California Divorce Laws Rocked by Seismic Shift
In Defining Date of Separation!
By T.W. Arnold III, CFLS
In what is possibly its most shocking family law decision in years, the
California Supreme Court just radically and unanimously re-arranged the
fault lines that frame what judges may consider to be community and separate
property in our State. By exalting, as the Supremes did this week, a public
policy bright-line rule requiring two people to cease living under the
same roof in order to be considered living "separate and apart",
above the daily life considerations of those struggling to cope with the
economic consequences of largely unplanned-for divorces (for all those
never seeking a little prudent pre-marital legal advice), our High Court
has bucked years of conflicting lower appellate cases about what constitutes
a physical separation as between spouses.
A sea-change, perhaps, or meet the new boss, same as the old?
This date of physical separation ("DOS") question is pivotal
for purposes of characterizing community and separate property, the length
of the parties' marriage, spousal and child support entitlements,
and even child custody outcomes when emotional and legal lives must be
disentangled. It is a billion dollar question, for many and overall. California
law presumes that all property acquired, and every debt incurred, between
date of marriage (DOM) and DOS is a joint, co-equal asset or obligation.
IRMO Davis will have after-shocks, and - as is the nature of such things - the ramifications
may be unpredictable and there may be mass casualties.
Possibly signaling an end to a trend that the
Enlightened Divorce Blog™ has decried concerning the horrific expense and obscene over-complexity
in California family law for years, to the detriment of family law consumers
(but to the benefit of their lawyers including - I suppose - this one,
but especially those of the scorched-earth variety), an activist Supreme
Court has offered up a simplified rule that dampens the adversarial environment
in a way that is rough and yet refreshing. It does promise to simplify
the tasks of over-worked former prosecutors and public defenders newly
minted as trial judges in family court, which serves the public fisc.
This decision, which Chief Justice Cantil-Sakauye states, derives from
1870's California legislation - influenced by our state's early
Spanish history - intending to protect women's control over their
own property, and a literal interpretation of the operative words 'living
separate and apart' first utilized some 145 years ago, possibly best
serves the former masters - after all, mothers are more likely to stay
in the home
because that is where the children are and whether either party leaves the family residence, in the absence of
domestic violence orders, is totally a matter of choice and often a strategic
decision. Family lawyers routinely advise husbands NOT to leave the house
because (a) it may negatively impact their bid to 50-50 custody; (b) they
may want it to be awarded to them; and (c) once they move out, if they
are the higher-earner, exposure to child and spousal support begins. The
downside is that not separating lengthens the marriage and with it the
term of spousal support orders, and whatever is acquired or saved in banks
or retirement accounts continues to be classified as community property
until physical separation occurs.
Family Code section 771(a) defines one class of "separate property" as "[t]he earnings
and accumulations of a spouse ... while living separate and apart from
the other spouse,...."
What to do? A Mexican stand-off, so to speak?
Also, ergo, the California Supreme Court has just time-stamped women's
status according to a 165 year old concept. So sad, too bad that the simple
eloquence of black and white simplicity may not be relevant to marital
break-ups in the mid-2010's, or to the truth that humans are complex
emotional creatures living within complex legal systems that seem to assume
we are all, instead, widgets.
Davis may reduce or further expand the nuances of the gender wars - or to speak
more modernly, the battle between the more and less powerful partner in
the land of any-sex relationship-endia - depending upon how if affects
married people's actions as it becomes better known. But it doesn't
change, by fiat of the Supreme Court, the fact that people at the end
of their marriages are trapped in many directions and possibly it will
just result in a greater sense of helplessness by limiting options for some.
Davis avoid the "he said, she said" lying endemic to divorce and not
infrequently about intentions relating to DOS, creating clarity for lawyers,
judges and legal consumers by imposing an either/or rule (either you are
living together and not separated, or you move out)? How will it impact
weaker parties, who cannot afford (or who don't dare) to abandon the
family home, especially where children are involved? At the end of the
day, the only way to stop power imbalances that prohibit people from moving
out today is to ensure economic parity
at once to those in need, as both support and for attorney fees, which does not
happen quickly in family court - if we are to speak honestly. And the
price of admission to the Courts for temporary custody and support orders
now first requires a demonstration of physical separation. The
Elkins Legislation from several years ago did strangle Californian's access to justice
by overburdening the system as this Blog predicted, by making mini-trials
a favored method of dispute resolution in family court where these then
take anywhere from 2 to 6 months to be heard and decided. During that
period, the angry spouse in control of the finances just refuses to share
- starving the other out. (Did the legislature consider that possibility
165 years ago?). And, any family lawyer will tell you how difficult it
is to advise parents about exercising access and control over children
before court orders have issued.
Here, the California Supreme Court seems to have done an about-face by
moving from complexity to over-simplicity. Nice to be a divorce consumer
where things swing, year to year? Exactly why I have written about
divorce peace-making, and the importance of finding inspired mediators.
We 'family law practitioners' might have seen this outcome coming
when many California jurisdictions began refusing to allow their Child
Custody Recommending Counselors, a step required prior to obtaining custody
and therefore child support orders, to mediate parents who still live
under the same roof.
Arguably, the Legislature needs to fix our divorce and family law system,
not our Judges. But somebody does need to reduce the confusion. Maybe
a unified Supreme Court is just telling the lower courts to read the statutes
and apply them in the most simple and obvious manner? If so, that could
work to at least rein in a broken system, on some levels. Assuming this
possible new judicially inspired "solemn oath" holds constant.
I fear the institution of marriage, and by extension maybe even procreation
itself (if we assume married people are more likely to make babies), will
become the exception rather than the rule since the California Courts
treat family law litigants as if it they were the most distasteful waste
of time that any poor trial judge could be sentenced to, and therefore
protections that people might assume when they get married are questionable
if things don't work out. A reliable system must exist to meet expectations,
and sooner or later the lack thereof will trickle down into the conventional
wisdom. California government does not promote experienced attorneys who
love family law (and there are many of us) to such positions; instead,
former public lawyers, who are accustomed to what is in many ways a much
more simplified criminal system of justice, get the assignment; how many
judges have told you that there is little annoying paperwork to read and
review in the criminal assignment (and who can blame them for thinking
that way)? There are many outstanding judicial officers out there who
were once D.A.s or P.D.'s, but there are even more who are just biding
their time until their appointments change - I know this because I receive
email complaints from legal consumers, and horror stories, on a daily
basis. The Supreme's have probably just made the latter group's
service much simpler. But nobody is really having this conversation, and
it is risky for me professionally to even point it out.
Alternatively, dear legal consumers - control your own lives and find an
inspired divorce mediator! Truth is, if the adversary divorce system begins
to actually get reformed, it will take another generation to accomplish
and the ride will be bumpy.
Oh, and please consult a divorce lawyer
before getting married - since government insists on licensing legal couplings
and setting the rules for uncouplings, there really ought to be warning
labels attached to these processes and at least a little free public education
prior to sanctifying the knot tying as many same-sex partners are now
learning for the first time, since Lord knows that only the premarital
agreement people ever seek legal advice prior to marrying! And, nine times
out of ten in our office at least, it is the more financially privileged
fiancé who insists upon a prenup.
Okay, I am going to chill and watch an Itunes movie - but please don't
even get me started about Apple!
Author: Thurman W. Arnold, III, CFLS