BILL ANALYSIS Ó ----------------------------------------------------------------- |SENATE RULES COMMITTEE | SB 1255| |Office of Senate Floor Analyses | | |(916) 651-1520 Fax: (916) | | |327-4478 | | ----------------------------------------------------------------- UNFINISHED BUSINESS Bill No: SB 1255 Author: Moorlach (R) Amended: 6/1/16 Vote: 21 SENATE JUDICIARY COMMITTEE: 6-0, 5/3/16 AYES: Jackson, Moorlach, Anderson, Leno, Monning, Wieckowski NO VOTE RECORDED: Hertzberg SENATE FLOOR: 35-0, 5/9/16 AYES: Allen, Anderson, Berryhill, Block, Cannella, De León, Fuller, Galgiani, Glazer, Hall, Hancock, Hernandez, Hertzberg, Hill, Hueso, Huff, Jackson, Lara, Leno, Leyva, Liu, McGuire, Mendoza, Mitchell, Monning, Moorlach, Morrell, Nguyen, Pan, Pavley, Roth, Stone, Vidak, Wieckowski, Wolk NO VOTE RECORDED: Bates, Beall, Gaines, Nielsen, Runner ASSEMBLY FLOOR: 66-4, 6/27/16 - See last page for vote 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. Assembly Amendments remove the language that clarifies that the bill will be applied on a prospective basis and make other SB 1255 Page 2 technical changes. 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. 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 SB 1255 Page 3 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 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 SB 1255 Page 4 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 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: (Verified6/27/16) American Academy of Matrimonial Lawyers, Southern California SB 1255 Page 5 Chapter Association of Certified Family Law Specialists Association of Family Conciliation Courts Executive Committee of the Family Law Section of the State Bar Family Law Section Beverly Hills Bar Association OPPOSITION: (Verified6/27/16) None received ARGUMENTS IN SUPPORT: The Executive Committee of the Family Law Section of the State Bar (FLEXCOM) argues that the 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. ASSEMBLY FLOOR: 66-4, 6/27/16 AYES: Achadjian, Alejo, Travis Allen, Arambula, Baker, Bloom, Bonilla, Bonta, Brough, Brown, Burke, Calderon, Campos, Chau, Chiu, Chu, Cooley, Cooper, Dababneh, Dodd, Eggman, Frazier, Beth Gaines, Gallagher, Cristina Garcia, Eduardo Garcia, Gatto, Gipson, Gomez, Gonzalez, Gordon, Gray, Grove, Hadley, Roger Hernández, Holden, Irwin, Jones-Sawyer, Kim, Lackey, SB 1255 Page 6 Levine, Linder, Lopez, Low, Maienschein, Mathis, Mayes, McCarty, Melendez, Mullin, Nazarian, Obernolte, O'Donnell, Olsen, Quirk, Ridley-Thomas, Rodriguez, Salas, Steinorth, Mark Stone, Ting, Waldron, Weber, Wilk, Williams, Wood NOES: Bigelow, Chávez, Jones, Wagner NO VOTE RECORDED: Atkins, Chang, Dahle, Daly, Harper, Medina, Patterson, Santiago, Thurmond, Rendon Prepared by:Nichole Rapier / JUD. / (916) 651-4113 6/29/16 15:56:21 **** END ****