Separation and Section 70

How do you know when a marriage has ended? Can you quantify it? If we handed you a calendar and asked you to circle an exact date, could you?

As we know from our website’s Divorce and Separation page, California is a “no-fault” divorce state. From the moment you’re married, there’s an assumption of community property: everything I make or lose is now everything you make or lose. If that sounds great, remember: debt. When (and if) things go awry, you are not only entitled to half of everything we’ve built together, you’re responsible for half of my mistakes, half of my hardships. Although this approach aims at equity, without proper preparation, it may transform into just the opposite. More to the point of the importance of pre-marital agreements, let’s quickly go over Family Code Section 70, the new rule that could decide the end of your marriage for you.

Consistently over the course of California history, family courts have struggled to determine separation dates. More than a simple marking the end of a relationship, a separation date determines where to draw the legal line through the tangle of community finances. It is crucial for understanding where one spouse’s assets begin and the other’s ends (think income, especially). Prior to Section 70’s enactment this year, California courts had decided to paint a “bright line” by precisely defining what constitutes a separation. Through the case In re Marriage of Davis, courts ruled that spouses must not only have the intent and conviction to end a marriage, but they must also live at separate addresses. 61 Cal. 4th 846 (2015).

While this may sound like a positive step towards clarity, there are countless reasons why a couple may want to lead separate lives under the same roof. As Los Angeles Superior Court Judge Lewis identified, these motives may be economic, familial, religious, or so on. A couple could desire economic circumstances relating to cost of alternate housing, qualification for rent control or government subsidies, or financial hardship causing impaired credit; [there could be] health reasons requiring a specially equipped home or close proximity to required medical care; homeschooling of children; operation of a family business; access to the internet or availability of the family computer; absence during the week but present for weekend care of the couple’s children; restricted transportation availability because of limited number of vehicles, or the need to be close to public transportation or employment; [and one mustn’t underestimate] the social stigma of no longer living together; faith-based convictions and fear of adverse religious reactions…necessary transitional requirements to accommodate needs of a couple’s children; and victims of domestic violence who may feel trapped to remain in an unsafe relationship. Honorable Thomas Trent Lewis, Marriage of Davis, 37 FAMILY LAW NEWS, No. 3 [2], [2015] at 12. Moreover, there are countless exceptions to the rule; and prior to Section 70, a court would not have been able to divide assets if any of them were at play. Unless a couple intended to separate and fulfilled the requirement of separate housing, their property would not be able to reach a judgment in court.

Section 70 was created specifically to reverse the Davis ruling. Now, all that matters is intent to separate and action to support it. As Judge Lewis’s list demonstrates, ambiguity is necessarily part of the divorce process. If a couple does not stipulate how their end date will be decided in a pre-martial agreement, painful personal details may be used as fodder in the public fight for property. Why complicate an already complicated situation?

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