New Law on Date of Separation

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In the Summer of 2015 the California Supreme Court released its opinion in the Marriage of Davis case. In that case the Court took the traditional test for date of separation, i.e.calcapitol, state of mind that the marriage was irretrievably broken (subjective intent) combined with behavior consistent with that state of mind (objective evidence of intent) and added a new requirement. That new requirement was that the spouses could not be living in the same home. While not erroneous as a matter of statutory interpretation, the new requirement rubbed a lot of people the wrong way. The over-riding sentiment was that there are a lot of couples that cannot afford to maintain two separate residences while going through divorce. Extensive lobbying of the California Legislature began. The successful product of that lobbying is California’s new Family Code Section 70.

Section 70 eliminates the mandatory separate residence requirement of Davis, and essential rolls the clock back so that the analysis to be performed will be that analysis that controlled prior to the Davis opinion. The law abrogates the holdings of Davis and Marriage of Norviel which the California Supreme Court leaned on heavily when establishing the separate residence requirement in Davis).  The new law also amends sections 771, 910, 914, and 4338 of the Family Code to make them consistent with the new statutory language of section 70.

Here are the five sections the new Family Code Section 70:

SECTION 1.

Section 70 is added to the Family Code, to read:

70.

(a) “Date of separation” means the date that a complete and final break in the marital relationship has occurred, as evidenced by both of the following:

(1) The spouse has expressed to the other spouse his or her intent to end the marriage.

(2) The conduct of the spouse is consistent with his or her intent to end the marriage.

(b) In determining the date of separation, the court shall take into consideration all relevant evidence.

(c) It is the intent of the Legislature in enacting this section to abrogate the decisions in In re Marriage of Davis (2015) 61 Cal.4th 846 and In re Marriage of Norviel (2002) 102 Cal.App.4th 1152.

SEC. 2.

Section 771 of the Family Code is amended to read:

 

771.

(a) The earnings and accumulations of a spouse and the minor children living with, or in the custody of, the spouse, while living separate and apart from the other spouse,  after the date of separation of the spouses,  are the separate property of the spouse.

(b) Notwithstanding subdivision (a), the earnings and accumulations of an unemancipated minor child related to a contract of a type described in Section 6750 shall remain the sole legal property of the minor child.

SEC. 3.

Section 910 of the Family Code is amended to read:

 

910.

(a) Except as otherwise expressly provided by statute, the community estate is liable for a debt incurred by either spouse before or during marriage, regardless of which spouse has the management and control of the property and regardless of whether one or both spouses are parties to the debt or to a judgment for the debt.

(b) “During marriage” for purposes of this section does not include the period during which the spouses are living separate and apart  after the date of separation, as defined in Section 70, and  before a judgment of dissolution of marriage or legal separation of the parties.

SEC. 4.

Section 914 of the Family Code is amended to read:

 

914.

(a) Notwithstanding Section 913, a married person is personally liable for the following debts incurred by the person’s spouse during marriage:

(1) A debt incurred for necessaries of life of the person’s spouse while the spouses are living together. before the date of separation of the spouses. 

(2) Except as provided in Section 4302, a debt incurred for common necessaries of life of the person’s spouse while the spouses are living separately. after the date of separation of the spouses. 

(b) The separate property of a married person may be applied to the satisfaction of a debt for which the person is personally liable pursuant to this section. If separate property is so applied at a time when nonexempt property in the community estate or separate property of the person’s spouse is available but is not applied to the satisfaction of the debt, the married person is entitled to reimbursement to the extent such property was available.

(c) (1) Except as provided in paragraph (2), the statute of limitations set forth in Section 366.2 of the Code of Civil Procedure shall apply if the spouse for whom the married person is personally liable dies.

(2) If the surviving spouse had actual knowledge of the debt prior to expiration of the period set forth in Section 366.2 of the Code of Civil Procedure and the personal representative of the deceased spouse’s estate failed to provide the creditor asserting the claim under this section with a timely written notice of the probate administration of the estate in the manner provided for pursuant to Section 9050 of the Probate Code, the statute of limitations set forth in Section 337 or 339 of the Code of Civil Procedure, as applicable, shall apply.

(d) For purposes of this section, “date of separation” has the same meaning as set forth in Section 70.

SEC. 5.

Section 4338 of the Family Code is amended to read:

 

4338.

In the enforcement of an order for spousal support, the court shall resort to the property described below in the order indicated:

(a) The earnings, income, or accumulations of either spouse, while living separate and apart from the other spouse,  spouse after the date of separation, as defined in Section 70,  which would have been community property if the spouse had not been living separate and apart  separated  from the other spouse.

(b) The community property.

(c) The quasi-community property.

(d) The other separate property of the party required to make the support payments.

I was one of the few family law lawyers that was not incredibly worked up about the holding in Davis. Am I incredibly worked up abut the new Section 70?  Not really. It does resolve the ambiguities the the California Supreme Court found in the family code. I don’t think it really saves and families while they are going through divorce. It is just a modified way of doing things.

John E. Harding, JD, CFLS

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