Category Archives: Mindless Academia

What Relationships Should the Law Recognize? (Reality T.V. meets legal reality)

As much as we collectively love to hate reality television, reality T.V. seems to identify hot issues and take our cultural pulse.  The Real World tackled race, sexual orientation, health issues, and September 11.  Hoarders on A&E attempts to tackle a mental illness that was not discussed in America, let alone pop culture.  The SBS network in Australia has a new reality show discussing both immigration and H.I.V.  Some may tune their televisions to Showtime and say, “What the heck is Polyamory?”

At first glance, I perceived the show Polyamory as manufactured and fake.  I can imagine a reality T.V. producer sipping cocktails and dreaming this stuff up (like a friend of mine brining this show to the U.S.).  Gawker reviewed the show and called it, “hilarious, shocking, poignant, titillating, and cringe-inducing…also important.”  It seems that the show Polyamory takes Conservative pundits’ arguments against gay marriage and runs with them.  Most liberals who support gay marriage claim that they just want gay marriage, and don’t want the law to recognize every weird type of relationship out there.  Then walks in Showtime stirring the pot.

But, it’s easy to disregard reality television, so we turn off Showtime and say to ourselves, “That will never happen.”  Then out of Brazil—Polyamory meets legality.  In August, a notary public (they have more power in Latin countries) granted the first civil union to a triad of lovers.  The notary called this relationship a Uniao Poliafetiva—or polyfidelitous union.   The relationship?  Two women and one man in their 30’s.

The participants on the Showtime show Polyamory attempt to distinguish themselves from polygamy—describing their relationships as more transient, flexible, adjustable, and not shrouded in misogynist principles.  Yet some of these same participants lament at only being able to marry one of their lovers.  The world’s first recognized polyamorous relationship—something claimed to be “progressive” in form sounds more like regression to polygamy than progress.  Yet, we have a horrid reality T.V. show about polygamy as well (Sister Wives).

Brazil may be at the “progressive forefront,” but there seems to be no consistent principles underlying these relationships.  I think through the lens of reality T.V., society is struggling with what relationships we are willing to accept and which ones we are willing to recognize.  The tendency of reality T.V. to take everything to extremes may itself have an effect on how we perceive these relationships.  If you believe in gay marriage because any two people that love one another should be able to marry—how do you logically argue against three people in a polyamorous relationship?  There are also practical problems.  In a three way civil union who gets property and support when it dissolves?  Do the first two to marry get more than the third one who joins?

It seems the slow-moving legal system in the U.S. is advantageous in that in doesn’t jump on any band-wagon too quickly.  Like a real-worlder popping an Alka-Seltzer after an all-night bender, I think Brazil might wake up, look back and feel a little silly about the Uniao Poliafetiva.


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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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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.


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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Filed under Family Law, Mindless Academia

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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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

I don’t remember if I want a divorce or not (Dementia and dissolution)

The baby boomer population is starting to hit that golden age at which dementia is an increasing concern.  One in eight Americans over 65 has Alzheimer’s or another form of dementia.  Yes, it’s a good idea to have an advanced health directive and a durable power of attorney—but those are really separate issues.  What happens when one spouse starts the dissolution process, then becomes incompetent?  What happens if a spouse wants a divorce after they become incompetent?


Recently on an online forum this situation was presented: a woman sees an attorney about a divorce, she tells everyone she is going to get a divorce, she and her husband separate, after which she is overcome with dementia.  What should be done?  Can family members complete the dissolution on her behalf?

First, there are provisions in the probate code that can force one spouse to provide for their counterpart.  But what about the marriage?  Can they get a divorce?  Does the legal system respect their wish to be divorced?


In the recent case: In re the Marriage of Straczynski (2010) 116 Cal.App.4th 531, a woman’s conservator and guardian ad litem pursued a dissolution of marriage on her behalf.  She expressed interest in divorcing, then later developed dementia.  Whenever the husband came to visit her in an assisted living facility, she would hold his hand and tell him she loved him—forgetting she wanted a divorce, just months earlier.  The lower court dismissed the action finding that 1) the divorce was not in her best interest, 2) that the judge didn’t “think there’s going to any evidence presented” allowing the court to find irreconcilable differences, and 3) the court “believed” there was case law indicating that no dissolution could be ordered if there was a conservator.  The California Court of Appeal remanded with a heavy hand, finding the dismissal, “Was made without proper notice to the parties and without proper legal or evidentiary basis.” Ouch.  Triple whammy.  No notice, no legal basis, and no evidentiary basis.  But, that’s not too surprising considering the judge pretty much said, I don’t like this and I think there’s some precedent out there somewhere against it—even though I have no idea what it is nor have I bothered to look it up.  The tone the court of appeal takes when discussing the husband’s visits give one the impression that he was attempting to manipulate her feelings and possibly take advantage of her dementia.

The Legal Standard

In Straczynski, the Court of Appeal went on to describe the actual case law that the lower court should have cited, had it done its due diligence.  See In re Marriage of Higgason (1973) 10 Cal.3d 476.  The Higgason court found that a spouse under a conservatorship may bring a dissolution action through a guardian ad litem “provided it is established that the spouse is capable of exercising a judgment, and expressing a wish, that the marriage be dissolved on account of irreconcilable differences and has done so.” Id. at 483.

Why This is All Really Stupid

Under Higgason, a conservatee can get divorced through their guardian ad litem, but they must have enough capacity to state they want a divorce and that there are irreconcilable differences.  The trouble is that in order to need and have a conservator or guardian ad litem in the first place—a physician or mental health practitioner needs to have deemed this person physically or mentally incapable of caring for themselves.  So the court is taking an impractical middle ground.  If you have dementia and a guardian ad litem—that agent can pursue a divorce on your behalf, but only if you retain enough competence to remember that you want a divorce because of irreconcilable differences.  You must be incompetent enough to need an agent, but competent enough to make a decision about your marriage and state why it didn’t work out.

The Higgason court didn’t say one way or the other, but in dicta, the Straczynski  court says that if a conservatee retains this minimum capacity level at the start of proceedings, but loses it during the dissolution process—the court would have to dismiss the case.  It interprets the Higgason court’s capacity requirement as one needed throughout the entire course of dissolution proceedings.

My guess is that with baby boomers aging and the number of Americans with dementia on the rise, this is going to be an issue revisited by the Court of Appeal or the California Supreme Court sometime soon.  It would be better if the State Assembly could pass a new family code or probate code section that addressed this issue before that happens, but I doubt they will.  In the meantime, if you start developing dementia and you want out of your marriage—you better get divorced quick before you forget.

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Why the Constitution is Unconstitutional (an academic musing)

I try to keep this blog limited to the practical aspects of the law that the layman can appreciate or apply.  This post wanders off into the world of the purely academic.  I do so because 1) it’s interesting and 2) it’s the Constitution—you know the very document our entire Federal Government is based on.  The point is that the very process and document  that underlies the creation of our Federal Government is flawed and does not deserve to be revered as sacrosanct.  This is blasphemy.  Unpatriotic blasphemy.  But here we go….
In order to determine the validity of the Federal Government we have to follow this process: 

1) Articles of Confederation              2)Plans for Revision                        3) Ratification of the Constitution.
(Creation of United States)               (Creation of Constitution)              (Creation of Federal Gov.)
  1. Articles of Confederation Article VIII (Copy can be found here):
What were the Articles of Confederation (AOC)?  It was an agreement amongst the 13 states (former colonies) establishing the United States of America.  It established a Continental Congress and a Confederation type of government.  This style of government only lasted from 1781 until 1789 when it was replaced with a federal style of government under the Constitution.  The original states adopted the AOC unanimously in 1781 and said that any change to their agreement must be “confirmed by the legislatures of every state.”  In other words, any change to their confederation must be unanimous.

Article XIII. Every state shall abide by the determinations of the united states in congress assembled, on all questions which by this confederation are submitted to them. And the Articles of this confederation shall be inviolably observed by every state, and the union shall be perpetual; nor shall any alteration at any time hereafter be made in any of them; unless such alteration be agreed to in a congress of the united states, and be afterwards confirmed by the legislatures of every state.

  1. Plan for Revision
Congress of the Confederation endorsed a plan to revise the Articles of Confederation on February 21, 1787.  The Congress (not the individual states) agreed to revise the AOC by having a Constitutional convention.  Rhode Island refused to participate.
  1. Submittal and Ratification of the Constitution
The Constitutional Convention submitted the Constitution to the Confederate Congress.  The Confederate Congress then sent the proposed Constitution to state legislatures for submitting to a ratification convention.  However this Constitution did not match the AOC.  The AOC required unanimity amongst the states, while the Constitution required 9/13 states to agree for it to be binding.  (That’s a problem.)

Constitution Article VII: Ratification:
Article VII: The Ratification of the Conventions of nine States, shall be sufficient for the Establishment of this Constitution between the States so ratifying the Same.
  1. A Premature  Start
The 9th State (New Hampshire) ratified the Constitution on June 21, 1788.  The Federal government began operations on March 4, 1789.  The 13th and final State (Rhode Island) would not ratify the Constitution, as required by then AOC, until May 29, 1790.  
It probably doesn’t matter much whether the Constitution was ratified on June 21, 1788 or rather on May 29, 1790; however, it’s plausible that if the Federal Government had not started prematurely—8 months before North Carolina ratified and over a year before Rhode Island ratified—then North Carolina and Rhode Island may never have ratified its creation.  The point is it’s flawed.  It’s not sacrosanct. 

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