California Divorce Blawg

When A Marriage Is A Marriage, Is A Marriage . . . .

Here are some great facts from a case out of Sacramento County.  This is for real!

Patricia married Richard in 1973. Patricia started dating Henry in 1987.  Patricia started dating Jeffrey in 1988.  At the time he was dating Patricia, Jeffrey was married to Debra.  Notice I have yet to mention any divorces or break-ups. 

Particia broke up with Richard in mid 1988.  She continued to date Jeffrey and Henry.  In May of 1988 Patricia got a restraining order against Henry.  She served the retraining order on Henry, and then she and Henry met in Reno to talk about it.  After a few shots of tequila Patricia and Henry went to a Reno wedding chapel and got married.  She spent the night with him in Reno, and then returned to her boyfriend Jeffrey in Sacramento.

Patricia divorces Richard in December, 1988.  Jeffrey divorces Debra in April, 1991.  Patricia and Jeffrey get married in June, 1991.  Notice there is nothing about Patricia divorcing Henry.

In 2008 Patricia and Jeffrey break-up.  Patricia files for divorce. Jeffrey files to have their marriage annulled. A divorce ends a valid marrige.  An anullment declares the marriage void. It is as if the marriage never occcured.  Jeffrey argued that his marriage to Patricia was void because she was still married to Henry when she married Jeffrey.  According to Jeffrey that is bigamy, and that equals void marriage for Patricia and Jeffrey.  Annulment also equals no spousal support and no community property division.

Proving that she has more luck than a leprechaun on St. Patty's Day, Patricia wins.  The court decides that because she was still married to Richard when she married Henry in 1988, her marriage to Henry was void from its inception.  By the time she married Jeffrey Patricia had gotten a divorce from Richard.  She did not need to get a divorce from Henry because that marriage was never valid.  She was a single women -- as that term is defined legally -- when she married Jeffrey, and it was a valid marriage.

What does it all mean?  It means that Patricia can now go back to court and get spousal support and property from Jeffrey.

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Spousal Support: A Paradigm Switch

Thanks to a case out of Tennessee, the topic of spousal support is garnering national media attention.  The outcome of that case is consistent with obervations I have been commenting on in this blog, and warrant further discussion.

I have been practicing divorce law in California for three decades.  Some things have stayed the same.  Other things have changed.  Spousal support has done a bit of both.  When I was a new lawyer, the wife -- and only the wife -- always got spousal support.  That is now changing by virtue of husbands actually getting spousal support.  The law never said men could not get it, they just never asked for it before.  Now they are asking for it, and the law being gender neutral, supports an award to them if the wife is in a superior position financially.

Historically, whether she needed it or not, if the wife asked for spousal support she got it.  With time the amount that was awarded has gone down.  Also, California courts have been quicker to impose seek work orders, and to otherwise constrain spousal support awards to wives.  I attribute this to several social developments.  As an example, the number of male judges is decreasing, and the number of female judges is increasing.  In my opinion there is more political fall-out if a male judge affronts a female's request for spousal support.  That same pressure does not stick to female judges.  Also, again in my opinion, female judges are not as receptive to the idea of spousal support as a need.  Female judges have accomplished a lot on their own, and the idea of dependency on a spouse may not resonate as loudly with female judges.  Also, with the passage of time, economic opportunities outside of the home have increased for women, and as a society the need for spousal support may not be as strong.  Still the presumption that spousal support will be awarded to the wife controls as a norm in family law.

However, a spousal support case out of Tennessee has garnered national attention because what it did was so unusual, and because it brings a new focus to spousal support as a potential consequence of divorce rather than an entitlement.  The Tennessee Supreme Court denied a wife's request for spousal support. To be technically precise the Tennessee Supreme Court reversed a lower appeals court's decision to award long-term and lump-sum alimony to a suburban Nashville woman who is in good health, has a stable and relatively well-paying job and received significant assets in the divorce. The Supreme Court's unanimous decision Friday reinstated the trial court's decision not to award lifetime alimony and substantial attorneys fees to the wife even though she earned less than her husband of 21 years.

Click here to read more.

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Spousal Support Is Not Automatic

An unpublished opinion out of Los Angeles County sheds some light on the assessment the court is supposed to perform when ruling on spousal support.  The opinion is enlightening for the fact that is tells us that spousal support is not a foregone conclusion in every case.

    Jennifer and Dennis married in January 2001. Dennis filed a petition for dissolution of the marriage on December 12, 2007. The petition stated the date of separation was January 2, 2005. On October 16, 2009, Jennifer filed a response which stated that the date of separation was March 1, 2007. Jennifer also filed an order to show cause requesting an award of temporary spousal support retroactive to the date that Dennis filed the petition for dissolution.

    In November 2009, Dennis opposed the request for temporary spousal support and filed a responsive declaration. He stated that he has rented the same 1000 square-foot house for the past nine years. During the marriage, Jennifer and Dennis did not own a house, had one personal car, no savings, traveled very little, and had few possessions. Dennis had the use of a vehicle through his work. Their furniture consisted of used items from friends or Jennifer’s family, items purchased at garage sales, and some new items from stores such as IKEA. Jennifer’s parents paid for their trip to Ireland, including airline tickets, accommodations, and spending money. They went to Las Vegas together four times, including their wedding. Except for one trip together to a NASCAR race, he attended NASCAR races alone and shared expenses with his male friends on the trip.

    In 2005, Jennifer and Dennis moved into separate bedrooms. Jennifer was spending significant time with a personal trainer named Trevor. Dennis paid Jennifer’s expenses during this time. Jennifer moved into her own apartment in March 2006. Dennis paid the first and last month’s rent, as well as the security deposit for the apartment. Dennis agreed to pay for the car, which she drove, and her car insurance until their divorce was completed. He paid their community debts without any contribution from Jennifer. He kept an old computer and bought her a new computer. Dennis helped her make loan payments on a student loan while she was adjusting to living on her own. He also paid her rent for a period of time so that she could build up a financial cushion. She took money from their joint account for her expenses and Trevor’s expenses.

    A hearing was held on November 17, 2009. The trial court ruled that Jennifer had made no showing of need and Jennifer’s cohabitation was a factor that decreased her need. Dennis paid a substantial amount of money to maintain the status quo since the time of the separation. There was no showing that the marital standard of living was substantially higher than the standard of living that Jennifer currently enjoyed. Therefore, the court denied the request for temporary spousal support.

The trial court's decision was upheld by the appellate court.

The trial court has broad discretion to award temporary spousal support and may order “‘any amount’ based on the party’s need and the other party’s ability to pay. [Citations.]” (In re Marriage of Wittgrove (2004) 120 Cal.App.4th 1317, 1327; Fam. Code, § 3600.) An award of temporary spousal support “‘is utilized to maintain the living conditions and standards of the parties in as close to the status quo position as possible pending trial and the division of their assets and obligations.’ [Citation.]” (In re Marriage of Murray (2002) 101 Cal.App.4th 581, 594.) The court is not required to consider and weigh statutory factors as it does with permanent spousal support. (In re Marriage of MacManus (2010) 182 Cal.App.4th 330, 335.)

    An award of temporary spousal support rests within the broad discretion of the trial court and will not be reversed on appeal absent a showing of a clear abuse of discretion. (In re Marriage of Wittgrove, supra, 120 Cal.App.4th at p. 1327.) “[I]n exercising its broad discretion, the court may properly consider the ‘big picture’ concerning the parties’ assets and income available for support in light of the marriage standard of living. [Citation.]” (Ibid.) “Trial courts may properly look to the parties’ accustomed marital lifestyle as the main basis for a temporary support order. [Citations.]” (Ibid.)

In this case, Jennifer sought temporary spousal support calculated as of January 2008. However, she failed to demonstrate a need for temporary spousal support. The evidence showed that Dennis paid monthly rent of $1,320 for the house where the parties lived during their marriage, while Jennifer paid monthly rent of $1,450 for her apartment. There was no showing that Jennifer cannot afford housing comparable to the parties’ living arrangements during marriage. Her need was decreased by the fact that her cohabitant pays half of her monthly rent. In fact, the evidence showed that there are months that Jennifer can afford to pay her cohabitant’s utility expenses.

    During the marriage, the parties shared the use of one personal car, of which Jennifer now has sole possession. Jennifer has a newer computer now than the parties owned during their marriage. She has the pool table that she referred to in her declaration on the marital standard of living. There is no evidence that Jennifer does not have and cannot afford a television or a personal trainer. The only significant trip that the couple took together during their marriage was paid for by Jennifer’s parents. There was no evidence as to how often Jennifer and Dennis dined out during their marriage or how much they spent on groceries. Although Jennifer declared that her average monthly expenses for dining out were $25, she stated during her deposition that she had eaten out approximately 20 times in that month. Jennifer failed to show that she cannot dine out, rent comparable accommodations, or otherwise enjoy the standard of living that she and Dennis enjoyed during their marriage.

    Jennifer contends that a determination of the amount that Dennis paid on her behalf after separation is required. However, because Jennifer failed to demonstrate a need for temporary spousal support, it is unnecessary to credit Dennis for any amount that he paid on her behalf after the parties’ separation. The trial court also did not need to determine the date of separation, because Jennifer failed to show a need for support after January 2008, regardless of which date of separation is used. There is no issue on appeal concerning Jennifer’s need for an award of attorney fees. We note that after the dissolution petition was filed in 2007, the evidence showed Dennis worked 40 hours per week, plus overtime, while Jennifer was underemployed in her skin care business by choice.

Please click here to read to original Vitt opinion.

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Calculating Spousal Support When There Is Severance Pay

It is not uncommon to have spousal support and child support set based on the paying spouse's base or guaranteed income.  Additional support can then be ordered from any additional income, such as bonus income or commissions (usually in the form of a % of the additional income).  The case creating this additional support mechanism is Ostler & Smith (1990) 223 Cal.App.3d 33.  But what happens when the support paying spouse gets laid off, and receives a severance package?

In a published opinion out of Los Angeles County, Marriage of Tong & Samson, we get the answer.  Richard and Elaine got divorced.  Richard had to pay $9,059 per month in spousal support, plus 35% of "all compensation in excess of $25,000 for each month."  Subsequently he got laid off.  The lay-off included a $309,700.81 severance payment to Richard.  Richard went to court not to have the severance pay spread out over time.  Elaine, of course, wanted her 35% cut immediately, in one lump sum.  The appellate court said no to Elaine.  The appellate court focused its attention on the word "compensation."  It found that severance pay did not fit the definition of compensation, and therefore did not come within the straight 35% lump sum formula.  The court writes:

The bulk of Richard’s severance pay was apparently designed to compensate him for 12 months of lost salary and six months of lost commissions. It did not represent a single month of compensation and should not have been treated as such for purposes of the Ostler & Smith percentage.

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.

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.

 

 

Spouse Who Is Awarded Spousal Support Because Of Domestic Violence Can Also Sue For Tort Damages

Linda and Steve got a divorce.  During the divorce Linda proved that she was the victim of domestic violence at the hand of Steve.  In part because of the domestic violence finding, the family law judge order Steve to pay spousal support to Linda.  Linda then filed a personal injury lawsuit against Steve, arising from the domestic violence.  Steve tried to block the personal injury suit by arguing that Linda had already been compensated through the award of spousal support in the dissolution action (for all you lawyers out there he argued "res judicata/claim preclusion").

According to the Court of Appeals Steve's argument fails.  The two claims were separate and distinct.

A tort action like the present one is based on “the primary right to be free from personal injury” (no matter how many different tort theories may be alleged). (Sawyer v. First City Financial Corp. (1981) 124 Cal.App.3d 390, 399.) “It is clearly established that ‘. . . there is but one cause of action for one personal injury [which is incurred] by reason of one wrongful act.’” (Slater v. Blackwood (1975) 15 Cal.3d 791, 795.) There is no sound basis, however, for concluding that a claim for spousal support in a marital dissolution proceeding is also based on “the primary right to be free from personal injury,” even if one of the circumstances the family court considers in adjudicating that claim is domestic violence between the parties.

The Family Code recognizes that a person has a right to spousal support from his or her former spouse under certain circumstances. Specifically, subdivision (a) of Family Code section 4330 provides that “[i]n a judgment of dissolution of marriage or legal separation of the parties, the court may order a party to pay for the support of the other party an amount, for a period of time, that the court determines is just and reasonable, based on the standard of living established during the marriage, taking into consideration the circumstances as provided in Chapter 2 (commencing with Section 4320).” One of the many circumstances set forth in Family Code section 4320 is “[d]ocumented evidence of any history of domestic violence . . . between the parties.” (Fam. Code, § 4320, subd. (i).)

In our view, this provision, which requires a family court to consider evidence of domestic violence in determining whether an award of spousal support is appropriate, and if so, how much support is just and reasonable, does not seek to vindicate the primary right to be free from personal injury, as a tort action for domestic violence does. Rather, subdivision (i) of Family Code section 4320 is just one of many provisions that exist to vindicate the primary right of a party in a marital dissolution (or legal separation) proceeding to obtain spousal support from the other party if the circumstances justify such support.

Because the same primary right does not underlie a request for spousal support in a marital dissolution proceeding and a tort action for damages, the doctrine of claim preclusion does not preclude a person from offering evidence of domestic violence in connection with a request for spousal support in a dissolution proceeding, then suing for damages for domestic violence, or vice versa. Accordingly, a judgment in a dissolution proceeding where claims of domestic violence were (or could have been) litigated with relation to a claim for spousal support does not preclude a later tort action for domestic violence.

Please click here the read the Court's opinion.

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Non-modifiable Spousal Support Means Non-modifiable Spousal Support

In re the Marriage of Salvador is an unpublished opinion out of Riverside County  (E048978).  Husband and wife settled their divorce case in March, 2007.  At the time wife was making $142,000 per year, and husband was disabled with zero income.  Among other things the settlement agreement provided that:

Wife will pay to Husband for spousal support each month 50 percent (50%) of Wife‟s gross income from employment, commencing June 1, 2007, payable every two (2) weeks by Wife to Husband, and continuing until the remarriage of Husband, or June 1, 2019, whichever occurs first. Wife currently receives bonuses twice per year from [her employment]. Wife must pay 50% of her gross bonus to Husband within 60 days of receiving it from her employer. The amount of spousal support payable by Wife may never be less than the sum of $3,000 for any particular month, up until June 1, 2019[,] or remarriage of Husband, whichever occurs first. . . . . No court will have jurisdiction to order such additional spousal support payable by Wife to Husband at any time, regardless of any circumstances that may arise. . . . The amount of spousal support may be modified only in the event of Wife‟s permanent disability.

In April, 2009 Wife filed an order to show cause to set aside the judgment based on fraud in the inducement, perjury, and unenforceable and illegal provisions regarding spousal support pursuant to the provisions of Family Code section 2120 et seq.23 Wife contended she was duped into believing that Husband‟s attorney was working for her as well. She maintained the MSA was heavily one-sided in favor of Husband. Moreover, she declared that the loss of her job in February 2009 meant that she was incapable of complying with the judgment‟s provision that she pay a minimum of $3,000 a month to Husband.

The trial court denied Wife's motion.  The judgment was not vacated, and spousal support was not reduced.  The Court of Appeals upheld the trial court decision.  “A judgment may not be set aside simply because the court finds that it was inequitable when made, nor simply because subsequent circumstances caused the division of assets or liabilities to become inequitable, or the support to become inadequate.” (§ 2123.) Nevertheless, “[n]othing in this chapter is intended to restrict a family law court from acting as a court of equity.” (§ 2128, subd. (c).)  “Section 2123 is plain that where the only reason to set aside a judgment is that it was „inequitable when made,‟ the trial court is affirmatively commanded not to set the judgment aside under „any‟ law.” (In re Marriage of Heggie (2002) 99 Cal.App.4th 28, 33.) “[Section 2123] leaves a trial court with no discretion to grant a motion based solely on an imbalance or „windfall‟ theory.” (Id. at p. 34.) “[T]he naked lopsidedness of the deal in hindsight” is not enough under section 2123 to warrant setting aside the judgment. (Id. at p. 36.)

The court determined that there was no evidence of fraud, duress, perjury, coercion, force, or failure of Husband to disclose material financial information. The record fully supports the court's findings; indeed, Wife made nary an allegation of any such misconduct on the part of Husband. Wife's sole contention below regarding misconduct related to Husband‟s attorney's ostensible joint representation of both her and Husband.  That contention is not supported by the facts.

Next wife argued that any theories of equity the judgment should have been set aside.  She loses again.  the family court‟s equitable authority is limited to those bases enumerated in section 2122 for setting aside the judgment (fraud, perjury, duress, mental incapacity, failure to comply with mandatory disclosure, or mistakes of fact or law), i.e., it does not extend to any determination that the agreement was inequitable when entered into.

Wrapping it up the Appellate Coourt writes:

Here, the terms of the judgment explicitly forbade modification by the court in any manner except those expressly delineated therein. “The amount of spousal support payable by Wife may never be less than the sum of $3,000 for any particular month, up until June 1, 2019[,] or remarriage of Husband, whichever occurs first.” “Spousal support will be modifiable in amount, but only under the circumstances and to the extent set forth below.” “The amount of spousal support may be modified only in the event of Wife‟s permanent disability.” “If such a modification is ordered, subsequent modifications may also be ordered if further changes in Wife‟s condition warrant additional upward or downward modification.” The MSA clearly prohibited modification for any reason other than Wife‟s disability. Wife has not alleged any disability; thus, the court properly refused to modify the support award.

Lesson to be learned:  Don't agree to non-modifiable spousal support unless you are will to be bound irrevocably by the agreement.

Please click here to read the opinion.

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