How Do I Refer...? III. Someone Who Isn’t Separated, and Hasn’t Reached a Decision About Ending Their Marriage?

Counseling a client who is contemplating separation or divorce, or even “maybe thinking” about one, is among the most sensitive tasks family law attorneys face, and it draws as much on our counseling skill-set as it does on our lawyering.   The reasons for ending a marriage are even more varied than the reasons for starting one, and the level of emotion can be just as high, or higher. 

     One of our critical tasks in that situation is making sure that our client has useful correct information, both as to the “ground rules” and available options.  The mis-information circulating among the public, and even among trusted advisors other than family law attorneys, often exceeds the real stuff in volume.  

    The California Supreme Court has recently tried, in Marriage of Davis, to clarify one of those ground-rules, but has not provided guidance of much help to most of the public.   They sought to resolve the previously complicated question of how to determine when someone, in the words of California Family Code 771 is “... living separate and apart from the other spouse”.  This is a critical decision in California, since once that has happened, earnings aren’t community property any more.

    Until 2002, it was the (admittedly muddy) rule in California, that parties were separated when they had “come to a parting of the ways with no present intention of resuming the [marital relationship]. ....The question is whether the parties' conduct evidences a complete and final break in the marital relationship.”  Until 2002, it was clear that spouses could be ‘separated” while living under the same roof. 

Beginning in 2002 in Norviel, the court of appeal chipped away at the second part of that rule, and now, in Davis, the Supreme Court appears to have made the opposite the new rule: “ 'living separate and apart' refers to a situation in which spouses are living in separate residences and at least one of them has the subjective intent to end the marital relationship, which intent is objectively evidenced by words or conduct reflecting that there is a complete and final break in the marriage relationship”.

Until the legislature acts to further clarify this (a multitude of proposed bills are pending) navigating “the beginning of the end” of a marriage will require even more careful and sensitive advice of a sort that only experienced practitioners should be offering.

"Grey" Divorce and Retirement Plans

From today's New York Times

Concealing Assets During a Divorce

A northern California man, Steven Zinnel, was sentenced to more than 17 years in prison for declaring bankruptcy and hiding assets to avoid paying child support and spousal support. He was also ordered to pay a $500,000 fine and forfeit assets worth more than $2,8 million. The sentence is said to be one of the longest prison terms given for bankruptcy fraud in federal court in the Sacramento Eastern District of California.

Zinnel, the father of two teenage children, split from his wife in 1999 and had a contentious divorce. Apparently, there was a history of Zinnel concealing his assets throughout he case and afterwards in an attempt to avoid paying support.

http://www.mercurynews.com/california/ci_25280558/northern-california-man-who-hid-assets-avoid-paying      

In California, spouses have a fiduciary duty to disclose their complete financial information to each other. If a party’s financial situation changes (upwards or downwards), that party also has a duty to provide supplemental or amended information to the other party disclosing the change to their finances.

Are "Friends" Friends? Social Media and Law

Is being a Facebook "friend" of the judge, the same as being "friends with the judge"?  Florida seems unsure, and blawger Ilya Somin has some additional thoughts on Florida's view.  As someone who's friends, and "friends",  with a judge (I'm also married to her), it's of some interest.  A tip of the mortarboard, per usual, to Prof. Volokh, now over on the Washington Post's platform.

Duty to Disclose

Stuart Strumwasser and Jennifer Johnson got a divorce in New York in 2007. Shortly before filing for divorce, Johnson told Strumwasser that she was going to San Francisco to visit her brother. While in San Francisco, Johnson purchased stock in Twitter. She filed for divorce six months later. The stock was never disclosed or addressed in the divorce settlement. Strumwasser discovered the stock well after the divorce was finalized. As part of the divorce settlement, Johnson was ordered to pay $2,465 per month in child support although he was making a modest income because Johnson demanded he pay support based on income substantially higher than his actual income.

That Twitter stock is now valued at between $10 and $50 million. Strumwasser is requesting $120,000 plus 30% of her Twitter shares.

http://www.nydailynews.com/new-york/brooklyn/twitter-investor-hid-earnings-child-support-dad-article-1.1530653

In California, if a spouse fails to disclose an asset, it is considered an omitted asset. The court reserves jurisdiction (the power to resolve the issue) over the disposition of omitted assets even after a judgment is entered. If the court finds that the omission was intentional or fraudulent, then there are consequences to the party who fails to disclose. Such consequences  can include assigning the entire asset or the entire value of the asset to the other spouse regardless of whether that asset would have been considered community or separate property. Since the penalties can be this severe, it’s important to always disclose everything during a dissolution. In California, spouses not only have a duty to disclose everything (assets and debts) to the other party, they have a duty to update any financial information if it changes during the case. 

4000 Answers

I just answered my four thousandth question on Avvo.  Think I'll rest.

Hot Mid-Summer Action! (or something like it)

Custody and Dollars

In a somewhat troubling decision, the Illinois Appellate Court has reversed a trial court and ordered that a "move-away" be permitted, where the finding that re-location was in the child's best interest was built on the economic benefit Mom  (the moving parent) would receive when she married her fiance. 
  
 L.C. has two parents who are too poor to support him. His mother, a part-time   waitress,  receives child support in the amount of $67 bimonthly from his father, who, it appears, lives in a basement room of his mother’s and stepfather’s house.   We hasten to add that there is no correlation between money and human worth and that we do not intend the least denigration of either parent. Nevertheless, such economic hardship is not to be taken lightly. Poverty can be grim and corrosive, and social mobility in the United States is not what it used to be. We do not mean to subscribe to an iron-clad determinism, but the opportunities L.C. has during his childhood probably will determine the opportunities he has for the rest of his life.
 .....
 All in all, it strikes us as unfair to L.C. to jeopardize his good fortune by diminishing the means by which [would-be step-father] can help him materially.  

Since Illinois applies a substantially higher threshold requirement in out-of-state relocation cases for the "moving away" parent than California applies, it's not clear that the result would have ultimately have been different in California.  The "economic realities" of the case were such, however, as to demand that the court disclaim doing exactly what they were, ultimately, doing, which was tying the court's custody decision to the as-yet-unrealized marriageability of Mom.


Same-Sex Marriage Dust-Up Continues

Meanwhile, the dust on same-sex marriage continues to swirl around local courthouses, and city halls (or wherever they issue marriage licenses these days).  An Ohio Federal court seems poised to determine that whether or not Ohio is required to provide same-sex marriage, it cannot refuse to recognize same-sex marriages contracted in states in which such marriages are authorized, and in Kentucky Federal court, a suit has now been filed by a pair of same-sex spouses and adoptive parents, challenging that state's refusal to recognize the marriage, and to permit the Kentucky adoption to proceed as an adoption by a married couple.

Health Insurance after Divorce.

About 115,000 women per year lose private health insurance in the months following a divorce and more than half that (approximately 65,000) will lose coverage long term. 

http://www.ncbi.nlm.nih.gov/pubmed/23147653

Typically, the court cannot prevent an insurer carrier from ending coverage for a divorced spouse of the named insured because they are no longer "related to" the insured. There may be other options available such as COBRA continuation health coverage which gives former spouses the right to temporary continuation of health coverage at group rates if certain criteria are met. COBRA coverage is paid for by the beneficiary and it can be quite expensive, though it is generally less than individual private health insurance. COBRA costs for health insurance are typically the full cost of the coverage for the beneficiary including the cost to the employee and cost to the employer plus 2% for administrative costs.

COBRA conversion benefits are only available for a set amount of time and will terminate after the maximum period has ended.  If arrangements are not made in advance of COBRA ending, there will be a break in coverage. There may be options available for affordable health care and planning in advance for the anticipated lapse in health care coverage will minimize the length of time uninsured.

Separated, But Never Divorced?

The New York Times on some of the reasons that some folks (including, apparently, Warren Buffet) continue in marital limbo, for years, and in some cases, decades. The record, in my own practice, was a client who had cohabited with his new spouse just long enough to conceive, and for her to give birth to, a child; now that their son was finally reaching adulthood, they thought it would be a good time to finally dissolve the marriage...

On-Line Marital "Tune-Ups"?

Per the New York Times, a number of efforts are afoot to provide on-line tools for "preventive maintenance and assessment" for married couples. (Providing relationships with something between scheduled maintenance/inspection visits by your car dealer, and your annual physical?)

Professors from UCLA and University of Miami are soliciting 500 married couples to participate in a study of on-line self-help couples therapy.

Researchers at Brigham Young offer an (inexpensive) on-line martial/relationship assessment which, they say, yields a graphic report depicting a couple’s communication and conflict style, and how much effort each partner puts into the relationship.

A similar assessment tool is also being studied in Australia as part of a telephonic and remote program of marital counseling, intended for those in remote areas who simply cannot practically arrange for face-to-face contact with a counselor.

Why Do People Divorce, and Should We Make it Harder To Do?

A family law blogger colleague argues against Maryland’s pending reduction of the minimum waiting period for entry of a divorce judgment.

In support of his argument that this is a bad thing, he republishes a study which notes a statistical correlation between a state’s minimum time for completion of divorce proceedings and the divorce rate in the state (and also cites a similar correlation as to foreign countries).

Leaving aside a myriad of science/statistics problems with the underlying study, I’ll ask, provocatively, “So what?”

A state could reduce its divorce rate to zero, quite simply, by either making divorce a sufficiently long or expensive process, or by simply eliminating it completely, by repealing its divorce statute. That would not mean, obviously, that the families in such state would be “less dysfunctional”, or that the children in those families were better-adjusted, or anything like that.

The more significant argument is buried within the discussion: there is some reason to think that divorce has a better outcome for kids if we allow married parents to finalize their divorce more quickly if they reach a complete agreement regarding the custodial arrangements for their children (or stated more realistically, that we don’t allow couples to dissolve the marriage quite as expeditiously if they DON’T reach an agreed resolution of their issues).

There also is some evidence that suggests that some sort of dispute resolution counseling may both reduce the rate of divorces completed, and result in a substantially better outcome for the kids involved.

Which is lovely, except that the budget for any such intervention (custody mediation, dispute resolution education and counseling) has never been adequate, and at least in California, is now evaporating.

A while ago (in the last century, actually) I’d argued that the best way to lower the divorce rate was to remove some the impediments to divorce (cost, minimum waiting periods, congested court calendars, etc.) , but to add similar impediments to marriage. Originally my feeble attempt at Swiftian satire, I’ve now come around to the view that this is an idea worthy of serious consideration; if you put the counseling and waiting period in at the front end, the outcomes are likely to be far better at the back.

. . . or should we just say “. . . those that are married already. . . . . . shall keep as they are”?

Just In Time for The Holidays: When Is That Porsche With The Big Red Bow NOT A Gift?

Ms. Buie was married to Mr. Neighbors. Ms. Buie had previously sold a piece of real estate, and had some money in the bank, so shortly before Mr. Neighbors' birthday, she allowed him to take $60,000 of that money and buy himself a Porsche. . . . . . or so he thought.

As a California court has already observed, ". . . divorce unsettles many of the parties' significant plans and assumptions, no matter how carefully crafted. . ."*

There was, you see, apparently no writing from Buie to Neighbors saying something like "Here is my gift to you!", or if there was, nobody could find it by the time Buie and Neighbors got to court.

California law requires that there be a writing for such a "transmutation" of community property to separate property, except as to a

". . . gift between the spouses of clothing, wearing apparel, jewelry, or other tangible articles of a personal nature that is used solely or principally by the spouse to whom the gift is made and that is not substantial in value taking into account the circumstances of the marriage." **

The trial court said "Gift!", perhaps reasoning that a Porsche was, for a middle-aged husband in Southern California, of a "personal nature", the way clothing or wearing apparel or jewelry is for a middle-aged wife. He would, after all, no more expect her to drive his Porsche than he'd expect her to let him wear her fur coat and diamond earrings.

Not so fast, said the Court of Appeal. The legislative comments to the 1984 enactment of F.C. 852 were fairly explicit that an automobile isn't "a tangible article of a personal nature". In the absence of a writing, there's no gift transmutation of the car from community to Mr. Neighbor's separate property. Even more dismaying for him, since the money used was traceable to Ms. Buie's separate property house proceeds, and she also had never made a written waiver of her right of reimbursement, she was entitled to be reimbursed for her contribution, up to the remaining equity in the car. The car was in essence, all hers, not all his.

If you find a car in your driveway this month, with a card from your spouse on it, save, treasure and keep that card!


* Marriage of Destein (2001)
**California Family Code Sec. 852

Divorce and Social Security

A quick explanation, from the Wall Street Journal, of divorce and Social Security benefits.

McCourts: Minding (And Dividing) The Family Store

Jamie McCourt has now filed her action for dissolution, along with a request for somewhere between $300,000 and $500,000 per month in spousal support (depending on whether she immediately gets back all her perks of being a Dodgers co-owner) and about two and a half million dollars in attorney fees and litigation costs.

What's interesting about this case, beyond the usual tabloid stuff, is that it involves almost all of the issues any married couple in business together faces when the marriage goes bad.

The questions aren't that different from those which have to be answered if the McCourts together had purchased and operated, let's say, a sandwich franchise, except that there's a much longer string of zeros after all the numbers, which makes it worthwhile to take a long hard look at the issues, rather than just sort of "washing them out". If either of them wants to air the dirt, as it appears that both may be in the process of doing, their employees, and their business competitors, are of course watching from the sidelines.

To the extent that either airs dirt, and the business suffers, there then will arise the equally interesting question of who it is (to mix metaphors) who killed the golden-egg-laying goose. Since California spouses have an ongoing fiduciary duty to their spouses, and to the community, NOT to kill the golden goose, if each takes a drumstick and pulls hard, it'll take a lot of sorting out to find the cause of goosey's death.

Surprisingly, Los Angeles is NOT the Divorce Capital!

In fact, California's not really in the running. Looks like Indiana and Florida are the big contenders.

How To Maximize Your Parenting In California

My advice on:

How To Maximize Your Parenting In California - Avvo.com

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Divorce Can Make You Sick

This just in: divorcing is often so stressful that it will make you sick.

Egyptian Fatwa: Your Neighbors Can Make You Get Divorced

It seems that under a recent determination of Muslim law as it applies in Egypt, if a couple doesn't get along, but doesn't proceed to get a divorce, the neighbors can do it for them.

"Sheik Gamal Qutb, former head of Egypt's top religious institution, the Fatwa Committee at al-Azhar, said Sunday during a meeting at the Egyptian Press Syndicate that his fatwa states that neighbors and family members can file for a couple's divorce if the pair's differences appear irreconcilable, al-Arabiya reported Friday. Qutb said community members should first attempt to help solve a couple's marriage problems, but should then present evidence of the marriage's failings to a court if the husband and wife cannot live together in peace."

If we could get a similar law passed here, I'm seeing a phone-in-your-votes reality TVshow that'll potentially leave "American Idol" in the dust.

Thanks to Warren Shiell's "Los Angeles Divorce And Family Law" blog for the pointer.

How Bad Is "Egregious" (As Opposed To Just Plain "Really Bad")?

New York, among other idiosyncracies in their family law, continues to have "fault divorce"; if you fail to prove fault, the court can refuse to grant a divorce.

I've been practicing my entire career in a "no-fault" state, and the idea that the state has some interest in telling someone who wants to get divorced, "No, even though you've filed a divorce, you must stay married..." strikes me as odd.

Odder still, however, is the following:

If your spouse engages in "egregious" conduct, a New York court can change the division of property to punish the "at fault" spouse. You might think that think that a court would have no hesitation in finding wife's affair, resulting pregnancy, telling husband that child was his (for four years) and a subsequent affair, taken together would rise to the level of "egregious" conduct and that wife had "deliberately embarked on a course designed to inflict extreme emotional or physical abuse upon" husband.

Apparently, you'd be wrong.

California has an explicit statute confirming that spouses have fiduciary duties to each other. This has, to date, been interpreted to mean that if one spouse secretly does funny business with the finances, the innocent spouse doesn't bear the risk of the funny business.

I had a similar "Surprise, you're not daddy!" case, briefly, years ago, and always wondered: would California have recognized my guy's claim for the breach of fiduciary duty?

Divorce Across The Border, or Madness Across The Water

As the world economy (or the world's economies) slumps*, different aspects of law come into sharp focus, while others, momentarily, lose relevance making them worthy of attention. I'm now far more interested than I've been in a couple of decades, in the possible remedies my clients' refinance mortgage-holders may have when the mortgage doesn't get paid**. The formulas by which the parties get to divide up the appreciation on a parcel of real estate, on the other hand, seem at least for the moment like debating the number of angels who can dance on the head of a pin.

As money and employment shift around, so do the people holding them; again, where people have gone, from economic necessity, is affecting whose law governs what happens when someone feels the marriage is over and files something. At all levels, from the user of "free-divorce-advice-on-the-internet" , to the "multinational couple," I'm answering more "I'm here, she's there; can I file here, and what happens if she files first, there?" questions than I've seen in a long time.

These are thorny questions at best, and often the best answer is no more than "It depends, and my best educated guess is..."

* "dives"? "tanks"? "enters a flaming death-spiral"?
** because only one party's living in, and paying for, the house where "wedded bliss used to dwell".