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