The Uncertain Landscape of Date of Separation in California Divorce -
My colleague, attorney David C. Stone of Anaheim, recently brought to my
attention Senate Bill 1255 (introduced by Senator John Moorlach on February
18, 2016), which if adopted will add
Family Code section 70 to the California Famly Law Act and amend sections
914, and 4338 to make them consistent with the new statutory language of section
70 'defining' (or not) "date of separation" consistent
with one line of existing appellate authority on the subject. Last July,
the California Supremes shocked the family law community by creating a
bright-line rule that essentially held that the language which has existed
for well over 100 years in the form Family Code section 771(a), to wit
"The earnings and accumulations of a spouse, ..., while living separate
and apart from the other ..., are the separate property of the spouse"
[italics added] means and has always meant that physical separation cannot
occur until spouses are living at two different addresses. This was the
Marriage of Davis (2015) 61 Cal.4th 835 decision.
[UPDATE: Balance in the Force has been restored. Governor Brown signed new
FC section 70 into law on July 25, 2016. It is effective 1/1/17. As a
result sections 771, 910, 914 and 4338 are also amended].
This literalistic approach to interpreting
section 771 stunned many matrimonial lawyers, and their hue and cry could be heard
far and wide - including from me. [Magnitude 8.1 Earthquake Rocks California Laws Governing Date of Separation]. The date of separation is integral to defining the length of marriage
for purposes of alimony, and to the characterization of what is joint
and what is separate property. Essentially,
Davis operates to force one spouse or the other to relocate from the family residence
before they can be relieved of the economic consequences of marriage or
conversely to obtain their just (and necessary) entitlements, or even
to be able to apply to the courts for interim orders for support or child
custody and visitation. Hence, moving out becomes a prerequisite for a
wife and/or mother who wishes to divorce, where the other spouse refuses
to go - and while living together the parties are deemed to be continuing
in the marital relationship, with all the increased rights and obligations
that are a consequence of that relationship. Not only did this up-end
the advice and expectations that we family law attorneys have been giving
our clients for years based upon prior caselaw (which was in conflict),
Davis cast a blind eye to the emotional and economic realities of families caught
in the dissolution transition.
In fairness to Chief Justice Cantil-Sakauye, who authored
Davis, the Supreme Court's decision greatly simplified a complex issue that
has huge ramifications for lawyers and self-represented parties negotiating
the resolution of their cases by substituting a simple bottom line for
all the uncertainties and power imbalances that arise in divorce when
litigants cannot be sure of outcomes - i.e., what a trial court might
ultimately find the date of separation (DOS) to be. And, it ended a certain
revenue stream to lawyers who are often forced to set bifurcated trials
in order to obtain that determination. California family law is - after
all - overly complex, and obscenely expensive. While the lawyer and divorce
consumer community might have adjusted to the scriptures of
Davis over time, in ways that might ultimately prove beneficial, it appears
that they will never get the chance.
Family Code section 70, if adopted, will provide as follows:
(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 his or her intent to end the marriage to the
(2) The conduct of the spouse is consistent with his or her intent to end
(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.
As you can see, this makes everything about the parties' supposed intent
and their conduct up for grabs, and indeed "the court shall take
all relevant evidence." Although California is supposedly a "no-fault"
jurisdiction, I guarantee you that this amendment will create a fault
free-for-all because all behaviors and activities by spouses will be fair
game in establishing their intentions about continuing or ending the marriage.
Clearly, sexual activity outside the home is implicated. Butt-hurt spouses
will have a blank check to parade all their suspicions and blames, in
what might devolve into a three ring service where angry clowns manage the show.
As I predicted in my July 21 Blog about
Davis, "A sea-change, perhaps, or meet the new boss, same as the old?"
Family Code section 70 restores the old boss to the DOS wars, but this
time on steroids. For my money, it is a reactive step backwards and little
committed attention seems to have been given to creating a new solution
to the problems I agree were created by
Why not consider a mixed rule that qualified the requirement that parties
live at two separate addresses with a presumption of no DOS if they are
living under the same roof, which could be rebutted and overcome by evidence
showing some form of practical necessity that made moving out overly burdensome
to a spouse and/or their children? This would create a threshold burden
of proof, that would winnow the field of competing claims. Perhaps it
might even require more certain "clear and convincing" evidence
to meet. This would give room for the realities of the land of relationship-endia,
without opening the floodgates to unbridled divisiveness.
If California Senate Bill 1255 becomes effective (it evidently will), which
would be on January 1, 2017 but it is only retroactive to cases that are
already pending then, an opportunity to streamline and make rational California
family law may be lost. But, ahem, a major source of litigation revenue
will be restored - which is nice for the lawyers, including this one!
My Jack Russell Jazzie does need to go to college. Or Military Dog Training
school - or ... help me, ...
somewhere to get educated, where she also gets walks!
In fact, I am soliciting bifurcated DOS trials, because my child is a royal
and costly pain in the ass (but she says that about me too) ~
Be safe out there, and humored!
(P.S. - file your Requests to Set your matter for trial at once if
Davis favors your facts, if you can get your [bifurcated] case heard before the end of 2016!)
Author: Thurman W. Arnold, III CFLS
"Ain't she cute!"