BILL ANALYSIS Ó
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|SENATE RULES COMMITTEE | SB 1255|
|Office of Senate Floor Analyses | |
|(916) 651-1520 Fax: (916) | |
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THIRD READING
Bill No: SB 1255
Author: Moorlach (R)
Amended: 5/5/16
Vote: 21
SENATE JUDICIARY COMMITTEE: 6-0, 5/3/16
AYES: Jackson, Moorlach, Anderson, Leno, Monning, Wieckowski
NO VOTE RECORDED: Hertzberg
SUBJECT: Dissolution of marriage: date of separation
SOURCE: Author
DIGEST: This bill defines "date of separation" for purposes of
the Family Code as the date that a complete and final break in
the marital relationship has occurred, as evidenced by a
spouse's expression of his or her intent to end the marriage and
conduct that is consistent with that intent, and updates the
Family Code to reflect this definition.
ANALYSIS:
Existing law:
1)Establishes that, except as otherwise provided by statute, all
property, real or personal, wherever situated, acquired by a
married person during the marriage while domiciled in
California is community property. (Fam. Code Sec. 760.
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2)Provides that the earnings and accumulations of a spouse while
living separate and apart are the separate property of the
spouse. (Fam. Code Sec. 771.)
3)Provides that the community estate is liable for a debt
incurred before or during marriage, which does not, subject to
agreement, include any period during which the spouses are
living separate and apart. (Fam. Code Secs. 910, 914, and
4302.)
This bill:
1)Defines "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.
2)Requires a court to consider all relevant evidence in
determining the date of separation.
3)Recasts provisions of the Family Code in terms of "date of
separation" rather than any period in which spouses are
"living separate and apart."
4)States that the Legislature intends to abrogate In re Marriage
Davis and In re Marriage Norviel.
Background
California is a community property state. Except as otherwise
provided by statute, community property is generally defined as
all property, real or personal, wherever situated, acquired by a
married person during the marriage while domiciled in
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California. (Fam. Code Sec. 760.) Under a community property
system, one-half the earnings of each spouse is owned by the
other spouse. Separate property, which is property acquired
before marriage, by gift or inheritance, or after the spouses
are living "separate and apart," is the separate property of
that spouse. (Fam. Code Secs. 770-771.)
Unlike a determination of spousal support where courts are given
certain amounts of discretion to create a fair award based on
the circumstances of the parties (see Fam. Code Sec. 4320), the
disposition of separate and community property are strictly
governed by statute. Existing case law over the past 140 years
(with the exception of the Supreme Court's decision In re
Marriage of Davis (2015) 61 Cal.4th 846) has required that to
qualify as living "separate and apart" a party must have no
intention of resuming marital relations and that the conduct of
the party evidences a complete and final break in the marital
relationship. Davis and In re Norviel (2002) 102 Cal.App.4th
1152 are the only published cases to analyze the circumstances
of a party claiming to be separated while living in the same
residence, and both cases concluded that living in separate
residences is a threshold requirement.
In Davis, the husband argued that spouses cannot be living
"separate and apart" while maintaining a single residence. He
contended that this bright-line rule served to provide clear
guidance to judges and offered predictability to litigants.
Inversely, the wife argued that the court should instead
consider the totality of the circumstances when determining the
date of separation based on the conduct of the spouse(s)
"evidencing a complete and final intent to part ways with no
plan of resuming the marital relationship, even if at that time
they are still living in the same residence." (Davis at 850.)
Both parties claimed that the other spouse's proposed
interpretation was unworkable and would lead to harsh results.
The California Supreme Court reversed the lower court's
decision, thereby affirming Norviel which held that "living in
separate residences is an indispensable threshold requirement
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for finding that spouses are living separate and apart" for the
purposes of determining what is separate, and not community,
property. (Davis at 865.) Chief Justice Tani Cantil-Sakauye,
writing for a unanimous Supreme Court, emphasized both the plain
language and historical interpretations of the statute, and the
public policy considerations behind the statutory language,
namely that a bright-line rule protects the lower earning
spouse.
This bill, seeking to restore the discretion that many courts
exercised in determining the date of separation, abrogates both
the Davis and Norviel cases, and defines "date of separation" as
the date that a complete and final breakdown of the marital
relationship has occurred, as evidenced by a spouse's express
intent to end the marriage, coupled with conduct consistent with
that intent, and requires the court to consider all relevant
evidence when determining a date of separation.
FISCAL EFFECT: Appropriation: No Fiscal
Com.:NoLocal: No
SUPPORT: (Verified5/5/16)
American Academy of Matrimonial Lawyers, Southern California
Chapter
Association of Family Conciliation Courts
Executive Committee of the Family Law Section of the State Bar
Family Law Section Beverly Hills Bar Association
OPPOSITION: (Verified5/5/16)
None received
ARGUMENTS IN SUPPORT: The Executive Committee of the Family
Law Section of the State Bar (FLEXCOM) argues that the
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bright-line rule created by the Supreme Court could result in
unfairness, which this bill remedies. FLEXCOM writes:
The Supreme Court's ruling removes the ability for a divorcing
couple to continue to co-parent their children in the same
house during the divorce proceedings and still keep their
finances separate. This forces at least one spouse to find
and pay for alternative housing in order to establish a date
of separation earlier than the final court order date at a
time when families are trying to closely monitor their
spending and transition the family unit through a trying time.
Often, one spouse cannot afford to move to a separate
residence, and can only afford such a move once a divorce is
finalized. This bill would remedy this situation, ensuring
nobody is forced to either continue in a bad marriage, or face
being forced out of the residence.
Prepared by:Nichole Rapier / JUD. / (916) 651-4113
5/6/16 14:26:30
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