California Date of Separation
Senate Bill 1255 was signed by Governor Brown on July 25, 2016. This legislation will amend the California Family Code with regard to the date of separation. Property acquired during marriage but after separation (i.e. “while living separate and apart”) is ordinarily the acquiring spouses separate property. Fam C §771(a) requires both a partying of ways with no present intention of resuming marital relations and, more importantly, a conduct evidencing a complete and final break in the marital relationship (Marriage of Manfer (2006)). A recently published Supreme Court Case In Re Marriage of Davis (2015) established that couple must have separate residences with the requisite intent to end their relationship to be “living separate and apart” within the meaning of Fam C §771. This ruling limited the judicial discretion in determination of the date of separation in situations where the couple simply couldn’t move out for economical or other reasons. With the SB 1255 signing the date of separation is defined as 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 the conduct that is consistent with that intent. Thankfully now courts will be able to take into account all relevant evidence and factors in determining the date of separation, and the mere date of the actual move out will not be detrimental in that determination. Senator Moorlach who authored the bill claims that “SB 1255 will assist families as they enter a highly transitional time, both relationally and financially within the family unit”. Current California housing market makes it extremely difficult for families to financially support two households therefore forcing some families to stay under the same roof even after divorce. The strict rule established by Marriage of Davis would essentially block families from establishing a date of separation other than the date a couple started to live physically “separate and apart” for separate property purposes. I am sure the legal community will appreciate the SB 1255 as it will allow for a judicial determination to be performed on a case by case basis with more flexibility to accommodate specific circumstances of the relationship.
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