Recent Posts in LGBT Legal Issues Category
| April 02, 2012 |
| Is It Proper To Give A GAVRON WARNING Before the Final Judgment Is Entered? |
| Posted By Thurman W. Arnold CFLS |
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Q. Is it proper for the Family Court to give a domestic partner a Gavron Warning when I am receiving temporary partner support and we haven't divided our assets so that no final judgment has been issued in the case yet?
A. As you probably know, the same rules apply to registered domestic partners in California dissolution cases as apply to married persons. What we traditionally consider as "alimony" or "spousal support" is the same animal as partner support.
Marriage of Gavron was decided in 1988. The issue there was whether a trial court abused its discretion in terminating spousal support to a 57 year old wife based on her failure to become gainfully employed or to seek vocational training. The parties in
Gavron had been married for 25 years and shared one adult child. They separated in 1976, and judgment was entered in June, 1979. In the final judgment the court ordered the former husband to pay spousal support until further order of court. Husband evidently really resented the obligation, because notwithstanding a relatively fresh separation, in 1981 he went back to court asking to reduce the support amount by half and to have it terminated after one more year of payments. That request was denied.
In 1986 Husband returned to court seeking to lower the payments and an order that support terminate. The court refused to lower support, but did order that after another five months support would be fixed at zero with the court retaining jurisdiction to reinstate it, until the death or remarriage of wife. The evidence was that while Husband attended dental school early in the marriage, Wife held different low paying jobs (although she did work at the dental office for a time after it opened), on and off, during the marriage and afterwards. She contended that most of these jobs were "too physically demanding," and there was uncontested evidence that she suffered tumors on her feet and shoulder problems. She did not seek any kind of retraining after separation. She did own some significant assets - her house was free and clear, she had no debt, and she had real estate venture investments. Husband had remarried, and had used most of his 401k to buy Wife out at the time of the dissolution; his business was becoming more competitive, and the evidence suggested he was overburdened and himself closing in on retirement.
The trial court was not impressed with Wife's efforts to become self-supporting. In setting a zero support award, it stated: "Aside from demonstrating a lack of diligence, in regards to becoming employed, [Wife] remains highly improvident by relying on [Husband] for her sole support. She apparently has given no thought to the possibility that [Husband] may become incapacitated or meet an untimely demise. It should be noted that a marriage of twenty-five (25) years is not tantamount to social security. The Court is mindful that this is a lengthy marriage and that [Husband's] duty to support [Wife] will not terminate by the mere passage of time. Nonetheless, the [Wife's] failure to become employable or to seek training after so many years shift[s] the burden to her to demonstrate her continued need for support in light of her continued inaction in this regard."
The trial court was reversed. Essentially the justices found that nothing materially had changed (i.e., no change of the parties' circumstances as is required to modify most orders) between the date of the 1981 application to terminate support and the 1987 application - the parties' overall financial situations were much the same as in 1981.
The appellate court observed: "We recognize that it is in the best interests of both spouses and of society in general that the supported spouse become self-sufficient. Civil Code section 4801, subdivision (a)(1)(A) expressly directs that in determining the amount and duration of spousal support, a court is to consider as a factor the supported spouse's marketable skills and ability to engage in gainful employment. As the court observed in In re Marriage of Morrison, [citation omitted], 'It certainly may be inferred that by specifically setting forth this factor, the Legislature intended that all supported spouses who were able to do so should seek employment. It also appears the Legislature expected that courts would issue orders encouraging these spouses to seek employment and to work toward becoming self-supporting.'"
The Court continued: "Nonetheless, the trial court here erroneously held that the wife's 'failure to become employable or to seek training after so many years shift[s] the burden to her to demonstrate her continued need for support in light of her continued inaction in this regard.' To the contrary, absent stated or reasonably undisputed prior expectations as to the supported spouse's future self-sufficiency at the time of the previous support order, after a lengthy marriage and an appropriate retention of jurisdiction to modify spousal support, 'the burden of justification is on the party seeking termination.'"
Finally it ruled: "Inherent in the concept that the supported spouse's failure to at least make good-faith efforts to become self-sufficient can constitute a change in circumstances which could warrant a modification in spousal support is the premise that the supported spouse be made aware of the obligation to become self-supporting. It is particularly appropriate here that there should have been some reasonable advance warning that after an appropriate period of time the supported spouse was expected to become self-sufficient or face onerous legal and financial consequences. There was a lengthy marriage during which the wife was unemployed except at the outset. The wife also presumably devoted herself initially to the development of her husband's earning capacity, rather than to her own earning capacity, then to wifely and parental duties, and now to the care of her elderly mother."
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"The wife may have lacked the personal foresight to more diligently seek employment prospects eight years earlier in 1979 when the original support order was fashioned. Nonetheless, she cannot be penalized now, years later, because of an apparent lack of judicial foresight in not forcing her to focus on the drastic legal and financial consequences of the then-unrevealed expectation that she become self-sufficient."
This became the "Gavron Warning, " also known as a "Gavron Admonition." This rule is now set forth in Judicial Council Form FL-180, the Judgment of Dissolution, such that at the time of entry of judgment and whether it is actually read by the supported party or not, the Gavron Warning is deemed to have been given:
"NOTICE:
It is the goal of this state that each party will make reasonable good faith efforts to become self supporting as provided for in Family Code section 4320. The failure to make reasonable good faith efforts may be one of the factors considered by the court as a basis for modifying or terminating spousal or partner support."
Marriage of Tong and Samson (2011) 197 Cal.App.4th 23
Attorneys representing alimony payors want the Gavron Warning to be given at the earliest opportunity, so that they can argue to the Court early on and frequently that a supported spouse is shirking his or her responsibilities to be become self-supporting. Often this takes the form of an oral "oh, by the way, judge" type request in open court where a court is making support rulings. It is important to resist this request, and obviously if you are a payor (or represent one) it is important to urge that it be given. Some judges, usually those new to family law, can be persuaded to give the admonition on the record at an OSC type hearing in the early stages of the litigation.
I am not aware of any case authority that supports giving a Gavron Warning at the pendente lite (temporary) stage of the proceedings. The fact that it is found in Family Code 4320 and in the final judgment form are compelling evidence that both the legislature and Judicial Council view it as applicable only at time of trial, final judgment, or beyond.
Marriage of Tong and Samson provides good authority for objecting to a Gavron Warning prior to entry of Judgment. The case is one of the few that addresses the distinctions between "temporary support" and "permanent" (judgment) spousal support.
Family Code section 3600 governs the court's authority to issue temporary spousal support awards.
Family section 4320 governs judgment support awards. The two sections are very different because they serve different public policy purposes, and the support amounts as to each are theoretically also likely to be different (although, funny, oft times the amounts don't change much). The core holding of
Tong deals with how to treat severance pay for spousal support purposes, under the somewhat unusual facts as existed there. Still, it also involved a request to terminate support based upon cohabitation, which was denied.
Pertinent to this discussion, the appellate court in Tong v. Samson ruled "The factors listed in section 4320 apply to permanent support orders.
Of these, the only factors relevant to temporary orders are the supported spouse's needs and the supporting spouse's ability to pay. [Citation omitted]. To the extent the court required Richard to present evidence on factors included in section 4320 but inapplicable to temporary spousal support, it erred. 'Ability to pay encompasses far more than the income of the spouse from whom temporary support is sought; investments and other assets may be used for... temporary spousal support.... [Citations.]' [emphasis added]."
Hence, 4320 in all its glory does not control how courts arrive at temporary spousal support numbers - which instead, as other Blogs herein descirbe - are generally addressed using the child support guideline formulas and the legal Xpouse or Dissomaster software.
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| December 21, 2010 |
| We Married As a California SAME-SEX Couple But Since I Have Completed My SEX-CHANGE OPERATION. |
| Posted By Thurman Arnold |
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Q. I was married in June, 2008 as Patricia B. to Jill G. I obtained a name and gender change court decree several months later. We now want to marry as a different-sex couple. Do we need to first dissolve the same-sex marriage?
A. Thanks for a challenging and specialized question which I don't normally encounter in my practice. It sounds like you are two of the 14,000 same-sex couples who married in California 2008. I can only give you impressions before researching a couple of issues and hence do my best to assist you now without more information that I would require to give a legal opinion. I don't want you to rely on this response without more, plus I don't intend by responding to your email to create an attorney-client relationship, which is true with all my writings.
First, I'm assuming that Patricia B. is your birth name, or that you had previously obtained a name change whether by court decree or prior marriage. I say this because Family Code section 354 (dealing with marriage licenses) requires a photo ID that accurately lists your given or subsequently legal name so I expect that is what you presented to obtain the license.
Second, your existing marriage to Jill is valid at least as of the date of marriage, for all statewide applications under California law. It is hard to imagine that your post-marriage gender operations (and hence post-marriage gender status as a male) in any way changes that. It makes me wonder what happens to an opposite sex couple where one subsequently completes the procedures that you have undertaken (i.e., opposite genders marry, but then one changes their gender so they are both now the same-sex) - would that invalidate the marriage? Complicated stuff.
Third, no California statute speaks to gendered changed individuals as qualifying as a man (in your case) for purposes of marriage, where they were born as a woman, for purposes of Family Code 300 or the amendment to the California constitution (Proposition 8) that occurred after your marriage. This means to me that it would require an appellate decision (or legislative enactment) to provide such authority and I can't tell you of any specific California case that has so found but, again, I've not researched it in detail. If California does accept your sex change as legally making you a male this would improve your position under federal law, discussed below. Do you have an affidavit from your doctor verifying that the surgery changed your sex designation? Have you investigated amending your birth certificate? I recommend it. The legal viability of sex change is a matter for states to determine, according to the 10th Amendment of the United States Constitution.
Fourth, I would be concerned that dissolving your existing marriage without a clear understanding of these issues could place you at risk in the sense that, at least as of today, you can't remarry Jill IF you are legally a woman. Hence, I would be very careful about dissolving your existing marriage. You would have exactly the same rights in California as a same-sex married couple as you would as domestic partners. However, if you dissolved the marriage, didn't entered into a RDP, and then some court ruled later that your remarriage was not legally valid you would have no legal status other than possibly as a "putative" domestic partner or spouse. This could negatively impact your legal rights and responsibilities, and increase litigation costs, should the relationship end.
Fifth, at this time, federal law especially as it relates to tax filing status, isn't bound by any state's statutes and doesn't recognize same-sex marriage for that purpose and a number of others. This results from the Federal Defense of Marriage Act and a history of gender prejudice, among other things.
I also don't know whether federal law recognizes the gender change as making you a male since your sex-change operation (but it might, as discussed above). I am aware of at least one federal administrative case that suggests that if California recognizes your sex change operation, you might qualify as an opposite gendered person under federal law at least for some purposes (i.e., interpreting immigration rules and statutes per In Re Lovo-Lara).
Sixth, I can't see how remarrying under your new name, and post-surgery, would add anything to the mix, legally speaking. You have changed your name and so Jill is now married to Alex. The only area where it seems it might matter from a legal perspective is qualifying for some status or benefits under federal law. It doesn't add anything in California for you to divorce and remarry under your current name and gender. I recognize you haven't asked about federal legal status and this may be irrelevant to you, and I don't pretend to be an expert on federal law.
Seventh, I do understand why you would want your different sex status to accurately track reality, and that that reality did shift after your marriage by reason of the surgery. You and Jill are proud of what you both have accomplished, and I imagine you would like to share the equal dignity historically only accorded to opposite-sex couples by having your status accurately recognized.
Finally, my feeling is that your transformation is complete and that you need do nothing further, but I respect that you may feel that it is only partial. If it is essential that the two of you be legally recognized as an opposite sex married couple, then the answer lies with California law, at present in terms of judicial interpretations and not legislative enactments. My brief investigation does not reveal any California appellate decisions or statutes that answer the question. Unfortunately, the type of legal issues that you are grappling with tend only to arise upon a divorce or nullity of marriage proceeding, where courts are squarely forced to decide the issue, which is not my wish for you. Sometimes people file sham divorces to create new law, but this is not something I would ever recommend.
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I cannot resist speaking to your situation as a metaphor for all of us. My belief is that until we each expand beyond our myopic judgments of what others should choose for themselves our internecine cultural, gender, familial, racial and nationalistic struggles will escalate. Mind you, any student of human history knows that such is part of our collective personality structure - that we ban together against 'outsiders' to protect our group - and possibly this trait is even a reason for our success as a species thus far, if not for the "others" who were sacrificed. In an increasingly crowded and heterogeneous world the things that worked before may presently assure our common peril.
Pioneering such as yours challenges us to rethink our biases, and sometimes even to consider that they might only be artificial points of view 'full of fit and fury, signifying nothing.' We can just as easily hold a belief with righteous self-certainty one day only to hold its opposite to be true with equal earnestness the next (or simply recognize that we were mistaken in the first instance). In my experience as a family attorney who has listened to countless individuals express what they think went wrong with their marriage or domestic partner, and in the course of my own life, I am always humbled how little we and I know 'for sure' and how the "truth" shifts from moment to moment. When we misplace humility we tend to become fixated on forcing others conform to our expectations - inevitably leading to conflict.
Our brains may actually be hard-wired to hold biases. Most people recognize they have little control over the thoughts that pop into our minds. I suspect that we don't lose biases as an effort of will, but instead that they fall away as part of a larger process. Until they do fall away, the trick may be simply to remember to distrust these thoughts and not to believe they are true simply because they arose. Certainly that strategy might relieve the emotional component to prejudice.
All beings desire peace, and freedom. May each of us find it in our own way. But perhaps the web of our interdependence requires that we allow others to do so, first..., I don't know, dear reader. What makes sense to you? |
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| April 24, 2010 |
| Will California recognize a SAME SEX MARRIAGE from Vermont? |
| Posted By Thurman Arnold |
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Q. My same sex spouse and I were married in Vermont in 2001 but moved to Palm Springs five months ago. Now it looks like we are splitting up. She works full time and I take care of the home. Can I seek spousal support in California and get our marriage dissolved here?
A. As you probably know, Vermont was the first state to offer civil union status to same-sex couples (2000) which was identical to that offered to opposite-sex couples. California was the first state to offer any legal status to same-sex couples. Today the only states/territories that permit same-sex marriages or the equivalent civil unions are Connecticut, Washington D.C., Iowa, Massachusetts, New Hampshire, and Vermont.
Other states give varying recognition to same sex partnerships - for instance, California, Nevada, Washington, and Oregon give broad recognition to domestic partners and other states like Colorado and Maine give limited recognition.
In California some 18,000 couples marry between June 16, 2008 and November 4, 2008, when the window closed on same-sex marriage according to our Supreme Court's ruling in Straus v. Horton. Our office has assisted some of these couples in divorce in our offices since that time.
Even though it is not presently possible for same-sex couples to marry in California, California will recognize valid marriages and civil unions from other states.
On January 1, 2010, Family Code section 308 was amended to recognize any "marriage" between two persons of the same sex outside of California which is valid by the laws of that state so long as the marriage was contracted prior to November 5, 2008 (the date the California Constitutional Amendment was upheld prohibiting same-sex "marriage").
As to same sex marriages that are lawful in other states which occur after November 5, 2008, California will not allow them to be called "marriages" but will accord these couples all of the rights of California law concerning marriage.
This leaves open the question of what we call dissolutions between "married" same sex couples in California that were entered after November 4, 2008. Clearly in your case California recognizes a full-blown marriage in the traditional use of the term because you legally married in 2001 in Vermont. But for those married since 11/4/08 in another jurisdiction there is uncertainty which California Judicial Council forms (which are mandatory) be utilized because those marriages are not domestic partnerships (Family Code section 299.2), nor are they "marriages." Our office practice will be to simply use the old forms and modify them as necessary.
You may file a marriage dissolution in this state and request all orders that any divorcing couple could request; however, please note that California requires that you be a resident of this state for at least six months before filing for Dissolution but that you can opt to file a Legal Separation Petition at this time, obtain the necessary support orders, and then file an amended pleading for Dissolution once you perfect residency.
Good luck!
Thurman W. Arnold III
http://www.ThurmanArnold.com
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