Donald F. Conviser, Certified Family Specialist, owner of Warner Center Law Offices, located in the San Fernando Valley in the Warner Center area of Woodland Hills, serving Prenuptial Agreement, Divorce, Paternity, and other Family Law clients in the Courts of Los Angeles County and Ventura County for over 38 years, offering a free confidential consultation to address your family law questions, presents this blog entitled: Why should I have a Prenup, in an effort to clear up misconceptions that many people have about property rights in a marriage.
A Prenup is one and the same as an Antenuptial Agreement, a Premarital Agreement, and a Prenuptial Agreement.
In this era when more marriages fail than survive, a Prenup is a wise planning tool for anyone with assets or earnings of any significance to have in place before any wedding date has been chosen, or if already chosen, at least before a marriage license has been obtained, or wedding plans have been committed to.
Far too frequently, people enter into a marriage under mistaken beliefs about their property interests, a few of which are:
BELIEF: Whatever money I earn during our marriage is my own money. WRONG - Your earnings are community property. However, a properly and timely drafted and entered Prenuptial Agreement can make your earnings your own separate property.
BELIEF: If I own property before the marriage, my spouse can't ever get an interest in it. WRONG - even if you don't transmute the property into community property or the separate propery of your spouse, certain things can create a community interest in your separate property, including but not limited to using community income (yours or your spouse's) to pay down the mortgage or improve the property, using your or your spouse's labors or talents to improve the property, refinancing the property, etc. Your spouse could be entitled to a PRO TANTO community interest, under the MOORE/MARSDEN rule. You are far safer by having a Premarital Agreement drafted and entered before the marriage which preserves your property as your separate property and removes risks of community interests and reimbursements.
BELIEF: If I get a quitclaim deed to my separate property from my spouse, it will eliminate the risk of a community property claim to the property. WRONG. This is a common misconception. As addressed above, the community could still obtain an interest in the property through the use of your or your spouse's earnings to pay down the mortgage or improve the property, or using your or your spouse's labors or talents to improve the property, refinancing the property, etc., making you vulnerable to a MOORE/MARSDEN apportionment of community and separate interests in the property. A well-drafted Premarital Agreement can protect you against such an interest being acquired by your spouse.
BELIEF: If I refinance my separate property during the marriage, the proceeds of the loan will be my separate property. WRONG. Under Marriage of GRINIUS (1985) 166 Cal.App.3d 1179, the court would look to the intent of the lender to determine whether the loan proceeds are community and separate, and in this era of declining or uncertain property values, lenders are no longer providing "stated income" loans, but are requiring and scrutinizing detailed loan applications to ensure that the borrower can afford to make the loan payments - and remember, without a Prenup, earnings during the marriage are community property, so the risk is that the loan proceeds will be held to be community property. Far better for you to have a Prenuptial Agreement crafted in advance of the marriage for you by an experienced Certified Family Law Specialist, to avoid such risk.
BELIEF: If I buy an asset with my separate property duirng the marriage, the asset is my separate property. WRONG - kind of. Property acquired during a marriage is presumed to be community property, and the burden is on the spouse asserting its separate character to overcome the presumption. You will be far safer with a well-drafted Prenup.
If you wonder whether or not you should have a Premarital Agreement, you probably have enough to lose to take the wise step, early, and get the ounce of protection to avoid the pound of cure.
Monday, April 26, 2010
Wednesday, April 14, 2010
CAN YOU COMPROMISE CHILD SUPPORT ARREARAGES?
Donald F. Conviser, Certified Family Law Specialist, owner of Warner Center Law Offices in Woodland Hills, California, serving divorce and family law clients in the Courts of Los Angeles County and Ventura County for over 35 years, offering a free confidential consultation (call 818/880-8990) regarding your divorce or family law issue, provides insight regarding whether or not a payor can effect a private compromise of child support arrearages as opposed to a compromise through CSSD or any other local child support agency.
California Family Code Section 3651(c)(1) provides in relevant part that a support order may not be modified as to an amount accrued before the filing of a Motion or Order to Show Cause for modification. So going to Court to seek a retroactive modification would not work to compromise child support arrearages.
However, where justification exists, courts have refused enforcement of child support obligations. Marriage of JACKSON (1975) 51 Cal.App.3d 363 and in Marriage of TRAINOTTI (1989) 213 Cal.App.3d 1072, were cases in which the supporting party (the father) received actual physical minor child, albeit without an order changing custody. In those cases, the appellate courts acknowledged that an order for child support may not be retroactively modified, but held that the trial court had the discretion to deny enforcement of child support orders on equitable grounds - because the father was actually supporting the child, and in so doing, he was satisfying or discharging his support obligation.
The appellate court in Marriage of GRAHAM (1959) 174 Cal.App.2nd 678 held that a party can waive her right to a portion of spousal support and child support. Marriage of PABOOJIAN (1987) 189 Cal.App.3d 1434 was a case where the ex husband told his ex-wife that he had serious financial trouble, and the ex-wife told him to take care of the children and forget the alimony. The appellate court in PABOOJIAN affirmed the trial court's ruling that the ex-wife waived spousal support.
In Marriage of HAMER (2000) 81 Cal.App.4th 712, the appellate court found no evidence of an express oral agreement to accept less than the amounts required by the judgment and to forego collection of the difference, but commented in dicta about changes in the law, that child support was enforceable until paid in full, that child support was not retroactively modifiable, and that lack of diligence can no longer be asserted as a defense.
In Marriage of SABINE & TOSHIO M. (2007) 153 Cal.App.4th 1203, the appellate court disapproved Toshio's compromise with Sabine of past child support arrearages and future child support, and held that under Family Code Section 3651(c)(1), the trial court had no authority to make an order requiring Sabine to accept less than the full amount due. But the facts of that case reflect that Toshio imposed his will on his ex wife through nonpayment of her much-needed support payments, and essentially gave her no choice but to accept his compromise. Nevertheless, that case provides some authority for a court to disapprove a compromise settlement of child support arrearage.
Nevertheless, in Marriage of ROBINSON (1998) 65 Cal.App.4th 93, the appellate court held that the resolution of a bona fide dispute regarding support is acceptable, and in Marriage of THOMPSON (1996) 41 Cal.App.4th 1049, the appellate court indicated that there must be a dispute for there to be a valid accord and satisfaction.
If there were unfortunate economic circumstances which made it impossible for the payor to pay child support, the best thing to do would have been to file an Order to Show Cause to modify child support. But the circumstances may have been so dire that the payor may have not been able to afford an attorney, at the time. So what can you do now? If you have the understanding and sympathy of the payee, you could enter into a written agreement to compromise the arrearages, albeit without any guarantee that the Court would honor the agreement. In HAMER, the court found that there was no evidence of any alleged agreement, so a written agreement would be better than nothing, and would avoid the risk that the trier of fact might belive one party over the other regarding an alleged oral agreement. But it might be advisable, in addition, for the parties to enter into a written STIPULATION AND ORDER, to file with the Court. The Court might or might not sign the ORDER; if it doesn't, you would still have the written agreement to submit to the Court if needed later, again without any guarantee. If the Court signs the ORDER, it should create a greater level of comfort for the payor.
California Family Code Section 3651(c)(1) provides in relevant part that a support order may not be modified as to an amount accrued before the filing of a Motion or Order to Show Cause for modification. So going to Court to seek a retroactive modification would not work to compromise child support arrearages.
However, where justification exists, courts have refused enforcement of child support obligations. Marriage of JACKSON (1975) 51 Cal.App.3d 363 and in Marriage of TRAINOTTI (1989) 213 Cal.App.3d 1072, were cases in which the supporting party (the father) received actual physical minor child, albeit without an order changing custody. In those cases, the appellate courts acknowledged that an order for child support may not be retroactively modified, but held that the trial court had the discretion to deny enforcement of child support orders on equitable grounds - because the father was actually supporting the child, and in so doing, he was satisfying or discharging his support obligation.
The appellate court in Marriage of GRAHAM (1959) 174 Cal.App.2nd 678 held that a party can waive her right to a portion of spousal support and child support. Marriage of PABOOJIAN (1987) 189 Cal.App.3d 1434 was a case where the ex husband told his ex-wife that he had serious financial trouble, and the ex-wife told him to take care of the children and forget the alimony. The appellate court in PABOOJIAN affirmed the trial court's ruling that the ex-wife waived spousal support.
In Marriage of HAMER (2000) 81 Cal.App.4th 712, the appellate court found no evidence of an express oral agreement to accept less than the amounts required by the judgment and to forego collection of the difference, but commented in dicta about changes in the law, that child support was enforceable until paid in full, that child support was not retroactively modifiable, and that lack of diligence can no longer be asserted as a defense.
In Marriage of SABINE & TOSHIO M. (2007) 153 Cal.App.4th 1203, the appellate court disapproved Toshio's compromise with Sabine of past child support arrearages and future child support, and held that under Family Code Section 3651(c)(1), the trial court had no authority to make an order requiring Sabine to accept less than the full amount due. But the facts of that case reflect that Toshio imposed his will on his ex wife through nonpayment of her much-needed support payments, and essentially gave her no choice but to accept his compromise. Nevertheless, that case provides some authority for a court to disapprove a compromise settlement of child support arrearage.
Nevertheless, in Marriage of ROBINSON (1998) 65 Cal.App.4th 93, the appellate court held that the resolution of a bona fide dispute regarding support is acceptable, and in Marriage of THOMPSON (1996) 41 Cal.App.4th 1049, the appellate court indicated that there must be a dispute for there to be a valid accord and satisfaction.
If there were unfortunate economic circumstances which made it impossible for the payor to pay child support, the best thing to do would have been to file an Order to Show Cause to modify child support. But the circumstances may have been so dire that the payor may have not been able to afford an attorney, at the time. So what can you do now? If you have the understanding and sympathy of the payee, you could enter into a written agreement to compromise the arrearages, albeit without any guarantee that the Court would honor the agreement. In HAMER, the court found that there was no evidence of any alleged agreement, so a written agreement would be better than nothing, and would avoid the risk that the trier of fact might belive one party over the other regarding an alleged oral agreement. But it might be advisable, in addition, for the parties to enter into a written STIPULATION AND ORDER, to file with the Court. The Court might or might not sign the ORDER; if it doesn't, you would still have the written agreement to submit to the Court if needed later, again without any guarantee. If the Court signs the ORDER, it should create a greater level of comfort for the payor.
Monday, April 12, 2010
WHAT IS JOINT LEGAL CUSTODY?
Donald F. Conviser, Certified Family Law Specialist, of Warner Center Law Offices in Woodland Hills, serving divorce and family law clients in the courts of Los Angeles and Ventura Counties for 38 years, offering a free confidential consultation (call 818/880-8990), writes about an oft misunderstood concept: Joint Legal Custody.
Clients frequently ask me: What is joint legal custody? If I have joint legal custody, am I required to consult with the other parent of my child regarding activities I want to enroll my child in? Do I need the other parent's consent for me to enroll my child in those activities?
Family Code Section 3003 states: "Joint legal custody" means that both parents shall share the right and the responsibility to make the decisions relating to the health, education, and welfare of a child.
A look at Family Code Section 3083 and the Child Custody Orders in your case will assist in obtaining the answers.
Family Code Section 3083 states: In making an order of joint legal custody, the court shall specify the circumstances under which the consent of both parents is required to be obtained in order to exercise legal control of the child and the consequences of the failure to obtain mutual consent. In all other circumstances, either parent acting alone may exercise legal control of the child. An order of joint legal custody shall not be construed to permit an action that is inconsistent with the physical custody order unless the action is expressly authorized by the court.
Only in those circumstances where the court order requires mutual consent for a decision or activity, is mutual consent required.
Where mutual consent is not required, you needn't consult with the other parent, and the other parent's consent to the activity or decision is not required.
However, where the order is unclear as to whether or not mutual consent is required, you are safer to discuss the activity with the other parent and seek consent, because the consequences of violation of a court order can include contempt of court or you may possibly risk an unfavorable modification of custody.
Your attorney could file an Order to Show Cause for clarification of the order, to get the order spelled out sufficiently so that you will know what you can and can't do without the other parent's consent.
Depending on the quality of your relationship with the other parent, and your ability to co-parent your child cooperatively with the other parent, it may be a good idea to meet and confer with the other parent from time to time to discuss issues that would best be resolved between the parties, instead of through adversary litigation and the Court.
But if your relationship with the other parent is not a relationship of trust or cooperation, there is a risk that what you propose could get pipelined to the other parent's attorney, so you need to evaluate the quality of your relationship with the other parent before you start sharing ideas which the other parent may be unwilling to accept.
Joint legal custody assumes that there is a spirit of cooperation between the parents. Where the Court opines that there is a lack of cooperation, the Court may well make a sole legal custody order, or the Court may give one party the ultimate decision making power. If you are seeking joint legal custody of your child, it is best to create a relationship of cooperation with the other parent.
Clients frequently ask me: What is joint legal custody? If I have joint legal custody, am I required to consult with the other parent of my child regarding activities I want to enroll my child in? Do I need the other parent's consent for me to enroll my child in those activities?
Family Code Section 3003 states: "Joint legal custody" means that both parents shall share the right and the responsibility to make the decisions relating to the health, education, and welfare of a child.
A look at Family Code Section 3083 and the Child Custody Orders in your case will assist in obtaining the answers.
Family Code Section 3083 states: In making an order of joint legal custody, the court shall specify the circumstances under which the consent of both parents is required to be obtained in order to exercise legal control of the child and the consequences of the failure to obtain mutual consent. In all other circumstances, either parent acting alone may exercise legal control of the child. An order of joint legal custody shall not be construed to permit an action that is inconsistent with the physical custody order unless the action is expressly authorized by the court.
Only in those circumstances where the court order requires mutual consent for a decision or activity, is mutual consent required.
Where mutual consent is not required, you needn't consult with the other parent, and the other parent's consent to the activity or decision is not required.
However, where the order is unclear as to whether or not mutual consent is required, you are safer to discuss the activity with the other parent and seek consent, because the consequences of violation of a court order can include contempt of court or you may possibly risk an unfavorable modification of custody.
Your attorney could file an Order to Show Cause for clarification of the order, to get the order spelled out sufficiently so that you will know what you can and can't do without the other parent's consent.
Depending on the quality of your relationship with the other parent, and your ability to co-parent your child cooperatively with the other parent, it may be a good idea to meet and confer with the other parent from time to time to discuss issues that would best be resolved between the parties, instead of through adversary litigation and the Court.
But if your relationship with the other parent is not a relationship of trust or cooperation, there is a risk that what you propose could get pipelined to the other parent's attorney, so you need to evaluate the quality of your relationship with the other parent before you start sharing ideas which the other parent may be unwilling to accept.
Joint legal custody assumes that there is a spirit of cooperation between the parents. Where the Court opines that there is a lack of cooperation, the Court may well make a sole legal custody order, or the Court may give one party the ultimate decision making power. If you are seeking joint legal custody of your child, it is best to create a relationship of cooperation with the other parent.
Wednesday, December 16, 2009
AGREEMENTS RELATING TO MARRIAGE
DONALD F. CONVISER, a Certified Family Law Specialist in Woodland Hills, California, in the San Fernando Valley, serving Divorce and Family Law clients in the Courts of Los Angeles and Ventura County for over 35 years, owner of WARNER CENTER LAW OFFICES, addresses agreements relating to marriage in this Blog.
There are four (4) basic types of agreements relating to marriage: Prenuptial Agreements, Postnuptial Agreements, Transmutation Agreements, and Marital Settlement Agreements.
A PRENUPTIAL AGREEMENT (also known as a Premarital Agreement, an Antenuptial Agreement, a Prenup, or a Pre-nup) is a written agreement entered into by the parties prior to marriage between the prospective spouses, generally providing for division of property and limitation or elimination of Spousal Support [aka Alimony) if the marriage does not work out, and frequently eliminating or modifying inheritance rights and other rights that a married party may have on the death of the other spouse.
In California, Prenups are governed by FAMILY CODE Sections 1500 through 1620. People enter into Prenups for a variety of reasons, primarily to enable them to strucure their own settlement and allocate their property and income as they see fit, if their marriage does not work out.
In order for a Prenup to be valid, it requires an offer, an acceptance, consideration, mutual assent, legality, legal capacity of the parties, and it must be in writing, executed voluntarily by both parties, supported by a full and/or fair disclosure of each party's assets and liabilities, and cannot be unconscionable.
A POSTNUPTIAL AGREEMENT (also known as a Postmarital Agreement, a Postnup, or a Post-nup) is a written agreement entered into by the parties after their marriage, and is similar to a Prenup, except that a Postnup is far more strictly scrutinized by the Court in Family Law proceedings, because married people are saddled with Fiduciary duties and responsibilities to each other [as addressed in FAMILY CODE Section 721, 1100 et seq., and 2100 et seq.] of the highest good faith and fair dealing, requring that neither shall take any unfair advantage of the other, and requiring each spouse to make full disclosure to each other of all material facts regarding the existence, characterization, and valuation of all assets in which the community has or may have an interest, and debts for which the community may be liable, and to provide equal access to all information, records and books that pertain to the value and character of those assets and debts, upon request.
A TRANSMUTATION AGREEMENT (otherwise known as a Separate Property Agreement) is a written agreement entered into by the parties during their marriage, whereby they agree to change the character of property, whether from Separate to Community, from Community to Separate, or from Separate Property of one party to Separate Property of the other party.
The laws regarding TRANSMUTATION AGREEMENTS are strict, and unless they are strictly complied with, a court can void, refuse to enforce, and/or set aside a TRANSMUTATION AGREEMENT.
Parties enter into TRANSMUTATION AGREEMENTS for a variety of reasons, which may include making gifts or the protection of assets from the fallout of debts incurred by one spouse. For further information regarding TRANSMUTATION AGREEMENTS, see this writer's Blog posted on December 4, 2009, entitled: "A GIFT TO A SPOUSE MIGHT NOT BE HELD TO BE A GIFT AFTER ALL."
A MARITAL SETTLEMENT AGREEMENT (otherwise known as a MSA or a PROPERTY SETTLEMENT AGREEMENT) is a written agreement entered into by couples during the process of a divorce or legal separation, and it may contain provisions resolving property issues, parenting schedules, support amounts, and other issues affecting the rights and obligations of the parties to the marriage. For further information regarding MSAs, see this writer's Blog posted on December 16, 2009, entitled "BEWARE GOING PRO PER; THE DEAL YOU NEGOTIATE MAY NOT BE THE DEAL YOU GET."
A party entering a marriage is best served by consultation with competent family law counsel regarding the preparation of a PRENUPTIAL AGREEMENT.
A party in a marriage where potential economic changes appear over the horizon is best served by consultation with competent family law counsel regarding the preparation of a POSTNUPTIAL AGREEMENT or a TRANSMUTATION AGREEMENT.
A party involved in a divorce or legal separation is best served by representation by competent family law counsel throughout the proceedings, including the preparation of an appropriate MSA when the case is resolved.
In 1980, the California State Bar commenced its Specialization Program. DONALD F. CONVISER [the owner and principal attorney of WARNER CENTER LAW OFFICES] was Certified as a Family Law Specialist in 1980 in the first group of Family Law Specialists Certified by the State Bar of California.
There are four (4) basic types of agreements relating to marriage: Prenuptial Agreements, Postnuptial Agreements, Transmutation Agreements, and Marital Settlement Agreements.
A PRENUPTIAL AGREEMENT (also known as a Premarital Agreement, an Antenuptial Agreement, a Prenup, or a Pre-nup) is a written agreement entered into by the parties prior to marriage between the prospective spouses, generally providing for division of property and limitation or elimination of Spousal Support [aka Alimony) if the marriage does not work out, and frequently eliminating or modifying inheritance rights and other rights that a married party may have on the death of the other spouse.
In California, Prenups are governed by FAMILY CODE Sections 1500 through 1620. People enter into Prenups for a variety of reasons, primarily to enable them to strucure their own settlement and allocate their property and income as they see fit, if their marriage does not work out.
In order for a Prenup to be valid, it requires an offer, an acceptance, consideration, mutual assent, legality, legal capacity of the parties, and it must be in writing, executed voluntarily by both parties, supported by a full and/or fair disclosure of each party's assets and liabilities, and cannot be unconscionable.
A POSTNUPTIAL AGREEMENT (also known as a Postmarital Agreement, a Postnup, or a Post-nup) is a written agreement entered into by the parties after their marriage, and is similar to a Prenup, except that a Postnup is far more strictly scrutinized by the Court in Family Law proceedings, because married people are saddled with Fiduciary duties and responsibilities to each other [as addressed in FAMILY CODE Section 721, 1100 et seq., and 2100 et seq.] of the highest good faith and fair dealing, requring that neither shall take any unfair advantage of the other, and requiring each spouse to make full disclosure to each other of all material facts regarding the existence, characterization, and valuation of all assets in which the community has or may have an interest, and debts for which the community may be liable, and to provide equal access to all information, records and books that pertain to the value and character of those assets and debts, upon request.
A TRANSMUTATION AGREEMENT (otherwise known as a Separate Property Agreement) is a written agreement entered into by the parties during their marriage, whereby they agree to change the character of property, whether from Separate to Community, from Community to Separate, or from Separate Property of one party to Separate Property of the other party.
The laws regarding TRANSMUTATION AGREEMENTS are strict, and unless they are strictly complied with, a court can void, refuse to enforce, and/or set aside a TRANSMUTATION AGREEMENT.
Parties enter into TRANSMUTATION AGREEMENTS for a variety of reasons, which may include making gifts or the protection of assets from the fallout of debts incurred by one spouse. For further information regarding TRANSMUTATION AGREEMENTS, see this writer's Blog posted on December 4, 2009, entitled: "A GIFT TO A SPOUSE MIGHT NOT BE HELD TO BE A GIFT AFTER ALL."
A MARITAL SETTLEMENT AGREEMENT (otherwise known as a MSA or a PROPERTY SETTLEMENT AGREEMENT) is a written agreement entered into by couples during the process of a divorce or legal separation, and it may contain provisions resolving property issues, parenting schedules, support amounts, and other issues affecting the rights and obligations of the parties to the marriage. For further information regarding MSAs, see this writer's Blog posted on December 16, 2009, entitled "BEWARE GOING PRO PER; THE DEAL YOU NEGOTIATE MAY NOT BE THE DEAL YOU GET."
A party entering a marriage is best served by consultation with competent family law counsel regarding the preparation of a PRENUPTIAL AGREEMENT.
A party in a marriage where potential economic changes appear over the horizon is best served by consultation with competent family law counsel regarding the preparation of a POSTNUPTIAL AGREEMENT or a TRANSMUTATION AGREEMENT.
A party involved in a divorce or legal separation is best served by representation by competent family law counsel throughout the proceedings, including the preparation of an appropriate MSA when the case is resolved.
In 1980, the California State Bar commenced its Specialization Program. DONALD F. CONVISER [the owner and principal attorney of WARNER CENTER LAW OFFICES] was Certified as a Family Law Specialist in 1980 in the first group of Family Law Specialists Certified by the State Bar of California.
BEWARE GOING PRO PER [representing yourself] IN A DIVORCE OR FAMILY LAW CASE; THE DEAL YOU NEGOTIATE MAY NOT BE THE DEAL YOU GET.
DONALD F. CONVISER, Certified Family Law Specialist, representing people in divorce and family law cases in the courts of Los Angeles and Ventura county for over 35 years, owner of WARNER CENTER LAW OFFICES, located in Woodland Hills in the west San Fernando Valley, offering a free confidential consultation to address your particular divorce or family law situation, writes about pitfalls of going pro per [unrepresented by counsel] in a divorce or family law case.
In Marriage of DELLARIA and BLICKMAN (2009) 172 Cal.App.4th 176, the court of appeal held that the settlement that the parties had negotiated and fully performed was unenforceable.
In DELLARIA and BLICKMAN, after the Petition for Dissolution of Marriage was filed, the parties [at that time, both in Pro-Per, i.e., unrepresented by counsel] orally negotiated a property settlement, where the wife received the family home, the husband received two other pieces of real property, the wife received a car, the husband received two other cars, and each party received his and her own retirement plans. They signed and exchanged deeds and ownership documents to complete the settlement.
Husband thereafter realized that wife had gotten the better deal, and the case went to trial. Wife's attorney asked that Judgment should be entered on the parties' fully performed agreement dividing their community property, claimed that all of the property transfers were valid transmutations, and asked that the trial court impose monetary sanctions on husband for going to trial notwithstanding the parties' prior settlement.
The trial court found that the parties had entered into a valid and enforceable oral agreement to divide the major assets of the marital estate, and that they had fully performed their oral contract, and adjudicated the parties' Community Property rights in accordance with their oral settlement agreement, even though it resulted in an uneven distribution of community property.
Furthermore, the trial court imposed $175,000 in FAMILY CODE Section 271 Monetary Sanctions on the husband for his rejection of wife's 'reasonable settment offer' [she had offered to accept Child Support at its present level and to be responsible for her own attorney's fees if husband would not contest the parties' fully performed oral settlement agreement].
FAMILY CODE Section 271 provides that notwithstanding any other provision of the Family Code, the court may base an award of fees and costs on the extent to which the conduct of each party or attorney furthers or frustrates the policy of the law to promote settlement of litigation and, where possible, to reduce the cost of litigation by encouraging cooperation between the parties and attorneys.
Husband appealed. The appellate court held the parties' oral agreement void and unenforceable, and reversed the trial court's property division and sanctions orders, applying the following rationale:
To the extent the Trial Court's decision reflects an interpretation of a statute, it presents a question of law that the Appellate Court reviews de novo.
FAMILY CODE Section 2550 provides that except upon the written agreement of the parties, or on oral stipulation of the parties in open court ..., in a proceeding for dissolution of marriage or legal separation, the court SHALL, either in its judgment of dissolution or legal separation, or at a later time if it expressly reserves jurisdiction to make such a property division, DIVIDE THE COMMUNITY ESTATE OF THE PARTIES EQUALLY.
In Marriage of CREAM (1993) 13 Cal.App.4th 81, 91, the appellate court held that if such an agreement [written or stipulated to in open court] is entered into, the court must accept the parties' agreement regarding the disposition of their property.
In Marriage of QUAY (2003) 18 Cal.App.4th 961, 966, the appellate court held that once a petition has been filed, the community property needs to be divided either by the parties or by the court. If the court divides the community property, it must do so equally. If the parties want to agree upon another disposition, they must do so either in writing or in open court.
In Marriage of MARICLE (1990) 220 Cal.App.3d 55, 58, the appellate court reversed a judgment based on a fully executed oral agreement, in a case whose facts were substantially similar the the DELARIA & BLICKMAN facts
The most significant difference in facts between the two cases was that in MARICLE, both parties were represented by counsel at the time the parties independently entered into their settlement agreement and performed its terms, whereas in DELLARIA & BLICKMAN, both parties were in Pro Per, i.e., unrepresented by counsel at time of their negotiation, entry into, and performance of their oral agreement.
In MARICLE, the appellate court held that there is no need to show fraud, oppression, or undue influence to set aside such a judgment, and stated that, full execution notwithstanding, the purpose of the statute is to ensure that the rights of a party are not dependent on faulty recollection or false testimony.
In MARICLE, the appellate court addressed oral settlement agreements of represented parties entered without their attorneys' knowledge, stating: "Where a party is represented by an attorney of record, the court should not accept a stipulation or agreement made without the knowledge and consent of the attorney."
As noted above, DELLARIA and BLICKMAN were in Pro Per when they entered and performed their settlement agreement, but the writer has included this reference to MIRACLE as an admonition to represented parties that the parties' attorneys should not be left out of the loop.
The DELLARIA & BLICKMAN appellate court stated that requiring the parties' settlement agreement to be committed to writing or recited in court, as mandated by FAMILY CODE Section 2550, prevents the risk of the court enforcing an agreement that was never made. [That was the danger encountered by that court - the parties' trial testimony regarding their alleged 'agreement' was conflicting]. Courts accepting stipulations or reviewing written agreements can be satisfied that such an agreement has been made.
Given that the appellate court in DELLARIA & BLICKMAN set aside the Judgment [finding the parties' fully performed oral settlement agreement to be void and unenforceable], the appellate court set aside the trial court's sanctions order against husband, which had faulted and penalized husband for taking the case to trial in the face of what the trial court had wrongly deemed to be a valid settlement.
Parties to Divorce or Family Law proceedings are best served by employing competent counsel to represent, advise and guide them in their dealings regarding their cases. People representing themselves in Pro Per face pitfalls resulting from their lack of education, training and experience, and can find themselves economically worse off than they would have been had they hired counsel in the first place.
In Marriage of DELLARIA and BLICKMAN (2009) 172 Cal.App.4th 176, the court of appeal held that the settlement that the parties had negotiated and fully performed was unenforceable.
In DELLARIA and BLICKMAN, after the Petition for Dissolution of Marriage was filed, the parties [at that time, both in Pro-Per, i.e., unrepresented by counsel] orally negotiated a property settlement, where the wife received the family home, the husband received two other pieces of real property, the wife received a car, the husband received two other cars, and each party received his and her own retirement plans. They signed and exchanged deeds and ownership documents to complete the settlement.
Husband thereafter realized that wife had gotten the better deal, and the case went to trial. Wife's attorney asked that Judgment should be entered on the parties' fully performed agreement dividing their community property, claimed that all of the property transfers were valid transmutations, and asked that the trial court impose monetary sanctions on husband for going to trial notwithstanding the parties' prior settlement.
The trial court found that the parties had entered into a valid and enforceable oral agreement to divide the major assets of the marital estate, and that they had fully performed their oral contract, and adjudicated the parties' Community Property rights in accordance with their oral settlement agreement, even though it resulted in an uneven distribution of community property.
Furthermore, the trial court imposed $175,000 in FAMILY CODE Section 271 Monetary Sanctions on the husband for his rejection of wife's 'reasonable settment offer' [she had offered to accept Child Support at its present level and to be responsible for her own attorney's fees if husband would not contest the parties' fully performed oral settlement agreement].
FAMILY CODE Section 271 provides that notwithstanding any other provision of the Family Code, the court may base an award of fees and costs on the extent to which the conduct of each party or attorney furthers or frustrates the policy of the law to promote settlement of litigation and, where possible, to reduce the cost of litigation by encouraging cooperation between the parties and attorneys.
Husband appealed. The appellate court held the parties' oral agreement void and unenforceable, and reversed the trial court's property division and sanctions orders, applying the following rationale:
To the extent the Trial Court's decision reflects an interpretation of a statute, it presents a question of law that the Appellate Court reviews de novo.
FAMILY CODE Section 2550 provides that except upon the written agreement of the parties, or on oral stipulation of the parties in open court ..., in a proceeding for dissolution of marriage or legal separation, the court SHALL, either in its judgment of dissolution or legal separation, or at a later time if it expressly reserves jurisdiction to make such a property division, DIVIDE THE COMMUNITY ESTATE OF THE PARTIES EQUALLY.
In Marriage of CREAM (1993) 13 Cal.App.4th 81, 91, the appellate court held that if such an agreement [written or stipulated to in open court] is entered into, the court must accept the parties' agreement regarding the disposition of their property.
In Marriage of QUAY (2003) 18 Cal.App.4th 961, 966, the appellate court held that once a petition has been filed, the community property needs to be divided either by the parties or by the court. If the court divides the community property, it must do so equally. If the parties want to agree upon another disposition, they must do so either in writing or in open court.
In Marriage of MARICLE (1990) 220 Cal.App.3d 55, 58, the appellate court reversed a judgment based on a fully executed oral agreement, in a case whose facts were substantially similar the the DELARIA & BLICKMAN facts
The most significant difference in facts between the two cases was that in MARICLE, both parties were represented by counsel at the time the parties independently entered into their settlement agreement and performed its terms, whereas in DELLARIA & BLICKMAN, both parties were in Pro Per, i.e., unrepresented by counsel at time of their negotiation, entry into, and performance of their oral agreement.
In MARICLE, the appellate court held that there is no need to show fraud, oppression, or undue influence to set aside such a judgment, and stated that, full execution notwithstanding, the purpose of the statute is to ensure that the rights of a party are not dependent on faulty recollection or false testimony.
In MARICLE, the appellate court addressed oral settlement agreements of represented parties entered without their attorneys' knowledge, stating: "Where a party is represented by an attorney of record, the court should not accept a stipulation or agreement made without the knowledge and consent of the attorney."
As noted above, DELLARIA and BLICKMAN were in Pro Per when they entered and performed their settlement agreement, but the writer has included this reference to MIRACLE as an admonition to represented parties that the parties' attorneys should not be left out of the loop.
The DELLARIA & BLICKMAN appellate court stated that requiring the parties' settlement agreement to be committed to writing or recited in court, as mandated by FAMILY CODE Section 2550, prevents the risk of the court enforcing an agreement that was never made. [That was the danger encountered by that court - the parties' trial testimony regarding their alleged 'agreement' was conflicting]. Courts accepting stipulations or reviewing written agreements can be satisfied that such an agreement has been made.
Given that the appellate court in DELLARIA & BLICKMAN set aside the Judgment [finding the parties' fully performed oral settlement agreement to be void and unenforceable], the appellate court set aside the trial court's sanctions order against husband, which had faulted and penalized husband for taking the case to trial in the face of what the trial court had wrongly deemed to be a valid settlement.
Parties to Divorce or Family Law proceedings are best served by employing competent counsel to represent, advise and guide them in their dealings regarding their cases. People representing themselves in Pro Per face pitfalls resulting from their lack of education, training and experience, and can find themselves economically worse off than they would have been had they hired counsel in the first place.
Wednesday, December 9, 2009
EXPENSES ARE RELEVANT TO ATTORNEY FEE ORDERS IN FAMILY LAW CASES
DONALD F. CONVISER, Certified Family Law Specialist, owner of WARNER CENTER LAW OFFICES in the Woodland Hills section of the San Fernando Valley, serving divorce and family law clients in the courts of Los Angeles and Ventura for over 35 years, offering a free confidential consulation regarding your divorce or family law situation, writes this article to address the relevance of expenses in attorney fee requests, oppositions to attorney fee requests, and attorney fee orders in family law or divorce cases.
In ALAN S. vs. SUPERIOR COURT (MARY T.) (2009) 172 Cal.App.4th 239, the appellate court addressed how courts are to achieve (particularly in low and middle income cases) the legislative goal of assuring "each party has access to legal representation to preserve each party's rights" [FAMILY CODE Section 2030(a)(1)] and the goal that each party, to the extent practical, to have sufficient financial resources to present the party's case adequately. FAMILY CODE Section 2032(b). The court stressed that the purpose of fee orders is parity, as opposed to redistribution of income.
Alan S. challenged attorney fee orders made by the trial court preparatory to a child custody hearing brought by Mary T, his ex-wife [ordering Alan to pay Mary $9,000 in attorney's fees at $300/month], which Alan claimed would deprive him of the ability to afford his own counsel at the custody hearing, and which were made without giving Alan the opportunity to present any testimonial evidence at the attorney-fee hearing.
Three weeks after the attorney fee order, Alan filed a Petition for a Writ of Mandate.
The appellate court reversed the trial court orders, and this article discusses some of the appellate court's reasoning.
The appellate court stated that, of all cases, child custody is perhaps the most time-sensitive (and hence least amenable to an adequate remedy by away of appeal) since time in a child's life can never be recovered. The Appellate Court found the normal (slow) appeal procedure to be inadequate, because of the interrelationship of the attorney fee order and Alan's ability to obtain counsel for the "main event".
The appellate court pointed out that the purpose of FAMILY CODE Section 2030 is not the redistribution of money from the greater income party to the lesser income party, but instead, its purpose is parity: a fair hearing with both sides equally represented.
The court noted that by providing for orders to pay money so that one's adversary can afford an attorney, there is the paradoxical possibility that a court may effectively deprive the paying party of the ability to present his/her own case.
The court addressed MARRIAGE OF KEECH (1999) 75 Cal.App.4th 860, which despite an abuse of discretion standard of review, reversed an attorney and accountant's fee and order for that very reason [in KEECH, the attorney fee order of $500/month would leave him a mere $593/month to live on, after his support payments of $1,468/month and his taxes and rent taking up the balance beyond the $593]. The KEECH appellate court stated that the trial court was required to take into consideration the need for each party, to the extent practical, to have sufficient resources to present the party's case adequately.
The ALAN S appellate court next addressed the EXPENSE side of Income and Expense Declarations, and noted that since expenses are (with very few exceptions [e.g Family Code Section 4071 - Hardship Circumstances & Deductions] irrelevant for child support, it is perhaps too easy for family law judges to dismiss the expenses on the income and expense declaration in other contexts, such as the context of a requested attorney fee order, but to do so is error.
The Court held that Expenses are relevant to attorney fee orders, citing FAMILY CODE Section 2032(b) [addressed hereinabove], taking into consideration, to the extent relevant, the circumstances of the respective parties described in FAMILY CODE Section 4320 [the code section setting forth factors considered in the determination of long-term marriage Spousal Support], including 4320(k) "balance of hardships to each party".
Section 2032(b) further tells courts that: "Financial resources are only one factor for the court to consider in determining how to apportion the overall cost of the litigation equitably between the parties under their relative circumstances."
The court stated that reading section 2032 together with section 4320, one cannot escape the idea that a fee award should be the product of a nuanced process in which the trial court should try to get the "big picture" of the case, i.e., "the relative circumstances of the respective parties" [Section 2032(a)]. Conversely, determination of an attorney fee order is definitely not a truncated process where the trial court simply (a) ascertains which party has the higher nominal income relative to the other, and then (b) massages the fee request of the lesser-income party into some manageable amount that feels like it will pass an abuse of discretion test. The court stated that the record (including the order) must reflect an actual exercise of discretion and a consideration of the statutory factors in the exercise of that discretion. The court found that the trial court took the truncated approach.
The court also stated that FAMILY CODE Section 2030(a) limits fee awards to amounts that are reasonably necessary, and that an award measured summarily by what the applicant has been billed or what his/her attorney is presently owed is an abuse of discretion if it does not reflect consideration of whether the fees allegedly incurred were reasonably necessary.
The court next addressed the Reiflerization of the hearing [the hearing of OSCs and Motions based only on written declarations, per REIFLER v. SUPERIOR COURT (1974) 39 Cal.App.3d 479] and the far more recent ELKINS decision [ELKINS v. SUPERIOR COURT (2007) 41 Cal.4TH 1337, 1369 - addressing live testimony at trials - as opposed to OSCs and Motions], finding that there is much in the ALAN S. case in common with ELKINS, and that just because live testimony may not be automatically required does not mean it may not be an abuse of discretion to refuse it if the peculiar facts of a case reuire it. The court noted that in REIFLER, the appellate court held that reliance upon the local policy rather than an intelligent application of trial court discretion was error, and sent the case back to the trial court to hear oral testimony.
In ALAN S., the appellate court sent the case back to the trial court for a reconsideration of the basic circumstances of the parties per KEECH, for reconsideration of taking live testimony per REIFLER, and for what it called a "re-do", where the trial court can get a bigger picture of the litigation, stating that a fee-shifting order may be an abuse of discretion if the timing or method of the payment obligation puts and unreasonable burden on the obligor in light of his/her own cash-flow situation (support obligations, personal living expenses, and own attorney fees).
The ALAN S. case is an important case for any party to review and cite in any family law or divorce case in which an attorney's fee request is made.
In ALAN S. vs. SUPERIOR COURT (MARY T.) (2009) 172 Cal.App.4th 239, the appellate court addressed how courts are to achieve (particularly in low and middle income cases) the legislative goal of assuring "each party has access to legal representation to preserve each party's rights" [FAMILY CODE Section 2030(a)(1)] and the goal that each party, to the extent practical, to have sufficient financial resources to present the party's case adequately. FAMILY CODE Section 2032(b). The court stressed that the purpose of fee orders is parity, as opposed to redistribution of income.
Alan S. challenged attorney fee orders made by the trial court preparatory to a child custody hearing brought by Mary T, his ex-wife [ordering Alan to pay Mary $9,000 in attorney's fees at $300/month], which Alan claimed would deprive him of the ability to afford his own counsel at the custody hearing, and which were made without giving Alan the opportunity to present any testimonial evidence at the attorney-fee hearing.
Three weeks after the attorney fee order, Alan filed a Petition for a Writ of Mandate.
The appellate court reversed the trial court orders, and this article discusses some of the appellate court's reasoning.
The appellate court stated that, of all cases, child custody is perhaps the most time-sensitive (and hence least amenable to an adequate remedy by away of appeal) since time in a child's life can never be recovered. The Appellate Court found the normal (slow) appeal procedure to be inadequate, because of the interrelationship of the attorney fee order and Alan's ability to obtain counsel for the "main event".
The appellate court pointed out that the purpose of FAMILY CODE Section 2030 is not the redistribution of money from the greater income party to the lesser income party, but instead, its purpose is parity: a fair hearing with both sides equally represented.
The court noted that by providing for orders to pay money so that one's adversary can afford an attorney, there is the paradoxical possibility that a court may effectively deprive the paying party of the ability to present his/her own case.
The court addressed MARRIAGE OF KEECH (1999) 75 Cal.App.4th 860, which despite an abuse of discretion standard of review, reversed an attorney and accountant's fee and order for that very reason [in KEECH, the attorney fee order of $500/month would leave him a mere $593/month to live on, after his support payments of $1,468/month and his taxes and rent taking up the balance beyond the $593]. The KEECH appellate court stated that the trial court was required to take into consideration the need for each party, to the extent practical, to have sufficient resources to present the party's case adequately.
The ALAN S appellate court next addressed the EXPENSE side of Income and Expense Declarations, and noted that since expenses are (with very few exceptions [e.g Family Code Section 4071 - Hardship Circumstances & Deductions] irrelevant for child support, it is perhaps too easy for family law judges to dismiss the expenses on the income and expense declaration in other contexts, such as the context of a requested attorney fee order, but to do so is error.
The Court held that Expenses are relevant to attorney fee orders, citing FAMILY CODE Section 2032(b) [addressed hereinabove], taking into consideration, to the extent relevant, the circumstances of the respective parties described in FAMILY CODE Section 4320 [the code section setting forth factors considered in the determination of long-term marriage Spousal Support], including 4320(k) "balance of hardships to each party".
Section 2032(b) further tells courts that: "Financial resources are only one factor for the court to consider in determining how to apportion the overall cost of the litigation equitably between the parties under their relative circumstances."
The court stated that reading section 2032 together with section 4320, one cannot escape the idea that a fee award should be the product of a nuanced process in which the trial court should try to get the "big picture" of the case, i.e., "the relative circumstances of the respective parties" [Section 2032(a)]. Conversely, determination of an attorney fee order is definitely not a truncated process where the trial court simply (a) ascertains which party has the higher nominal income relative to the other, and then (b) massages the fee request of the lesser-income party into some manageable amount that feels like it will pass an abuse of discretion test. The court stated that the record (including the order) must reflect an actual exercise of discretion and a consideration of the statutory factors in the exercise of that discretion. The court found that the trial court took the truncated approach.
The court also stated that FAMILY CODE Section 2030(a) limits fee awards to amounts that are reasonably necessary, and that an award measured summarily by what the applicant has been billed or what his/her attorney is presently owed is an abuse of discretion if it does not reflect consideration of whether the fees allegedly incurred were reasonably necessary.
The court next addressed the Reiflerization of the hearing [the hearing of OSCs and Motions based only on written declarations, per REIFLER v. SUPERIOR COURT (1974) 39 Cal.App.3d 479] and the far more recent ELKINS decision [ELKINS v. SUPERIOR COURT (2007) 41 Cal.4TH 1337, 1369 - addressing live testimony at trials - as opposed to OSCs and Motions], finding that there is much in the ALAN S. case in common with ELKINS, and that just because live testimony may not be automatically required does not mean it may not be an abuse of discretion to refuse it if the peculiar facts of a case reuire it. The court noted that in REIFLER, the appellate court held that reliance upon the local policy rather than an intelligent application of trial court discretion was error, and sent the case back to the trial court to hear oral testimony.
In ALAN S., the appellate court sent the case back to the trial court for a reconsideration of the basic circumstances of the parties per KEECH, for reconsideration of taking live testimony per REIFLER, and for what it called a "re-do", where the trial court can get a bigger picture of the litigation, stating that a fee-shifting order may be an abuse of discretion if the timing or method of the payment obligation puts and unreasonable burden on the obligor in light of his/her own cash-flow situation (support obligations, personal living expenses, and own attorney fees).
The ALAN S. case is an important case for any party to review and cite in any family law or divorce case in which an attorney's fee request is made.
Monday, December 7, 2009
PROPERTY RIGHTS OF PUTATIVE SPOUSES IN DIVORCE/ANNULMENT CASES
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.
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.
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