Last year, we wrote a blog post on the blockbuster case of Marriage of Davis issued by the California Supreme Court. In that case, the Court resolved a split among the lower courts and held that it was impossible for spouses to be separated unless they were physically living separate and apart. The date of separation can be the most important issue in a given case. The date of separation determines the duration of spousal support and it determines the end of the community and the end of the creation of new community property.
Many family law practitioners, and eventually the California legislature, cried foul at the Davis decision. While this rule makes sense if the spouses in question have resources, what if those of modest means can’t afford to move out? Why should they be forced to possibly support another spouse for a longer period of time and/or create community property from his or her labor when there is no doubt the marriage is over?
The legislature eventually acted and Governor Brown signed legislation overturning the Davis case. The law can be viewed here.
There are still two big questions regarding this new law that are not addressed in its text: 1) When does it take effect and 2) is it retroactive?
When does the Anti-Davis legislation go into effect?
Although you wouldn’t know it just by reading the statute, this legislation goes into effect starting January 1, 2017. This is because this is “non-urgency” legislation. Unless otherwise stated in the body of a statute, all non-urgency legislation is effective beginning on January 1 of the following year under California law.
Is the Anti-Davis legislation retroactive?
Again, you wouldn’t know it by reading the statute, but, yes, the Anti-Davis legislation is retroactive. This is because Family Code section 4, holds that, all provisions in the Family Code are retroactive unless otherwise stated. Since the Anti-Davis legislation is quiet on retroactivity, this means it is, indeed, retroactive.
Wait, how can it both take effect on a future date AND be retroactive?
It works like this: Davis is the law of the land until December 31, 2016. Unless your trial on the date of separation is on or before that date, Davis will apply. However, for all pending cases that haven’t reached judgment as of January 1, 2017, the Anti-Davis statutes will apply. Ultimately, should you encounter an issue with a date of separation in your case, you need experienced legal counsel at your side.
Please contact us if you are considering divorce from your spouse, a legal separation, or have questions regarding child custody and visitation. Nancy J. Bickford is the only Certified Family Law Specialist (CFLS) in San Diego County who is also a licensed Certified Public Accountant (CPA) with a Master of Business Administration (MBA). Don’t settle for less when determining your rights. Call 858-793-8884 in Del Mar, Carmel Valley, North County or San Diego.