Redefining the Date of Separation: the “Anti-Davis” Legislation

On July 25, 2016, Governor Jerry Brown signed Senate Bill 1255 into effect. This bill redefines the date of marital separation for purposes of the California Family Code as the date that a “complete and final break in the marital relationship has occurred, as evidenced by the spouse’s expressions of his or her intent to end the marriage and conduct that is consistent with the intent.”

Senate Bill 1255 seeks to undo the effects of Marriage of Davis, a 2015 California Supreme Court case which ruled that a couple is only separated when they no longer reside together under the same roof. Senate Bill 1255 is now being referred to as the “Anti-Davis” legislation.

What “Davis” Did

The legal implications of Davis were significant for both family law attorneys and litigants. For attorneys, the ruling in Davis meant making sure clients understood that unless they physically moved out of the residence, the earnings and asset accumulation of either spouse could still be considered community property subject to division in divorce, and not the separate property of the spouse who earned them.

For litigants, there were often financial and emotional consequences tied to the Davis ruling. Litigants were faced with an uncertain future which involved one of two tough financial choices: either move out of the family residence, and incur costs to find a new home; or risk staying in the home, and  share earnings and asset accumulations with a soon-to-be-ex spouse because they were deemed not to be separated in the eyes of the law. Some litigants were also faced with emotional risks: either physically move out of the home and expose their divorce decision to family and friends; or stay in the home and hope that their contended date of separation could be pushed further into the future.

What the New Law Does

With the new legislation, trial courts will be required to take into account all relevant and admissible evidence to determine the parties’ date of separation. Thus, even if spouses continue to live together, that fact will no longer prevent a Court’s finding that the spouses are actually separated.

Senate Bill 1255 was authored by Senator John Moorlach (R-Costa Mesa). Senator Moorlach noted that the Davis ruling made “divorce proceedings even more trying on families than it already is…It means a divorcing couple cannot live in the same house to reduce costs or co-parent their children during divorce proceedings if they want to keep their finances separate.”

It is important for family law attorneys and litigants to note that Senate Bill 1255 will only take effect on January 1, 2017 but will be applied retroactively. This means that until that date, if parties to a divorce proceeding choose to continue to reside under the same roof, they may face the possibility that their conduct will affect their contended date of separation should they proceed to trial prior to January 1, 2017.  However, we anticipate most courts would not apply such a harsh result knowing the impending change in law.