Articles: 2010 March

Can you have shared custody of a dog or cat?  Here in California , pets acquired during marriage are presumed to be community property.  This means that in a divorce, the family court will divvy up pets similar to dividing furniture or vehicles.  One spouse gets the pet, the other doesn’t.

In my experience, California family courts will not order a shared custody arrangement of a pet if the parties cannot agree.  California family courts have not adopted a best interest standard for pets, which is used to determine custody of children.  Children are almost always subject to some type of shared custody arrangement between divorced spouses or domestic partners, and custody can be modified when circumstances change.  However, with pets, one side wins and the other loses forever.  Still, family courts should not put a pet into a situation where it is likely to be mistreated.  Family courts should therefore consider the psychological attachment which each party has to a pet before making a decision on who gets Fido or Fluffy.

In at least one area of California law affecting families, pets have gained important legal rights.  The victim of domestic violence can obtain a restraining order that will award them the sole possession, care and control of their animals.  The victim can also obtain an order that the perpetrator of domestic violence stay away from the animals and not “take, sell, transfer, encumber, conceal, molest, attack, strike, threaten, harm or otherwise dispose of the” animals.  The heading for this order states:  “Animals:  Possession and Stay-Away Order.”  Although this law extends protections to animals, it does not use the words “sole custody” to describe that protection.  This seems to put animals somewhere between property, such as a vehicle or residence and children.  Or does it?  Consider that the restraining order states that the alleged committer of domestic violence is ordered not to “molest, strike, threaten, or harm” the animal.  This language is the same language that is used to protect the victim of domestic violence and their children.

Is the California legislature’s decision to extend protection to our animals in domestic violence cases a harbinger of expanded rights for our pets in future divorce cases?  That is a difficult question to answer.  With the exception of the aforementioned restraining orders, there is no California law that deals with pet custody in divorce.  A family court should, however, consider whether awarding a pet to one party would subject the animal to abuse, before making that award.

While there is no published California Appellate Court case that directly deals with pet custody in divorce, the emotional link between humans and pets was recognized by former California Supreme Court Justice Armand Arabian in his dissenting opinion in the case of Nahrstedt v. Lakeside Village Condominium Ass’n (1994) 8 Cal. 4th 361, 393, 394.  At issue was a condominium association’s restrictive covenant which banned pets.  Justice Arabian wrote:

“The value of pets in daily life is a matter of common knowledge and understanding as well as extensive documentation.  People of all ages, but particularly the elderly and the young, enjoy their companionship.  Those who suffer from serious disease or injury and are confined to their home or bed experience a therapeutic, even spiritual, benefit from their presence.  Animals provide comfort at the death of a family member or dear friend, and for the lonely can offer a reason for living when life seems to have lost its meaning.  In recognition of these benefits, both Congress and the state Legislature have expressly guaranteed that elderly and handicapped persons living in public-assistance housing cannot be deprived of their pets. (12 U.S.C. §170r-1; Health & Saf. Code,§19901.) Not only have children and animals always been natural companions, children learn responsibility and discipline from pet ownership while developing an important sense of kindness and protection for animals.  Single adults may find certain pets can   afford a feeling of security.  Families benefit from the experience of sharing that having a pet encourages.”

Even the Court’s majority agreed with Justice Arabian when it came to the emotional bond between humans and pets, but decided the case against the pet owner on the narrow issue of whether the restrictive covenant was legal.  The reasoning of former Justice Arabian might be the starting off point for a party who seeks joint physical custody of a family pet in a divorce.   Meantime, the idea that pets are merely property is being challenged in family courts across the nation.  Combined with numerous cases on pet custody from other States, so-called secondary legal authority that California Courts may consider, the time may be ripe for a California Appellate Court to consider pet custody.

To avoid a pet property or custody dispute, parties might want to consider a pet prenup, which will dictate who gets Fido or Fluffy in a divorce.  Or, if you received your pet as a gift from your spouse or a third party, make sure you get that in writing and keep the writing in a safe place.

A final note about sharing pets.  Animal experts tell us that if divorced parties decide to share a pet, they should make sure the pet eats the same food at each residence to avoid stomach upset and that the disciplinary rules should be the same at each residence.  Animal experts also tell us that shared custody may work for a dog, but not a cat.  Cat fans might disagree.

Would you pay twice for the same thing? How about paying twice for your house? Unfortunately, that is exactly what some divorced spouses end up doing when they get married for a second time without a prenupial agreement. Why? Because from the moment you get married, your new spouse begins to acquire a community property interest in the house you obtained in your divorce settlement – even if both the deed and the mortgage are in your name alone and you never put your new spouse on the deed. This can begin to add up over time, especially if home prices keep rising. And if you refinance your house and put your new spouse on the deed things get even more complicated. So, if your second marriage doesn’t work out, you could end up paying twice for your house.

If properly drafted and executed, a prenuptial agreement is an effective, legal way to avoid the scenario I just described. You can protect your house, pension, 401(k) plan, and so on. Prenuptial agreements are powerful legal tools and the California courts enforce them. A good prenuptial agreement is worth much more than the paper it is written on. In fact, the burden of proving a prenuptial agreement is not valid is on the party alleging its invalidity. A valid prenuptial agreement in California requires a number of legal steps, but one of the most important is that neither party is under duress nor undue influence when the agreement is signed. Part of that means that the prenuptial agreement is presented in a reasonable amount of time prior to the marriage ceremony. A prenuptial agreement signed only a few days before the wedding ceremony won’t be enforced.

Granted, the idea of a prenuptial agreement is not very romantic, and I tell young couples starting out in marriage not to go there, but when it comes to a second marriage, do you really want to risk paying for your house twice?

As our life spans increase, there is some anecdotal evidence that divorce rates among couples over 60 years old are rising. I’ve seen this in my own practice in the last couple of years. With the kids grown and on their own, the issues in divorce over 60 usually come down to division of property and spousal support (what used to be called alimony). We learned how to divide community property (the property acquired during marriage) back when we were in elementary school. Absent special exceptions, you just divide by two. Spousal support in a divorce where the parties are over 60 is more problematic, however. The non-working spouse, usually the wife, loses out, but it could easily be the husband.

Here’s the problem: The case of In Re Marriage of Reynolds (1998) 63Cal.App.4th 1373 states that no one can be compelled to continue working beyond a normal retirement age in order to maintain a prior level of spousal support. Normal retirement age probably means 65, but could be younger. The Court of Appeal stated: “Just as a married couple may expect a reduction in income due to retirement, a divorced spouse cannot expect to receive the same high level of support after the supporting spouse retires.” This doesn’t mean that spousal support ends, but it will most likely be reduced. Example: Ex-husband is paying $5,500 per month spousal support based on his earnings of $17,000 per month. Ex-husband retires at age 65 and asks the court to reduce his spousal support based on his retirement income only. Winner: Ex-husband, because he has the absolute right to retire at age 65. Loser: Ex-wife, who was depending on the $5,500 per month spousal support and now must learn to live on less.

One way of avoiding the Reynolds trap might be to purchase an annuity or other income-producing asset, such as bonds. If you don’t consider how the Reynolds case migh impact your divorce, you could end up with less spousal support than you bargained for or received from the Court. One more thing: The Reynolds case probably would not apply to cases where the issue is child support. This means that if you have minor children later in life and get divorced, you’ll either keep working past age 65 to support your kids or the income will be imputed to you.

One common and one not-so-common issue in divorce cases: What about drug testing in family law cases? The California Family Code does not permit courts in custody and visitation proceedings to order drug testing by means of hair follicle test of a parent, even when the court has determined that parent is engaged in habitual, frequent or continual use of controlled substances. When a court makes an order for drug testing, the court must order the least intrusive method of testing for the illegal use of controlled substances or habitual use of alcohol. The State of California can only use testing that is in conformance with the procedures and standards established by the United States Department of Health and Human Services for drug testing of federal employees. Right now, that means urine testing only. Experience has shown that you’ll need some evidence that your spouse or ex-spouse uses drugs or abuses alcohol besides a “he said, she said” type argument.

What about a house we purchased prior to marriage? This question sometimes comes up in situations where, for example, a man and woman purchased a house prior to their marriage in joint tenancy as unmarried individuals and one of them uses his or her separate property for the down payment. Is that spouse, upon dissolution of their marriage, later entiteld to reimbursement under the Family Code? In the recent case of Marriage of Weaver, the Court of Appeal said “yes.” The appellate Court held that a trial court, at the time of the marital dissolution, might divide property owned by the parties prior to marriage in accordance with the same procedures for, and limitations on, division of the community estate. In other words, the trial court can treat the entire house as community propety even though the couple was not married at the time they purchased the residence together.

One of the most important things to do after your divorce is to organize and keep copies of all your divorce papers, especially your divorce judgment, in a safe place. That is something you should have been doing throughout the entire divorce process. Why keep documents of unpleasant memories? Because to paraphrase baseball legend Yogi Berra, “a divorce ain’t over ’til it’s over.”

Divorce cases can be “deja vu all over again,” as Yogi would say. Many divorce cases involving children don’t end just because a final judgment has been entered by the court. Parties often seek to modify custody, visitation and support orders months, even years after their divorce is final. I must cynically tell my clients who have minor children that their divorce case won’t really be over until their youngest child turns 18 years old. Therefore, keeping detailed records of what happened in your case can make the difference between a favorable or unfavorable outcome in a post-divorce matter.

I recall one case that went back to court over a pension issue 31 years after the divorce was final. Don’t assume that your former attorney has kept your file in a safe and secure place. Attorneys, like all people, retire, move and die. You could end up digging through the Court archives downtown, which is not a very pleasant way to spend the day.

So, if you are going through a divorce right now or just divorced, head out to your local office supply store and buy a folder, preferably with sub-files. You need to begin orgainizing your past to protect your future.

A big change to the California Family Code takes took effect in 2006. An amendment to the Family Code states that no person shall be granted physical or legal custody of, or unsupervised visitation with, a child if anyone residing in ther person’s home is required, as a result of a felony conviction in which the victim was a minor, to register as a sex offender under Penal Code section 290, unless the court finds there is no significant risk to the child and states its reasons in writing or on the record. That won’t be an easy hurdle to clear.

Title this case under the headline: Marry for love, not for money. In Marriage of Meagher and Maleki the California Court of Appeal recently held that you cannot get an annulment just because your spouse lied to you about his or her financial status. In that case, the wife was an affluent psychiatrist when she married her husband. The wife thought that her husband was a millionaire investor. After a few years of marriage, she began to suspect that he just married her for her money. Of course we all know the reverse is never true. In any case, the wife understandably wanted an annulment.

An annulment would benefit the wife because if the marriage didn’t exist, she could not be ordered to pay her husband spousal support, i.e. alimony. But the Court of Appeal said that you cannot get an annulment based on fraud if your prospective spouse lied regarding his or her financial status. In other words, if it turns out that your wedding ring is really “cubic” and not a diamond, too bad. So, the wife has no choice but to proceed with her divorce and therefore could end up paying her husband, who apparently was not a millionaire investor after all, spousal support. The Court of Appeal stated that if you want to get an annulment based on fraud it must involve one party’s intentions or abilities with respect to the sexual or procreative aspect of the marriage. Best to talk to an attorney about what that means.

Should you consider a vocational evaluation of your spouse or ex-spouse?  Here’s an example:  The parties are going through a divorce or it is post-divorce and the husband says to me:

“Why do I have to pay so much spousal support?  She won’t work.  She needs to earn money.  I want the Court to order my wife or my ex-wife to go to work.”

I explain that the Court cannot FORCE someone to work because that would be involuntary servitude and that violates the 13^th Amendment to the U.S. Constitution—the one that outlawed slavery.  So, what can the supporting spouse do?  Here in California you can ask for a vocational evaluation of the supported spouse.  In this example, the husband or ex-husband (but it could just as easily be the wife or ex-wife) is trying to prove that the supported spouse has earning ability and has the opportunity to earn income.  The vocational evaluation is used to impute earnings to the supported spouse whether or not they go to work.  If the Court agrees that earnings should be imputed, then the amount of spousal support paid will decrease.  If you are stuck paying a high level of long term spousal support, the cost of a vocational evaluation is probably worth it over time.

A vocational evaluation may also be effective if your spouse or ex-spouse is underemployed.  For example, a situation where the supported party has an advanced degree, such as a Master’s Degree, but has chosen to work in a minimum wage or low paying job.

Do vocational evaluations always work?  No, but if you don’t have one, then what evidence can you present to the court that your spouse or ex-spouse has earning ability and the opportunity to work?  Probably none, and you may be stuck paying the same level of spousal support until your ex spouse dies or remarries.

Should you always do a vocational evaluation?  No.  For example, if you had a long term marriage and your spouse or ex-spouse was a stay at home parent who never worked and only received a high school diploma 20 plus years ago, a vocational evaluation may not get you much more than imputation of minimum wage, which you should be able to get without one.   Finally, can you get a vocational evaluation to reduce your payment of child support?  That will be the topic of a soon to be added article.