and still not be
considered “separated”. Even though there is a complete breakdown of
the marriage, the Davis ruling says there cannot be a date of
separation until a physical separation occurs. Although the Davis case
does imply exceptions to this general rule, those exceptions have yet
to be tested in the higher courts.
Senate Bill 1255 (Moolach) currently in the legislative review process
intends to fix the Davis ruling by using standards developed in case
law prior to the Davis case, by defining the date of separation as the
complete and final break in the marital relationship evidence by an
expression by one spouse to the other of his or her intent to end the
marriage AND the conduct of that spouse is consistent with that
Family Code 70.
(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 the intent to end the marriage.
(2) The conduct of the spouse is consistent with the 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.
Parties in mediation are able to take into consideration all facts and
circumstances and information in arriving at the date of separation and work together to agree upon the date of separation.
Contact Carol Delzer at Family Law Center to schedule a Mediation consultation Info@FamilyLawCenter.US