New Cases of Interest to Family Law Litigants
In Re MARRIAGE OF DAVIS
The California Supreme Court published its decision in In re Marriage of Davis on July 20, 2015. There was quite needs to be able to determine at the outset whether a matter is "simple" or "complex." Cases involving the outrage amount Family Law Attorneys in California. This case has already had a huge impact on the practice of family law and has mandated communication to our clients regarding how to behave in order to show that spouses are living “separate and apart” for purposes of determining a date of separation. Why is a date of separation necessary in California? Well, there are a number of reasons, but the most compelling reasons are that, in this state, the date of separation determines when a party’s earnings become their separate property, when retirement becomes separate property, whether a business is community or separate property, whether debts are separate or community and whether the marriage is “long term” for purposes of spousal support. Until now, there has been no bright line as to what “living separate and part” meant. Some courts held that parties could very well be separated for purposes of establishing a date of separation, and still live in the same residence. In fact, that is, for some, the only way to get through the separation process due to a variety of reasons including, the financial reasons as well as continuity for the minor children. Davis makes it quite clear that you cannot live in the same residence with your spouse and be considered living “separate and apart” for purposes of establishing date of separation. Many bar associations and members of the California State Legislature are now working hard to correct this aberration in the law.If you are interested in a more thorough analysis of Marriage of Davis, please read the article written by Debra S. Frank and Christine D. Gille, editors of the ACFLS Family Law Specialist, which you can find on the website www.acfls.org.
In Re MARRIAGE OF DAWNEL AND FRANK BONVINO
In Bonvino (Los Angeles County Super. Ct. No. BD433136), a family residence was purchased during the marriage with a down payment from the husband’s separate property funds and from a loan taken out in the husband’s name. Title was taken in the husband’s name only as his sole and separate property. Nevertheless, the trial court determined that the husband’s course of conduct had caused him to “transmuted” his separate property to community property and that he now owed his wife reimbursement for the fair rental value and that his only interest in the home was to request reimbursement of the separate property down payment and principal pay down of the mortgage from his separate property. On appeal, the Court of Appeal reversed and concluded that the husband had not “transmuted” his separate property to community, thus making the house the community property of both parties, but rather all his separate property funds could easily be traced sufficient to overcome the burden of proof required by the presumption that all property acquired during the marriage is community property. Furthermore, the document of title did not trump the conduct of the parties in determining the character of the property Thus, in order for there to be a transmutation, there must be certain formalities to increase the certainty that a transmutation occurred. For example, there must be “an express declaration that is made, joined in, consented to or accepted by the spouse whose interest in the property is adversely affected.” (852, subd. (a).) Therefore, a writing must be signed by the adversely affected spouse which states in clear and unambiguous terms that the character or ownership of the property at issue is being changed.