Sanctions, Sanctions, Sanctions! (Family code 271)

All too often in family law parties stonewall one another.  They make frivolous requests.  They inundate the other side with faxes, emails, messages, letters, useless interrogatories, and more.  They refuse to accept a very reasonable settlement offer. 

What can a poor spouse do, but go to trial or cave and take a low-ball settlement offer?  Family Code § 271 is here to help.  Basically, § 271 says that if the other side doesn’t play ball or doesn’t play nice the court can make them pay the other side's attorney fees.  Awesome.  It applies even if the paying spouse doesn’t have a lawyer themselves.  Here is the text of § 271:

(a)    Notwithstanding any other provision of this code, the court may base an award of attorney's fees and costs on the extent to which the conduct of each party or attorney furthers or frustrates the policy of the law to promote settlement of litigation and, where possible, to reduce the cost of litigation by encouraging cooperation between the parties and attorneys.

So, remember to play nice, or else you be paying for your ex’s legal fees.

Domestic Partnership Summary Termination (Cheaper than divorce with a 6 month rescission period)

California changed domestic partnership law drastically in 2005.  Many code sections related to domestic partnership were revised, including the one regarding terminating domestic partnerships.  Post-2005 there are two tracks that domestic partners can take when they want to “divorce” one another.  If they qualify and want to, they can participate in summary termination procedures.  Track One: Summary termination procedures are free to file, there are no hearings, and it’s relatively easy (yes people—you are getting jealous).  Track Two:  Full judicial dissolution of the domestic partnership in a process that mirrors dissolution of marriage in almost every way (more complicated, more expensive, more time consuming).

Do I Qualify For Summary Termination?

Under Family Code § 299, there is a list of requirements to summarily terminate a domestic partnership.  They are incredibly similar to Family Code § 2400, which covers summary dissolution of marriage.  Here are the qualifications set out in § 299:

1.       Both Parties Agree;

2.       Neither Party Wants Spousal Support (yes you can get spousal support as domestic partners);

3.       The Length of the Partnership Was Under 5 years;

4.       Neither Party Owns Real Property or a Lease On Property Greater Than 1 year;

5.       The Community as a Whole Doesn’t have more than $4,000 in debt (not counting automobiles);

6.       The Community Doesn’t have more than $25,000 in assets(not counting automobiles);

7.       The Parties have signed a community property settlement agreement;

8.       Neither party is pregnant;

9.       Neither party had a child during the partnership; AND

10.   Neither party adopted a child during the partnership.

What Next?

If you qualify and have a written agreement, then you file a simple form with the Secretary of State’s Office.  However, and this is a big however: either party can cancel within 6 months before the summary termination is effective (it’s like a 6-month rescission period).  That’s right.  Five months and 29 days later one of the parties can file a Revocation of Termination with the Secretary of State.  Then it’s off to court to have the partnership dissolved just like a marriage.

What’s The Big Deal?

The big deal is that California is making domestic partnership more and more similar to marriage.  Now, Federal law hasn’t quite caught up yet, so the tax and medical benefits aren’t necessarily there yet.  So now domestic partners get the protections offered by the California Family Code (like custody and support provisions), but at the end of the relationship-- a pair of partners might be looking at a divorce process very similar to a married couple.

You can’t have a key to my place and I don’t want that promotion (Status quo or else my ex will file an OSC)

As dreary as economics have been in recent times, one benefit derived from the “Great Recession” has been an increase in labor mobility.  Labor mobility—geographic and occupational, describe the ebb and flow of workers from place to place and job to job.  If all workers in the United States stayed in the same area and at the same job, there would be little growth.  When workers move around and change locations and jobs it increases competition and stimulates the economy.  So, what the heck does this have to do with family law?

The spousal support scheme in California (and many other states) dictates that support will remain the same unless there is a material change in circumstances.  In re Marriage of Terry, (2000) 80 Cal.App.4th 921, 928.  A material change in circumstances includes anything effecting the payee’s spouse’s needs or the ability of the payor spouse to pay, including pay increases.  So, if the payor spouse changes jobs, gets a raise, etc. then there has been a material change in circumstances. 

In addition, spousal support stops when the payee spouse remarries.  Although the public policy of California is to support marriage, the law has the perverse effect of creating a disincentive to remarry since payee spouses may be cut-off from support once they remarry.  In fact under California Family Code § 4323, they may even see a reduction in support if they have a cohabitant living with them.  Under §4323, once a payee spouse has a cohabitant living with them, there is a rebuttable presumption of a decreased need for support since their cohabitant should help shoulder some of the expenses.  

So, although there are valid reasons for changing spousal support upon changes in circumstances, terminating support upon remarriage, and reducing support upon evidence of cohabitation, all of these policies create disincentives to participate in both the economic and social marketplace. 

If you can’t say anything nice…

We live in a digital age where social media connects us all.  Our friends have access to our pictures and sometimes our innermost thoughts.  Combine this landscape with divorce or custody issues and disaster can ensue.  All too often Facebook and texting become platforms to vent against the other spouse or parent.  What recourse do you have when you spouse goes off on Facebook or via text messages?

Defamation

Defamation ( i.e. slander, libel) covers any published or oral statement made to other parties that is false.  So, if your spouse goes on Facebook and tells everyone you slept with the postman, this would be defamation.  The trouble is that even if you win, damages are hard to establish.  You can get an injunction preventing similar posts in the future, but your reputation has already been harmed.  Defamation actions are usually not the best recourse.

Protective Orders

California Family Code §§ 6203 and 6320 describes the circumstances that can give rise to protective orders and they include much more than physical abuse.  They include verbal, telephonic or other harassment or disturbing the peace of the other party directly or indirectly.

Protective orders (also called restraining orders) are a helpful tool, which slap someone on the wrist and tells them to knock it off.  The court will enjoin the party from acting in a similar way in the future.  If protective order is granted, the court can also award attorney’s fees and costs of receiving the order—making bad behavior very expensive.  If the other party violates the order, they can be held in contempt of court, have to pay fines, and depending on the order—end up in jail.  Some protective orders can do other things, like order the custody of specific property, kick a party out of a house, change the custody of a pet, order one party to pay specific bills, or stay away from other family members.  However, just like defamation actions, protective orders do little to make up for past harm.  There are no money damages and what is done is done.  There are four main types of protective orders and you need to choose the right one to apply for based on the circumstances.

Don’t Say Anything At All

Even if your spouse is a horrible person, saying bad things about them online or harassing them by text or phone can be considered abuse under FC § 6320.  These comments can result in attorney’s fees, costs, loss of firearms, loss of a job, etc.  So, if you can’t say anything nice, don’t say anything at all.

If you are victim to domestic violence and are in danger, please call 911 right away.

For help finding a safe place to live in Ventura County please contact the Ventura County Coalition Against Household Violence at 805-656-1111

If you would need legal guidance regarding a restraining order, feel free to contact me at 805.876.4LAW

Nightmare divorce case (I'm taking some nitrogrlycerin right now)

Some divorce cases are complete nightmares.  Especially ones were one side has counsel and the other is pro per se.  I really feel for husband's counsel in this case who must have had their patience tested all throughout. The original case was filed in 2005.  This decision was published today (2/23/12), seven years later.  In the end, the wife is deemed to be a "vexatious litigant" by the state and is sanctioned for several different reasons.  She is sanctioned among other things for "a postjudgment order awarding sanctions against her for appealing an order awarding sanctions against her." Oh, the irony.  The wife also served process on her husband (even though a non-party needs to) and forged the signature of a made up person on the proofs of service.  And got caught.  She also feigned illness trying to get a continuance and when it didn't work, walked out of court.  

The transcript when she feigns illness follows:

THE COURT: Why don't you have a seat, please.

[KATHEY]: I'm extremely ill, and as a matter of fact I'm taking some nitroglycerin right now. And I would appreciate it if the Court could continue this, because I cannot continue. I'd like to take this pill and then call 911.

THE COURT: Would you have a seat, please, Ms. Fyke.

[KATHEY]: In a minute.

THE COURT: Would you have a seat, please, Ms. Fyke.

[KATHEY]: Can you give me a minute to take this, please.

THE COURT: Ms. Fyke, I would like you to have a seat, please. Would you do that “ [KATHEY]: Can you give me ten seconds?

THE DEPUTY: Ms. Fyke, would you please have a seat.

[KATHEY]: Just a minute, Your Honor. I just dropped the pills.

THE COURT: Ms. Fyke, I would like you to sit down, please.

[KATHEY]: I will. I will, Your Honor.

THE DEPUTY: Ma'am, could you please have a seat.

THE COURT: Ms. Fyke.

[KATHEY]: I need to take a pill.

THE COURT: You can sit down.

[KATHEY]: They're all falling out.

THE DEPUTY: Please sit down. Sit down and clean it up, please.

[KATHEY]: Your Honor, I need to go. I need to--I'm--I apologize. I'm not feeling well. I'm in distress right now. I‟m supposed to call 911. Could I please--I‟m not feeling well. My doctor gave you her phone number if you wanted to confirm with her. I don‟t understand why I had to be drugged [sic] through this. I had a lot--

THE COURT: This is a hearing on the Respondent's motion to continue the trial.

[KATHEY]: And I should have—

THE COURT: Is that matter submitted?

MS. YATES-CARTER: Yes, Your Honor.

[KATHEY]: And I should have an opportunity to, um, to address it and deal with--and I gotta go, Your Honor. I'm sorry.

THE COURT: Do you--

[KATHEY]: Can I please be excused?

THE COURT: Do you want to submit this matter for decision?

[KATHEY]: No. [¶] I've got other information I wanted to share with you about the status of the computer.

THE COURT: Could we have the parties sworn, please.

THE CLERK: Please stand and raise your right hand.

[KATHEY]: I‟m not doing this, Your Honor. I'm sorry. I've asked for whatever is there, um, I apologize, um, I can't. You're welcome to call my doctor, but I, um, I'm having severe chest pains. The nitro's not kicking in and, um, I need to go take care of this. I apologize.

THE COURT: Okay. Can I--can I get--Ms. Fyke.

[KATHEY]: Could you--do you have emergency--

THE DEPUTY: Are you telling me you have chest pains right now, strong chest pains?

[KATHEY]: The nitro didn‟t--

THE DEPUTY: Would you like me to call 911? I don‟t want you to fall over. Sit down.

THE COURT: Ms. Fyke, would you cooperate, please cooperate with the Deputy and sit down. Ms. Fyke, cooperate with the Deputy and sit down.

THE DEPUTY: Do you want me to call emergency medical assistance, 911? Ms. Fyke, do you need emergency medical assistance?

[KATHEY]: I want to call my doctor.

THE DEPUTY: Do you want me to call 911, yes or no?

[KATHEY]: I'm sorry. I'm not doing this. I'm sorry.‟

“The transcript then reflects that Kathey left the courtroom"

“On May 7, 2008, Judge Lucas issued an order denying Kathey's motion to continue the trial. In her order, Judge Lucas noted that neither of the physician's notes Kathey provided prior to the hearing date included any information concerning physical or other limitations that would preclude [Kathey]'s participation.”

Never married and he leaves you high and dry (Jane you ignorant slut)

What happens when two people live together like a married couple, never get married, then he leaves her one day with nothing.  Take this situation and add to the mix an eccentric character actor and a promiscuous girlfriend (who went on to live with Dick Van Dyke until her death).  The result is Marvin v. Marvin 557 P.2d 106 (Cal. 1976).  

Triola (who had taken on the last name Marvin--even though they weren't married) argued that the two had made an oral contract whereby Lee Marvin promised to take care of her.  At trial evidence showed that Triola was far from monogamous and Lee was  The case went up to the California Supreme Court, which held that as long as the basis for the contract wasn't meretricious consideration, California courts will enforce contractual agreements for care, support, and division of property in spite of a lack of marriage.  That said, the court hardly gave Triola what she deserved--awarding a judgment of just over 100k when she asked for 3.6 million.

This type of claim has come to be known as Palimony, which is a bit of a misnomer.  The aggrieved party may also pursue quasi-contractual claims such as quantum meruit or a claim of fraud instead or in addition to the contractual claim that was made by Triola.

In addition to muddying the family law waters, the case gave us this brilliant skit with Dan Aykroyd and Jane Curtin when SNL was still funny.



(If you are still offended by the heading to this article, you clearly didn't watch the SNL skit above or have absolutely no sense of humor.)

Strategic divorce: “No you stay in the house for now, I insist”

By the time most divorcing couples get to an attorney, most have already decided who gets to stay in the house until the divorce is over.  However, especially in light of the somewhat strange real estate environment, divorcing couples should think strategically upon exit.

The Law

To simplify a little, two landmark cases are used in nearly every divorce case in California.  They are Watts¹ and Epstein².  In Watts, the court determined that a spouse who uses community property after the date of separation owes the other spouse a fee for such use.  So, Watts charges are a fee on the use of marital property; whichever spouse retains the most significant property during their divorce will probably be hit with the most Watts charges.  Meanwhile, in Epstein the court held that a spouse who pays community debts after separation is owed a credit.  So, Epstein credits are a reimbursement charged against one spouse to the benefit of the other who paid a community debt. However, Epstein credits will not apply in certain situations, like if the spouse makes the payments for the debt out a shared bank account.  Interestingly, there was a strange period between Epstein in 1979 and Watts in 1985 when the law of California granted reimbursement for payment of community debt, but not for use of community property.

The Real Estate Environment

The recession has had incredible impacts on the real estate market.  Appraised values have dropped considerably, home sales are down, and renting has increased.  One of the results of the revamped rental market is that mortgage payments and rental fees, which should be somewhat similar, are sometimes quite different.  Traditionally, annual rental cost should equate to around 7% of the appraised value of a property.  So, if you have a $400,000 home, the estimated monthly rent would be around $2,200.  But, as a result of the housing downturn rental values have increased and have especially shot up in higher end homes.  Take for example this high end home in Camarillo with an estimate mortgage of $6,900/month and an estimated rental value of $11,523/month.  Although an extreme example, there can be great variance between rental and mortgage payments, especially on higher-value properties.

The Strategy

Before moving out of the family home, or making agreements about who will stay, make sure to do some research or call a real estate agent to determine what the approximate rental value of the property is.  If there is a great disparity between the numbers, you may want to live under the same roof to avoid Watts charges.  The typical (and stereotypical) pattern is that wives want to stay in the family home and kick the husband out.  This may not be in her best interest.  Even if she pays for the mortgage, if the rental value of the property is more than the mortgage, she will still owe the difference between the rental value of the home after separation and the mortgage payments she made post separation.  To make things even more complicated, separating couples can sign a temporary settlement agreement characterizing either mortgage payments or staying in the home during the divorce proceedings as support.  In this case, no Watts charges or Epstein credits are given since this is support.  If this seems somewhat complicated, that’s because it is; and it’s best to consult an attorney.  Besides getting an attorney, it turns out the best thing to do may be to pack a suitcase and get a hotel room.  It may be cheaper than the Watts charges you could accrue.

1. In re Marriage of Watts (1985) 171 Cal.App.3d 366, 378.
2. In re Marriage of Epstein (1979) 24 Cal.3d 76.

Void Child Support Agreements (Too bad so sad)

The Facts

A mother lives in California and retains legal custody of her son, who lives in Florida with the father.  The mother and father signed an agreement that was very much similar to this:

“Mother and father retain joint legal custody of minor.  Father promises to provide health insurance for minor.  Father shall not pursue any child support for minor.”

Years pass.  Dad fails to procure health insurance for son.  When son gets sick he fraudulently used mom’s social security number to get health care for the son.  A few weeks ago, days apart, mother is served with an order to show cause for child support; then is served with a lawsuit from a Florida agency demanding payment for health care related to minor. 

Mom says, “no problem, I have a letter right here requiring dad to pay for health care and agreeing not to collect support.”  Oh, boy.

Agreements Purporting to Limit Child Support Are Void

Many parents enter into agreements attempting to limit child support.  Courts encourage settlement agreements—even those regarding child support.  However, “such agreements, to the extent that they purport to restrict the court's jurisdiction over child support, are void as against public policy.  In re Marriage of Bereznak & Heminger, (2003) 110 Cal. App. 4th 1062, 1069. 

So does the agreement prevent the mom from having to pay child support?  Nope.  In fact, many parents out there who have valid claims to collect child support for their children falsely believe that formal and informal agreements like the one here stop them from filing an order to show cause for child support.  If a parent is not collecting child support, significant time has passed since the support started, or circumstances have significantly changed in any way—the parent should have an attorney evaluate any claim for increased child support that may exist.

Legal Custody and Healthcare Costs
Under Family Code § 3085, the court may grant joint legal custody and contemporaneously grant sole physical custody.  Generally speaking, parents with legal custody are responsible for the liabilities of their children.  

In this case, since mom has partial legal custody, she is responsible for making major decisions regarding her son—and also responsible for debts incurred by her son.  Even though the dad incurred healthcare costs and committed fraud while doing so, she is liable for the costs.  Mom will most likely have to pay the medical bills and assert a breach of contract claim against the father for the amount she already paid.

How to Avoid This Mess

This mess illustrates why it’s a good idea to get a family law attorney involved even if the parties are amicable.  Even if the parties draft agreements resolving the matter—they may not be enforceable.  In addition, parties may want to include the provision of healthcare in any court order so that it’s enforceable under contempt of court instead of simply under the principles of contract (which aren’t all that helpful).  Just ask this mother.

Black and White (race and marriage)

Each person’s view of marriage is different.  It’s informed by one’s own familial experience (i.e. “I don’t want to get married because my parents divorced”).  It’s informed by culture, religion, and politics.  However, increasing evidence indicates that race has a dramatic impact on marriage.  First, how drastic is the racial disparity in marriage?  Second, how can we explain that disparity?  Third, what can we do about it?

Racial Disparity

In a recently published book, Is Marriage for White People?  How African American Marriage Decline Affects Everyone, Author Ralph Richard Banks describes the way race affects marriage rates.  A review of Banks’ book is available here.  Previous reports regarding comparatively low marriage rates amongst blacks focused on low rates amongst the black lower class.  Banks finds that the low marriage rate is consistent for blacks across all socioeconomic strata.

An article last year in the Economist (found here) cites a study which found a drastic difference in marriage between blacks and whites, differences in prolonged marriage, divorce rates, and birth to single mothers.  In addition, the study found that differences in marriage were also associated with differences in economic mobility.

Explaining the Disparity

Chalandra Bryant published a study, Understanding the intersection of race and marriage: Does one model fit all?  Bryant’s study includes a conceptual framework to help illustrate why there is a racial marriage disparity.  An abstract of her article including a look at this conceptual frame is available here.  Bryant explains racial differences in marriage as resulting from stressors that both interact and multiply—and are unique to the African American experience.


Banks explains the racial disparity in marriage rates as a result of black women's inability to find a committed partner in their lives--essentially blaming black men.  In addition, the fact that Banks notes res reduced marriage rates for blacks across socioeconomic strata discounts financial strain as a cause of the disparity.  Meanwhile, Bryant includes financial strain in her model.

Plan of Action (what can be done?)

Banks states (controversially) that black women should marry outside their race to increase their marriage prospects.  Bryant views individual perceptions of community disorder as affecting their behavior within relationships.  So, if community disorder is quelled, hostility within black relationships will be reduced, and as a result marriage will increase in value. 

Banks’ solution seems white-centered and…even racist.  

Bryant’s framework seems like a legitimate illustration of how stressors—unique to the black experience influence marriage and divorce within the community.  However, her solution of reducing community disorder seems to be a proxy for making black communities more white.  

There is a problem, we might understand what is causing it, but no one really has a solution.

Collaborative Practice (Malpractice?)

All too often the divorce process is destructive.  Spouses emerge at the other end with almost half of what they had before and they like their spouse even less.  Collaborative law seeks to avoid unnecessary adversarial conflict and find a solution that is best for all parties.  The other benefit is that it is generally cheaper for everyone.  Many times litigants can “make the pie bigger” by discovering the underlying needs and objectives of all parties.  Our entire legal system compensates everything with money damages, but many times looking at what people want that money for—or why they want it, can reveal better ways of resolving disputes.  Sounds good right?

Collaborative representation is not for everyone.  One attorney writes on her blog: “If you are looking for a process where the attorney uses any and all means to achieve the best possible outcome for you at the expense of your wife and family then Collaborative is probably not for you.”  That’s fair.  But when does collaborative practice become MALpractice or an ethics violation? 

(Yes, attorneys please send me hate email for posting this.)

California attorneys must follow the CA Rules of Professional Conduct.  Rule 3-110 requires every attorney to act with reasonable diligence.  Many cases state that this diligence also includes “acting with dedication and deal, taking whatever lawful and ethical steps are available to vindicate a client’s cause.”  Uh oh.  That required dedication and zeal may yield the exact destruction that the collaborative attorney is trying to avoid. 

The ABA Model Rules (a national standard) allow for attorneys to limit their scope of representation, such as limiting representation to collaborative matters.  California has no such rule, but some case law supports allowing attorneys to limit the scope of their representation.  There is no California case on point regarding whether or not a representation agreement to limit one’s representation to collaborative matters is effective in barring a claim that the attorney did not act with adequate zeal.  So, until then, attorneys need to:

1) Make sure that collaborative clients understand the process and want it;

2) Include in the written fee agreement a reference to the scope of representation—as collaborative and not adversarial; and

3) Be flexible enough to recommend to the client they stop the collaborative process if it is no longer in their best interest.

You can make your own will (just don’t type it)

Over 90% of Americans die without a will.  This is mostly because it costs money to go see an attorney and have one drafted (usually around $1,500).   This is something your lawyer doesn’t want you to know: you can make your own will.  Now, there are some situations where receiving legal guidance is necessary, but most people don’t really need special guidance to make a will.

Making your own will (don’t type it!)

If you want to give yourself a headache you can try and read Cal. Probate Code § 6111, which will also tell you to read § 6110, will refer to holographs, and generally be confusing.  But this is what you need to know to make your own will:

1. Write everything in your own handwriting

Everything needs to be in your handwriting.  Everything.  Don’t type your will.  Many people type their own will and sign it…only to have the court invalidate it; then you die intestate.  

2. Sign at the bottom

I think this is kind of obvious, but you need to sign it.  In California you can sign it pretty much anywhere, but sign it at the bottom, because many states require the signature to be on the bottom of the page.  The law of the state where you are domiciled at death applies—and who knows if you are going to move or not.  So don’t be creative and sign it in the margin; sign it at the bottom.

3. Date it

Write the date on your will.  Make it clear.  It doesn’t really matter if you do it like a European (day/month/year), like an American (month/day/year) or in full (i.e. October 13, 2010) as long as the court can figure it out.

4. Keep it simple

Don’t be fancy.  Don’t get tricky.  If you want to leave your estate to your kids, only so long as they go to church on Sunday, this is tricky.  Don’t use language you saw online like “if anyone challenges this will you get $1.”  Keep is simple and in your own words.  

5. If you can’t say anything nice, don’t say anything at all

Don’t say: “I leave my estate to my son, but nothing to my daughter because she is a no-good drunk.”  There is this thing called “testamentary libel” and other issues can arise if you say nasty things in the will.  You should avoid saying anything bad about anybody if at all possible.

When you need an attorney

I just got done telling you that you don’t need an attorney to make a will, but these are some of the situations in which you do need a will:

1. You have a sizeable estate

If you have a sizeable amount of wealth, you will want to take certain steps to avoid taxation of the estate.  Writing your own will is probably not in your best interest.  Hiring an attorney to create a trust and avoid taxes if at all possible is probably in your heir’s best interest.

2. You want to get tricky/creative

You really want to be creative.  You only want your son to inherit “if he marries a Jewish girl” (there are hundreds of cases with that provision believe it or not).  You only want your daughter to inherit if she finishes college.  There are so many ways to screw this provisions up that you need an attorney.  

3. People are going to contest the will (you have a family of jerks)

Your family is litigious and you know that your kids are going to file law suits to duke it out.  There are certain steps that you can take to encourage them from fighting over your estate or to make it harder for them to challenge your will.  

4. You want to amend a previous will

You already had an attorney make a will, but you want to change it.  A handwritten will saying that “your revoke all previous wills, codicils, and testamentary instruments” will probably suffice, but it is really easy to make mistakes when amending previous wills.  Go see an attorney if you already have a will and you want to make changes.