New Law Defines Date of Separation in Divorce Cases

Governor, Jerry Brown, has signed California Senate Bill 1255 which defines date of separation in divorce cases. This new Legislation will be effective January 1, 2017, and will apply retroactively to all divorce cases that are still pending on that date.

Senate Bill 1255 adds new California Family Code Section 70. Section 70(a) provides that 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 other spouse; and (2) the conduct of the spouse is consistent with his or her intent to end the marriage.

In Section 70(b), the statute provides that Trial Court shall take into consideration all relevant evidence when determining date of separation.

In Section 70(c), the statute states that the intent of the Legislature in enacting this section is to abrogate the decisions In re Marriage of Davis (2015) 61 Cal.4th 846 [which held that there is no date of separation where parties still live together] and In re Marriage of Norviel (2002) 102 Cal.App.4th 1152 [which held that date of separation requires an intent to terminate the marriage and actual physical separation].

This new statute also amends California Family Code Section 771(a) [separate property nature of earnings after date of separation] to remove the reference to living separate and apart and replace it with the phrase after the date of separation. It makes a similar change to California Family Code Section 910(b)[community property liability for debt] to provide that during marriage does not include the period after the date of separation, as defined in Section 70, and before a divorce or legal separation judgment. It also makes conforming amendments to California Family Code Section 914 (a)(1)and (2) and (d)[debt liability] and California Family Code Section 4338(a) [source for enforcement of spousal support order].

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