Anti-Davis Legislation and the impact on Date of Separation in California

Senate Bill No. 1255 (Otherwise Known as the “Anti-Davis Legislation”) and What it Means for Couples who are Seeking to Establish a Date of Separation in California

On July 25, 2016, Governor Brown approved Senate Bill No. 1255 (otherwise known as the “Anti-Davis Legislation”), which is an act to amend Sections 771, 910, 914, and 4338 of, and to add Section 70 to, the Family Code, relating to family law.

SB 1255 will add Section 70, which reads:

(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 his or her intent to end the marriage to the other spouse.
(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 13 846 and In re Marriage of Norviel (2002) 102 Cal.App.4th 1152.

It was the intent of the Legislature in enacting SB 1255 to do away with the California Supreme Court’s holding in Marriage of Davis that living in separate residences is a threshold requirement for living “separate and apart,” as defined by statute.  Spouses who are living “separate and apart” do not accumulate community property together.  Under Davis, two spouses who remain living in the same home are not considered separated even if one spouse starts a divorce proceeding or sleeps in a separate bedroom.  In a footnote, the Davis case leaves open the possibility that a couple could be separated while still living under the same roof but does not answer the question of under what circumstances this might occur.

With Davis, the Supreme Court tried to minimize litigation by establishing a bright line rule.  However, the Davis case compels many litigants to make some very difficult life decisions.  For instance, those litigants who cannot afford to move out right away opt to continue living with their soon-to-be-ex spouse and share their earnings and asset accumulations, which would otherwise be characterized as separate property.  Many of those who do have the financial resources to move out right away, and elect to do so to satisfy the Davis requirement, risk losing time with their children in custody arrangements.

Senate Bill 1255 is seen by many of us in the family law community as a welcome development because it reverts us back to the law that pre-dated Davis.  According to this new law, the “date of separation” is 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 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.  Section 70(b), once enacted, will require our courts to take into consideration “all relevant evidence” when determining the date of separation.  Our courts will look at such factors as the nature of the relationship between the spouses, including the continuation of sexual relations or attempts at reconciliation, the use of joint bank accounts or filing of joint tax returns, and whether the spouses attend social functions together and present themselves as a married couple, to name a few.

Senate Bill 1255 will not take effect until January 1, 2017.  Until then, Davis continues to be the law in California.  It is unclear whether Senate Bill 1255 will be applied retroactively.  We anticipate that the question of whether the new legislation applies retroactively will be the next hotly contested issue.  For more information on this subject, please consult with a family law attorney.

Kimberly A. Madigan, Esq. is the founding partner of Madigan & Lewis, LLP, a Redwood City family law firm representing clients in San Mateo and Santa Clara Counties.  Ms. Madigan has practiced family law exclusively since 2006 and serves clients as a consulting attorney, collaborative lawyer, and litigator.  She is the former chair of the San Mateo County Bar Association, Family Law Section.  She is currently serving as the co-chair of the San Mateo County Collaborative Practice Group and is a member of the International Academy of Collaborative Professionals (IACP).  For more information, see www.madiganlewis.com.

 

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