Family Law Section
News from the Section
In re Marriage of Davis -- When Does a Separation Become Legal
On Monday, July 20, 2015 the California Supreme Court issued an Opinion in Marriage of Davis. Fashioned as a statutory construction analysis, the Court held that Family Code section 771(a) requires establishment of separate residences as a predicate to separation; and that spouses are generally not “living separate and apart,” within the meaning of statute governing designation of property as separate or marital, while they remained living together in the same home. But the Court left the door open for argument in Footnote 7 (and expanded upon in the concurring opinion by Justice Liu). Footnote 7 says: “Under the facts presented by this case, we have no occasion to consider, and expressly reserve the question, whether there could be circumstances that would support a finding that the spouses were “living separate and apart,” i.e., that they had established separate residences with the requisite objectively evidenced intent, even though they continued to literally share one roof.”
By 10 a.m. Monday, the statewide family law listservs were lit up with discussion, opinion and not a little consternation. A few concerns were immediate: Don’t they understand the economy won’t permit people to live separately? What about the children? Does this mean that parents can share a home without risking their financial independence? Will this increase the number of move-away cases because parents will have to move home rather than live in a garage? Do I have any Footnote 7 facts? And then we all ran to review our case files to determine whether to send a cautionary letter to our clients.
The Chief Justice gives a comprehensive history of section 771(a). The section was adopted as part of the Married Woman’s Property Act to protect the rare woman who was earning money and no longer living with her husband. The Married Woman’s Property Act exempted the property that women brought into the marriage or acquired by gift or inheritance from being managed and controlled by their husbands. Life has changed in the great state of California, but section 771 (a) has not changed with it. Divorce is no longer rare; women are far less dependent; marriage and separation are far different constructs than they were in 1870 when the Legislature needed to protect married women’s separate property.
The Davis opinion provides us a bright line rule and then notes that there are exceptions. We know that the Davises did not qualify as an exception -- but we do not know what couples will qualify. Or what couples should qualify.
Where do we begin to develop the answer? Some voices are calling (maybe “howling” would be a better word choice) for a legislative “fix”. But quick legislative fixes often cause more problems than they resolve. It may be that the Davis “bright line” rule with rare exceptions is the best we can do. In the meantime, “let the wild rumpus start” -- FLEXCOM invites you to send us your thoughts, dreams, hopes and schemes to “correct” or “confirm” this seminal opinion. We are all ears.
FlexCom-sponsored Legislation Signed by Governor Brown
By Fariba R. Soroosh, Esq.
Earlier this month, Governor Brown signed into law Senate Bill 340. A FlexCom sponsored bill carried by Sen. Anderson, SB 340 amends relevant Family Code Sections to create a very narrow exception to the mandatory financial disclosure rules in dissolution and legal separation matters, where service of the Summons and Petition was by publication or posting pursuant to court order and the Respondent defaults.
Under existing law, service of financial disclosures by each party to a dissolution or legal separation matter is required at least once. There are currently no exceptions to this rule. This requirement also applies in default proceedings, where the respondent fails to appear in the action, even if service of the Summons and Petition was by publication or posting. The court can approve service by publication or posting in cases where the respondent cannot be served with reasonable diligence. in another manner authorized by statute (Code of Civil Procedure Section 415.50). In these cases, if the respondent defaults, it can reasonably be assumed the respondent will not get actual notice of the disclosures, making the petitioner’s efforts in completing, filing and serving the required forms an unnecessary expenditure of time and resources. Additionally, the mandatory disclosures have to be served to respondent’s last known address, which means that petitioner’s sensitive and private financial information will most likely fall into the hands of unknown persons who may use this information for unlawful purposes. Hence, this bill is being presented as a privacy protection bill by the author Senator Anderson.
As an added protection to ensure disclosure occurs in cases where the respondent answers prior to entry of default, this bill would require the petitioner to serve the mandatory disclosures within 30 days of the date the response is filed.
SB 340 passed each house via a unanimous bipartisan vote before ultimately being signed by the Governor. Kudos to the FlexCom Affirmative Legislation team for once again changing the law!
Contra Costa County Welcomes Kathleen Murphy as Its New Child Support Commissioner
Earlier this year, the Contra Costa County Superior Court welcomed well-respected former family law attorney and Facilitator Kathleen Murphy to the bench as its Child Support Commissioner. She brings a wealth of experience in a variety of fields to her new assignment. After graduating from City College of New York/Mount Sinai with a BS in nursing, Commissioner Murphy worked as a visiting nurse in the South Bronx and Harlem. One marriage and five children later, she switched careers and became a Realtor in Massachusetts, and started law school at Northeastern in Boston. When a job transfer brought the family to California, Kathleen transferred to the law school at USF. As she was nearing graduation, Kathleen was not at all sure what area of law she would specialize in (medical malpractice defense? real estate?), so she accepted an internship in Walnut Creek at the Law Office of John Manoogian. Much to her surprise and delight, she discovered that family law was the perfect fit for both her personality and rather varied set of skills. Kathleen graduated law school in 1994 and worked as an associate in several law firms until she joined the Contra Costa Superior Court’s Family Law Facilitator’s office in 2003 -- and the rest is history!
According to Presiding Judge Steven Austin, “Kathleen has dedicated herself to assisting self-represented litigants and the judges in the Family Law division on a variety of family law issues including support, custody and domestic violence. I'm sure all who know her will agree that she will be a great addition to our bench.” Ms. Murphy was appointed to the bench effective March 31, 2015.
Do you have a new family law bench officer in your county to spotlight? Submissions are welcome at firstname.lastname@example.org.
State Bar Annual Meeting Is Around the Corner
Looking for a great opportunity to network while gathering a trove of high-quality continuing education? The State Bar Meeting has you covered. The Annual Meeting will be held from October 8 through 11 in Anaheim. Registration is currently open for the entire event. Information on how to register and reserve your hotel can be found at the State Bar’s Annual Meeting page. Register now to save $100 off the regular price.
The Family Law Section is pleased to sponsor five programs at the upcoming meeting. See below for a description of each program. We encourage readers to review the course listing for more information on these and other great programs offered throughout the weekend.
- Friday, October 9, 8:30 a.m. - 10 a.m.: Leslie Allen Shear presents “The Post-Evidentiary, Pre-Appeal Phase of a Family Law Case”
- Friday, October 9, 1:30 p.m. - 3 p.m.: Garrett C Dailey and the Honorable Mark Juhas present “Recent Developments in Family Law”
- Saturday, October 10, 2 p.m. - 3:30 p.m.: Deborah Wald and Diane Goodman present “When Three is Not a Crowd: Multi-Parent Families”
- Saturday, October 10, 4 p.m. - 5:30 p.m: the Honorable Thomas Trent Lewis presents “Domestic Violence in the New Era”
- Sunday, October 11, 8 a.m. - 9:30 a.m.: the Honorable Marjorie Slabach (ret.) and Sherrol L. Cassedy present “Dealing with Children Who Resist Contact with a Parent”
Community Property Presumptions and Transmutation Agreements
Thursday, July 30, 2015, 12 noon - 1 p.m. Pacific Time
This program offers 1 hour participatory MCLE credit including 1 hour legal specialization credit in Family Law. You must register in advance in order to participate.
Application of various community property presumptions to the characterization and division of property; presentation of the applicable statutes and case law in performing an analysis of a valid transmutation agreement, including attacking and defending a transmutation agreement against an undue influence and breach of fiduciary duty claim.
Presented by Michele Brown, Esq., CFLS
Religion Issues Affecting Family Law Strategy
Thursday, August 20, 2015, 12 noon - 1 p.m. Pacific Time
This program offers 1 hour participatory MCLE credit; 1 hour legal specialization credit in Family Law and 1 hour in Elimination of Bias. You must register in advance in order to participate.
Jewish law forbids an Orthodox Jewish woman from remarrying, or having children with another man, without her husband giving her a “get” (a Jewish divorce document), and the penalty for ignoring the law has devastating effects on subsequent progeny of the woman -- thus setting in play a system of extortion and coercive control by husbands that severely impacts custody, support, & equal property division rights for the Jewish woman.
Islamic law empowers husbands with absolute unilateral right and power to divorce wife at anytime with impunity, except for a brief period of support for 100 days or termination of an ongoing pregnancy. Spousal support, even during the marriage, may be denied if wife refuses to abide sexual desires of husband and/or rejects husband’s choice of residence, employment or education. Waiving right to husband’s obligation of dowry (Mahr) is the only means to scape spousal rape and domestic violence by a Muslim woman. A California divorce will not be recognized under Sharia law, subjecting a Muslim divorcee to the charge of adultery resulting in death by stoning.
Ignorance of the impact of such Jewish and Islamic laws may condemn your client to poverty, physical and emotional harms and giving up child custody or life savings to abusive husbands. Learn to recognize why the problem exists & persists, and to avoid the devastating impact to women who are most affected by such religious laws.
Presented by Abbas Hadjian, Esq., CFLS and Alexandra Leichter, Esq., CFLS
Are you a Section member who wants to be reminded of all the benefits? Do you have a colleague on the fence about joining the Section? Being a Family Law Section member offers a number of great benefits.
- Receipt of the quarterly Family Law Newsletter with articles by leading attorneys and experts throughout California;
- Timely and cost effective family law substantive education provided by state-wide experts;
- Receipt of timely family law notifications through E-Blasts and E-News;
- Free online downloads that you your ethics, elimination of bias, and substance abuse credits at your convenience;
- Participation in your local regional standing committee commenting on and developing pending family law legislation;
- CEB discounts: $95.00 discount on either CEB’s Gold CLE Passport or on any single full priced MCLE ticket, as well as 10% discount on selected printed and online materials;
- Attorney’s Briefcase® discounts: Week in Brief at no charge, as well as unlimited free access to BriefCase OnCall™;, and 20% discount on the initial purchase price of Attorney’s BriefCase® software, regularly $1,200.00; and,
- The Rutter Group (TRG) and California Family Law Report (CFLR) discounts: $75.00 discounts on all Rutter and CLFR seminars, as well as a 30% discount on all Rutter and CFLR products and publications valid for 30 days after attendance at a TRG/CFLR seminar.
Know Your Legal Rights – Podcasts Now Available
The Family Law Section is a sponsor of the radio program “Know Your Legal Rights” hosted in the Bay Area by San Mateo Deputy District Attorney Chuck Finney. Mr. Finney welcomes attorneys and other professionals to talk about hot legal topics on a weekly basis. He routinely hosts members of FlexCom and other family law attorneys to educate the public on burgeoning issues important to our practice. FlexCom thanks Mr. Finney for providing our Section with this forum over the years.
If you are interested in listening to prior broadcasts focused on family law issues, the State Bar website now has a list that dates all the way back to when the Section first started sponsoring the program. Visit the Family Law Section page for additional details. For an entire list of podcasts hosted by Mr. Finney, please see HERE.
6 Hours of Self-Study CLE in Legal Ethics, Elimination of Bias and Competency Issues -- Complimentary for Members of the Family Law Section!
As a 2015 benefit of Section membership, we are pleased to offer four hours of self-study MCLE credit in the field of Legal Ethics, 1 hour in Elimination of Bias in the Legal Profession, and 1 hour in Competency Issues.
If you were purchasing these courses individually in our Online Catalog, they would cost more than $150 -- so that's your Section membership more than paid for, and then some!
Just watch these programs, and keep a record of having done so in the event you're audited for MCLE compliance.
You can access these programs and the accompanying written materials any time this year in the Members Only Area.
The programs are:
Understanding the Role of the Interpreter – One More Way to Eliminate Bias in the Courtroom (Elimination of Bias in the Legal Profession)
- Staying Healthy and Mentally Competent Throughout a Long Legal Career (Competency Issues)
- Advertising Your Expertise and Experience: What Can You Do to Build Your Practice While Meeting Your Ethical Obligations? (Legal Ethics)
- Conflicts of Interest and Disqualification Arising from Prior Client Representation: What are the Rules? (Legal Ethics)
- Ethics Update 2014: Significant Development in the Law of Lawyering (Legal Ethics)
- Lawyering on the Outside: Electronic Communications & Social Networking vs. Ethics & Professional Responsibility (Legal Ethics)
Save money with CEB
Continuing Education of the Bar, California (CEB) is extending some special discount offers to our section. As a member of the Family Law Section, you're eligible for:
- 10% off selected CEB print or online books
- A rebate on your section dues that can be applied to the cost of a CEB Gold CLE Passport or a CLE program ticket
A complete list of the products eligible for a discount is available on a CEB web page accessible through our Members Only Area. Information about the section dues rebate program can be found on the CEB Web site.
Consumer Education Pamphlets Available for Purchase
The State Bar of California's "Get the Legal Facts of Life" Pamphlets are available for purchase from the State Bar. These pamphlets are both educational and informative for your clients.
For more information, see Consumer Education Pamphlets or call the Education Pamphlet Hotline: 888-875-LAWS (888-875-5297).
Online and Self-Study CLE from the Family Law Section
View Family Law Section programs over the internet for participatory MCLE credit . Choose from hundreds of hours of official State Bar of California MCLE programs. For more information, see streaming audio and video, and select Family Law Be sure to check out CLEtoGo , downloadable podcasts you can listen to on the BART, or on the drive in or from the office.
Making the Connection: The Family Law Section is on Social Media
Who said family law lawyers weren’t social? A reminder, our Family Law Section is on Facebook and Twitter - join us! The Section sees social media as another way to connect our members with information as it develops. Stay in touch with us to learn about the great work being done by Section members across the state. You can Like us on Facebook and Follow us on Twitter at the links below.
Family Law Section
The State Bar of California
180 Howard Street
San Francisco, CA 94105-1639