Is the Pending Anti-Davis Legislation - SB1255 - Really a Good Idea?

Charles K. Wake, Esq.

Editor's Notes: Charles K. Wake, Family Law practitioner in Los Angeles, California. Charles co-chairs the Legislative Committee of the LACBA Family Law Section for 2015/2016 and is vice-editor of the LACBA Family Law E-News.

The Pending Anti-Davis Legislation

Senate Bill 1255 ("SB 1255") would add a new Section 70 to the Family Code defining "date of separation" in a manner that allowed parties to be separated while maintaining a common residence.

SB 1255 would also amend Cal. Fam. Code §771 2 to replace the phrase "while living separate and apart from the other spouse" with the phrase "after the date of separation of the spouses."

SB 1255 is specifically intended to "abrogate the decisions in In re Marriage of Davis (2015) 61 Cal.4th 846 ["Davis"] and In re Marriage of Norviel (2002) 102 Cal.App.4th 1152 ["Norviel"]."

The History of SB 1255

Before October 25, 2013, no reported case had ever held that parties could be separated while they lived under the same roof.  The only case to have considered that issue held that "living apart physically is an indispensable threshold requirement to separation, whether or not it is sufficient, by itself, to establish separation." 3

On October 25, 2013, the First District Court of Appeal published its subsequently overturned decision in Marriage of Davis. 4 The First District disagreed with Norviel and held that "a spouse who continues to live in the family home but who, in every meaningful way, has abandoned the marital relationship" could still be separated.

The California Supreme Court reversed the First District, holding that " living in separate residences 'is an indispensable threshold requirement' [citation omitted] for a finding that spouses are “living separate and apart” for purposes of section 771(a)."  After a lengthy historical legislative analysis, the Supreme Court concluded that the Legislature had intended the phrase "living separate and apart" in Section 771 to mean "a situation in which spouses are living in separate residences and at least one of them has the subjective intent to end the marital relationship, which intent is objectively evidenced by words or conduct reflecting that there is a complete and final break in the marriage relationship." 5

As the Supreme Court in Davis pointed out, Norviel was decided in 2002, but no action was ever taken to legislatively overrule that decision.  However, even though the First District's opinion in Davis was only the law for less than five months, 6 it apparently whet the appetites of bread-winning spouses everywhere.

The Competing Interests Involved

Among the policy considerations recognized in Davis that are promoted by a rule allowing spouses to be separated while living under the same roof are:

  1. "[T]here may be spouses who need to reside in the same residence as 'roommates' because of foreclosure, job loss, or other economic factors."
  2. Some spouses may wish to share the same residence in order to more effectively co-parent their children.
  3. Such a rule "evenhandedly recognizes the separateness of each spouse’s earnings and accumulations in situations where the spouses have effectively though not formally ended their marriage."

Among the policy considerations recognized in Davis that are promoted by a rule requiring spouses to maintain different residences in order to be separated are:

  1. "[A] bright-line rule ... promotes fairness by providing a measure of predictability to the parties and their attorneys, as well as clear guidance to judges."
  2. Such a rule "reduces the potential for manipulation of a more elastic standard by the higher earner in situations of significant disparity of spousal income."
  3. Such a rule "retains the presumption of community property for earnings and accumulations acquired during marriage during a period of time likely to be prior to the institution of court proceedings and any court order of support, thereby protecting the lower earning spouse."

Another consideration which neither SB 1255 nor the Supreme Court in Davis acknowledged is that financial abuse is a form of domestic violence.  "The forms of financial abuse may be subtle or overt but in general, include tactics to limit the partner’s access to assets or conceal information and accessibility to the family finances." 7 Such tactics could easily include announcing a marriage is over, claiming all earnings are separate property, and giving the low- or non-earning spouse a meagre allowance for the necessities of life while refusing to vacate the family residence.

Toward a Reconciliation

The Supreme Court's decision in Davis adopted an interpretation of the phrase "living separate and apart" that promoted a particular set of interests. SB 1255 would legislate an interpretation of that phrase which promotes a competing set of interests. A third approach is available which reconciles, rather than chooses between, these competing interests.

Amending Section 771 to authorize an enforceable written separation agreement between consenting spouses under appropriate circumstances would: (1) allow spouses to be separated while maintaining a common residence if both agree for financial or co-parenting reasons; while (2) protecting the non- or low-earning spouse against financial exploitation or abuse.

Whether spouses can make such an agreement that will be enforceable under existing law is problematic.  At least one appellate opinion holds that a trial court is not "jurisdictionally bound to accept [a] separation date recited in [a marital settlement] agreement" even after that agreement has been incorporated into a judgment.8 Statutorily authorizing such an arrangement within a safe haven of appropriate protections to assure a knowing and voluntary agreement would obviate any such questions.

1 This article represents the author's personal comments and analysis. It does not purport to reflect the views of the Family Law section of the Los Angeles County Bar Association.
2 Hereinafter "Section 771." Section 771 provides that a spouse's earnings after the date of separation are separate property.
3 Norviel, supra.
4 In re Marriage of Davis, 220 Cal.App.4th 1109 (2013).
5 Davis, supra, 61 Cal.4th at 864.
6 The First District's opinion was published October 25, 2013; review was granted February 11, 2014.
7 See, e.g., National Network to End Domestic Violence at:
8 In re Marriage of Umphrey, 218 Cal.App.3d 647 (1990)

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