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Recent Posts in Putative Spouses and Partners Category
| December 03, 2010 |
| ELKINS and New FAMILY CODE SECTION 217: How It AFFECTS YOU! |
| Posted By Thurman Arnold, CFLS |
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The most important new rule in decades affecting the experience of California Family Law litigants is set to be unleashed on January 1, 2011.
It promises a radical change in the way that all family court proceedings - whether they be dissolutions, legal separations, annulments, support applications, custody, and modifications of all of the above - are processed and decided by Superior Court judges and commissioners.
This is a result of the Elkins Task Force, which has been quietly operating in the background of the California family law world since roughly August 6, 2007, when the game changing case of Jeffrey Elkins v. Superior Court (2007) 41 Cal.4th 1337 was decided by our California Supreme Court.
Elkins was a landmark decision which held that the Contra Costa County Superior Court could not through its local rules limit parties in marital dissolution actions to introducing evidence in written declaration form that had to be submitted in advance of trial, or prohibiting except in "unusual circumstances" one party from cross-examining the other about the contents of those declarations. Such a rule, intended for the sake of calendar management and judicial economy, not only had the practical if unintended consequence of favoring parties with attorneys who understood how to work with these rules but fundamentally it violated due process by cutting off litigants' abilities to present all relevant, competent evidence on material issues. Judges, as the triers of fact, are not able to assess witness demeanor and credibility without live testimony.
What is earth shattering about this decision in these economic times is that the Contra Costa Superior Court had urged that its policies and local rules were essential for the "expeditious resolution of family law cases." Soon to be former Chief Justice Ronald George rejected this justification:
"We are aware that superior courts face a heavy volume of marital dissolution matters, and the case load is made all the more difficult because a substantial majority of cases are litigated by parties who are not represented by counsel. [Reference omitted]....
In light of the volume of cases faced by trial courts, we understand their efforts to streamline family law procedures. But family law litigants should not be subjected to second-class status or deprived of access to justice. Litigants with other civil claims are entitled to resolve their disputes in the usual adversary trail proceeding governed by the rules of evidence established by statute. It is at least as important that courts employ fair proceedings when the stakes involve a judgment providing for custody in the best interest of a child and governing a parent's future involvement in his or her child's life, dividing all of a family's assets, or determining levels of spousal and child support....
Trial courts certainly require resources adequate to enable them to perform their function. If sufficient resources are lacking in the superior court or have not been allocated to the family courts, courts should not obscure the source of their difficulties by adopting programs that exalt efficiency over fairness, but instead should devote their efforts to allocating or securing the necessary resources."
Justice George ended by directing the California Judicial Council to create a task force (the 'Elkins Task Force) "to study and propose measures to assist trial courts in achieving efficiency and fairness in marital proceedings and to ensure access to justice for litigants, many of whom are self-represented. Such a task force might wish to consider proposals for adoption of new rules of court establishing state wide rules of practice and procedure for fair and expeditious proceedings in family law, from the initiation of an action to postjudgment motions. Special care might be taken to accommodate self-represented litigants. Proposed rules could be written in a manner easy for lay-persons to follow, be economical to comply with, and ensure that a litigant be afforded a satisfactory opportunity to present his or her case to the court." Hence, the Elkins decision is essentially a Jeffersonian ruling that its intended to empower family law litigants and to require counties and courts to adapt.
The Elkins Task force completed its work and has issued lengthy recommendations. The first changes take place on January 1, 2011. Possibly the most important change is embodied in Family Code section 217. It states:
"(a) At a hearing on any order to show cause or notice of motion brought pursuant to this code, absent a stipulation of the parties or a finding of good cause pursuant to subdivision (b), the court shall receive any live, competent testimony that is relevant and within the scope of the hearing and the court may ask questions of the parties.
(b) In appropriate cases, a court may make a finding of good cause to refuse to receive live testimony and shall state its reasons for the finding on the record or in writing. The Judicial Council shall, by January 1, 2012, adopt a statewide rule of court regarding the factors a court shall consider in making a finding of good cause.
(c) A party seeking to present live testimony from witnesses other than the parties shall, prior to the hearing, file and serve a witness list with a brief description of the anticipated testimony.
If the witness list is not served prior to the hearing, the court may, on request, grant a brief continuance and may make appropriate temporary orders pending the continued hearing."
Family Code section 217 will cause a sea-change in day to day family court proceedings across our state, unless family court judicial officers ignore it to the limited extent possible by court rules. It will likely have immense financial and resource consequences upon not only the courts but upon parties to family court proceedings. It will force the state government in coming years to study whole new paradigms for resolving divorce and domestic partnership dissolution outside the adversary template, including those currently practiced in New Zealand and southern Australia.
It will also pressure parties to consider mediation, and collaborative processes which occur outside congested courthouses, much more carefully. The costs of adversary litigation are about to sky-rocket, making mediation even more appealing from a financial perspective (I have written extensively about the emotional and psychological benefits here an elsewhere). There simply is no governmental money available to absorb the coming Elkins Onslaught. For more information about an alternative method for resolving family disputes, please visit us at www.DesertFamilyMediationServices.com.
At the same time, at least in the short run taken together with some of the other revisions that become effective next month, it may encourage more people to litigate more stubbornly and so make mediation seem less attractive than it did before the changes (just the reverse will be true). Some folks will mistakenly assume that this invites the use of court hearings as a live-testimony forum for sharing unresolved complaints relating to their marriage or domestic partnership dissolution with the other party in open court. Instead, judges will sustain objections to such irrelevant material and parties who seek to use Family Court as a platform to air relationship grievances will find themselves alienating the trier of fact in ways that will have adverse consequences to them beyond just the time and expense of the exercise.
The purpose of today's Blog is to introduce you to section 217 and the new changes. I will follow up with more articles in coming weeks. Without a doubt the new rules will make all the information I provide on my websites more relevant and timely for my readers.
December is new legislation month at the Southern California Family Law Blog presented by Family Law Attorney Thurman W. Arnold. My goal is to inform you well, and early on, on any number of topics that will improve your outcome in family law matters and hopefully help you to reach results that are fair for you, your spouse or ex-partner, your children, and your blended and extended families.
T. W. ARNOLD, III, CFLS
(State Bar of California, Board of Legal Specialization) |
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| May 31, 2010 |
| I thought my PARTNER had REGISTERED our DOMESTIC PARTNERSHIP but she says she didn't. Do I have rights? |
| Posted By Thurman Arnold |
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Q. I have been living with my girlfriend for four years. Three years ago we agreed to enter into a domestic partnership and filled out and signed the registration papers. She told me she had filed them with the Secretary of State. We separated last month, and when I asked her to help me financially and to divide property we acquired during the relation she said I have no rights because she never mailed in the registration. Is she right?
A. She may not be right if you can meet the legal test to qualify as a "putative domestic partner."
California Family Code section 2251 sets forth remedies regarding the division of property in cases of annulments, or where a marriage turns out to be void or voidable because of some legal defect (for instance, where the parties could not be legally married because one party had not properly obtained a termination of an earlier marital status before entering the new union). In cases of void or voidable marriages, no marital rights or obligations actually attach unless one party can establish what is known as putative spouse status.
The putative spouse doctrine was intended to protect "innocent spouses" - the partner who reasonably believes the parties were married - as long as their is an objective basis in reality for that person to have held that belief.
This doctrine now applies equally to putative domestic partners.
For one spouse or domestic partner to qualify for this protection there must have been an attempted compliance with the procedures for creating a valid marriage or registered domestic partnership. Sincerely believing that a marriage or domestic partnership existed by itself is not enough. Do you have a copy of the registration document that was never filed? This is exactly the type of evidence that would be most useful in establishing an objective basis for having believed you were registered.
In a very similar case - In re Domestic Partnership of Ellis & Arriaga (2008) 162 Cal.App.4th 1000 - Darren Ellis and David Arriaga complied with the first step in the procedure for creating an RDP, the completion of the registration papers. Arriaga was supposed to mail the registration to the Secretary of State, but he never did. When Ellis filed a Petition to Dissolve the Domestic Partnership, Arriaga asked the trial court to dismiss Ellis' action on the ground that no RDP in fact existed. The trial court agreed with Arriaga, but the appellate court reversed the trial court's ruling.
The appellate court held that a person's reasonable, good faith belief that his or her RDP was validly registered with the Secretary of State entitled that person to the rights and duties of an actual registered domestic partner - even where the partnership never was in fact registered - under this equitable putative spouse doctrine.
However the court also restated the rule of putative spouses that the question is tested by an objective standard - not just by what one party believed, however genuinely. For instance, if both parties know that the registration was never mailed neither can qualify as putative domestic partners because without a belief in the mailing it would not be objectively reasonable to conclude an RDP existed.
Parties who qualify for putative spouse and putative domestic partnership status may be entitled to all of the benefits and burdens of marital partners or RDP's. This includes rights to property acquired during marriage, responsbilities for debt incurred during marriage, and support benefits. You can get more information concerning those issues - which are largely the same as if you were married persons - by using our search engine at the top of the page.
The likelihood of your success depends a lot on what evidence you can produce establishing that you reasonably believed the formalities were complied with. If your former partner admits that you both completed the document but that she never mailed it AND never told you that she hadn't mailed it (unfortunately people tend to be dishonest about these things in the face of legal proceedings), you are likely to prevail.
If she denies it and you don't have a copy of the registration papers you need to look to other evidence to establish the basis for your belief the two of you were registered - for instance, if a witness can testify that your partner held herself out to be your RDP that may persuade a court.
Are there any other documents that were ever signed (i.e., applications for benefits of any kind, joint bank accounts, trust documents or wills) that make reference to your purported status? If so these should be collected and submitted to the Court.
You would initiate a proceeding just like you would if there had actually been a RDP - this would be a Petition to Dissolve a Domestic Partnership.
Finally, you still may have the basis for a civil Marvin claim which is founded upon written or oral promises to undertake a joint asset pooling arrangement or joint venture when two people decide to share lives (however, your chances of recovering support or "palimony" are slim). I will blog Marvin actions another day.
Thurman W. Arnold III
http://www.ThurmanArnold.com
5/31/10
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