New law jettisons controversial divorce ruling

It's a sad fact many estranged California couples live with each other for years. Their marriages are shot but they stay together, emotionally separated and loveless, in order to keep a roof over their heads or raise their children.

For many years, the family courts were sympathetic to that reality. They agreed that the couple could legally separate but remain under the same roof.

Last year, in In re Marriage of Davis, 2015 DJDAR 8320, the California Supreme Court turned that on its ear and created problems for many families when it ruled that, no matter when a marriage actually ended in the couple's eyes, until one party physically moved out there was no legal separation.

Thankfully, now it's the Davis ruling that's been given its walking papers.

On Monday, Gov. Jerry Brown signed Senate Bill 1255 into law, marking a major change affecting the divorce process and making the Supreme Court's ruling moot. This is a very considerate move by the state that shows sympathy for estranged couples that continue to live together out of economic necessity. Family law attorneys should be embracing and celebrating this change in the law.

The new law, which becomes effective in January, replaces the Davis ruling that a couple living under the same roof could not be considered "separate and apart" until one of the parties moved out of the home. That's important because until a couple is considered "separate and apart," state law says all property and income are held in common by both parties.

Writing for the court, Chief Justice Tani Cantil-Sakauye had said that, to be legally separated, spouses could not live under the same roof. "A bright-line rule ... promotes fairness by providing a measure of predictability to the parties and their attorney, as well as clear guidance to judges," she wrote.

In some cases, the decision had a tremendous impact that caused lengthy court battles to determine the actual separation date and the most appropriate interpretation of Davis.

In fact, it was one of the most horrific decisions from the bench in its long history. As California is community property state, all things acquired during marriage, other than by inheritance or gift, are community property. It follows that the date of marriage and the date of separation are the determinative dates.

Davis also caused parties to have to maintain separate residences for the purposes of their divorce case when, in actuality, a huge percentage of divorced-to-be couples can't sustain two households prior to the finalization of their divorce.

The problem was largely irrelevant for couples who didn't contest the date of their separation or who were highly litigious anyway.

The new law helps estranged couples reduce costs and raise children while working on their divorce. The bill's author, state Sen. John Moorlach, R-Costa Mesa, in a statement to SFGate.com, said, "SB1255 will assist families as they enter a highly transitional time, both relationally and financially within the family unit."

Judges will be allowed to consider a couple's behavior and statements that their marriage is over in determining their official date of separation. Where they live becomes just another factor in the judge's determination, not a hard and fast rule.

The impact of such a reasonable change is clear. All property acquired after legal separation belongs to the individual, a critical step in building a new life independent of one's former spouse. And just as one spouse would no longer have any claim to the post-separation income of the other, responsibility for debts incurred after separation wouldn't be shared either.

Davis was a nightmare for families because setting up separate households while going through a divorce drained money from the whole family and diverted it from the real issues in dealing with the division of assets, business valuation and so on.

Furthermore, the trial on the issue of the date of separation was very expensive and took days to resolve.

If a family business needed to be valued, and when under appropriate circumstances the business is valued as of the date of separation, the date of separation becomes an even bigger factor involving forensic experts and costly litigation.

Thanks to this new law, for many, the extremely financially burdensome process of divorce will become a little easier to navigate.