SB 1255, as amended, 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 otherbegin delete spouse,end deletebegin insert spouseend insert 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 applybegin delete retroactivelyend delete tobegin insert allend insert casesbegin delete pending onend deletebegin insert filed on or afterend insert 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:
Section 70 is added to the Family Code, to read:
(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
12
abrogate 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.
Section 771 of the Family Code is amended to read:
(a) The earnings and accumulations of a spouse and the
16minor children living with, or in the custody of, the spouse, after
17the date of separation of the spouses, are the separate property of
18the 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.
Section 910 of the Family Code is amended to read:
(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 period after the date of separation, as defined in Section
3270, and before a judgment of dissolution of marriage or legal
33separation of the parties.
Section 914 of the Family Code is amended to read:
(a) Notwithstanding Section 913, a married person is
2personally liable for the following debts incurred by the person’s
3spouse during marriage:
4(1) A debt incurred for necessaries of life of the person’s spouse
5before the date of separation of the spouses.
6(2) Except as provided in Section 4302, a debt incurred for
7common necessaries of life of the person’s spouse
after the date
8of separation of the spouses.
9(b) The separate property of a married person may be applied
10to the satisfaction of a debt for which the person is personally liable
11pursuant to this section. If separate property is so applied at a time
12when nonexempt property in the community estate or separate
13property of the person’s spouse is available but is not applied to
14the satisfaction of the debt, the married person is entitled to
15reimbursement to the extent such property was available.
16(c) (1) Except as provided in paragraph (2), the statute of
17limitations set forth in Section 366.2 of the Code of Civil Procedure
18shall apply if the spouse for whom the married person is personally
19liable dies.
20(2) If the surviving spouse had actual knowledge of the debt
21prior to expiration of the period set forth in Section 366.2 of the
22Code of Civil Procedure and the personal representative of the
23deceased spouse’s estate failed to provide the creditor asserting
24the claim under this section with a timely written notice of the
25probate administration of the estate in the manner provided for
26pursuant to Section 9050 of the Probate Code, the statute of
27limitations set forth in Section 337 or 339 of the Code of Civil
28Procedure, as applicable, shall apply.
29(d) For purposes of this section, “date of separation” has the
30same meaning as set forth in Section 70.
Section 4338 of the Family Code is amended to read:
In the enforcement of an order for spousal support, the
33court shall resort to the property described below in the order
34indicated:
35(a) The earnings, income, or accumulations of either spouse
36after the date of separation, as defined in Section 70, which would
37have been community property if the spouse had not been
separated
38from 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.
This act shall applybegin delete retroactivelyend delete tobegin insert allend insert casesbegin delete pending begin insert filed on or afterend insert January 1, 2017.
4onend delete
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