Date of Separation Update

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genieIn July, 2015 the California Supreme Court clarified the law on date of separation for divorce. In IRMO Davis (here is the link to the opinion: Davis S215050) the Court held that to establish a date of separation a divorcing spouse must present facts establishing a complete and final break in the marital relationship, including living separate and apart. Living separate and apart was the new twist added by the Court.  Essentially, one spouse or the other has to have moved out of the family residence. In all other respects the law pretty much stayed the same. The trials courts had to, and still have to, find a complete break in the marital relationship, i.e., separate banks accounts, no more intimate (that means sex) relations, no more family vacations together, letting the world know you are getting a divorce, etc.

The initial reaction to Davis within the legal profession was one of uproar. How could the court do this? This is a disaster!  The world is burning! I was not one of those people.  I have read Davis repeatedly, and I like it (even though it is a bit wordy). It makes sense, and it cleans up a lot of vagaries.  If you move out all of the other elements of legal separation will follow.  It eliminates the limbo when couples fight over the year, or two, or three that they may have been separated.  Alas, I am in the clear minority.  Overwhelmingly the professional reaction to Davis has been one of discontent.  Lobbying efforts have been intense to pass anti-Davis legislation.

My prediction (and I am not going out on a limb here) is that there will be new law in California eliminating the move-out requirement established by Davis.  The new law could be enacted as soon as right now, January, 2016.  I think it is more likely to happen in July, 2016.  Still practitioners, and parties going through divorce, need to be mindful of how Davis affects their cases. If you benefit from Davis get your divorce done now because the law is going to change.


John Harding

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