Monthly Archives: August 2012

The Rule of Thumb and Progress (History and Domestic Violence)

There once was a time when marriage was a complete bar to the charge of battery.  Then that complete defense was replaced with the “rule of thumb;” that anything used to beat one’s wife needed to be smaller than one’s thumb.  Then starting with the reign of Charles II in the 1600’s, the rule of thumb was slowly eradicated.  Charles II was influenced by his wife Catherine of Braganza, who had witnessed violence by the “rule of thumb” and thought the measure of battery on one’s wife should be the effect, not the tool used.  She also changed history in other ways, as Catherine is also credited with introducing Britain to tea.

In the late 1800’s American courts were still struggling with whether marriage was a complete defense to battery, whether the “rule of thumb” applied instead, or if Charles II was right and the effect of the beating was the correct measure.  The tendency was for the courts to view the “family government” as its own insular unit that could manage its own affairs and that it was not the place of the courts to insert themselves into family matters.

One case from the Supreme Court of North Carolina in 1868 is particularly illustrative.  The opinion finds that “Defendant struck Elizabeth Rhodes, his wife,…without any provocation except some words uttered by her…[however, the court] will not inflict upon society the greater evil of raising the curtain upon domestic privacy, to punish the lesser evil of trifling violence.”  State v. A.B. Rhodes (1868) 61 N.C. 453.  The “respect” for the privacy of the family unit was so great that spousal battery was a trifling matter.

The hands-off approach of days-past was ridiculous and I would argue (correctly) that misogyny was cloaked in privacy.  However, the family law courts of today are more intrusive than any other form of government and there is something to be said for limiting the role of the judiciary.  Today, Judges make orders regarding school schedules, spousal support, and who gets the family dog.  Pragmatically, when spouses can’t agree on anything—someone simply has to decide.  I hope that someday the role of the judiciary can become less intrusive while still redressing harm and vindicating spouse’s rights.

Our domestic violence system is not perfect today.  Many times law enforcement “misses the boat,” affected spouses are afraid of reprisal, or they have difficulty presenting their case without a lawyer.  But, we are making progress.  Our courts have upheld the complete defense of marriage to both battery and rape, then shifted to a “rule of thumb” test, then focused on the effect of the battery, and now we have a slew of acts that qualify as domestic violence.  Have a cup of tea and thank Catherine of Braganza for her guidance along the way.

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Filed under Abuse, Family Law, Mindless Academia, The Judiciary

Affirmed with Poetry (Quotes)

This case comes out of Michigan where someone’s oak tree was damaged by an errant car.  Unfortunately the Plaintiff lost for a few different procedural reasons.  The judge lamented with this opinion:

A suit to compensate a tree.
A suit whose claim in tort is prest
Upon a mangled tree’s behest;
A tree whose battered trunk was prest
Against a Chevy’s crumpled crest;
A tree that faces each new day
With bark and limb in disarray;
A tree that may forever bear
A lasting need for tender care.
Flora lovers though we three,
We must uphold the court’s decree.

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Cars and Divorce

Sometimes we get phone calls from people (whom we didn’t represent) after their divorce asking us to figure out what happened.  It’s common for people to be a bit rattled and confused on their way out of the “family law machine,” especially when they represent themselves.

I was recently asked this question online:

“After a divorce is final, am I still responsible for her debt if I’m a co-signer?  I am the co-signer for my ex-wife’s vehicle. I would like to take my name off that account due to the fact that its lowering my credit score by adding more debt. I was told that once a divorce is final all i had to do is call the dealership to get my name off the account, is this true?”

Almost every time there is a question post-judgment the answer is the same.  Read the judgment.  What does it say?  In this case, it is unclear if the judgment is silent on the car issue.  If the martial settlement agreement (MSA) said nothing about refinancing the car, then each spouse is jointly liable for the auto loan into the future.  Neither would have an obligation to refinance.

This is why you need an attorney.  An attorney could have put a clause in the MSA requiring the party keeping the car to refinance it into their name alone.  Or the attorney could have required refinancing upon a late payment in the future.  Or the attorney could have required sale of the car and paying off the loan upon a late payment in the future.  You get the idea.  It’s not necessarily that attorneys are geniuses or something, we have just seen these problems before and most people haven’t.  Unfortunately for this guy, the family law machine spat out another victim.

Auto loans aren’t the only concern when it comes to cars in a divorce.  Who gets which car?  If one party acquired a car before marriage, but paid down that loan using community income—is the other spouse entitled to a reimbursement?  Yes, most likely.  When one spouse gets to keep the more expensive car, does the other spouse get reimbursed for the difference?  Yes, most likely.  Is there an entitlement to reimbursement when during the divorce proceedings one spouse pays for the car insurance of both parties?  Maybe.

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Should cohabitants get more rights? (Washington versus California)

A common perception is that California is this crazy, pot-smoking, hippie, granola-eating, Kashi-loving state where our laws are loose and progressive.  Well, not really.  Washington State has some of the most progressive laws in the country when it comes to cohabitation and cohabitants rights.  That may not be enough to endure incessant rain or driving on John Street in Capitol Hill after snow, but I think California needs to re-evaluate our current position.

When two people live together outside of marriage and the Love Buzz ends (yes that is a Seattle/Nirvana reference), should property should be divided in an equal way?

Washington Law

Under relatively recent developments in Washington case law, cohabitants have increased rights.  The word “meretricious” is a legal term with a somewhat derogatory history that refers to a relationship outside of marriage.  A recent Washington court found that its citizens should receive a, “Just and equitable distribution of property following a meretricious relationship.” Connell v. Francisco (1995) 127 Wn.2d 339 at 347.  It’s interesting to note that Francisco was paid an annual salary of $490,548 during the marriage, so much was at stake.  The court went on to say, “We hold income and property acquired during a meretricious relationship should be characterized in a similar manner as income and property acquired during marriage. Therefore, all property acquired during a meretricious relationship is presumed to be owned by both parties. This presumption can be rebutted.” Id. at 352.  The court also describes the justification for this rule is to ensure that one party is not unjustly enriched—a rule that has its roots in the British common law concepts of quantum meruit and quantum valebat.

California Law

Under current California law, if you cohabitate outside of a marital relationship (e.g. a “meretricious relationship”) then you have no special property or support rights at the termination of that relationship.  Period.  Two people could live together for thirty years, one partner playing the domestic role while the other partner is fully employed.  At the end of those thirty years—there is neither a right to an equitable division nor is there any right to support.  Cold-hearted California.

The Marvin court (in a footnote) stated, “Although we recognize the well-established public policy to foster and promote the institution of marriage (see Deyoe v. Superior Court (1903) 140 Cal. 476, 482), perpetuation of judicial rules which result in an inequitable distribution of property accumulated during a nonmarital relationship is neither a just nor an effective way of carrying out that policy.”  Marvin v. Marvin (1976) 18 Cal.3d 660, 682.  Wait, that sounds very similar to Washington’s Francisco case!  In addition the Marvin court said that the argument that granting such property rights would deter marriage is false.  Sounds even more like Washington!  But, the California court found that although it desired an equitable distribution of property accumulated during a non-marital relationship, it could only do so if there was a contract to that effect.  If a couple were to write out a contract—the court could follow that contract.  However, courts feel “icky” about this and in Marvin v. Marvin where there was a contract, the court didn’t really follow the agreement but rather gave the female spouse less than what the contract called for.

Policy

Although the Marvin court found that recognizing property rights for cohabitants doesn’t discourage marriage, California’s current position seems to be partly based on the promotion of the institution of marriage.  The other problem is that our California court system is massively underfunded.  The inclusion of all cohabitants in our family law courts would be complete system overload.  In addition, lawmakers can point to Marvin and its line of cases—and say that if cohabitants want equal property rights they can just write out a contract.  However, most people don’t know whether or not they have property rights as cohabitants, most people wouldn’t know how to write up such a contract, and most people cannot afford an attorney for every one of their meretricious relationships.  So, until California changes the law to something like that of our Northern neighbor, most cohabitants will be left unprotected by the law.

 

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Do-it-yourself Divorce (This isn’t ikea furniture, people…)

Facing the financial struggle of splitting into two households, many married couples try and save money by representing themselves in their divorce.  For some couples—it can be feasible.  For most it’s a bad idea.  Do-it-yourself is great when you are putting together Ikea furniture or changing you oil, but divorce and custody matters are more permanent and important.  Do-it-yourself divorce is especially bad when there is a power imbalance between the spouses or when one spouse is trying to muscle the other into accepting less than what they are entitled to.  The trouble is that most spouses don’t have any idea what reimbursements, support, custody, etc. they are entitled to unless they consult with an attorney.

Click on the picture for a great selection of divorce cakes. Yes, people do that.

Why DIY Divorce Is a Bad Idea:

  • Unless you have no children, no assets, no debts, and no desire for spousal support, divorce is a complex legal process.
  • Power imbalances are usually exacerbated when couples fill out forms on their own.
  • Both websites with forms and legal document assistants are unable to furnish any legal advice.  At all.  None.
  • No one is accountable, except you.
  • The California Judicial Council legal forms that these websites provide are already available from the court website for free (you are getting charged for something free).
  • Most sites provide California Judicial Council legal forms, but don’t provide any local forms that may be required by the court.
  • Do you know about Watts charges and Epstein credits?
  • Do you know how to write a QDRO?  Neither do most of these websites, don’t feel bad.
  • Do you know how long spousal support should last or how much it should be?
  • Did you know that if you construct spousal support the wrong way, the IRS can get upset and call it something else? See front-load recapturing here.

A Specific Example:

Now this isn’t the most drastic example, but we ran into this very recently.  A couple divorced and did it DIY.  They used a “stock” marital settlement agreement (MSA) purchased from a website.  Their MSA calls for each parent to pay for half of all healthcare expenses not paid by insurance coverage.  Sounds okay right?

Now, the father is refusing to pay large orthodontic bills, claiming that orthodontia is not a healthcare expense.  The mother has to file a court action (at some expense) trying to force the father to pay.  A judge is going to have to use his time to decide whether or not the term “healthcare” is broad enough to cover orthodontia—which arguably it is.  It seems to me that the term “medical care” would exclude orthodontia, while the term “healthcare” is more broad and inclusive.

A marital settlement agreement written by any competent family law attorney would have been more specific than the stock form this couple used.  It would have addressed whether or not orthodontia, vision, dental and other fields of healthcare were to be paid equally by the parents rather than using the broad term “healthcare.”

I recently needed to buy a new squeegee for my shower door.  I bought the cheapest one at Target.  It was a third the price of the others.  I brought it home and discovered: it’s rigid, it squeaks, and it’s horrible.  It seems you get what you pay for in life, squeegees and legal needs alike.

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Goodbye 4th Amendment (Oh we can just subpoena that instead of getting a warrant…)

Normally law enforcement conducts its investigations through warrants, which are needed to conduct searches or seizures.  Warrants require probable cause–which is specific facts that make it reasonable to believe that a specific person is involved in a specific crime.  Warrant-less searches (with exceptions that take up an entire semester of constitutional criminal procedure) are inadmissible.

Subpoenas are different than warrants.  Once a trial date is schedule by the court, either the judge or attorneys in their role as officers of the court can issue subpoenas demanding that people produce themselves to testify, produce specific documentation, or come to testify with documents in tow.  Subpoenas are not limited to criminal law–as we occasionally serve them in family law matters.

The Comprehensive Drug Abuse Prevention and Control Act of 1970 allows the authorities to make demands for that data in the form of an “administrative subpoena”–a subpoena issued without any pending judicial proceeding.  So, as long as there is an investigation, then any Federal Agency can issue the administrative subpoena without even a showing of probable cause.  Until recently the 9th Circuit had not yet ruled on the constitutionality of issuing administrative subpoenas that aren’t supported with evidence of a crime.

Below is what the 9th Circuit had to say about it.  Basically, the Federal government is saying, “Forget warrants, lets just call it something else and get it without probable cause!”

“The information subpoenaed does not need to be relevant to a crime; in fact, it may be used to dissipate any suspicion of a crime.”

Judge William Fletcher, in a Ninth Circuit decision ordering utilities companies to turn over customer records even without a warrant. The case, U.S. v. Golden Valley Electric Association, deals with Alaskans suspected of growing marijuana indoors.

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Filed under Criminal Law, Mindless Academia

This stupid, wagon wheel, Roy Rogers, garage sale COFFEE TABLE (Quotes)

This conversation from When Harry Met Sally (1989) says a lot about divorce:

Harry Burns: Right now everything is great, everyone is happy, everyone is in love and that is wonderful. But you gotta know that sooner or later you’re gonna be screaming at each other about who’s gonna get this dish. This eight dollar dish will cost you a thousand dollars in phone calls to the legal firm of That’s Mine, This Is Yours.
Marie: Harry.
Harry Burns: Please, Jess, Marie. Do me a favor, for your own good, put your name in your books right now before they get mixed up and you won’t know whose is whose. ‘Cause someday, believe it or not, you’ll go 15 rounds over who’s gonna get this coffee table. This stupid, wagon wheel, Roy Rogers, garage sale COFFEE TABLE.
Jess: I thought you liked it?
Harry Burns: I was being nice.

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Domestic Violence Restraining Order 101 (The Basics)

There are several kinds of restraining orders, one of which is a domestic violence protective order (DVPO).  There are basically two main requirements to get a DVPO: A Special Relationship and Abuse.

A)      A Special Relationship including:

  1. Dating,
  2. Shared children,
  3. Related by Blood,
  4. Married, or
  5. Cohabitants.
  6. NOTE: If you don’t have one of these special relationships, you may still qualify for a Civil Harassment Protective Order under Code of Civil Procedure § 527.6.

B)      Abuse such as:

  1. Stalking,
  2. Threatening,
  3. Sexual Abuse,
  4. Destruction of Personal Property,
  5. Harassing Phone Calls, or
  6. Physical Violence.

What Constitutes Sexual Abuse?

Sexual abuse is not limited to aggravated rape.  Many women are coerced into sex, give consent while under the influence, or have sex against their will with a physically forceful offender.  Coerced sex is sex involving intimidation or extreme psychological pressure, and is sexual abuse.

What Does a DVPO Do For Me?

DVPO’s can do lots of different things.  Specific remedies depend on the situation, but remedies can include:

  • Keeping the offender away from you
  • Keeping the offender away from other family members
  • Preventing the offender from calling you
  • Kicking the offender out of the house
  • Taking away the offender’s right to possess firearms
  • Making the offender pay certain bills
  • Giving you custody of children
  • Giving you custody of pets
  • Making the offender pay your legal fees related to the proceeding

How Long Does the DVPO Last?

The length of the order is determined by the judge, but can initially be up to 5 years.  Later on, orders can be renewed for even longer if a judge finds there is good reason.

Why Would I Want a Lawyer?

It is possible to get a DVPO without a lawyer, but it can be very helpful to have one.  The entire situation—confronting the abuser in court, testifying about what happened, and being in front of a judge can be very stressful.  Having a lawyer there to guide you through the process and worry about cross-examining the witness can make the entire situation less stressful.  In addition, some conduct not on the court form may be considered abuse and may strengthen your case against the other party.

What Does it Cost?

There are no court filing fees for a DVPO.  Depending on the situation, you may be to force the offender to pay you back the money you spent on a lawyer.  Our fees vary depending on the complexity of the case.  We don’t waste your time, we don’t take unnecessary steps, our billing is fair, and our rates are lower than many other lawyers in the county.

Where Do I Go in the Meantime?

First of all, if you are in danger and need help, call “911.”

 

If you are in Ventura County and need to move away from an abusive spouse and don’t know where to go, please contact Interface Children & Family Services.  Interface is in Camarillo, CA and has a 24 hour Domestic Violence Hotline @ 1 (800) 636-6738.

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Filed under Abuse, Family Law, Pets, Sex

The Tax Ramifications of Divorce (What the heck is front-load recapturing?)

It seems like there are tax ramifications to practically everything.  It is very rare to find a transaction where the Federal government leaves you alone—and says something is neither a gain nor a loss.  That said, in some areas the IRS is somewhat charitable to divorcing spouses and in others they are the heartless brutes that you would expect them to be.

Property Transfers

The Internal Revenue Code provision 26 USC § 1041 (A.K.A IRC 1041), states in pertinent part, “No gain or loss shall be recognized on a transfer of property from an individual to…a former spouse, but only if the transfer is incident to the divorce.”  Great.  You get divorced and when you receive your portion of community property, that transfer is not taxable. To anyone.  At all.  That’s great unless you are domestic partners.  Then, even though as domestic partners you have community property, distributions of assets after terminating the partnership are taxable because you are not spouses under § 1041.  DOMA hurts.

 

Spousal Support

Spousal support is deductible for the payor and gross income (taxable) for the payee.  See 26 USC § 71.  Some families in which the payee is not employed and the payor is a high income earner may benefit from “Family Support,” where support is designated differently and the tax ramifications are reversed.  However, family support is complicated, requires the agreement of both parties, and is rarely worth delving into instead of spousal support.  Also, any amount claimed on taxes as spousal support may be re-characterized by the IRS if they believe there is hidden child support.

Child Support

Child support, like a property transfer, is totally tax-neutral.  No gain is attributed to the payee and no deduction is attributed to the payor.  It is like nothing happened.  See §71(c)(2).

Front-Load Recapturing

Now, this is a bit complicated and more of a note for CPA’s and those attempting to draft their own marital settlement agreement, but the IRS can re-characterize spousal support payments under a rule called “front-loading recapturing” which is described in 26 USC § 71(f).  If the amount of spousal support paid in years 1, 2, and 3 following a divorce are all within $15,000 of each other, there will be no recapture.  If year three amounts paid are more than $15,000 lower than years one or two, the IRS can find that there was front-loading.  Front-loading means that there was an attempt to disguise a property transfer as a deductible spousal support payment.  So, that amount was taxed as a Payor deduction and a payee inclusion, but that portion was really a lump payment of property.  So at year three, the recaptured portion becomes a Payor inclusion and a Payee deduction—having tax consequence to both parties.  The lesson with front-load recapturing is that if you write your own settlement agreement or are trying to get really creative with support deductions—you need to do some research to make sure you aren’t shooting yourself in the foot.

Alimony Trusts

Alimony trusts are ridiculous and infrequently used, but here are the basics.  An alimony trust is when property is transferred to a former spouse as a source of support following a divorce or separation. The payor spouse transfers investments and other assets that generate income into an alimony trust for the recipient spouse or beneficiary.  It should only be used when a paying party has the financial ability (big pockets) to set up a significant trust account and there is some concern about the paying party’s ability to keep paying.  For instance if the paying party is elderly, terminally ill, has a high risk of insolvency, or has financial resources but takes high risks (think Donald Trump) it might be a good idea.  The tax consequences follow, but you can see Alimony Trusts have the ability to make spousal support a tax neutral event, while characterizing child support as gross income for the beneficiary (payee).  26 USC § 682.

Alimony Trust Tax Consequences:

  1. Alimony Trust as Spousal Support:
    1. No deduction
    2. Payee not taxed on income.
  2. Alimony Trust as Child Support
    1. Payor: No tax consequence;
    2. Trustee: Amount is deductible expense; and
    3. Beneficiary: Amount counts as gross income.

 

Other Issues

For a discussion of other issues including the loss of exemptions and capital gains rates on the family home see my previous post here.

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Filed under Children and the Law, Family Law, Mindless Academia, Tax