Legislature’s new law overturns a California Supreme Court ruling on how to determine the date of separation in divorce
Governor Brown signed SB 1255 on July 25, 2016 which becomes effective on January 1, 2017 as Family Code Section 70. The law overturns a controversial decision by the California Supreme Court in 2015 which changed how courts determine the date of separation in family law. The California Supreme Court held that the date of legal separation is the date that the parties lived in separate residences. In Re-Marriage of Davis (2015) 61 Cal.4th 846.
The date of separation is the date which courts use to divide assets, including income, retirement plans, and debt. The date of separation is when a spouse’s half interest in the other spouse’s income, investments, and retirement plans ends. Debt incurred by a spouse after the date of separation is the responsibility of only that spouse. No single factor has a greater impact on the issue of property than determining the date of separation. The method by which this issue is decided is often crucial for families of all economic situations.
The date of separation also determines the length of the marriage for purposes of spousal support so it has a tremendous impact in the area of support.
The Davis decision made it necessary for couples to physically separate and set up new living situations to establish a clear “date of separation” to protect their income and retirement savings. This bright line test made things easier for the courts but harder for people getting divorced.
The California Legislature wrote a new law that undid the California Supreme Court ruling in Davis. Family Code Section 70 now defines the “date of separation” to mean “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. The bill would direct a court to take into account all relevant evidence in determining the date of separation.” The new law will allow the spouses to declare themselves to be separated, but give them the flexibility to live in the same household in order to save money and raise their children in a cooperative arrangement.
I believe the legislature got it right; however, some questions remain unanswered. For example can the new method for determining separation be applied retroactively to couples who separated before January 1, 2017 but try their case after that date?
Divorcing couples no longer have to immediately physically separate to have a legal date of separation. That is good news for divorcing people. I believe the legislature got it right with this law; however, some questions remain unanswered. For example can the new method for determining separation be applied retroactively to couples who separated before January 1, 2017 but try their case after that date?