BILL ANALYSIS                                                                                                                                                                                                    Ó



                                                                    SB 1255


                                                                    Page  1





          SENATE THIRD READING


          SB  
          1255 (Moorlach)


          As Amended  June 1, 2016


          Majority vote


          SENATE VOTE:  35-0


           ------------------------------------------------------------------ 
          |Committee       |Votes|Ayes                  |Noes                |
          |                |     |                      |                    |
          |                |     |                      |                    |
          |                |     |                      |                    |
          |----------------+-----+----------------------+--------------------|
          |Judiciary       |7-1  |Mark Stone, Burke,    |Wagner              |
          |                |     |Chau, Chiu, Cristina  |                    |
          |                |     |Garcia, Holden, Ting  |                    |
          |                |     |                      |                    |
          |                |     |                      |                    |
           ------------------------------------------------------------------ 


          SUMMARY:  Defines "date of separation" for purposes of property  
          division in a dissolution.  Specifically, 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 a spouse's expression to the other spouse of his  
            or her intent to end the marriage and conduct that is  
            consistent with that intent. 








                                                                    SB 1255


                                                                    Page  2





          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 the intent of Legislature to abrogate the recent  
            California Supreme Court decision In re Marriage of Davis and  
            the 2002 appellate court decision In re Marriage of Norviel. 


          EXISTING LAW:   


          1)Provides 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.  (Family Code Section 760.   
            Unless stated otherwise, all further statutory references are  
            to that code.)


          2)Provides that the earnings and accumulations of a spouse while  
            living separate and apart are the separate property of the  
            spouse.  (Section 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.  (Sections 910, 914, and 4302.)


          4)Provides that a new law in the Family Code will apply  
            retroactively, unless, among other things, the new law would  
            substantially interfere with the rights of the parties or  








                                                                    SB 1255


                                                                    Page  3





            other interested person in connection with an event that  
            occurred or circumstances that existed before the operative  
            date of the new law.  (Section 4.)


          FISCAL EFFECT:  None.


          COMMENTS:  California is a community property state.  Except as  
          otherwise provided by statute, community property is generally  
          defined as all property acquired by a married person during the  
          marriage while living in California.  Under California's  
          community property system, one-half the earnings of each spouse  
          is owned by the other spouse.  Separate property is property  
          acquired before marriage, by gift or inheritance, or after the  
          spouses are living "separate and apart," and is the separate  
          property of each spouse.  


          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, the disposition of separate  
          and community property is strictly governed by statute.  There  
          is no discretion.  Existing case law 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.  However, In re Marriage of Norviel (2002) 102  
          Cal. App. 4th 1152 and the recent California Supreme Court case  
          of In re Marriage of Davis (2015) 61 Cal.4th 846 both concluded  
          that living in separate residences is a threshold requirement  
          for living "separate and apart" and thus community property  
          rules will continue to apply at least until the parties live in  
          separate residences.


          This bill, seeking to restore discretion that many courts had  
          previously exercised in determining the date of separation,  
          abrogates both the Davis and Norviel decisions, and defines the  








                                                                    SB 1255


                                                                    Page  4





          "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. 


          This bill abrogates both Davis and Norviel, and instead requires  
          that a court look at the particulars of a situation and  
          determine a date of separation that reflects both a party's  
          express intent and actions supporting that intent, basically the  
          law before both Davis and Norviel.  Requiring courts to  
          determine the date of separation based on a totality of the  
          evidence should benefit the parties by ensuring the court apply  
          the facts of the case to the law and determine what is fair  
          given the parties' unique circumstances.  While this could  
          increase litigation costs, it will increase just outcomes.


          Moreover, families may definitively separate, but be unable to  
          move to separate residences because of the high price of housing  
          here in California, where an average two-bedroom apartment in  
          Los Angeles rents for almost $2,500 a month  
          (  https://www.rentjungle.com/average-rent-in-los-angeles-rent-tren 
          ds  ) and the median house price in the Bay Area is over $650,000  
          (  http://blog.sfgate.com/pender/2016/01/21/median-bay-area-home-pr 
          ice-rose-barely-in-december ).  Alternatively, couples may choose  
          to divorce, but remain in the same house for other reasons, such  
          as more effective co-parenting.  The Supreme Court's bright-line  
          rule does not allow courts to recognize these realities and  
          better assist these families.  The law should be sufficiently  
          flexible so that trial courts can address the various factual  
          situations that will arise and issue just decisions.  The  
          Supreme Court, in Davis, acknowledged that the bright-line rule  
          its ruling requires "may work hardship in some specific  
          situations," but "if there are other policy concerns that now  
          advise the adoption of a different rule, it is up to the  
          Legislature to craft one."  (61 Cal.4th at 865.)  This bill  








                                                                    SB 1255


                                                                    Page  5





          takes up that challenge and sets forth a different rule that  
          provides courts with broader discretion to properly consider  
          each particular case.


          Bright-line rules, like the rule established in Davis and  
          Norviel, generally provide clear directives and guidance to  
          judges and a measure of predictability to attorneys and  
          litigants.  They create uniformity among courts in the  
          dispensing of justice and the enforcement of statutes.   
          Uniformity, in turn, encourages a general understanding that  
          laws are applied fairly, without an undue subjectivity that  
          would allow certain people to be treated differently than  
          others.  However, bright-line rules and uniformity often fail to  
          achieve a just result.  This is particularly troubling in family  
          law where courts are given significant flexibility to provide  
          just results in each unique fact pattern in, for example, child  
          custody and spousal support cases.  This bill provides slightly  
          greater flexibility with property division.


          Ultimately, either approach will, in at least some situations,  
          yield unfair or harsh results.  As a matter of public policy,  
          the Legislature should seek to approve the method by which fair  
          and just results are most often achieved, taking into account  
          the growing percentage of self-represented litigants in family  
          law.  It goes without saying that the option that considers all  
          relevant evidence allows for a more just result than a  
          bright-line rule that cannot necessarily do justice in  
          particular cases, even if the facts warrant it.  And this bill,  
          by choosing the all relevant evidence option, will provide for  
          the most just results.


          This bill, as amended, does not address retroactivity, so the  
          bill's impact on existing cases is based on Family Code Section  
          4, which provides that a new law in the Family Code will apply  
          retroactively, unless, among other things, the new law would  
          substantially interfere with the rights of the parties or other  








                                                                    SB 1255


                                                                    Page  6





          interested person in connection with an event that occurred or  
          circumstances that existed before the operative date of the new  
          law.  The Davis case in 2015 changed the law on date of  
          separation in all but the Sixth Appellate District (which  
          already had the Norviel case).  This bill changes the law  
          effectively back to what it was before both Davis and Norviel  
          and that change will impact existing cases (cases where the date  
          of separation has not yet been determined by a court), unless  
          doing so would substantially interfere with the rights of the  
          parties.  This general retroactive effect, unless there is  
          substantial interference with a party's rights, provides the  
          court with sufficient flexibility to protect the rights of all  
          parties, as appropriate under the facts of each particular case.  
           By following the general Family Code rule, this bill provides  
          for both maximum fairness and maximum protection of the parties.




          Analysis Prepared by:                                             
                          Leora Gershenzon / JUD. / (916) 319-2334  FN:  
          0003412