How SB 1255 (the “anti-Davis legislation”) Will Impact Your “Date of Separation”

Posted August 29, 2016 in Family Law by Michael Lonich.

Currently divorcing spouses or couples considering divorce better consult a lawyer soon—a newly enacted statute has changed the method by which California courts determine a married couple’s “date of separation.”  On July 25, 2016, the governor of California, Jerry Brown, signed SB 1255 (aka the “anti-Davis legislation”), a bill which amends California Family Code § 771 and adds section 70 to the Family Code.  As a result, the existing standard that governs a married couple’s “date of separation” has been changed.  Previously, Family Code § 771 instructed that spouses were not separated until they were “living separate and apart”—a phrase which courts interpreted to mean “living in separate residences.”  With the passing of SB 1255 though, spouses may now be considered “separated” even if they share a common residence.

A couple’s legal “date of separation” is important because it determines the point at which a spouse’s earnings and accumulations are no longer considered “community property” and instead, are considered a spouse’s own “separate property.”  In turn, the difference between community and separate property is important because absent a written agreement stating otherwise, all community property must be evenly divided between divorcing spouses.

SB 1255’s nickname—the “anti-Davis legislation”—came about because of the case its creation abrogates:  In re Marriage of Davis.  In July 2015, the Davis court held that “living in separate residences ‘is an indispensable threshold requirement’ for a finding that spouses are ‘living separate and apart,’” or in other words, for determining a “date of separation.”  However, the Davis court didn’t create new law—it merely affirmed what it believed was the California legislature’s intention when it coined the phrase “living separate and apart” many years ago.

To ascertain the legislature’s intent, the Davis court had to do go back 146 years to 1870 when the phrase was first used in a statute that protected the rights of married women.  Similarly to section 771, the 1870 Act did not define “living separate and apart.”  However, according to the Davis court, section four of the 1870 Act suggests that the legislature intended for the phrase to require separate residences: a wife, who was “living separate and apart” from her husband and wished to sell her real property without joining her husband, had to record a declaration that included a description of “her own place of residence” and a statement that “she is a married woman, living separate and apart from her husband.”

Additionally, when the California legislature repealed a number of Family Code sections in 1969, it created a new statute (section 5118) that reproduced the 1870 Act language.  Once again though, the legislature provided no specific definition of “living separate and apart.”  The Davis court reasoned that the legislature’s continued use of the phrase—without defining it—expressed its satisfaction with earlier judicial interpretation of the language.

Further, the Davis court also relied on a notable 2002 case—In re Marriage of Norviel—which concluded that “living apart physically is an indispensable threshold requirement to separation, whether or not it is sufficient, by itself, to establish separation.”  Therefore, relying on legislative history and case law, the Davis court affirmed the Norviel holding—spouses had to live in separate residences before they could be considered separated.

While the Norviel and Davis courts may have correctly discerned the original meaning of “living separate and apart,” our modern legislature took issue with their holdings and in response, passed SB 1255.  The bill expressly abrogates Norviel and Davis, and rather than provide a specific definition for “living separate and apart,” the legislature did away with the phrase all together.  Instead, section 771 (the modern statute that contained the disputed language) now uses the phrase “after the date of separation” to determine when a spouse’s accumulations and earnings transition from “community” to “separate” property.  In turn, newly added section 70 defines “date of separation” as a “complete and final break” that is evidenced by two factors: 1) a spouse has expressed his or her intent to end the marriage to the other spouse, and 2) the conduct of the spouse is consistent with his or her intent to end the marriage.  Further, section 70 requires that a court look at all “relevant evidence” when making the above determination.

This statutory change was spurred on by Senator John Moorlach (R-Costa Mesa), the author of SB 1255.  He believed it was necessary to change the Family Code language because many spouses wish to separate legally in order to protect their personal finances, but also, wish to continue sharing a residence in order to save costs during their divorce.  Thus, SB 1255 should better reflect the reality of modern divorce experiences.

While the amended Family Code sections do provide clarity and allow couples more post-separation flexibility, it is important to note that SB 1255 may not be the end of legal disputes about separation dates—in the coming years, case law will further refine section 70.  Additionally, couples in the process of a divorce should not let SB 1255 pass by them unnoticed because when the new law goes into effect on January 1, 2017, it may retroactively apply to any cases pending on that date, but this issue still needs to be resolved and addressed by the Family Courts in California. Look for another blog post on this topic specifically. However, consulting now with your attorney to develop a “date of separation” strategy is in your best interest.

If you are considering a legal separation or divorce, please contact the experienced family law attorneys at Lonich & Patton—we can help you navigate the effects of SB 1255 and answer any questions you may have about how the new law will impact your divorce.  The sooner you understand how SB 1255 will affect your current or impending legal plans, the better you can prepare for the new rule when it goes into to effect on January 1, 2017.

Lastly, please remember that each individual situation is unique, and results discussed in this post are not a guarantee of future results.  While this post may detail general legal issues, it is not legal advice.  Use of this site does not create an attorney-client relationship.


2016 Cal. Legis. Serv. Ch. 114 (S.B. 1255)

In re Marriage of Davis (2015) 61 Cal.4th 846

In re Marriage of Norviel (2002) 102.Cal.App.4th 1152

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The More the Merrier?: When a Child Can Have More than Two Legal Parents

Posted August 5, 2016 in Family Law by Michael Lonich.

Traditionally, when multiple parties would claim to be a child’s parent, a court could only recognize two of those claims.  However, family matters are rarely so simple, and a recent California case has reaffirmed what subsection (c) of Family Code Section 7611 provides: “[i]n an appropriate action, a court may find that more than two persons with a claim to parentage under this division are parents if the court finds that recognizing only two parents would be detrimental to the child.”  “Detrimental to the child” is determined by (but not limited to) the “harm of removing child from stable placement with a parent who fulfills that child’s physical and emotional needs and has done so for a substantial period of time.”  Importantly, a finding of detriment does not require that a court find any other parentage claimant to be unfit.

In April 2016, the California Court of Appeal for the Sixth District elaborated on Section 7611.  In Martinez v. Vaziri, the petitioner was the child’s biological uncle, the respondent was the child’s mother, and the child’s father was the petitioner’s half-brother.  Petitioner and Mother had been in a long-term relationship when Mother conceived a child.  However, DNA testing revealed that the child was fathered by Petitioner’s half-brother.  Father abandoned Mother during her pregnancy, and since the child’s birth, he has been in-and-out of jail.

Aware that he was not the father, Petitioner raised the child as his own—he accompanied Mother to her doctor’s appointments, was present at the child’s birth, and lived with and cared for the child during her first six months of life.  Even after he moved out of Mother and Child’s home, Petitioner continued to see Child three days and two to three nights a week.  Eventually, Petitioner initiated proceedings to establish legal parentage.

Although the trial court denied Petitioner’s parentage claim, the Court of Appeal remanded the case for reconsideration of detriment to the child in light of its interpretation of “stable placement.”  The trial court had concluded that even though Petitioner established himself as the presumed parent of Child, there was no threat of Child’s “stable placement” being upended because Petitioner had already spent substantial time apart from Child while he attended a drug rehabilitation program.

The Court of Appeal found the trial court’s interpretation of “stable placement” to be lacking and remarked that the phrase is in reference to a parent’s physical and emotional attention to a child’s need.  Therefore, the critical distinction is not the living situation, but rather, whether a parent-child relationship has been established, and whether the claimant has demonstrated a commitment to the child.

Thus, as Martinez v. Vaziri demonstrates, a child is not limited to two parents.  If a third claimant can prove a sincere and stable commitment to a child (a still demanding standard), a court has the ability to protect the alternative parent-child relationship—without penalizing the child’s other biological or presumed parents.

Establishing parentage is important for both parents and children; however, multiple parentage claimants can complicate the process.  If you have questions about the parentage of your child or are interested in establishing legal parentage, please contact the experienced family law attorneys at Lonich & Patton to help you sort through your and your child’s rights.

Lastly, please remember that each individual situation is unique, and results discussed in this post are not a guarantee of future results.  While this post may detail general legal issues, it is not legal advice.  Use of this site does not create an attorney-client relationship.


1)  Cal. Fam. Code § 7612(d)

2)  Martinez v. Vaziri (2016) 246 Cal.App.4th

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Three Things to Know About Creating a Living Trust

Posted July 27, 2016 in Estate Planning, Probate by Michael Lonich.

First, one of the biggest advantages of creating a living trust is avoiding probate court.  Administering a will or trust through probate court takes time and money.  A living trust is a great estate planning vehicle because it can keep the entire administration process court-free.  When the settlor of the trust passes away, the terms of the trust dictate how the estate should be administered. In turn, probate court is avoided.

Second, make sure that the successor trustee is someone who is capable of administering the trust.  Often times, the oldest child is chosen to be the successor trustee.  However, the oldest child is not always the right choice.  A successful administration requires a trustee who is organized, diligent, and capable of administering the trust.  It is also beneficial to have someone with an understanding of accounting.  If your oldest child does not have any of these characteristics, consider appointing another child, relative, or friend.  If no one you know is capable of administering the estate, you may have to hire a third party. There are a number of trust companies and banks that administer trusts.  The biggest concern about hiring a third party is the administration fees, which can be substantial.  If your estate can handle the fees, a third party may be the right choice for you.  Lastly, a trust will never fail for lack of a trustee.  If the elected trustee refuses, another one will be appointed.

Finally, creating a trust avoids California’s intestacy laws.  A state’s intestacy laws provide the default estate plan for those who die without a will.  In California, the beneficiary of a decedent’s estate depends on whether the property was community property or separate property.  Assuming that decedent was married and had community property, the surviving spouse’s intestate share is the decedent’s one-half share of the community property.  On the other hand, if the decedent’s property was separate property, the intestate share of the surviving spouse depends on how many children the decedent had, if any.  While it is important to know a state’s intestacy laws, they should be avoided at all cost.  Thus, creating a trust is a way to avoid intestate succession and have your estate administered the way you want it.

If you are interested in creating a living trust or have any questions regarding your current estate plan, please contact the experienced estate planning attorneys at Lonich & Patton for further information.  The attorneys at Lonich & Patton have decades of experience handling complex estate planning matters, and we are happy to offer you a free consultation.  Please remember that each individual situation is unique and results discussed in this post are not a guarantee of future results.  While this post may detail general legal issues, it is not legal advice.  Use of this site does not create an attorney-client relationship.


California Probate Codes § 6400-6414.

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Alternative Custody Schedules: Bird’s Nest Custody

Posted July 7, 2016 in Family Law by Michael Lonich.

Divorce is always difficult—especially when children are involved.  Consequently, there will never be a “one size fits all” approach to child custody.  Traditional custody arrangements (sole, every other weekend, etc.) may work for some families, but others may benefit from an alternative schedule.  Enter: bird’s nest custody.  Bird’s nest custody is an alternative method of child custody where the children remain in the marital home, and it is the parents who make scheduled moves between residences.  More specifically, one parent will move into the marital home (aka the “nest”) and take care of the children for a period of time while the other parent lives in his or her own individual home or stays with family and friends.

Bird’s nest custody is not right for every family, but it can be beneficial, even as a short-term, transitional solution, when the parents voluntarily consent to the arrangement and are able to communicate respectfully with one another.  In return, children can acclimate to their parents’ divorce in a familiar environment, maintain accustomed to patterns of interaction with their school and friends, and be spared the emotional and logistical hassle of regular house switches.  Additionally, parents who are not ready to sell the marital home–especially if the housing market is down—can hold off on that step until circumstances are more financially favorable.

Bird’s nest custody is not without a downside—namely, it is expensive.  Instead of maintaining two homes, a family must maintain three homes.  Parents can try to maintain only two homes by sharing the “off home” as well, but couples must be realistic about their ability to navigate the physical and emotional logistics of two shared residences.  Additionally, some couples may not benefit from stalling the sale of the marital home—everything inside the house and the house itself are key pieces of a divorced couple’s property settlement.  Without selling the home and its assets, reaching an agreement about the distribution of community property may be difficult.

Psychologically, issues arise for both children and parents.  First, bird’s nest custody may leave children, especially young ones, confused about whether or not their parents have truly split.  Second, parents may have trouble moving on if they maintain such strong ties to their marital home.  Ultimately, a clean break may benefit children and parents more than the environmental stability that results from nesting.

Lastly, most real life attempts to implement bird’s nest custody are not successful.  Seldom are divorced couples willing or able to make the approach work—ex-spouses do divorce for a reason!  The aim of bird’s nest custody is to reduce a child’s stress, and if the approach leads to more tension and more arguments between the parents, the process will not benefit anybody in the family.  Additionally, changes in an ex-spouse’s romantic status usually complicate the arrangement—even if new partners don’t mind moving between residences, rarely would a parent feel comfortable welcoming his or her ex-spouse’s new partner into the “nest.”  Moreover, the situation is fairly impossible to implement if a spouse or new partner has children from a previous relationship.

Ultimately, successful implementation of bird’s nest custody requires clearing quite a few hurdles, but the approach demonstrates that alternative and creative custody arrangements do exist—families should not feel bound by traditional custody schedules.

If you are interested in learning more about bird’s nest custody or other alternative custody schedules, please contact the lawyers at Lonich & Patton—an experienced family law lawyer can help parents craft the best custody arrangement for their children and themselves.

Please remember though that each situation is unique, and results discussed in this post are not a guarantee of future results.  While this post may detail general legal issues, it is not legal advice.  Use of this site does not create an attorney-client relationship.

Source:  Michael T. Flannery, Is “Bird Nesting” in the Best Interest of Children?, 57 SMU L. Rev. 295, 297 (2004)

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Going to California, The Quasi-Community Property State

Posted June 27, 2016 in Estate Planning, Family Law by Michael Lonich.

A move to the Golden State has the potential to change the character of your property.  Upon arrival in California, meeting with an experienced California estate planning attorney is a must!

Generally, there are two kinds of property systems: community property and separate property.  California is one of nine community property regimes in the United States.* Presumptively, community property is all property acquired by a couple during marriage.  The community property system gives each spouse a fifty percent (50%) interest in the property, among other characteristics.  In California, separate property is all property owned by a person before marriage and all property acquired by gift, bequest, or devise during marriage.

California’s community property system is unique because it also recognizes “quasi-community property.”  Quasi-community property includes all property, wherever situated, that would have been treated as community property had the acquiring spouse been domiciled in California at the time of acquisition.  For example, if husband bought a car with funds earned during marriage, while living in Minnesota, a separate property state, the property would be the husband’s separate property.  However, if husband and wife moved to California and then filed for divorce, the car would be considered quasi-community property.  The reason being is that if the husband was domiciled in California at the time he had purchased the car, it would have been characterized as community property.  Pursuant to California law, all property acquired during marriage, including a spouse’s earnings, is community property.  Therefore, in accordance with the quasi-community property statute, each spouse would have a fifty percent (50%) interest in the car.

The example above is just one of many that may give rise to quasi-community property.  Nonetheless, it illustrates the potential effect a move to California can have upon one’s property.  Moreover, each state has the authority to make its own property laws.  Therefore, it is imperative that when you move to a new state, especially from a separate property state to a community property state, you visit an experienced estate planning attorney.

For more information about quasi-community property or estate planning in general, please contact the experienced estate planning attorneys at Lonich & Patton for further information.   The attorneys at Lonich & Patton have decades of experience handling complex estate planning matters, including quasi-community property issues, and we are happy to offer you a free consultation.  Please remember that each individual situation is unique and results discussed in this post are not a guarantee of future results.  While this post may detail general legal issues, it is not legal advice.  Use of this site does not create an attorney-client relationship.


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