Date of Separation plays a crucial role in the divorce process in California. The length of your marriage is determined by the date of marriage and the date of separation (not the date of your actual divorce). Date of Separation impacts your property rights under the law. This includes determining whether assets and debts are community property or separate property, as well as your interest in your spouses’ retirement plan and vice versa. Date of Separation also determines the actual length of your marriage, a critical factor in spousal support orders.
On July 20, 2015, the California Supreme Court held in Marriage of Davis that for purposes of determining Date of Separation, parties must be living apart in separate residences and at least one spouse must intend to end the marriage, and have engaged in conduct reflecting a complete and final break in the marriage.
Marriage of Davis represented a significant change in the law in California. Prior to Davis, it was possible for the court to make a finding that parties were separated even though they still lived together. In fact, this was an extremely common occurrence in the current economic climate. It is not always financially feasible for parties to establish separate residences prior to their divorce being finalized.
The Davis ruling put many parties in a predicament. Spouses who thought they were separated, now faced a potential court ruling that their marriage was in fact still in place.
On July 25, 2016, Governor Brown approved Senate Bill 1255, amending the California Family Code and allowing couples still living under the same roof to be considered “living separate and apart” for purposes of establishing Date of Separation. SB 1255 defines Date of Separation as a complete and final break in the marital relationship, evidenced by an expressed intent to end the marriage and conduct consistent with that intent. SB 1255 directs the court to consider all relevant evidence.
The new statute will take effect January 1, 2017. SB 1255 is silent on retroactivity, which means that Family Code §4 will automatically apply the law retroactively; however, should this create an issue of an unconstitutional “taking,” the court will have the ability to determine in that case whether to apply the new law or whether Davis needs to be applied.
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