MOORLACH UPDATE — Copyright 2017 — January 3, 2017

It’s 2017 and the Senate Session starts tomorrow. Let me address a sample of what I have accomplished in 2016 and discuss one of my bills that becomes effective this week. I’ll do it through a different type of mention.

One of my hobbies is book collecting. One newer area of specialization has become acquiring books in which I am mentioned. I know, it sounds narcissistic. But, starting life as a humble accountant, I never expected to ever be mentioned in a newspaper article, let alone a book.

Most of the mentions revolve around the Orange County bankruptcy protection filing. As you can imagine, I’m mentioned in numerous books (see MOORLACH UPDATE — Book Inclusions — October 1, 2015 october 2, 2015 john moorlach). A classic is When Government Fails: The Orange County Bankruptcy by Mark Baldassare (see MOORLACH UPDATE — Property Tax Due Date — April 10, 2013 april 10, 2013 john moorlach).

Last month, I received a copy of a book from its author, Jo Carrillo, Professor of Law, University of California, Hastings College of the Law. I believe this is maybe the first time that an author has done this. And, I’m very grateful, as text books are not inexpensive.

Professor Carrillo’s book has nothing to do with the Orange County bankruptcy! It deals with a subject matter where one of my two signed 2016 bills, SB 1255, had a major impact in our state.

The book is Carrillo’s Cases and Materials on California Community Property Law – Marriage, Property, Code – Eleventh Edition; West Academic Publishing, Copyright 1966, 1971, 1977,1983,1988, 1994, 1999, 2003, 2008, 2011, and 2017.

The book also came autographed and with a very kind letter:

Dear Senator Moorlach,

My specialty is property law and California community property law. I write to say that I was relieved when you introduced Senate Bill 1255; and I am very pleased at the addition of Section 70 to the California Family Code.

I hope you will accept this casebook as a token of my appreciation for your efforts on behalf of California families.

If you ever feel that I can be of help in your legislative efforts, please contact me.

Sincerely yours,

Jo Carrillo
Professor of Law

Talk about an amazing Christmas present. Thank you, Professor Carrillo!

Thanks also go to Bruce and Lisa Hughes, of Hughes & Hughes, Attorneys at Law (see http://hughesandhughesca.com/) for bringing the idea of writing SB 1255 to my attention (MOORLACH UPDATE — Attaboy — August 5, 2016 august 5, 2016 john moorlach). Bruce and Lisa were my Becker CPA Review Course instructors back in 1977/1978! Note: One of the four parts of the C.P.A. exam is Law.

My Becker CPA Review course started in the fall and I would attend in the evenings. The course was taught at the former Masonic Temple in downtown Santa Ana, one block from where I would later spend 20 years of my career in the Civic Center.

One memorable highlight was during a break and being able to catch a glimpse of the 1977 World Series between the LA Dodgers and the NY Yankees (see https://en.wikipedia.org/wiki/1977_World_Series). The things one remembers after nearly 40 years. Another highlight, besides meeting Bruce and Lisa Hughes, was meeting my dear friend Paul Gorman. He would also eventually work for the County, in the Treasurer’s Office, for some twenty years and has just started with the Orange County Superior Court. But, I digress.

Thanks also go to my staff. In particular, Rob Nash, a recent graduate of McGeorge School of Law in Sacramento. He did an excellent job of recruiting the proper associations to support our bill. He also obtained outstanding legal witnesses for the many committee meetings where the bill was presented. He was well mentored through the process by my Chief of Staff, Lance Christensen.

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SB 1255 resulted as a response to a California Supreme Court decision. It is partially explained in Chapter 7, page 568. Chapter 1, pages 27 and 28, set the stage with the following paragraph:

The Supreme Court employs one Chief Justice and six Associate Justices. There were 7,907 filings last year, with 85 written opinions. In the area of community property law, once the Supreme Court writes an opinion, practitioners in the field may bring pressure on the Legislature to consider the wisdom of that opinion. For example, recently the Legislature abrogated the opinion in Marriage of Davis, 61 Cal. 4th 846, 352 P.3d 401 (2015). There were many reasons for abrogating Davis, some historical, some theoretical. But the primary and final reason cited by the Legislature is that the Davis majority opinion sought to draw a bright line rule in an area–marital dissolution–where bright line rules can be and often become a source of injustice. With that rationale, the Legislature ratified the current practice of empowering trial court judges with a broad grant of discretion.

Chapter 3, page 185, provides the topic at hand in Section 4. Earnings and Accumulations While Living Separate and Apart, A. The Bare Statute, dealing with California Family Code Section 771 and 772 and the newly added Section 70. Here are the three pertinent paragraphs:

Davis changed the state’s historical approach by requiring parties to establish separate residences in order to be considered living separate and apart for purposes of California Family Code Section 771. After Davis, a separate property claimant invoking California Family Code Section 771 needed proof of a separate residence, a new lease for example, to establish date of separation. The rationale in Davis was problematic; it returned California to a past where the word of third parties weighed more heavily in deciding date of separation than did the perceptions of the parties themselves. Plus, in a state with the highest or near highest cost of housing Davis attempted to draw a bright line rule ostensibly to reduce legal costs and, astonishingly, to make it easier for lawyers. Notwithstanding the fact that a marriage may continue even after one spouse moves out of the marital home, as discussed above, establishing a separate residence in order to have proof of date of separation is no easy financial task for a great number of couples. Parties would likely need available cash to pay their current rent or mortgage plus more cash to pay move-in costs for a spouse to establish a separate residence (first and last month rent, security deposit, utility start-up costs, parking, and so on).

Davis was decided on July 20, 2015. Senate Bill 1255 was introduced by Senator Moorlach on February 18, 2016. It was amended in the Senate on May 5, 2016. It passed the Assembly on June 1, 2016. On July 25, 2016, S.B. 1255 was approved by the Governor and chaptered by the Secretary of State to add a new section–Section 70–to the California Family Code to clarify the meaning of "date of separation."

As per California Family Code Section 70, date of separation now means the date that "a complete and final break in the marital relationship has occurred." Evidence of intent or conduct can be subjective or objective. "[I]n determining the date of separation, the court shall take into consideration all relevant evidence."

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