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Attorney Frank J. Prainito

Date of Separation

CALIFORNIA SEPARATE PROPERTY LAW

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California Supreme Court turned that on its head in a decision called Marriage of Davis, which created a bright-line rule and made physical separation a necessity for there to be a separation, although the Supreme Court left open situations that could be an exception to that rule. Many family law lawyers, judges and our California legislature were not happy with this decision and in 2016, Governor Brown signed SB-1255 under “dissolution of marriage - date of separation.” That led to the passage of Family Code 70. Here is what Family Code 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 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."

So, in essence, we are kind of back to the way things were before the Marriage of Davis decision.

IN RE MARRIAGE OF DAVIS 2015 “We conclude that living in separate residences "is an indispensable threshold requirement" (Norviel, supra, 102 Cal.App.4th at p. 1162) for a finding that spouses are "living separate and apart" for purposes of section 771(a).”

In re Marriage of Baragry (1977) 73 Cal.App.3d 444 [140 Cal.Rptr. 779] (Baragry), The court stated: "The question is whether the parties' conduct evidences a complete and final break in the marital relationship." (Baragry, supra, at p. 448.) It found no such conduct in the case before ¡it because the husband maintained continuous and frequent contact with his family after moving from the marital home. He continued to eat dinner at the home, maintained his mailing and voter registration address at the home, sent his wife cards and gifts, took her to social occasions, had her do his laundry, and otherwise maintained the appearance of being married. He never informed his wife that he had no intention of reconciling. (Id., at pp. 447-448.)

"The question is whether the parties' conduct evidences a complete and final break in the marital relationship."

In In re Marriage of Umphrey (1990) 218 Cal.App.3d 647 [267 Cal.Rptr. 218] (Umphrey), another case in which the spouses were living in separate residences, the Court of Appeal cautioned that in determining the date of separation for purposes of former section 5118, courts are "duty bound to consider all of the relevant evidence" regarding "' whether the parties' conduct evidences a complete and final break in the marital relationship."" (Umphrey, supra, at p. 657, quoting Baragry, supra, 73 Cal.App.3d at p. 448.) It concluded that the parties' stipulation to a separation date after they physically moved apart was not conclusive. (Umphrey, at p. 657.)

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