Date of Separation Revisited

In 2015, the California Supreme Court issued a decision in Marriage of Davis which stated that for the purpose of determining when a couple is “separated” and no longer acquiring community
property a couple must be “living separate and apart.” This changed existing case law which provided that a under the right circumstances couple could be “living separate and apart” even
when they occupy the same residence. One year later, the Governor signed Senate Bill 1255, which enacted a new Family Code Section 70 effective on January 1, 2017. This new section
expressly rejects the holding in Davis in favor of the Trial Court’s exercise of discretion in making a factual determination about when the parties separated based upon all of the circumstances. Section 70 allows for a case in which couples may continue to live together while at the same time objectively communicating their intent to separate and then engaging in conduct
consistent with separation. So far so good, but Family Code Section 70 does not discuss retroactivity. In other words, what happens to couples who separated before January 1, 2017.

Do the Courts apply Davis or do they apply Family Code Section 70? Last weekend I attended a 2017 Family Law Refresher Course where this subject was addressed. According to at least one Family Law expert, Family Code Section 70 is probably retroactive based upon Family Code Section 4(h) and Marriage of Fellows, a 2006 California Supreme Court decision. On the other hand, because date of separation affects property rights there are court decisions which hold that in the interest of finality, uniformity and predictability, retroactivity of marital property statutes should be reserved for those rare instances when such disruption is necessary to promote a significantly important state interest. See Marriage of Fabian, a 1986 California Supreme Court case.
The take away from the Refresher Course was that there are no easy answers, only the need for a careful analysis of facts and law in each case. How courts will apply Section 70 in cases where
the parties separated before January 1, 2017, will be the subject of future decisions. Meanwhile, if this issue exists in your case you are well advised to consult with an experienced Family Law

Do you want to hear more about the latest information on family law? If you have questions regarding Separation as it relates to divorce, please contact our office to schedule a consultation. The Law Office of Family Law Attorneys Bawden & Kochis handle legal issues regarding separation, child custody, visitation, adoption, annulment, mediation, domestic violence, child and spousal support as well as pre and post-marital agreements. Telephone (909)792-0222, or email us at [email protected]

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