Family Court Jurisdiction to Divide Jointly Titled Properties Acquired
Before Marriage or Domestic Partnership Registration:
Family Code Section 2650
My office seems to be the final resting place for a number of complex property
and support cases that have gone sideways under the management of prior
counsel. Probably half of all the cases we accept involve a client who
has paid thousands of dollars to an attorney who has billed for work that
was of questionable utility, or worse. Some of these lawyers have failed
to identify the issues properly, because they are civil lawyers who believe
they can practice family law. This is dangerous: Matrimonial law has become
far too complex for casual practitioners to safely navigate.
I urge you to investigate your attorney's reputation before handing
over a retainer that might be enough to buy you a car, and suggest that
you inquire diligently about their level of expertise. People tend to
be too trusting or embarrassed to broach the hard questions of the lawyers
they interview. Warning: A wrong turn is more than a detour. If the case
is wrecked, someone has to clean up the mess (if you have the money to
go another round). It adds to the insult that these clients must almost
start from the beginning to undo the harm. Sometimes the damage cannot
be corrected. True, self-represented parties cause this injury to themselves
all the time. But when you hire a divorce lawyer you trust that you are
buying something that is better than if you are on your own.
Reactivity and the Resulting Divorce Trance -
A Story of Jane and Sophia
Here is a divorce horror story that touches upon these themes, while illustrating
an important point about the family court's jurisdiction to deal with
certain property transactions between people that not uncommonly occur
before they marry or register as domestic partners. The legal principles
mentioned apply equally to marital and partnership disso's. The names
are changed to protect the parties' privacy.
A couple lived together for ten years before becoming registered domestic
partners in 2007. "Jane" was retired when they met, and is in
her seventies. She had accumulated a significant separate property estate,
including rental properties that were free and clear. She counted on the
income from rents to get her through her remaining days with comfort and
dignity. The other party, "Sophia", was fifteen years younger.
She had significantly less by way of net worth, although she makes good
money in a retail store she owned when the two registered.
I have written about the unexpected challenges that same-sex couples tend
to face when thrust into the legal conflicts that opposite sex couples
take as a rite of passage - like divorce. Given the changing frontier, these folks are particularly vulnerable to
making uninformed choices, which they discover only once the relationship
disintegrates. This leads to unique power imbalances between same-sex
partners, if they find themselves litigating over property and support rights.
The Seductive Perils of Joint Tenancy
Prior to becoming RDP's, Sophia convinced Jane to place Sophia on title
to Jane's rental properties. Sophia told Jane that if Jane were to
die (Jane being 15 years' older), Sophia would not be adequately protected
unless Jane made her a joint tenant to the rentals. Superficially this
made some sense, but for the danger of unrecognized and unintended consequences.
The purpose of holding property in "joint tenancy" is to create
a right of survivorship that inures to the benefit of the surviving co-owner.
The party who survives inherits all of the interest in the jointly titled
property, without the need for any kind of probate proceeding. Upon one
joint tenant's death, by operation of law, the other tenant receives
100% of the deceased party's interest upon the recordation an affidavit
and certificate that proves the joint tenant's death. Joint tenancies
can be created in a variety of situations - most commonly they are used
with respect to real property (i.e., the family residence), but bank accounts
and many types of personal property can be jointly titled. Joint tenancy
situations are one of the most common traps for unwary spouses (or unmarried
cohabitants). They can come to be created in seemingly innocent ways -
for instance, many lenders require a married couple to become joint owners
if they are to lend money on real estate loans for which both parties
are pledging their credit. Or, where parties decline to become joint tenants
the lender will require the other spouse or domestic partner to sign off
on any claims to the property title, as with a Quitclaim deed. That leads
to a different set of problems. This article talks about the consequences
of adding people to title.
The inverse situation is where a party deeds off for convenience only,
where for example they may have terrible credit, and later learns that
they hold only a very limited legal interest in the property upon divorce.
Never sign off of title to property, and never add people as joint tenants
to your property, without a separate written agreement that spells out
your intentions. If you want to protect your beloved in the event of death
so long as you are a successful couple, but not to waive an interest in
your valuable assets if the relationship fails, use a revocable trust!
Someone whom Jane trusted and who was supposed to be knowledgeable, (and
whose sympathies were allied with Sophia) urged that Sophia be placed
on the deeds "just in case you die" "so she doesn't
need to hire a lawyer and go through probate" and "for convenience
purposes only." As often occurs, Sophia assured Jane that she would
never make claim to a beneficial ownership in the properties, except upon
Jane's death. Pillow talk included "oh honey, I love you so much."
Jane's father had been ill for years, and this caused Jane to think
a lot about her own mortality. Jane was not emotionally hardwired to suspect
that Sophia might have undisclosed motives or intentions; indeed maybe,
at that time, Sophia really had no hidden agenda - but those feelings
can change and, in my experience, they usually do. The parties had what
the law calls a "confidential relationship" because since they
lived together, they reasonably reposed trust and confidence in each other.
This is what people in intimate relationships are expected to do, and
something that we humans are conditioned to do. But this trust may later
You get the drift - and you know where this is headed but ... hey, no one
steps in front of a bus that they cannot see on a foggy night expecting
to get hit. This is where I find so many of you when you walk into my
office, or write me to share your stories after bumping into my website,
once the inevitable impact has sent you reeling.
So Jane placed Sophia on title to the properties that Jane had invested
an entire lifetime accumulating. A few years later Jane and Sophia 'married'
as registered domestic partners. That lasted another five years. During
those years Jane and Sophia acquired several more pieces of property together,
and title to those properties were also taken in joint tenancy. This was
not a problem because as to those properties each partner made an equal
contribution to their acquisition. The Family Law Act (i.e., the family
code statutes and cases interpreting them) only applies to couples once
they have entered into a legally recognized relationship; otherwise, contract
law governs the rights of unmarried, non-RDP, couples.
Family Code Section 2650 and Actions for Partition -
How to Double Your Fun At Thrice the Price
Fast forward to separation, and the costly litigation that was to ensue.
Sophia became convinced that Jane had betrayed her with another woman,
and that obsessive fear ate at Sophia. The idea enraged and outraged her,
and Sophia began to scheme about how she could get even for the humiliation
and abandonment that she perceived was unfolding. Whatever Sophia's
real intentions were at the time she convinced Jane to place her onto
title for the rentals, now confronted with her own mind's story how
the relationship was ending and that Jane was about to depart into the
sunrise with a younger, more beautiful, new partner it became easy for
Sophia to rationalize an entitlement to "her share" of the rental
property equity. It didn't bother Sophia that she had contributed
zero dollars to the acquisition of these properties, or that stripping
Jane of one-half their worth would devastate Jane financially at a stage
of life where Jane could not recover - indeed, this is what Sophia longed
for. Divorce trance is always selfish, and therefore rotten at the core.
Sophia had another ace to play in order to punish Jane for her (imagined)
adultery. Her sister worked for a big law firm in Los Angeles, and it
has a reputation for stubborn litigation viciousness (something they are
quite proud of).
You know, just the type of aggressive litigators that people filled with
pain and hurt hope to find and use to destroy their once beloved partners. Sophia and her lawyers believed that they could outspend Jane, and the
law firm itself took a personal interest in the case. We don't call
this extortion - in fact, under our system of justice this isn't extortion.
It is just a practical consequence of who has the money, or in this case
the power (access to counsel) and persistence, a principle that seems
to guide this country and our collective psyche in particularly obvious
ways in this election year. It deserves to be said that lawyers' conduct
tends to reflect the same values of their clients, and in that sense we
cannot blame them for providing services in a style and manner that consumers
demand. Our judicial systems rewards "zealous advocacy", and
does not yet recognize that attorneys have larger obligations to their
clients, and to society, by serving as guides. Sophia's lawyers are
paid assassins, and they revel in that guise. (Interestingly, it might
be natural for the reader to think "wow, I'd like to know who
they are - that's what I need!" Problem is, you will find they are
only loyal to their purses).
Because Sophia had been added to title to the rental properties before
the parties had become registered domestic partners, Sophia had the option
of pursuing a civil case against Jane for what is called "partition"
of their jointly titled interests. Since no legal relation had existed
when Sophia was added to title, the Family Law Act ("FLA") did
not appear to apply. Had these parties never registered as domestic partners,
partition would have been the only way to resolve their competing claims
as to ownership of the properties. Partition is a means by which properties
owned in co-tenancy (whether as joint tenants or as tenants in common)
between unmarried persons can be ordered sold, with the proceeds divided
equally, and the costs of litigation shared from what the properties net
Accordingly, instead of filing for dissolution of the domestic partnership
- even though the relationship was quite definitely over and despite the
fact that only the family court can grant the inevitable dissolution,
Sophia filed an action for partition on the civil side of the California
Superior Court. Sophia's attorneys knew, but hoped Jane and her lawyer
would not notice, that the partition action wasn't necessary because
of a special FLA statute, Family Code section 2650. They thus chose the
most expensive possibly strategy, even though a dissolution action was
inevitable since it provides the only mechanism for restoring people to
the status of unmarried persons (or here, unregistered partners). At all
times the parties' entire dispute could have been efficiently resolved
in one action, but that route would deprive Sophia of the ability to inflict
financial and litigation hardship on Jane.
Section 2650 was enacted to avoid exactly what has happened to Jane. A
deliberate decision was made by Sophia's team to file in civil court instead.
Family Code section 2650 reads:
"In a proceeding for division of the community estate, the court has
jurisdiction, at the request of either party, to divide the separate property
interests of the parties in real and personal property, wherever situated
and whenever acquired, held by the parties as joint tenants or tenants
in common. The property shall be divided together with, and in accordance
with the same procedure for and limitations on, division of community
If you want to destroy the other party, a civil partition action is better
than invoking Family Code section 2650 because civil actions are far more
expensive to defend. For instance, in civil cases lawyers may file demurrers
and other motions that cannot be filed in family law cases
(Cal.Rules of Court, Rule 5.108), and these are expensive for both sides (indeed, Sophia's law firm
generated some $100,000 in fees in their civil law and motion skirmishes).
Moreover, in this context Sophia viewed the family law court as having
far too much power to be fair and equitable. The civil court doesn't
have anywhere near the flexibility that family law courts have in dividing
property. The family law court's obligation is to divide the parties'
community estate equally per
Family Code section 2550. This can usually be accomplished without selling anything, but instead
by making adjustments on the marital balance sheet and requiring equalizing
payments. In contrast, in a partition action the subject property MUST
be sold. In family court there may be other ways to affirm a party's
interest without a forced sale AND the family law court has full jurisdiction
to set aside the transfer deed on any grounds that the civil court could
rely upon (i.e., fraud, lack of consideration, duress, breach of fiduciary
duty if applicable, constructive trust, resulting trust, etc.).
If you don't want to litigate a relationship dispute involving property
economically, a civil action for partition will serve your aims. However,
you may be brought up short if the other side files a FLA action for dissolution
or legal separation, and then asks the family court to exercise jurisdiction
over the jointly titled assets acquired before marriage.
Assuming the defending party has an attorney who actually knows the applicable law.
Again, it is only because Sophia went on title BEFORE the RDP that the
partition avenue existed. If the deed transfers adding Sophia to title
had occurred after registration or marriage, the family court would have
exclusive jurisdiction to decide all the competing claims concerning title.
Family Code section 2650 was enacted by the legislature in 1985 expressly
to avoid people litigating these claims in civil court where they could
otherwise be resolved under the FLA.
Unfortunately for Jane, she hired a civil lawyer to defend a civil partition action that Sophia filed five days after Sophia
walked out the parties' house. Even though it should have been obvious
that a dissolution of the RDP was required because marriages and RDP's
can only be dissolved under the FLA, Jane's civil lawyer had no clue
that this was so. He had never heard of Family Code section 2650.
The Ungrounded Bedrock of Lawyer Ethics
Accordingly, the parties litigated in civil court (with Jane naturally
accepting what her "expert" warrior representative told her
over the form of the pleadings only, for a year before it occurred to her lawyer that maybe he should file
a dissolution action. Even then he had no idea about section 2650; indeed,
Sophia's lawyers filed briefs in the family law case arguing that
that court had
no jurisdiction over the pre-marital property, and failed to disclose the existence of
section 2650. Maybe they knew no more than Jane's lawyer - maybe not.
If the latter, they likely violated
California Rules of Professional Conduct, Rule 5-200. This states:
"In presenting a matter to a tribunal, a member:
(A) Shall employ, for the purpose of maintaining the causes confided to
the member such means only as are consistent with truth;
(B) Shall not seek to mislead the judge, judicial officer, or jury by an
artifice or false statement of fact or law;
(C) Shall not intentionally misquote to a tribunal the language of a book,
statute, or decision;
(D) Shall not, knowing its invalidity, cite as authority a decision that
has been overruled or a statute that has been repealed or declared unconstitutional; and
(E) Shall not assert personal knowledge of the facts at issue, except when
testifying as a witness."
Good luck holding lawyers accountable under this section however, except
in extreme circumstances with 'smoking gun' quality proof. "Zealous
advocacy" is easily abused.
During that year Sophia's lawyers ran up $150,000 in billings fighting
over motions in the partition action that could never have been filed
in family court. Jane's lawyer charged Jane $60,000 to respond to
them and file her own counter-motions. This all could have been avoided.
By the time that Jane realized she lacked a competent attorney, two years
had been wasted and the parties had racked up almost $300,000 in combined
fees. Moreover, Sophia hasn't exacted enough retribution yet: Her
attorneys are violently opposed to having two overlapping sets of facts
and claims heard in
one proceeding. Why would that be?
Jane's only remedy is to file a motion in the family court seeking
an injunctive order staying the continued prosecution of the civil partition
action, so that the family court can assume jurisdiction per section 2650
over the jointly titled rental properties and adjudicate that dispute.
She must also seek an order in family court bifurcating for separate trial
the claims and defenses surrounding Sophia coming onto title, which is
a smart move because that issue can be tried and decided relatively quickly.
This should all be a matter of common sense. But these days, in a world
where presidents and candidates distort the truth without compunction,
and "pundits" and "talking heads" flood the airwaves
with demonstrable falsehoods, no behavior seems to be off limits, and
this is increasingly personified in lawyer ethics. Rather, the conventional
wisdom is to say the most outrageous things with a straight face, and
to expect that the likelihood of success some of the time justifies the
small risks of being exposed. Journalist Michael Scherer has written an
outstanding cover article for Time Magazine for the week of October 15,
2012 entitled "Blue Truth/Red Truth" that describes with clarity
how we increasingly inhabit a political "landscape where accuracy
is in the eye of the beholder." So too all our institutions. But
I confess that I digress (sorry!).
Not All Lawyers Are Equally Competent - Do Your Due Diligence!
There are a number of other fascinating issues in this case that I may blog.
But one immediate take-away is the importance of retaining competent legal
counsel in complex family law actions. Lawyers themselves have an ethical obligation not to accept cases they
are not competent to handle
(California Rules of Professional Conduct, Rule 3-110(A)). Penalties for attorneys who don't take that responsibility seriously
include suspension or disbarment
Bowles v. State Bar (1988) 48 Cal.3d 100. But as with all shades of grey, competency is a
relative concept. Accountability is more reliably imposed from what resides
within a person, not without.
As it turns out, even though Jane's prior attorney's retainer agreement
stated he had malpractice insurance this was a lie - that attorney has
proudly proclaimed he has never had malpractice insurance because he has
never been sued (a violation of
CRPC, Rule 3-410).
If Jane is ever to be made whole for the damage his management caused her,
she will have to go after his personal assets. And the last thing that
Jane wants is another lawsuit, and a further set of attorney fees.
Which is what Sophia is counting on in her hope that Jane will, in the
face of crippling legal fees, just give up.