Articles: Litigation Articles

If you’re getting divorced don’t forget in re Marriage of Rossi (2001) 90 Cal.App.4th 108. Rossi is one of the most important cases in all of California divorce law. Why? Because of the penalty imposed on Ms. Rossi for failing to disclose her 1.3 million dollar lottery jackpot. The case was big news a few years ago, but people have short memories, so a reminder is due.

Ms. Rossi never told her husband about her lottery winnings while they were married. The parties’ divorce judgment said they had made a full disclosure of all gifts and property. It also provided that a party who failed to disclose an asset that was later discovered would pay its full market value to the other party. This is common divorce judgment language. Ms. Rossi never mentioned the lottery winnings and she arranged to have the money mailed to her mother’s house.

But, the postman always rings twice and Mr. Rossi found out about his ex-wife’s lottery winnings when he got a letter in the mail offering to buy out lottery winnings. He moved to set aside the divorce judgment on grounds of fraud, breach of fiduciary duty, and failure to disclose. He asked the trial court to award him 100 percent of the lottery money plus attorneys’ fees. The trial court ruled that Ms. Rossi had intentionally breached her fiduciary duty to Mr. Rossi by concealing the winnings from him. It awarded Mr. Rossi 100 percent of the winnings. Ms. Rossi appealed, but lost.

The lesson of this story should be obvious: Parties in a California divorce have a duty to disclose all of their assets, debts, liabilities and income, whether they believe them to be community or separate property. This is the law, no ifs, ands, or buts. You must list this information on your Preliminary and Final Declarations of Disclosure. And it doesn’t hurt to have a private investigator run a propety check on your spouse sometime after the divorce is over. Mr. Rossi learned of his wife’s lottery winnings by chance through the mail. Who knows, you may have won the lottery and not even know it.

Attorneys are required to complete Continuing Legal Education courses each year. Here are some highlights from the course that I recently attended on family law:

“Flexibility” has become the new buzzword in family law with respect to custody of minor children. Gone, it appears are the days of the primary custodial parent (historically the mother) telling the father that he can only see the kids on the days listed in their court order. As one family law expert stated, “We are entering the era of ’21st century parenting.’ ”

The new case of In re Marriage of Melville (2004) 122 Cal.App 4th 601, sets forth the current thinking of the Court of Appeal, that trial judges in the family courts are supposed to follow. The justices in the Melville case said that the primary custodial parent should not only follow the court order regarding visitation, but must also be flexible. The lesson here: Don’t deny your ex-spouse some extra time with the kids if you receive reasonable advance notice of the request. Of course, there may be exceptions, – such as cases involving domestic violence, substance abuse and cases that require monitored and supervised visitation for one party. If you’re not in one of those categories, you may want to consider being flexible when it comes to sharing the kids. If you can’t agree with your ex-spouse, the court order controls until modified.

Grandparent visitation rights survive in California. The California Supreme Court says that Family Code section 3104, which provides grandparents with visitation rights in divorce cases, is constitutional and is not overturned by the U.S. Supreme Court’s decision of a few years ago in the Troxel case. Still, grandparents have an uphill battle for visitation with their grandchildren.

Spousal support may include money for savings. In Marriage of Wittgrove (2004) 120 Cal.App. 4th 1317, the Court of Appeal said it was okay for a trial court to use a history of savings as part of the status quo when determining spousal support. In that case, father argued that mother’s spousal support needs didn’t include savings. Both the trial court and the Court of Appeal disagreed.

The house is usually the “big ticket” item in a divorce. In many cases, women often trade their community property interest in their husband’s pensions or 401(k) plans for the house. But, holding onto the house may not be the best choice. First, you must consider whether you can afford to keep the house. Even if you are receiving child support and spousal support, you must consider what would happen if your ex-husband got laid off or sick and your support ended or was significantly reduced. Could you afford the house under those circumstances? Second, consider the cost of upkeep, such things as insurance, repairs, property taxes, and so on. Before considering whether you are going to trade your interest in a pension for the house, take stock of all the expenses each month. Will you have enough income to cover all expenses and more importantly, will you be able to save money for emergencies?

A better strategy may be to sell the house, divide the money and purchase a less expensive residence. That way you still keep your community property interest in your ex-spouse’s pension, which means that you’ll have that income for retirement. Additionally, you can start your own IRA after the divorce. I generally caution my women clients not to trade their interest in their husband’s pension, especially government pensions, for the house. Government pensions are generous, backed by the government, and often come with cost of living increases. Before trading the pension for the house, you must consider not just where you are financially today, but where you will be at the age of retirement and beyond.

One of the biggest mistakes women make in divorce is not having a clear picture of their finances. If your husband has been the one handling all the money, it is time to get financially educated. Your divorce attorney is not a financial advisor, but should be able to point you in the right direction and suggest resources to help you become financially educated. Make sure you have a clear picture of your finances before giving up your interest in that pension or 401(k) for the house.

The recent California Supreme Court decision in Marriage of Brown and Yana reminds me of the old joke that goes like this: “Where does the 800-pound gorilla sit?” The answer is, “Anywhere it wants to.”

Marriage of Brown and Yana involved a divorced mom’s plan to move from San Luis Obispo County to Las Vegas, Nevada with their 12-year-old son Cameron and mom’s children with her new husband. Dad opposed the move and the inevitable move-away battle began in the trial court. The trial court appointed an attorney for Cameron, who reported that Cameron was “a conflicted young man” who said “different things at different times, based upon who he happened to be with at the time.”

At the end of the day, mom got to move with Cameron and her new husband to Las Vegas. As the case wound its way through the legal system, and all the way up to the California Supreme Court, little Cameron became a not so little teenager. Cameron apparently decided he preferred to leave Las Vegas to live back in San Luis Obispo County, so he moved back and began living with his dad. The 800-pound gorilla made his choice.

Does this mean that 12-year-old children have the final say regarding which divorced parent they want to live with? As far as the law is concerned, the answer is probably no. Remember, however, that Cameron became a teenager while this case went from the trial court to the California Supreme Court, and that changed everything from a practical standpoint.

California Family Code Section 3042 provides that courts shall consider the preference of a child in making custody orders if that child is of sufficient age and capacity to reason so as to form an intelligent preference as to custody. The practical implication of this Code Section is that teenage children become the 800-pound gorillas in divorce and post-dovorce cases. Something to think about before spending the time, money and emotional capital fighting over custody of your teenage children. An alternative for families in confilict with teenage children is family counseling.

Teenagers love to text. Want proof? The Census Bureau reports that Americans sent 110 Billion text messages in December 2008. In the same month in 2007, they sent 48 Billion texts. Many of those texts were sent by teenagers. Teens like to text because it’s efficient and private, according to Amanda Lenhart, who is a senior research specialist for the Pew Internet and American Life Project. She was quoted by the Los Angeles Times. Ms. Lenhard says that text messaging seems to cut through some of the extraneous conversation that teens don’t want to have. Remember that last time your teenager had a long telephone conversation with you? See what I mean?

Non custodial parents should embrace texting because it can keep them in touch with their child/children. Sometimes just letting them know you are thinking about them is enough. You can text from your phone, but there is also a service called 3Jam.com that allows you to send and receive text messages from your computer. A friend of mine uses this service to have a text message waiting for his daughter every morning.

Of course, texting is not a replacement for a personal relationship with your child, and it should not be overused. Teenagers have notoriously short attention spans and hate to be embarrassed by their parents in social settings. However, texting can be a valuable method of staying in touch during those times when your child is not in your custody. Even better, send your child an old fashioned letter or card even if you live in the same community—just because.

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.