Senate BillNo. 1255


Introduced by Senator Moorlach

February 18, 2016


An act to amend Sections 771, 910, 914, and 4438 of, and to add Section 70 to, the Family Code, relating to family law.

LEGISLATIVE COUNSEL’S DIGEST

SB 1255, as introduced, Moorlach. Dissolution of marriage: date of separation.

Existing law regulates the characterization and division of property upon the dissolution of marriage or the legal separation of the parties. Under existing law, debt incurred by a spouse after the date of separation is generally confirmed to that spouse. Existing law similarly provides that the earnings of a spouse are separate property if the spouse is living separate and apart from the other spouse.

Under existing case law, a spouse is required to be living in a separate residence in order to be considered living separate and apart from the other spouse, for purposes of characterizing the earnings of the spouse.

This bill would define “date of separation” for purposes of the Family Code 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 bill would specify that its provisions apply retroactively to cases pending on January 1, 2017. The bill would also make related, conforming changes.

Vote: majority. Appropriation: no. Fiscal committee: no. State-mandated local program: no.

The people of the State of California do enact as follows:

P2    1

SECTION 1.  

Section 70 is added to the Family Code, to read:

2

70.  

(a) “Date of separation” means the date that a complete
3and final break in the marital relationship has occurred, as
4evidenced by both of the following:

5(1) The spouse has expressed his or her intent to end the
6marriage to the other spouse.

7(2) The conduct of the spouse is consistent with his or her intent
8to end the marriage.

9(b) In determining the date of separation, the court shall take
10into consideration all relevant evidence.

11(c) It is the intent of the Legislature in enacting this section to
12abrogate the decisions in In re Marriage of Davis (2015) 61 Cal.4th
13846 and In re Marriage of Norviel (2002) 102 Cal.App.4th 1152.

14

SEC. 2.  

Section 771 of the Family Code is amended to read:

15

771.  

(a) The earnings and accumulations of a spouse and the
16minor children living with, or in the custody of, the spouse,begin delete while
17living separate and apart from the other spouse,end delete
begin insert after the date of
18separation of the spouses,end insert
are the separate property of the spouse.

19(b) Notwithstanding subdivision (a), the earnings and
20accumulations of an unemancipated minor child related to a
21contract of a type described in Section 6750 shall remain the sole
22legal property of the minor child.

23

SEC. 3.  

Section 910 of the Family Code is amended to read:

24

910.  

(a) Except as otherwise expressly provided by statute,
25the community estate is liable for a debt incurred by either spouse
26before or during marriage, regardless of which spouse has the
27management and control of the property and regardless of whether
28one or both spouses are parties to the debt or to a judgment for the
29debt.

30(b) “During marriage” for purposes of this section does not
31include the periodbegin delete during which the spouses are living separate
32and apartend delete
begin insert after the date of separation, as defined in Section 70,
33andend insert
before a judgment of dissolution of marriage or legal separation
34of the parties.

35

SEC. 4.  

Section 914 of the Family Code is amended to read:

36

914.  

(a) Notwithstanding Section 913, a married person is
37personally liable for the following debts incurred by the person’s
38spouse during marriage:

P3    1(1) A debt incurred for necessaries of life of the person’s spouse
2begin delete while the spouses are living together.end deletebegin insert before the date of separation
3of the spouses.end insert

4(2) Except as provided in Section 4302, a debt incurred for
5common necessaries of life of the person’s spousebegin delete while the
6spouses are living separately.end delete
begin insert after the date of separation of the
7spouses.end insert

8(b) The separate property of a married person may be applied
9to the satisfaction of a debt for which the person is personally liable
10pursuant to this section. If separate property is so applied at a time
11when nonexempt property in the community estate or separate
12property of the person’s spouse is available but is not applied to
13the satisfaction of the debt, the married person is entitled to
14reimbursement to the extent such property was available.

15(c) (1) Except as provided in paragraph (2), the statute of
16limitations set forth in Section 366.2 of the Code of Civil Procedure
17shall apply if the spouse for whom the married person is personally
18liable dies.

19(2) If the surviving spouse had actual knowledge of the debt
20prior to expiration of the period set forth in Section 366.2 of the
21Code of Civil Procedure and the personal representative of the
22deceased spouse’s estate failed to provide the creditor asserting
23the claim under this section with a timely written notice of the
24probate administration of the estate in the manner provided for
25pursuant to Section 9050 of the Probate Code, the statute of
26limitations set forth in Section 337 or 339 of the Code of Civil
27Procedure, as applicable, shall apply.

begin insert

28(d) For purposes of this section, “date of separation” has the
29same meaning as set forth in Section 70.

end insert
30

SEC. 5.  

Section 4338 of the Family Code is amended to read:

31

4338.  

In the enforcement of an order for spousal support, the
32court shall resort to the property described below in the order
33indicated:

34(a) The earnings, income, or accumulations of eitherbegin delete spouse,
35while living separate and apart from the other spouse,end delete
begin insert spouse after
36the date of separation, as defined in Section 70,end insert
which would have
37been community property if the spouse had not beenbegin delete living separate
38and apartend delete
begin insert separatedend insert from the other spouse.

39(b) The community property.

40(c) The quasi-community property.

P4    1(d) The other separate property of the party required to make
2the support payments.

3

SEC. 6.  

This act shall apply retroactively to cases pending on
4January 1, 2017.



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