DONALD F. CONVISER, Certified Family Specialist, serving divorce and family law clients in Los Angeles and Ventura County Courts for over 35 years, owner of Warner Center Law Offices in Woodland Hills California in the San Fernando Valley, offering a free confidential consultation about your divorce or family law situation, writes about Marriage of TEJEDA, a case decided on November 25, 2009, in which an innocent wife sought to have property acquired by her during her marriage to her bigamist husband awarded to her as her separate property.
When Petra married Pablo Tejeda in 1973, she had no idea that Pablo was already married to Margarita, and she remained ignorant that Pablo had committed bigamy until some time in 1996. In the meantime, apparently also unknown to Petra, Pablo divorced Margarita in 1976. In and after 1994, Petra began acquiring properties in her own name (together with other relatives, but without Pablo). In 1996, Pablo filed for a divorce. Petra responded requesting a divorce. Subsequently, she amended her response to seek an annulment of their marriage, requesting that all property in her possession be confirmed as her separate property.
The trial court held that it was required to divide the property under Family Code Section 2251, which provides that if the court determines that the marriage is void or voidable and that either or both parties believed in good faith that the marriage was valid, the court shall 1) declare the party or parties to have the status of a putative spouse; and 2) if the division of property is in issue, divide that property acquired during the union which would have been community property or quasi community property if the union had not been void or voidable. This property is known as 'quasi-marital property'."
Petra appealed, claiming that she was the innocent party, that Section 2251 was ambiguous, and that it should only be applied at the request of the putative (innocent) party.
The appellate court construed FAMILY CODE Section 2251, and affirmed the trial court's ruling, holding that if either party is a putative spouse, quasi-marital property must be divided equally.
The appellate court's reasoning in its opinion included the following:
A marriage that is invalid due to a legal infirmity (such as bigamy of one of the parties) may be recognized as a putative marriage.
Property acquired during a putative marriage (quasi-marital property) is divided as if it were community property.
The status of putative spouse requires innocence or good faith belief. However, once either party is a putative spouse, the union is a putative marriage - a union in which at least one partner believes in good faith that a valid marriage exists.
The appellate court held that the mandate of Section 2251 must be applied without regard to guilt or innocence when the court makes the predicate findings that the marriage is void or voidable, and at least one party to the union maintained a good faith belief in the validity of the marriage.
If a marriage is voidable or void as a result of bigamy of one of the parties (or other appropriate factor) and at least one party has a good faith belief that a valid marriage exists, the parties' property acquired during their marriage is subject to the same rights that would have existed had the parties' marriage not been voidable or void.
The fact that one party is innocent and another is guilty makes no difference. In Marriage of TEJEDA, property acquired by the "innocent" putative party was held to be divisible as quasi marital property and the wrongdoer paid no penalty for his bigamy.
Query what would have been the result had Petra known at the time of the parties' "marriage" that Pablo was a bigamist and that their marriage was void? She may well have been awarded all the property that she had acquired during the parties' union. Section 2251 would have been inapplicable. This writer is unaware whether or not Petra actually knew at the time of the marriage that Pablo was a bigamist, but notes that Petra did obtain her legal immigration status through her marriage to Pablo. She might have been between a rock and a hard place in determining what to assert in her family law case.
Monday, December 7, 2009
Sunday, December 6, 2009
WHY THE COURT SHOULD UPHOLD PENALTY AGREEMENTS FOR INFIDELTITY
DONALD F. CONVISER, Certified Family Law Specialist, owner of WARNER CENTER LAW OFFICES in Woodland Hills, serving divorce and family law clients in the Courts of Los Angeles and Ventura County for over 35 yers, discusses in this article reasons for his disareement with the DIOSDADO opinion addressed in yesterday's blog, entitled LEGAL CONSEQUENCES OF INFIDELITY IN A MARRIAGE.
In Marriage of DIOSDADO (2002) 97 Cal.App.4th 470, the appellate court held that a contract between a husband and wife providing for payment of liquidated damages in the event one of them is sexually unfaithful to the other is unenforceable. The DIOSDADO Court addressed Marriage of WALTON (1972) 29 CA3d 108, 119, and FAMILY CODE Section 2310 (formerly CIVIL CODE Section 4506) as significant bases for its holding.
FAMILY CODE Section 2310 provides two grounds for dissolving a marriage: a) Irreconcilable differences which have caused the irremediable breakdown of the marriage; and b) Incurable insanity.
FAMILY CODE Section 2335 provides that in a pleading or proceeding for dissolution of marriage or legal separation, including depositions and discovery proceedings, evidence of specific acts of misconduct is improper and inadmissible. In Marriage of WALTON, the Court stated that with certain exceptions (such as child custody matters or restraining orders), evidence of specific acts of misconduct is improper and inadmissible.
In DIOSDADO, the appellate court stated: "The Family Law court may not look to fault in dissolving the marriage, dividing property, or ordering support. Yet this agreement attempts to penalize the party who is at fault for having breached the obligation of sexual fidelity and whose breach provided the basis for terminating the marriage. This penalty is in direct contravention of the public policy underlying no-fault divorce."
In DIOSDADO, the appellate court stated that contrary to the public policy underlying California's no-fault divorce laws, the agreement between wife and husband attempts to impose a premium [the agreed $50,000 liquidated damages consideration] for the emotional angst caused by huband's breach of his promise of sexual fidelity.
This writer disagrees with the DIOSDADO appellate court. Whereas this writer agrees that no fault need be shown to dissolve a marriage, he notes that a spouse's fault has been the basis of awards to the other spouse in many cases. This writer proposes that the court should distinguish between the no-fault ground to dissolve a marriage and fault (or contractual) grounds and evidence to justify awards to the other spouse in appropriate circumstances.
In DIOSDADO, the appellate court stated: "To be enforceable, a contract must have a lawful object [Civil Code Section 1550(3)]. A contract is unlawful if it is contrary to an express provision of the law, contrary to the policy of express law, or otherwise contrary to good morals [Civil Code Section 1667]. Here, where the agreement attempts to impose a penalty on one of the parties as a result of that party's 'fault' during the marriage, it is contrary to the public policy underlying the no-fault provisions for dissolution of marriage [See FAMILY CODE Sections 2310 & 2315]. For that reason, the agreement is unenforceable."
In yesterday's blog post, this writer addressed Marriage of RAMIREZ & LLAMAS (2008) 165 Cal.App.4th 751, which held that the intent not to observe an obligation for sexual fidelity will support a finding of nullity based on fraud. The Court in that case addressed FAMILY CODE Section 720, which reads: Husband and Wife contract toward each other obligations of mutual respect, fidelity, and support.
Is that not, per language quoted in DIOSDADO, a contract which has a lawful object? [Civil Code Section 1550(3)]. Is that contract contrary to an express provision of the law, contrary to the policy of express law, or otherwise contrary to good morals [Civil Code Section 1667]. No - it is an express provision of the law, it clearly expresses its policy, and it endeavors to enforce good morals.
In RAMIREZ, the appellate court annulled a marriage based on violation of that very contract. The DIOSDADO appellate court overlooked the significance of Civil Code Section 1550(3), and the fact that the parties had entered into a contract which had a lawful object.
The DIOSDADO opinion addressed Marriage of ASKEW (1994) 22 Cal.App.4th 942, 960, when it stated that fault is not a relevent consideration in the legal process by which a marriage is dissolved.
In ASKEW, husband sued wife in civil court based on wife's pre-marriage representations that she felt sexual attraction for him, and in reliance on her statement, he had married her and put certain parcels of real property in both of their names as Joint Tenants. 13 years and 2 children later, he sued her for fraud, negligent misrepresentation, breach of fiduciary duty, constructive trust, constructive fraud, accounting, cancellation of deeds, and intentional infliction of emotional distress, claiming that she never felt sexual attraction for him, and that her fraud justified imposing a constructive trust on her share of those properties.
The appellate court in ASKEW rightly denied relief to the husband, holding that his suit was essentially a breach of promise suit, precluded by the Anti Heart Balm statute, CIVIL CODE Section 43.5 [No cause of action arises for alienation of affection, criminal conversation, seduction of a person of the age of legal consent, and breach of promise of marriage].
ASKEW isn't relevant to the issue as to whether or not a contract providing for liquidated damages for violation of the marriage contract of fidelity should be enforced. ASKEW's statement as to fault was mere dicta, and needn't be followed.
The DIOSDADO contract had a legitimate purpose founded in a California Statute - to enforce the statutory marital contract obligation of fidelity, and consideration - $50,000 for violation.
Although fault has been eliminated as a basis for granting a dissolution of marriage, fault and consideration have not been eliminated as the basis for certain relief in divorce cases.
For instance, Prenuptial Agreements have been upheld by the Court.
If a spouse makes a gift of community property to his/her girlfriend, that could form a basis for an award to the other spouse pursuant to FAMILY CODE Section 721 [Fiduciary relationship of husband and wife, imposing a duty of the highest good faith and fair dealing on each spouse] and/or FAMILY CODE Section 1101 [Remedies for breach of fiduciary duty between spouses - a spouse has a claim against the other spouse for any breach of the fiduciary duty that results in impairment to the claimant spouse's present undivided one-half interest in the community estate, and the remedy could be 50% of the highest value at the date of the breach, the date of the sale/disposition, or the date of the award by the court, or, if the breach qualifies for punitive damages, 100% of such value(s)].
Fault provisions of the law which have supported awards or denials of awards in family cases include:
CIVIL CODE Section 1550(3), as recognized and used as the basis for relief awarding an annulment in Marriage of RAMIREZ & LLAMAS, supra.
FAMILY CODE Section 782: Injuries to a married person by his/her spouse, caused in whole or in part by the negligent or wrongful act or omission of the spouse - the Community Property may not be used to discharge the liability to make contribution to a joint tortfeasor until the tortfeasor's nonexempt separate property is exhausted.
FAMILY CODE Section 782.55, authorizing award to the injured spouse of the entire community property interest in retirement/pension benefits of the injured spouse when the other spouse is convicted of attempting to murder the injured spouse.
FAMILY CODE Section 721 - as addressed above, imposing the highest duty of good faith and fair dealing on spouses, that neither spouse shall take unfair advantage of the other.
FAMILY CODE Section 1100 and 1101 - as addressed above - Fiduciary Duties and Remedies for breach.
FAMILY CODE Section 4324: Award of support or benefits prohibited to a spouse convicted of attempted murder of the other spouse, whether or not actual physical injury occurred.
FAMILY CODE Section 4325: Rebuttable presumption affecting the burden of proof, that any award of temporary or permanent support shall not be made to an abusive spouse convicted of Domestic Violence against the other spouse.
And consider the punitive effects of a BIFURCATION OF MARITAL STATUS, addressed in my April 28, 2009 blog entitled THE POUND OF FLESH REQUIRED FOR BIFURCATION.
Whereas this writer takes no issue with the proposition that fault not be a basis for granting a divorce, fault and/or legitimate objects of contracts beween the parties should form the basis of relief in Family Law Court.
This writer would hope that the next appellate court to address enforcement of a contract between spouses providing for liquidated damages for sexual infidelity in a marriage will consider the facts, authorities and arguments addressed in this post, and welcomes inquiries and comments regarding this post.
In Marriage of DIOSDADO (2002) 97 Cal.App.4th 470, the appellate court held that a contract between a husband and wife providing for payment of liquidated damages in the event one of them is sexually unfaithful to the other is unenforceable. The DIOSDADO Court addressed Marriage of WALTON (1972) 29 CA3d 108, 119, and FAMILY CODE Section 2310 (formerly CIVIL CODE Section 4506) as significant bases for its holding.
FAMILY CODE Section 2310 provides two grounds for dissolving a marriage: a) Irreconcilable differences which have caused the irremediable breakdown of the marriage; and b) Incurable insanity.
FAMILY CODE Section 2335 provides that in a pleading or proceeding for dissolution of marriage or legal separation, including depositions and discovery proceedings, evidence of specific acts of misconduct is improper and inadmissible. In Marriage of WALTON, the Court stated that with certain exceptions (such as child custody matters or restraining orders), evidence of specific acts of misconduct is improper and inadmissible.
In DIOSDADO, the appellate court stated: "The Family Law court may not look to fault in dissolving the marriage, dividing property, or ordering support. Yet this agreement attempts to penalize the party who is at fault for having breached the obligation of sexual fidelity and whose breach provided the basis for terminating the marriage. This penalty is in direct contravention of the public policy underlying no-fault divorce."
In DIOSDADO, the appellate court stated that contrary to the public policy underlying California's no-fault divorce laws, the agreement between wife and husband attempts to impose a premium [the agreed $50,000 liquidated damages consideration] for the emotional angst caused by huband's breach of his promise of sexual fidelity.
This writer disagrees with the DIOSDADO appellate court. Whereas this writer agrees that no fault need be shown to dissolve a marriage, he notes that a spouse's fault has been the basis of awards to the other spouse in many cases. This writer proposes that the court should distinguish between the no-fault ground to dissolve a marriage and fault (or contractual) grounds and evidence to justify awards to the other spouse in appropriate circumstances.
In DIOSDADO, the appellate court stated: "To be enforceable, a contract must have a lawful object [Civil Code Section 1550(3)]. A contract is unlawful if it is contrary to an express provision of the law, contrary to the policy of express law, or otherwise contrary to good morals [Civil Code Section 1667]. Here, where the agreement attempts to impose a penalty on one of the parties as a result of that party's 'fault' during the marriage, it is contrary to the public policy underlying the no-fault provisions for dissolution of marriage [See FAMILY CODE Sections 2310 & 2315]. For that reason, the agreement is unenforceable."
In yesterday's blog post, this writer addressed Marriage of RAMIREZ & LLAMAS (2008) 165 Cal.App.4th 751, which held that the intent not to observe an obligation for sexual fidelity will support a finding of nullity based on fraud. The Court in that case addressed FAMILY CODE Section 720, which reads: Husband and Wife contract toward each other obligations of mutual respect, fidelity, and support.
Is that not, per language quoted in DIOSDADO, a contract which has a lawful object? [Civil Code Section 1550(3)]. Is that contract contrary to an express provision of the law, contrary to the policy of express law, or otherwise contrary to good morals [Civil Code Section 1667]. No - it is an express provision of the law, it clearly expresses its policy, and it endeavors to enforce good morals.
In RAMIREZ, the appellate court annulled a marriage based on violation of that very contract. The DIOSDADO appellate court overlooked the significance of Civil Code Section 1550(3), and the fact that the parties had entered into a contract which had a lawful object.
The DIOSDADO opinion addressed Marriage of ASKEW (1994) 22 Cal.App.4th 942, 960, when it stated that fault is not a relevent consideration in the legal process by which a marriage is dissolved.
In ASKEW, husband sued wife in civil court based on wife's pre-marriage representations that she felt sexual attraction for him, and in reliance on her statement, he had married her and put certain parcels of real property in both of their names as Joint Tenants. 13 years and 2 children later, he sued her for fraud, negligent misrepresentation, breach of fiduciary duty, constructive trust, constructive fraud, accounting, cancellation of deeds, and intentional infliction of emotional distress, claiming that she never felt sexual attraction for him, and that her fraud justified imposing a constructive trust on her share of those properties.
The appellate court in ASKEW rightly denied relief to the husband, holding that his suit was essentially a breach of promise suit, precluded by the Anti Heart Balm statute, CIVIL CODE Section 43.5 [No cause of action arises for alienation of affection, criminal conversation, seduction of a person of the age of legal consent, and breach of promise of marriage].
ASKEW isn't relevant to the issue as to whether or not a contract providing for liquidated damages for violation of the marriage contract of fidelity should be enforced. ASKEW's statement as to fault was mere dicta, and needn't be followed.
The DIOSDADO contract had a legitimate purpose founded in a California Statute - to enforce the statutory marital contract obligation of fidelity, and consideration - $50,000 for violation.
Although fault has been eliminated as a basis for granting a dissolution of marriage, fault and consideration have not been eliminated as the basis for certain relief in divorce cases.
For instance, Prenuptial Agreements have been upheld by the Court.
If a spouse makes a gift of community property to his/her girlfriend, that could form a basis for an award to the other spouse pursuant to FAMILY CODE Section 721 [Fiduciary relationship of husband and wife, imposing a duty of the highest good faith and fair dealing on each spouse] and/or FAMILY CODE Section 1101 [Remedies for breach of fiduciary duty between spouses - a spouse has a claim against the other spouse for any breach of the fiduciary duty that results in impairment to the claimant spouse's present undivided one-half interest in the community estate, and the remedy could be 50% of the highest value at the date of the breach, the date of the sale/disposition, or the date of the award by the court, or, if the breach qualifies for punitive damages, 100% of such value(s)].
Fault provisions of the law which have supported awards or denials of awards in family cases include:
CIVIL CODE Section 1550(3), as recognized and used as the basis for relief awarding an annulment in Marriage of RAMIREZ & LLAMAS, supra.
FAMILY CODE Section 782: Injuries to a married person by his/her spouse, caused in whole or in part by the negligent or wrongful act or omission of the spouse - the Community Property may not be used to discharge the liability to make contribution to a joint tortfeasor until the tortfeasor's nonexempt separate property is exhausted.
FAMILY CODE Section 782.55, authorizing award to the injured spouse of the entire community property interest in retirement/pension benefits of the injured spouse when the other spouse is convicted of attempting to murder the injured spouse.
FAMILY CODE Section 721 - as addressed above, imposing the highest duty of good faith and fair dealing on spouses, that neither spouse shall take unfair advantage of the other.
FAMILY CODE Section 1100 and 1101 - as addressed above - Fiduciary Duties and Remedies for breach.
FAMILY CODE Section 4324: Award of support or benefits prohibited to a spouse convicted of attempted murder of the other spouse, whether or not actual physical injury occurred.
FAMILY CODE Section 4325: Rebuttable presumption affecting the burden of proof, that any award of temporary or permanent support shall not be made to an abusive spouse convicted of Domestic Violence against the other spouse.
And consider the punitive effects of a BIFURCATION OF MARITAL STATUS, addressed in my April 28, 2009 blog entitled THE POUND OF FLESH REQUIRED FOR BIFURCATION.
Whereas this writer takes no issue with the proposition that fault not be a basis for granting a divorce, fault and/or legitimate objects of contracts beween the parties should form the basis of relief in Family Law Court.
This writer would hope that the next appellate court to address enforcement of a contract between spouses providing for liquidated damages for sexual infidelity in a marriage will consider the facts, authorities and arguments addressed in this post, and welcomes inquiries and comments regarding this post.
Saturday, December 5, 2009
LEGAL CONSEQUENCES OF INFIDELITY IN A MARRIAGE
With the news of Tiger Woods' alleged infidelity, people are speculating about the possible consequences. In this article, DONALD F. CONVISER, a Certified Family Law Specialist, owner of WARNER CENTER LAW OFFICES in Woodland Hills, California, in the San Fernando Valley, serving divorce and family law clients in the courts of Los Angeles and Ventura counties for over 35 years, explores California case law and statutory law relating to to infidelity in a marriage.
In Marriage of RAMIREZ & LLAMAS (2008) 165 Cal.App.4th 751, the appellate court held that a party's intent not to observe the obligation of sexual fidelity can support a finding of nullity based on fraud, and held that an innocent party to an invalid marriage may obtain relief as a putative spouse [including division of property acquired during the "union" as community or quasi-community property] if that party believed in good faith that the marriage was valid.
A marriage is voidable and may be adjudged a nullity if the consent of either party was obtained by fraud [FAMILY CODE Section 2210(d)].
A marriage may be annulled for fraud only in an extreme case where the particular fraud goes to the very essence of the marriage relationship [Marriage of MEAGHER & MALEKI (2005) 131 Cal.App.4th 1, 3].
The fact represented or suppressed to induce consent to marriage will be deemed material if it relates to a matter of substance and directly affects the purpose of the party deceived in entering the marital contract [Marriage of HANDLEY (1960) 179 Cal.App.2d 742].
The fraud relied upon must be such as directly defeats the marriage relationship (and not merely such fraud as would be sufficient to rescind an ordinary civil contract) [Marriage of MEAGHER & MALEKI, supra, at 6-7].
Fraudulent intent not to perform a duty vital to the marriage state must exist in the offending spouse's mind at the moment the marriage contract is made [Marriage of BRUCE (1945) 71 Cal.App.2d 641, 644].
Annulments based on fraud have historically only been granted in cases where the fraud relates in some way to the sexual, procreative or child rearing aspects of marriage.
Where the offending party does not have the intent (or conduct) to be unfaithful at the time of the wedding, that marriage cannot be anulled on the basis of subsequent infidelity.
In Marriage of DIOSDADO (2002) 97 Cal.App.4th 470, the appellate court held that a contract between the husband and wife providing for the payment of liquidated damages [in that case, $50,000] in the event that one of them is sexually unfaithful to the other is unenforceable.
FAMILY CODE Section 2310 provides for dissolution of marriage based on irreconcilable differences which have led to an irremediable breakdown of the marriage. The Appellate Court in DIOSDADO addressed Marriage of WALTON (1972) 28 Cal.App.3d 108, 119, in which the trial court granted a dissolution of marriage at husband's request, over wife's objections - wife sought but was not granted a Legal Separation. In WALTON, the Appellate Court stated: "After thorough study, the Legislature, for reasons of social policy deemed compelling, has seen fit to change the grounds for the termination of marriage from a fault basis to a marriage breakdown basis."
In DIOSDADO, the appellate court stated: "Contrary to the public policy underlying California's no-fault divorce laws, the agreement between wife and husband attempts to impose a premium for the emotional angst caused by husband's breach of his promise of sexual fidelity. The Family Law court may not look to fault in dissolving the marriage, dividing property, or ordering support. Yet this agreement attempts to penalize the party who is at fault for having breached the obligation of sexual fidelity, and whose breach provided the basis for terminating the marriage. This penalty is in direct contravention of the public policy underlying no-fault divorce.
This writer takes issue with the DIOSDADO opinion, and will address his arguments and examples supporting his position in a subsequent blog.
In Marriage of RAMIREZ & LLAMAS (2008) 165 Cal.App.4th 751, the appellate court held that a party's intent not to observe the obligation of sexual fidelity can support a finding of nullity based on fraud, and held that an innocent party to an invalid marriage may obtain relief as a putative spouse [including division of property acquired during the "union" as community or quasi-community property] if that party believed in good faith that the marriage was valid.
A marriage is voidable and may be adjudged a nullity if the consent of either party was obtained by fraud [FAMILY CODE Section 2210(d)].
A marriage may be annulled for fraud only in an extreme case where the particular fraud goes to the very essence of the marriage relationship [Marriage of MEAGHER & MALEKI (2005) 131 Cal.App.4th 1, 3].
The fact represented or suppressed to induce consent to marriage will be deemed material if it relates to a matter of substance and directly affects the purpose of the party deceived in entering the marital contract [Marriage of HANDLEY (1960) 179 Cal.App.2d 742].
The fraud relied upon must be such as directly defeats the marriage relationship (and not merely such fraud as would be sufficient to rescind an ordinary civil contract) [Marriage of MEAGHER & MALEKI, supra, at 6-7].
Fraudulent intent not to perform a duty vital to the marriage state must exist in the offending spouse's mind at the moment the marriage contract is made [Marriage of BRUCE (1945) 71 Cal.App.2d 641, 644].
Annulments based on fraud have historically only been granted in cases where the fraud relates in some way to the sexual, procreative or child rearing aspects of marriage.
Where the offending party does not have the intent (or conduct) to be unfaithful at the time of the wedding, that marriage cannot be anulled on the basis of subsequent infidelity.
In Marriage of DIOSDADO (2002) 97 Cal.App.4th 470, the appellate court held that a contract between the husband and wife providing for the payment of liquidated damages [in that case, $50,000] in the event that one of them is sexually unfaithful to the other is unenforceable.
FAMILY CODE Section 2310 provides for dissolution of marriage based on irreconcilable differences which have led to an irremediable breakdown of the marriage. The Appellate Court in DIOSDADO addressed Marriage of WALTON (1972) 28 Cal.App.3d 108, 119, in which the trial court granted a dissolution of marriage at husband's request, over wife's objections - wife sought but was not granted a Legal Separation. In WALTON, the Appellate Court stated: "After thorough study, the Legislature, for reasons of social policy deemed compelling, has seen fit to change the grounds for the termination of marriage from a fault basis to a marriage breakdown basis."
In DIOSDADO, the appellate court stated: "Contrary to the public policy underlying California's no-fault divorce laws, the agreement between wife and husband attempts to impose a premium for the emotional angst caused by husband's breach of his promise of sexual fidelity. The Family Law court may not look to fault in dissolving the marriage, dividing property, or ordering support. Yet this agreement attempts to penalize the party who is at fault for having breached the obligation of sexual fidelity, and whose breach provided the basis for terminating the marriage. This penalty is in direct contravention of the public policy underlying no-fault divorce.
This writer takes issue with the DIOSDADO opinion, and will address his arguments and examples supporting his position in a subsequent blog.
Friday, December 4, 2009
A GIFT TO A SPOUSE MIGHT NOT BE HELD TO BE A GIFT, AFTER ALL.
Donald F. Conviser, a Certified Family Law Specialist in Woodland Hills in the San Fernando Valley, serving Divorce and Family Law Clients in the Courts of Los Angeles and Ventura Counties for over 35 years, writes this article to bring the reader's attention to a property division issue in divorce cases relating to gifts between spouses.
When you are given a gift of substantial value by your spouse, delicately request a writing from your spouse, to ensure that the gift becomes and remains your separate property, that it does not become community property, and that your spouse won't be entitled to reimbursement for the gift in case your marriage does not work out.
On December 1, 2009, in Marriage of BUIE and NEIGHBORS, the appellate court held that a $60,000 Porsche purchased by wife with her separate property funds and gifted to husband was community property, subject to a right of reimbursement to the wife of her separate property funds used to purchase the car, absent a written waiver by wife of her right to reimbursement.
Husband expected that the gift was his separate property, and the trial court ruled that the Porsche was a gift from wife to husband.
Marriage of BUIE and NEIGHBORS reflects that the law regarding gifts between spouses is more complicated than what most people expect.
FAMILY CODE Section 760 provides: "Except as otherwise provided by statute, all property, real or personal, wherever situated, acquired by a married person during the marriage while domiciled in this state is community property." Since the Porsche was acquired during the marriage, the Porsche would be community property unless otherwise provided by statute.
FAMILY CODE Section 850 provides that married persons may transmute separate or community property to the separate property of the other spouse, subject to specific requirements for a valid transmutation.
FAMILY CODE Section 852(a) provides that a transmutation is not valid unless made in writing by an express declaration that is made, joined in, consented to, or accepted by the spouse whose interest in the property is adversely affected.
FAMILY CODE Section 852(c) provides that the specific transmutation requirements of Section 852 do not apply to a gift between the spouses of tangible articles of a personal nature 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.
In Marriage of BUIE and NEIGHBORS, the trial court ruled that the Porche had been transmuted to husband's separate property, under the exception set forth in Section 852(c) for gifts of tangible articles of a personal nature that are not substantial, taking into account the circumstances of the marriage.
The Appellate Court held the trial court's ruling to be erroneous, and instead, held that the Porsche was community property under Section 760; furthermore,lacking any writing from wife stating that she intended to transmute the Porsche to husband's separate property, the Appellate Court held that the Porsche would be community property unless it is a tangible article of a personal nature, not substantial in value taking into account the circumstances of the marriage, under Section 852(c).
The Appellate Court examined the legislative history of Section 852(c) and observed the Law Revision Commission Report relating to that section stated that interspousal gifts are presumed to be separate or community depending on the nature of the property given, noting that the gift of an automobile would NOT create a presumption that the property is separate, since an automobile is not an article of a personal nature within the meaning of the applicable section. The Appellate Court concluded that the gift of the Porsche did not fall within the exception set forth in Section 852(c).
Furthermore, the Appellate Court found that the wife is entitled to reimbursement for the contribution of her separate funds to buy the Porsche, as is discussed hereinafter:
FAMILY CODE Section 2640(b) provides that in the division of community property, unless a party has made a written waiver of the right to reimbursement or has signed a writing that has the effect of a waiver, that party shall be reimbursed for his/her contributions to the acquisition of community property to the extent the party traces the contributions to a separate property source. Citing Marriage of CARPENTER (2002), 100 Cal.App.4th 424, 427, the Appellate Court held that in the absence of such a written waiver, the donative intent of the contributing spouse (the wife in this case) does not bar reimbursement.
Because the $60,000 in funds used to purchase the Porsche for husband were traced entirely to wife's separate property funds, the Appellate Court held that wife has a substantive right to reimbursement of her separate property funds under Section 2640(b).
What lesson does this teach? Save gift cards. If you receive a gift of value from your spouse, delicately request a memo, card or letter reflecting that it is a gift and that he/she shall not be entitled to any reimbursement, and put it into safekeeping. Given the fact that well over 50% of marriages in California do not last, an ounce of prevention is worth a pound of cure.
When you are given a gift of substantial value by your spouse, delicately request a writing from your spouse, to ensure that the gift becomes and remains your separate property, that it does not become community property, and that your spouse won't be entitled to reimbursement for the gift in case your marriage does not work out.
On December 1, 2009, in Marriage of BUIE and NEIGHBORS, the appellate court held that a $60,000 Porsche purchased by wife with her separate property funds and gifted to husband was community property, subject to a right of reimbursement to the wife of her separate property funds used to purchase the car, absent a written waiver by wife of her right to reimbursement.
Husband expected that the gift was his separate property, and the trial court ruled that the Porsche was a gift from wife to husband.
Marriage of BUIE and NEIGHBORS reflects that the law regarding gifts between spouses is more complicated than what most people expect.
FAMILY CODE Section 760 provides: "Except as otherwise provided by statute, all property, real or personal, wherever situated, acquired by a married person during the marriage while domiciled in this state is community property." Since the Porsche was acquired during the marriage, the Porsche would be community property unless otherwise provided by statute.
FAMILY CODE Section 850 provides that married persons may transmute separate or community property to the separate property of the other spouse, subject to specific requirements for a valid transmutation.
FAMILY CODE Section 852(a) provides that a transmutation is not valid unless made in writing by an express declaration that is made, joined in, consented to, or accepted by the spouse whose interest in the property is adversely affected.
FAMILY CODE Section 852(c) provides that the specific transmutation requirements of Section 852 do not apply to a gift between the spouses of tangible articles of a personal nature 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.
In Marriage of BUIE and NEIGHBORS, the trial court ruled that the Porche had been transmuted to husband's separate property, under the exception set forth in Section 852(c) for gifts of tangible articles of a personal nature that are not substantial, taking into account the circumstances of the marriage.
The Appellate Court held the trial court's ruling to be erroneous, and instead, held that the Porsche was community property under Section 760; furthermore,lacking any writing from wife stating that she intended to transmute the Porsche to husband's separate property, the Appellate Court held that the Porsche would be community property unless it is a tangible article of a personal nature, not substantial in value taking into account the circumstances of the marriage, under Section 852(c).
The Appellate Court examined the legislative history of Section 852(c) and observed the Law Revision Commission Report relating to that section stated that interspousal gifts are presumed to be separate or community depending on the nature of the property given, noting that the gift of an automobile would NOT create a presumption that the property is separate, since an automobile is not an article of a personal nature within the meaning of the applicable section. The Appellate Court concluded that the gift of the Porsche did not fall within the exception set forth in Section 852(c).
Furthermore, the Appellate Court found that the wife is entitled to reimbursement for the contribution of her separate funds to buy the Porsche, as is discussed hereinafter:
FAMILY CODE Section 2640(b) provides that in the division of community property, unless a party has made a written waiver of the right to reimbursement or has signed a writing that has the effect of a waiver, that party shall be reimbursed for his/her contributions to the acquisition of community property to the extent the party traces the contributions to a separate property source. Citing Marriage of CARPENTER (2002), 100 Cal.App.4th 424, 427, the Appellate Court held that in the absence of such a written waiver, the donative intent of the contributing spouse (the wife in this case) does not bar reimbursement.
Because the $60,000 in funds used to purchase the Porsche for husband were traced entirely to wife's separate property funds, the Appellate Court held that wife has a substantive right to reimbursement of her separate property funds under Section 2640(b).
What lesson does this teach? Save gift cards. If you receive a gift of value from your spouse, delicately request a memo, card or letter reflecting that it is a gift and that he/she shall not be entitled to any reimbursement, and put it into safekeeping. Given the fact that well over 50% of marriages in California do not last, an ounce of prevention is worth a pound of cure.
Wednesday, December 2, 2009
THE BURDEN OF PROOF IN IMPUTATION OF EARNING CAPACITY IN CHILD OR SPOUSAL SUPPORT CASES
DONALD F. CONVISER, Certified Family Specialist, owner of WARNER CENTER LAW OFFICES in the WARNER CENTER area of the San Fernando Valley, serving Divorce and Family Law clients in the Courts of Los Angeles and Ventura County, offers this article relating to the burden of proof on imputation of earning capacity in child or spousal support cases.
Imputation of earning capacity is the Court's way of treating a party as earning a living pursuant to the introduction of evidence of ability to earn and opportunity to earn [even though that party may not be earning a living and that he/she might not be able to land a job], for the purpose of considering imputed income in determining chid support or spousal support.
When a party in a child support or spousal support case is unemployed or underemployed, that factor can have a significant influence on the Court in its determination of Guideline support.
Without more, the Court is likely to treat an unemployed party as having zero ($0) income and utilize that figure in its Guideline support calculations. If the unemployed party is the supported party, zero income would ordinarily result in a high support figure - unless income is imputed to that party.
If the unemployed party's Income and Expense Declaration reflects that he/she is receiving unemployment [or if the other party provides evidence of such fact], the Court will ordinarily utilize those unemployment benefits in its Guideline Support calculations, but it may be possible, as addressed hereinafter, for income to be imputed to that party.
It would be prudent for the employed party to seek to have income imputed to the unemployed or underemployed party. If the employed party is the supporting party, imputation of income to the unemployed or underemployed party would result in lower support. If the employed party is the supported party, imputation of income to the unemployed or underemployed party would result in higher support.
Initially, imputation of income was a 3-prong test, under the holding of Marriage of REGNERY (1989) 214 Cal.App.3d 1367, the three prongs being 1) ability to work, 2) willingness to work, and 3) opportunity to work.
In Marriage of PADILLA (1995) 38 Cal.App.4th 1212, the Court did away with the willingness to work prong, stating "Statutory commands and the inherent responsibility parents owe their children lead us to conclude the bad faith rule, as applied to child support, can no longer be supported. Once persons become parents, their desires for self-realization, self-fulfullment, personal job satisfaction, and other commendable goals must be considered in context of their responsibilities to provide for their childrens' needs. If they decide they wish to lead a simpler life, change professions or start a business, they may do so, but only when they satisfy their primary responsibility: providing for the adequate and reasonable needs fo their children."
So long as a parent has an earning capacity, i.e., the ability and opportunity to earn income, the trial court may attribute income.
In Marriage of LABASS & MUNSEE (1997) 56 Cal.App.4th 1331, the Court rejected the supported party's argument that "for policy reasons, women who have primary custody of the children should never be subject to the income imputation of Family Code Section 4058(b). In Marriage of HINMAN (1997) 55 Cal.App.4th 988, the court refused to adopt "a per se rule prohibiting the imputation of income to parents who refrain from employment to care for preschool-age children." The 2-pronged test now is simply ability and opportunity to work.
In Marriage of BARDZIK (2008) 165 Cal.App.4th 1291, the Court held that the moving party (whether payor or payee) in an imputation of income case has the burden of proof on the issues of ability and opportunity to work. To meet the burden of proof, evidence must be adduced as to both prongs of the test.
Evidence of ability to work could comprise the unemployed or underemployed party's resume, documents reflecting past earnings, letters of commendation, a vocational evaluation, either party' testimony, responses to specially-drafted discovery, a deposition, etc.
Evidence of opportunity to work could comprise wanted ads [as were used in Marriage of LABASS & MUNSIE, supra - to demonstrate that "opportunities to bargain existed", an interesting way of circumventing the hearsay rule], testimony from a principal at an employment agency, witness testimony, letters from prior employers, pay scales of available jobs, etc.
In BARDZIK, the Court of appeal stressed that it is not the moving party's burden to prove that the other party can actually get a job - only that he/she has the ability and that work is available, for income to be imputed to the other party. The Court stated: "This rule is grounded in the common sense proposition that you can lead someone to a want ad but you can't make them apply for the job."
If you are involved in a child support (or spousal support) matter where one party is unemployed or underemployed, you would be wise to engage the services of a competent Certified Family Law Specialist to advise and assist you in seeking the best possible result.
Imputation of earning capacity is the Court's way of treating a party as earning a living pursuant to the introduction of evidence of ability to earn and opportunity to earn [even though that party may not be earning a living and that he/she might not be able to land a job], for the purpose of considering imputed income in determining chid support or spousal support.
When a party in a child support or spousal support case is unemployed or underemployed, that factor can have a significant influence on the Court in its determination of Guideline support.
Without more, the Court is likely to treat an unemployed party as having zero ($0) income and utilize that figure in its Guideline support calculations. If the unemployed party is the supported party, zero income would ordinarily result in a high support figure - unless income is imputed to that party.
If the unemployed party's Income and Expense Declaration reflects that he/she is receiving unemployment [or if the other party provides evidence of such fact], the Court will ordinarily utilize those unemployment benefits in its Guideline Support calculations, but it may be possible, as addressed hereinafter, for income to be imputed to that party.
It would be prudent for the employed party to seek to have income imputed to the unemployed or underemployed party. If the employed party is the supporting party, imputation of income to the unemployed or underemployed party would result in lower support. If the employed party is the supported party, imputation of income to the unemployed or underemployed party would result in higher support.
Initially, imputation of income was a 3-prong test, under the holding of Marriage of REGNERY (1989) 214 Cal.App.3d 1367, the three prongs being 1) ability to work, 2) willingness to work, and 3) opportunity to work.
In Marriage of PADILLA (1995) 38 Cal.App.4th 1212, the Court did away with the willingness to work prong, stating "Statutory commands and the inherent responsibility parents owe their children lead us to conclude the bad faith rule, as applied to child support, can no longer be supported. Once persons become parents, their desires for self-realization, self-fulfullment, personal job satisfaction, and other commendable goals must be considered in context of their responsibilities to provide for their childrens' needs. If they decide they wish to lead a simpler life, change professions or start a business, they may do so, but only when they satisfy their primary responsibility: providing for the adequate and reasonable needs fo their children."
So long as a parent has an earning capacity, i.e., the ability and opportunity to earn income, the trial court may attribute income.
In Marriage of LABASS & MUNSEE (1997) 56 Cal.App.4th 1331, the Court rejected the supported party's argument that "for policy reasons, women who have primary custody of the children should never be subject to the income imputation of Family Code Section 4058(b). In Marriage of HINMAN (1997) 55 Cal.App.4th 988, the court refused to adopt "a per se rule prohibiting the imputation of income to parents who refrain from employment to care for preschool-age children." The 2-pronged test now is simply ability and opportunity to work.
In Marriage of BARDZIK (2008) 165 Cal.App.4th 1291, the Court held that the moving party (whether payor or payee) in an imputation of income case has the burden of proof on the issues of ability and opportunity to work. To meet the burden of proof, evidence must be adduced as to both prongs of the test.
Evidence of ability to work could comprise the unemployed or underemployed party's resume, documents reflecting past earnings, letters of commendation, a vocational evaluation, either party' testimony, responses to specially-drafted discovery, a deposition, etc.
Evidence of opportunity to work could comprise wanted ads [as were used in Marriage of LABASS & MUNSIE, supra - to demonstrate that "opportunities to bargain existed", an interesting way of circumventing the hearsay rule], testimony from a principal at an employment agency, witness testimony, letters from prior employers, pay scales of available jobs, etc.
In BARDZIK, the Court of appeal stressed that it is not the moving party's burden to prove that the other party can actually get a job - only that he/she has the ability and that work is available, for income to be imputed to the other party. The Court stated: "This rule is grounded in the common sense proposition that you can lead someone to a want ad but you can't make them apply for the job."
If you are involved in a child support (or spousal support) matter where one party is unemployed or underemployed, you would be wise to engage the services of a competent Certified Family Law Specialist to advise and assist you in seeking the best possible result.
Tuesday, December 1, 2009
TREATMENT OF GIFTS IN CHILD SUPPORT CALCULATIONS
DONALD F. CONVISER, a Certified Family Law Specialist, owner of Warner Center Law Offices in Woodland Hills in the San Fernando Valley, an effective and aggressive Family Law and Divorce attorney serving clients in the courts of Los Angeles and Ventura County for over 35 years, offering a free confidential consultation regarding your divorce or family law issues, 818/880-8990, brings you another informative blog, addressing the treatment of gifts in Child Support calculations, in a series of blogs designed to inform and educate readers about various areas of Family Law and Divorce.
In Marriage of ALTER (2009) 171 Cal.App.4th 718, 736-737, the Appellate Court held that where a party receives recurring gifts of money, the Trial Court has discretion to consider that money as income for purposes of the Statewide Uniform Child Support Guideline.
In Marriage of SCHLAFLY (2007) 149 Cal.App.4th 747, 754-755, the Appellate Court approved the approach previously used in Marriage of LOH (2001) 93 Cal.App.4th, 325, 333-336, and allowed deviation from the Statewide Uniform Child Support Guidelines where regular non-cash gifts (such as free housing) are provided to a party. The LOH court concluded that if a Trial Court determines that a parent's housing situation (or other lifestyle factors) renders application of the Guideline amount inappropriate or unjust, such a fact may be considered by the Court in a deviation from the Guideline.
The authorities addressed above demonstrate how the Court handles cash gifts to a parent and non-cash gifts to a parent in different ways, cash as income (if regularly recurring), and free rent or other non-cash gifts as justification to deviate from the Guideline Child Support figures.
If your former spouse or the other parent of your child receives regular gifts of cash, housing, or payment of expenses from his/her parents or relatives, those gifts should be brought to the Court's attention by appropriate legal means, so that the Court may consider that evidence in either its Guideline Child Support calculations, or as justification to deviate from Guideline figures.
Posted by DONALD F. CONVISER, CFLS, owner of Warner Center Law Office, representing people in divorce and family law cases before the Superior Courts in Los Angeles, Ventura, Van Nuys, San Fernando, Simi Valley, Santa Monica, Torrance, Burbank, Glendale, Pasadena, and Pomona (among others) involving Child Support, Child Custody, Visitation, Premarital Agreements (aka Prenuptial Agreements), Divorces, Paternity, Stepparent Adoptions, Nonmarital Dissolutions, and all other areas of family law and divorce law practice. If you have any question or concern regarding Child Support, call DONALD F. CONVISER at 818/880-8990 for a free, confidential consultation.
In Marriage of ALTER (2009) 171 Cal.App.4th 718, 736-737, the Appellate Court held that where a party receives recurring gifts of money, the Trial Court has discretion to consider that money as income for purposes of the Statewide Uniform Child Support Guideline.
In Marriage of SCHLAFLY (2007) 149 Cal.App.4th 747, 754-755, the Appellate Court approved the approach previously used in Marriage of LOH (2001) 93 Cal.App.4th, 325, 333-336, and allowed deviation from the Statewide Uniform Child Support Guidelines where regular non-cash gifts (such as free housing) are provided to a party. The LOH court concluded that if a Trial Court determines that a parent's housing situation (or other lifestyle factors) renders application of the Guideline amount inappropriate or unjust, such a fact may be considered by the Court in a deviation from the Guideline.
The authorities addressed above demonstrate how the Court handles cash gifts to a parent and non-cash gifts to a parent in different ways, cash as income (if regularly recurring), and free rent or other non-cash gifts as justification to deviate from the Guideline Child Support figures.
If your former spouse or the other parent of your child receives regular gifts of cash, housing, or payment of expenses from his/her parents or relatives, those gifts should be brought to the Court's attention by appropriate legal means, so that the Court may consider that evidence in either its Guideline Child Support calculations, or as justification to deviate from Guideline figures.
Posted by DONALD F. CONVISER, CFLS, owner of Warner Center Law Office, representing people in divorce and family law cases before the Superior Courts in Los Angeles, Ventura, Van Nuys, San Fernando, Simi Valley, Santa Monica, Torrance, Burbank, Glendale, Pasadena, and Pomona (among others) involving Child Support, Child Custody, Visitation, Premarital Agreements (aka Prenuptial Agreements), Divorces, Paternity, Stepparent Adoptions, Nonmarital Dissolutions, and all other areas of family law and divorce law practice. If you have any question or concern regarding Child Support, call DONALD F. CONVISER at 818/880-8990 for a free, confidential consultation.
Tuesday, November 24, 2009
CONCILIATION COURT CAN BE USED FOR RECONCILIATION AND/OR TO DELAY FILING OF A DIVORCE
Divorce and Family Law attorney Donald F. Conviser, a Certified Family Law Specialist, the principal of Warner Center Law Offices in Woodland Hills, California, with over 35 years of experience serving Divorce and Family Law clients in the Los Angeles and Ventura County courts, writes about FAMILY CONCILIATION PROCEEDINGS, a little known, little used conflict-resolution process available to people having problems with their spouses or the other parent of their child/children.
California Family Code Section 1800 and its succeeding sections address Family Conciliation Proceedings available in certain (but not all) counties, whose purpose is to protect the rights of children and to promote the public welfare by preserving, promoting, and protecting family life and the institution of spouses and the amicable settlement of domestic and family controversies. This article addresses such proceedings in the counties where Family Conciliation Courts are available for such purposes.
The Court appoints a Supervising Counselor of Conciliation to hold conciliation conferences with parties to those proceedings, to make recommendations to the judge of the Family Conciliation Court, supervise the parties as the judge may direct, hold hearings as directed by the judge, make investigations to carry out that intent, make investigations, reports and recommendations, and mediate child custody and visitation disputes (among other things). The code sets forth the required qualifications for the Supervising and Associate Counselor(s) of Conciliation. The Family Conciliation hearings and conferences are private matters from which the public is excluded, and the files of the Family Conciliation Court are closed and not open to public inspection.
When a controversy exists between spouses, or when a controversy relating to child custody or visitation exists between parents (regardless of their marital status), and the controversy might otherwise result in divorce, annulment, legal separation, or the disruption of the household, and there is a minor child of the spouses or parents whose welfare might be affected thereby, the Family Conciliation Court has jurisdiction over the controversy, the parties to the controversy, and all persons having any relation to the controversy. Where the controversy involves domestic violence, the Family Conciliation Court has jurisdiction over the controversy, whether or not the parties have a minor child.
The purpose of filing a Petition for Conciliation is to invoke the Court's jurisdiction to preserve the marriage, to effect a reconciliation of the parties, or to amicably settle the controversy to avoid further litigation over the issue.
There is no filing fee for a Petition for Reconcilation. Following the filing of the Petition, the Court will set a hearing date, and provide notice to the Respondent of the filing of the Petition and the Hearing date, time and place. The hearing(s) are conducted informally as a conference or series of conferences to effect a reconciliation or an amicable adjustment or settlement of the issues in controversy.
The Family Conciliation Court may, with the consent of the parties, recommend or invoke the aid of medical or other specialists or experts, or of the pastor of the parties' religious determination. The Court may make orders at or after the hearing in respect to the conduct of the spouses or parents and the subject matter of the controversy that the Court deems necessary to preserve the marriage or implement the reconciliation of the spouses. No such order shall be effective for over 30 days after the hearing, unless the parties mutually agree to extend that time. A reconciliation agreement may be reduced to a stipulation and order of the court, which is enforceable. During such a proceeding, the Court may make support orders, taking into consideration the recommendations of a financial referee if one is available to the court. Any such support order shall not prejudice the rights of the parties or children with respect to any subsequent order. Any support order made pursuant to Conciliation proceedings may be modified or terminated at any time except as to amounts accrued before the filing of proceedings to modify or terminated.
Beginning on the filing f the Petition for Conciliation and continuing until 30 days after the hearing on the Petition, both spouses are prohibited from filing a Petition for Dissolution or Nullity of their marriage or Legal Separation. After the expiration of that period, if the controversy has not terminated, either spouse may institute a proceeding for Dissolution of Marriage, Nullity, or Legal Separation.
Even if a Petition for Dissolution, Nullity or Legal Separation proceeding has already been filed, such proceeding does not operate as a bar to the instituting of proceedings for Family Conciliation. Such proceedings involving minor children may be transferred to the Family Conciliation Court for proceedings for reconcilation, if there is a minor child of the spouses whose welfare may be adversely affected by the dissolution of the marriage or the disruption of the household or a controversy involving custody, AND there is some reasonable possiblity of a reconciliation being effected.
If there are no children, if an application is made to the Family Conciliation Court for conciliation proceedings in respect to a controversy between spouses, or a contested proceeding for dissolution of marriage, annulment, or legal separation, if it appears to the Court that reconciliation of the spouses or amicable adjustment of the controversy can probably be achieved, the Court may accept and dispose of the case in the same manner as similar cases involving the welfare of children are disposed of.
In a county in which a FAMILY CONCILIATION COURT exists, a person anticipating the imminent filing of a Divorce (Dissolution of Marriage), an Annulment, or a Legal Separation case, can put at least a temporary hold on such proceedings by filing a Petition for Conciliation, to obtain the assistance of the FAMILY CONCILIATION COURT in working towards a resolution of the controversy and hopefully avoid the tragic consequences of Divorce, Annulment or Legal Separation proceedings.
California Family Code Section 1800 and its succeeding sections address Family Conciliation Proceedings available in certain (but not all) counties, whose purpose is to protect the rights of children and to promote the public welfare by preserving, promoting, and protecting family life and the institution of spouses and the amicable settlement of domestic and family controversies. This article addresses such proceedings in the counties where Family Conciliation Courts are available for such purposes.
The Court appoints a Supervising Counselor of Conciliation to hold conciliation conferences with parties to those proceedings, to make recommendations to the judge of the Family Conciliation Court, supervise the parties as the judge may direct, hold hearings as directed by the judge, make investigations to carry out that intent, make investigations, reports and recommendations, and mediate child custody and visitation disputes (among other things). The code sets forth the required qualifications for the Supervising and Associate Counselor(s) of Conciliation. The Family Conciliation hearings and conferences are private matters from which the public is excluded, and the files of the Family Conciliation Court are closed and not open to public inspection.
When a controversy exists between spouses, or when a controversy relating to child custody or visitation exists between parents (regardless of their marital status), and the controversy might otherwise result in divorce, annulment, legal separation, or the disruption of the household, and there is a minor child of the spouses or parents whose welfare might be affected thereby, the Family Conciliation Court has jurisdiction over the controversy, the parties to the controversy, and all persons having any relation to the controversy. Where the controversy involves domestic violence, the Family Conciliation Court has jurisdiction over the controversy, whether or not the parties have a minor child.
The purpose of filing a Petition for Conciliation is to invoke the Court's jurisdiction to preserve the marriage, to effect a reconciliation of the parties, or to amicably settle the controversy to avoid further litigation over the issue.
There is no filing fee for a Petition for Reconcilation. Following the filing of the Petition, the Court will set a hearing date, and provide notice to the Respondent of the filing of the Petition and the Hearing date, time and place. The hearing(s) are conducted informally as a conference or series of conferences to effect a reconciliation or an amicable adjustment or settlement of the issues in controversy.
The Family Conciliation Court may, with the consent of the parties, recommend or invoke the aid of medical or other specialists or experts, or of the pastor of the parties' religious determination. The Court may make orders at or after the hearing in respect to the conduct of the spouses or parents and the subject matter of the controversy that the Court deems necessary to preserve the marriage or implement the reconciliation of the spouses. No such order shall be effective for over 30 days after the hearing, unless the parties mutually agree to extend that time. A reconciliation agreement may be reduced to a stipulation and order of the court, which is enforceable. During such a proceeding, the Court may make support orders, taking into consideration the recommendations of a financial referee if one is available to the court. Any such support order shall not prejudice the rights of the parties or children with respect to any subsequent order. Any support order made pursuant to Conciliation proceedings may be modified or terminated at any time except as to amounts accrued before the filing of proceedings to modify or terminated.
Beginning on the filing f the Petition for Conciliation and continuing until 30 days after the hearing on the Petition, both spouses are prohibited from filing a Petition for Dissolution or Nullity of their marriage or Legal Separation. After the expiration of that period, if the controversy has not terminated, either spouse may institute a proceeding for Dissolution of Marriage, Nullity, or Legal Separation.
Even if a Petition for Dissolution, Nullity or Legal Separation proceeding has already been filed, such proceeding does not operate as a bar to the instituting of proceedings for Family Conciliation. Such proceedings involving minor children may be transferred to the Family Conciliation Court for proceedings for reconcilation, if there is a minor child of the spouses whose welfare may be adversely affected by the dissolution of the marriage or the disruption of the household or a controversy involving custody, AND there is some reasonable possiblity of a reconciliation being effected.
If there are no children, if an application is made to the Family Conciliation Court for conciliation proceedings in respect to a controversy between spouses, or a contested proceeding for dissolution of marriage, annulment, or legal separation, if it appears to the Court that reconciliation of the spouses or amicable adjustment of the controversy can probably be achieved, the Court may accept and dispose of the case in the same manner as similar cases involving the welfare of children are disposed of.
In a county in which a FAMILY CONCILIATION COURT exists, a person anticipating the imminent filing of a Divorce (Dissolution of Marriage), an Annulment, or a Legal Separation case, can put at least a temporary hold on such proceedings by filing a Petition for Conciliation, to obtain the assistance of the FAMILY CONCILIATION COURT in working towards a resolution of the controversy and hopefully avoid the tragic consequences of Divorce, Annulment or Legal Separation proceedings.
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