California Divorce Blawg

Retroactivity of Pre-Nuptial Agreement Law

The California Legislature in 2002 amended Family Code section 1612 to invalidate any provision in a premarital agreement regarding spousal support, including, but not limited to, a waiver of such support if (i) the party against whom enforcement of the spousal support provision is sought was not represented by independent counsel at the time the agreement containing the provision was signed or (ii) that provision is unconscionable at the time of enforcement. (§ 1612, subd. (c).)

In a published opinion for a case out of San Diego County the issue -- which had not been previously decided in this state—is whether subdivision (c) of section 1612 applies to a premarital agreement executed before 2002.

The facts of the case are vital.  Michael and Pamela got married in 1999, before § 1612, subd. (c) was amended.  They both signed a pre-nuptial agreement that included a mutual waiver of spousal support.  At the time the pre-nup was negotiated and signed only Michael was represented by an attorney.  They divorced in 2008, after the amendments were in place. Michael wanted the spousal support waiver enforced, Pamela did not.  Under the old law the spousal support waiver would be enforced.  Under the new law it would not because Pamela did not have an attorney when the pre-nup was negotiated and signed.

Thus the important legal question to be answered:  does the statute apply retroactively?

The Court writes:

We conclude the enactment of subdivision (c) of section 1612 constituted a material change in the law regarding the enforceability of a spousal support waiver in a premarital agreement and was not merely the result of a legislative attempt to clarify the true meaning of a statute. (See Williams v. Garcetti (1993) 5 Cal.4th 561, 568; see also In re Marriage of Reuling (1994) 23 Cal.App.4th 1428, 1440 ["A statute that creates new obligations by raising a standard of care and imposing, for the first time, a specific penalty for breach of the new standard, constitutes more than a simple clarification of existing law; it manifests and intent to change it."].)

The distinction is important  because an amendment that simply clarifies existing law can be applied retroactively.  An amendent that rewrites the law and changes it cannot be applied retroactively, unless the Legislature intended for it to be applied retroactively.

The Appellate Court decided that the Legislature did not intend for the amendment to apply retroactively when it wrote: "Our review of the legislative history shows the Legislature did not intend subdivision (c) of section 1612 to apply retroactively."

Finally the Court decided that Pamela's waiver of spousal support is enforceable:

In light of the trial court's findings, which are supported by ample evidence in the record, and based on the law as it existed at the time the parties executed their premarital agreement, we conclude on this record that Pamela, despite not having independent counsel at the time she executed that agreement, knowingly and voluntarily waived her right to spousal support in that agreement. (See Pendleton, supra, 24 Cal.4th at p. 53 ["[W]hen entered into voluntarily by parties who are aware of the effect of the agreement, a premarital waiver of spousal support does not offend contemporary public policy."]; Bonds, supra, 24 Cal.4th at p. 6 [the "circumstance that one of the parties was not represented by independent counsel is only one of several factors that must be considered in determining whether a premarital agreement was entered into voluntarily."].)

There you have it.  The spousal support waiver in pre-nups negotiated and signed before 2002 is not automatically unenforceable.

Please click here to read the original opinion.

Please visit hardinglaw.com for more information on California family law.

 

 

His Eyes Don't Adore the Court of Appeal

Singer Frankie Valli was married to Randy.  During the marriage Frankie had some heart problems.  Driven by the concern over his health he and Randy purchased a $3.75 million life insurance policy insuring Frankie's life.  When the policy was purchased Randy was listed as the owner of the policy, and the beneficiary.  Premiums on the policy were paid by the community.

At time of divorce the policy had a cash value of $365,032.  Because the policy was purchased during the marriage the trial judge applied the general community property presumption, found the policy to be community property, awarded it to Frankie, and ordered him the pay Randy $182,500 (or half of the cash value of the policy).

Randy appealed.  The Court of Appeal greased Frankie, and reversed the trial court's decision.  Applying the form of title presumption, the policy was presumptively Frankie's because she was listed as the owner of the policy.  The burden of proof then shifted to Frankie to overcome that presumption with "clear and convincing evidence" proving that he and Randy had an agreement that the policy was community property.  He could not meet this burden.

The Court of Appeal writes:

Thus, the mere fact that property was acquired during marriage does not . . . rebut the form of title presumption; to the contrary, the act of taking title to property in the name of one spouse during marriage with the consent of the other spouse effectively removes that property from the general community property presumption. In that situation, the property is presumably the separate property of the spouse in whose name title is taken.

The appellate court goes on:

The evidence at trial established that Randy is the owner of the policy. Randy testified that the policy was taken out to prepare for her future in case something happened to Frankie and that Frankie and Siegel told her that “they were going to make [her] the owner” of the policy. Frankie did not introduce contrary evidence. Indeed Frankie’s own testimony and the testimony from his witness, Gilbert, support Randy’s position that she is the owner of the policy. Frankie testified that he “caused” the policy to be purchased from Gilbert’s company. Gilbert testified that Randy is the owner of the policy. Frankie testified that he did not intend to separate from Randy when he obtained the policy and that he “put everything in Randy’s name, figuring she would take care and give to the kids what they might have coming.” Frankie’s attorney’s argument to the trial court supports Randy’s position. Frankie’s attorney stated, “The policy was issued in Randy’s name as the owner during marriage . . . .

One of the facts the appellate court emphasized is that the policy was purchased from a third party.  Well what item of property isn't purchased from a third party?  It is rare that a husband and wife are selling property to each other?  This case goes a long way to ensure Randy got that insurance policy.  In my mind it also goes a long way to erode the community property presumption.  There is a long line of cases involving real estate purchased or refinanced in one party's name during the marriage which hold that the real estate is still community property.  The holdings in those cases would appear to conflict with the holding in Valli.  It will be interesting to see how other court's apply or distinguish the Valli case in the future.

Click here to read the original Valli opinion.

Please click here to visit hardinglaw.com, the website for Harding & Associates Family Law.

More On The Parental Alienation Debate

Parental alienation syndrome.  Junk science or real schience.  The debate has raged on for years, with the majority vote supporting the idea that the syndromw is junk science.  However, that view may be changing.  Slate.com recently ran an article citing some new opinions on PAS.

The competition to get your favorite disease recognized in the bible of mental health, the Diagnostic and Statistical Manual of Mental Disorders, can be as fierce as the talent contest in the Little Miss St. Paul Contest. The American Psychiatric Association is contemplating adding something called "parental alienation syndrome" (PAS) to the new edition of the DSM, scheduled to be published in May 2013, and the question has launched a national lobbying and letter-writing campaign on both sides. That angry letters and editorials might play any part in a debate about mental health and custody disputes probably tells you most of what you need to know about the validity of PAS.

What does new recognition of PAS mean?

The most worrisome aspect of the legal fight over parental alienation syndrome may be that it divides supporters and opponents along strict gender lines: As a rule, this is classed as a women's sickness alleged by men. Fathers' rights groups are not solely to blame for the fact that an entire "disease" is predicated on the notion that women are lying liars; the inventor of the syndrome can take responsibility for that. But no hypothesis so rooted in gender bias should be credited by medical science. And because evidence of PAS is so frequently offered to counter maternal allegations of abuse, the experts testifying about PAS can be aiding and abetting a system that takes children from abused mothers and hands them right back to abusive fathers. Once again, this doesn't mean that some parents don't alienate their children in a divorce. It means that PAS is now used to discredit women whenever they claim abuse.

Does any of this really matter?

The science just doesn't matter now. Even though no appellate court has found evidence of PAS to meet the scientific standards for legal admissibility, courts admit evidence of precisely the same phenomenon all the time, and by calling it "parental alienation," they achieve the same effect: overlooking allegations of abuse by one parent in order to blame the other for "alienating" the child. In other words, whether science supports them or the DSM-5 ultimately validates them, the supporters of Richard Gardner and parental alienation may have already won. While nobody was looking, a mythical legal argument known as parental alienation may have already taken over family courts.

Please click here to read the original article.

Please be sure to visit www.hardinglaw.com, the website for the law firm of Harding & Associates, for more information on California family law.

Talking To Kids About Divorce

I found a great article about talking to kids about divorce at womansdivorce.com.  The article lists 7 phrases that parents should never use when talking to their kids about the family's divorce.  They include:

• I don't want the divorce, but your Mom/Dad won't work on it with me.
• Tell you Mom/Dad ....
• Your Mom/Dad is a ....
• If you would just [change] your Mom/Dad would not be so upset with me all the time
• What is your Mom/Dad doing or saying about me?
• If you want something, ask your Mom.  I send her child support, and there is nothing left.
• I'm sorry I wasn't there...something important came up.

The article then breaks down and analyzes each of these polarizing phrases.  This is great information for parents, and a potent reminder that divorcing parents have a duty to protect their children from the damage words and actions can work.

Please click here to read the original artice.

Please be sure to visit www.hardinglaw.com, the website for the law firm of Harding & Associates, for more information on California family law.

When Lawyers Get Nasty

I will admit, there are times when I get too personally attached to the cases of my clients.  I get too argumentative.  My perspective looses focus, and I don't maintain sufficient professional separation.  It is only natural.  We lawyers are a competitive lot, and we enjoy a good fight.  Sometimes though things go too far.

Marriage of Davenport is a family law opinion published this week.  It pertains to the Sonoma County divorce of Jill and Ken Davenport, multi-millionaires from Santa Rosa.  But the opinion is not about them.  It is about Jill's lawyer, and provides a check list of what is bad lawyer behavior is in a family law case.  How about 19 volumes of court files!  A 35 page register of actions.  A sanctions request that resulted in a 5 day hearing, $100,000 in sanctions, a $304,387 31 attorney's fees award, a 31 page statement of decision from the trial judge, and a 36 page opinion from the Court of Appeals.

This opinion is great for helping to remind all family law lawyers that there is a difference between zealous advocacy and excessive zeal.  It is also a reminder that the Courts do pay attention to collegiality.  Reading this opinion knocked a bit of the crust off of me, and helped to remind me that you can be polite and effective.  It also reminded me that there can be harsh consequences if you are not collegial.

Please click here to read the original opinion.

Please be sure to visit www.hardinglaw.com, the website for the law firm of Harding & Associates, for more information on California family law.