Lawmakers Have Made a Major Divorce Update

In 2015, the California Supreme Court, in Davis v. Davis, ruled that for the purposes of defining separation (which triggers when a debt and an income becomes of a separate nature), the parties must be living separate and apart. In other words, if you are living under the same roof, no matter what the arrangement (“I use the back door, he uses the front,” “we use separate bedrooms,” etc.) you are not living “separate and apart.” Many criticized the decision as being insensitive to the realities of modern life; i.e. finances, sometimes forces divorcing parties to get creative in their dissolution planning.

If you need help finding creative solutions for your divorce or child custody issues, feel free to give us a call for a free consultation. We’re more than happy to help.

Lawmakers Quickly Respond

Since Supreme Court’s ruling was a legislative analysis, the legislature responded pretty quickly to undo it. And Governor Davis has already approved Senate Bill section 1255. Legislative Counsel’s Digest states that,

This bill would define “date of separation” for purposes of the Family Code to mean 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 conduct that is consistent with that intent. The bill would direct a court to take into account all relevant evidence in determining the date of separation.

As such, starting January 1^st, 2017, the Family Code will be amended as follows:

SECTION 1. Section 70 is added to the Family Code, to read:

70. (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 to the other spouse his or her intent to end the marriage.

(2) The conduct of the spouse is consistent with his or her intent to end the marriage.

(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.

SEC. 2. Section 771 of the Family Code is amended to read:

771. (a) The earnings and accumulations of a spouse and the minor children living with, or in the custody of, the spouse, after the date of separation of the spouses, are the separate property of the spouse.

(b) Notwithstanding subdivision (a), the earnings and accumulations of an unemancipated minor child related to a contract of a type described in Section 6750 shall remain the sole legal property of the minor child.

SEC. 3. Section 910 of the Family Code is amended to read:

910. (a) Except as otherwise expressly provided by statute, the community estate is liable for a debt incurred by either spouse before or during marriage, regardless of which spouse has the management and control of the property and regardless of whether one or both spouses are parties to the debt or to a judgment for the debt.

(b) “During marriage” for purposes of this section does not include the period after the date of separation, as defined in Section 70, and before a judgment of dissolution of marriage or legal separation of the parties.

SEC. 4. Section 914 of the Family Code is amended to read:

914. (a) Notwithstanding Section 913, a married person is personally liable for the following debts incurred by the person’s spouse during marriage:

(1) A debt incurred for necessaries of life of the person’s spouse before the date of separation of the spouses.

(2) Except as provided in Section 4302, a debt incurred for common necessaries of life of the person’s spouse after the date of separation of the spouses.

(b) The separate property of a married person may be applied to the satisfaction of a debt for which the person is personally liable pursuant to this section. If separate property is so applied at a time when nonexempt property in the community estate or separate property of the person’s spouse is available but is not applied to the satisfaction of the debt, the married person is entitled to reimbursement to the extent such property was available.

(c) (1) Except as provided in paragraph (2), the statute of limitations set forth in Section 366.2 of the Code of Civil Procedure shall apply if the spouse for whom the married person is personally liable dies.

(2) If the surviving spouse had actual knowledge of the debt prior to expiration of the period set forth in Section 366.2 of the Code of Civil Procedure and the personal representative of the deceased spouse’s estate failed to provide the creditor asserting the claim under this section with a timely written notice of the probate administration of the estate in the manner provided for pursuant to Section 9050 of the Probate Code, the statute of limitations set forth in Section 337 or 339 of the Code of Civil Procedure, as applicable, shall apply.

(d) For purposes of this section, “date of separation” has the same meaning as set forth in Section 70.

SEC. 5. Section 4338 of the Family Code is amended to read:

4338. In the enforcement of an order for spousal support, the court shall resort to the property described below in the order indicated:

(a) The earnings, income, or accumulations of either spouse after the date of separation, as defined in Section 70, which would have been community property if the spouse had not been separated from the other spouse.

(b) The community property.

(c) The quasi-community property.

(d) The other separate property of the party required to make the support payments.

So is Davis dead?

Maybe.

I only say maybe because we don’t know what is going to happen for the period prior to January 1^st, 2017. Will Davis control prior to that date and the new code section afterwards? Is this a minor issue? That depends what kind of income and what type of a debt we are talking about.

Issues like this show how much the law can change—and how much those changes affect your options. Navigating the law requires a family attorney who not only understands how the law works, but where the law is headed, and what that means for you. At the Edgar & Dow, we are more than happy to answer your questions and help you figure out the next step.

If you’re facing a divorce, don’t be unprepared—contact our firm for a free consultation.