In July of 2015, the California Supreme Court decided a case regarding
the date of separation of a divorcing couple. In California, the date
of separation from a marriage determines whether property going forward
from that date is separate, and whether property acquired during the marriage
Davis case, the Court determined that an “…indispensable threshold
requirement” of the date would be when the parties began living
at separate residences.
This decision did not improve date-of-separation determinations, but made
them more problematic. Many couples live in separate residences due to
job or other obligations, but consider themselves married. Thus, their
earnings and accumulations should be considered community property, but
with the Davis decision it would make them separate property. Many other
couples in the process of getting a divorce remain in the same family
residence, because they have nowhere else to go, can’t afford to
make payments on other residences, etc. Also, if the family residence
is a community asset, both have an equal right to reside in it. Thus,
according to the
Davis decision, these people are still married, and their earnings and accumulations
are community property.
To alleviate the problem, last year the California State Legislature enacted
a new Section 70 to the California Family Code.
In part, Section 70 states:
(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 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
Marriage of Davis and
In re Marriage of Norviel.
This legislation went into effect on January 1, 2017.