What Is the Anti-Davis Law?
In 2015, the Supreme Court of California made a landmark decision regarding the date of separation in a divorce. The focus of the case was one simple idea: Can ex-spouses actually be “living separate and apart” (as defined by Family Code 771) if they are still living in the same home? The spouses each had separate opinions on the matter.
Both spouses agreed that their marriage ended in 2006. However, for the sake of the children, they decided to remain in the same house together until 2011. Because they claimed their marriage ended in 2006, that’s when the wife said the date of separation was. The husband, however, said they did not separate until 2011. The Supreme Court sided with the husband, stating they did not separate until 2011.
They did so for a few reasons. One, the Court said, the meaning of the term “living separate and apart” required the couple to live in different locations. While there may be some ambiguity with the term, the Court also stated that the term’s meaning had not changed since 1870, when it was first established. At that time, the term “living separate and apart” meant the wife had to find her own home away from the husband.
Why Does That Matter?
After that decision by the California Supreme Court, attorneys across the state raised alarm over the potential aftermath of such a ruling. There are any number of reasons why divorced spouses may decide to stay in the same house. Perhaps, as in the Davis case, they want to keep the family together for the children’s sake. Or, one spouse may be unable to afford their own place at the time of the divorce.
Due to these concerns, California Governor Jerry Brown signed into law Senate Bill 1255 —a.k.a. The “Anti-Davis Law” — on July 25, 2016. In short, this law allows the court to take into consideration many different factors when deciding the true date of separation. It also redefined the date of separation as the date when the “complete and final break of the marital relationship” happened. According to the text of the bill, contributing factors include:
- The spouse has expressed to the other spouse his or her intent to end the marriage.
- The conduct of the spouse is consistent with his or her intent to end the marriage.
The reason the separation date is so important is that it is the date on which all future “earnings and accumulations of a spouse” become separate property instead of marital property. This includes property, money and other assets, as well as debt, attained after the date of separation.
What Happens Now?
The Anti-Davis Law went into effect on January 1, 2017. However, the law is retroactive. That is due to a provision in the Family Law Code that states all new family legislation is retroactive, unless otherwise specified. As such, if you have had issues with establishing your date of separation under the Davis ruling, it may be possible to go back and re-establish that date. And, of course, if your case did not reach a judgment before January 1, 2017, then the Anti-Davis Law will be used as a basis for the ruling.
Establishing the state of separation can be a tricky thing and, under the Anti-Davis Law, has become even more complex. As such, if you are going through a divorce in San Bernardino or the surrounding area, it is crucial you have a well-qualified attorney on your side. Contact MBLK Law Firm today for a free consultation and case evaluation.
Stephen Levine, is a Board Certified Specialist in Criminal Defense — an honor achieved by only the top criminal law attorneys in California. Mr. Levine has over 40 years of experience in criminal defense and family law serving Southern California, and is a highly regarded Super Lawyer as well as AV Rated attorney.