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.
Will 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 mediation, 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