California Family Law Attorney
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December 04, 2010
  Making Attorneys Accessible to Family Law Litigants: 2011 ATTORNEY FEE REVISIONS TO THE FAMILY CODE
Posted By Thurman Arnold, CLFS

December is new legislation month at the Enlightened Divorce Blog™ presented by southern California 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 your family law matters and hopefully to help you to reach results that are fairer for you, your spouse or ex-partner, your children, and your blended and extended families.

Effective January 1, 2011, a very important change to the rules that family courts must apply in deciding whether and when to award attorney fees to spouses (and domestic partners) who may have a relative inability to access the funds necessary to secure justice becomes effective.

This is revised Family Code section 2030. It is a welcome and much needed change in the California law impacting attorney fee awards in proceedings that take place in Family Courts. It is intended to assist parties who historically have been the "out spouse" or "out partner" in marriages and domestic partnerships, by reason of the fact that they may lack independent wealth or assets, or may not during the relationship have managed the community property, or who are otherwise marginalized in terms of access to such funds as are required to conduct litigation and protect their interests because one spouse acted first and grabbed all the funds.

Without money people cannot hire competent matrimonial law attorneys. This effectively created an imbalance of power that family court judges were too often not redressing (otherwise there would have been no need for the revisions).

As a result of the Elkins Task Force's year long study, which included obtaining commentary from jurists, lawyers, and family law specialists among others, the legislature has declared that the times when one spouse was able to grab or control community funds and so starve the other out in the course of adversary litigation, are ending.

Family Code section 2030 changes this playing field importantly by minting new judicial policies that include:

  • Facilitating access to counsel by parties early on in the proceedings should be encouraged, and attorney fee awards help to accomplish this. This is because cases are more likely to settle when people begin with a parity of access to resources, and settlement is always the ultimate goal. FC §2030(a).
  • Courts must now make findings on whether an award for attorney fees and costs is appropriate, including based upon the question whether there is a disparity in access to funds to retain counsel, and whether one party is able to pay for the legal representation of both parties. FC §2030(b). This revision directs trial courts to apply a variation of the disparity of earnings analysis that was first expressed in Marriage of Hatch (1985) 169 Cal.App.3d 1213, an appellate decision that some trial courts had ignored. Relative access measured in terms of such disparity is now key. "Disparity" implies 'a great distance or gap.'
  • The California Judicial Council is directed, by January 1, 2012, to promulgate and adopt state-wide court rules in order to implement this directive in terms of what information is to be submitted to court's to support attorney fee requests.

From an experienced family lawyer's point of view, my take on this revision is that its greatest value is in telling family court judges that attorney fee awards in appropriate cases are to be the standard and not the exception. I suspect, however, that judges and commissioners will remain overly conservative.

From a family sciences point of view I believe it is a significant improvement in the law if we are to equalize power between spouses and, frankly, genders. More often than not women have been on the losing side of the attorney fee question in the sense that they have not controlled community or other resources to the same extent, and in the same manner, as many of their husbands. I think that it will advance woman's rights in family law litigation.

I do not want to overstate the power of this revision. It is a move in the right direction, but nonetheless something of a baby step. We will await appellate court pronouncements as to what standards family courts should apply as trial courts are reversed for being too timid or parsimonious, or even too generous. The California Judicial Council is given to 2012 to propose state wide guidelines that will give direction to courts, and that may help to foster uniformity between different venues, in coming years.

Thurman W. Arnold III

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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

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 our property she said I have no rights because she never mailed in the registration and we aren't legally RDPs. Is she right?

Jeff, Cardiff, CA

What Is a "Putative" Domestic Partner?

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, responsibilities 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.

For more articles about putative spouses, visit us here!

And, how about a FB like?

Thurman W. Arnold III


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