California Supreme Court Date of Separation Decision
In re Davis
In a decision filed July 20, 2015, the California Supreme Court held in Marriage of Davis, that a married couple cannot be considered legally separated when they live together in the same home. The court came to this decision despite acknowledging that their perhaps are sound policy reasons for allowing couples who cannot afford to physically separate to establish a date of separation while still living together. The court opined that if such policy reasons exist, it is for the legislature to enact changes to the Family Code. Meanwhile, couples living together awaiting divorce will have to deal with the complication that all their income continues to be community property right up until a judgment of divorce is granted.
Up until Davis, if one party was living beyond their means after the date of separation; the expenditures were considered separate debt. Prior to Davis the date of separation was the date one or both parties manifested their irrevocable commitment to end the marriage. But now, under Davis, the spendthrift party’s spending is community debts right up until the granting of a divorce judgment. Even the automatic temporary restraining orders (ATRO’s), do not prevent this result.
Note: ATRO’s come into affect with the serving of the divorce summons and prohibit either party from financial transactions that are not made in the usual course of business without permission of the court or the other party.
Governor Brown signs Senate Bill 1255 superseding court’s ruling in Marriage of Davis
As a result of Senate Bill 1255 being passed by the legislature and signed into law by the governor it is no longer required that married couples live “separate and apart” in order to establish their date of separation. This law will affect all cases after January 1 2017 and any case pending as of January 1 2017.