Welcome to the Summer 2010 edition of our newsletter.
There have been many changes for the better to Cooper-Gordon LLP. In this issue we will discuss not only news at the law firm, but new issues of interest to the Family Law and Probate and Estate Planning community as well. After having hired as our office assistant Rebecca Boulour, who is now attending UCLA as an upper classman and looking forward to a career in the law, we were approached by an absolutely lovely and brilliant law school graduate, Erin Zivic. Erin just sat for the California Bar last month and has already contributed to our firm by writing an article for our website which is included below in this newsletter. Erin studied incredibly hard and we know that one day soon she will join the ranks of licensed attorneys in California. We are fortunate to have her clerk for us while she waits for bar results. We have a number of trials, motions and appellate work in which her assistance will be very helpful.
Frieda continues to write for her blog and posts updates frequently on Twitter as well. Frieda has been busy working with various committees of the California Association of Certified Family Law Specialists organizing the next Spring Seminar to be held next year in April, in Indian Wells, CA at the luxurious Hyatt Grand Champions Resort. Last year's 3-day seminar, for which the topic was, "Titles, Transfers and Transmutations," also took place at the Hyatt Grand Champions resort and was a huge success. Next Spring's topic will be "An Advanced Course in Evidence - How to Find It, Get It and Admit It." Additionally, Frieda is serving on the By-laws and Board Reconstruction Committee which is an intensive look at reorganizing and expanding the Board of Directors of the ACFLS to accommodate growth, changes in legal practices, modernization of technology and demographics of membership. While this is a very time consuming long-range project, it is a very rewarding one for Frieda, who has been a board member and past president of this prestigious state-wide organization of certified family law specialists for over 20 years. She also is serving on the Anniversary Committee planning the Gala Holiday Party honoring the organization's 30th year in existence and all of the past presidents and honorees.
This summer Avery and Frieda have been especially busy at work and had to delay any vacation time until the Fall, when scheduled trials and other court hearings have been completed. They have plans to visit Spain and travel from Madrid all along the Bay of Biscay, through the Basque Country, into the wine country, across the Pyrenees and end the visit in Barcelona. Our clients' needs will be fully met during the partners' absence by the associates who are assigned to their cases.
Katherine Su, our senior associate spent some of her summer weekends camping out in the Sequoias as well as Yosemite. She managed to ascend Half Dome for the second year in a row and is looking for a unique vacation spot for her honeymoon next June. Katherine is also looking into volunteer services, perhaps to assist pro pers with their Guardianship and Conservatorship Petitions in Probate Court.
Erin Zivic, our law clerk, is planning to take her well-deserved vacation this September. In the meantime, she has the following to say about her experiences at a legal clinic designed to assist women and their children in need of legal services:
The California Bar Association recognizes that there is a dire need for pro bono legal services for the needy and disadvantaged. To that end, the bar association urges all California attorneys to do at least 50 hours of pro bono service annually. This service will not necessarily meet everyone's needs. However, it is a step in the right direction. Southwestern Law School encourages students to participate in pro bono work with the goal of both enhancing the educational experience as well as assisting people in need. As a member of the Public Service Program at Southwestern, I had the opportunity to volunteer at Sojourn Legal Clinic over the past six months.
Sojourn is a multifaceted program that provides legal and social services for battered women and their children. The legal clinic provides basic advice and serves as a portal to various resources for women in need of legal services. It helps assist women in a variety of legal issues including divorce, custody, and restraining orders, among others.
Volunteering at Sojourn is both a challenging and rewarding experience. Women from all different facets of life, with all different sorts of legal problems come in looking for direction, assistance, and emotional support. Volunteering can be challenging because sometimes the issues are very complex and the volunteers only have limited time for each client. It can also be difficult because of the conflict between the urge to help and the client's ability or readiness to help herself.
Often times, the volunteers are able to point clients in the proper direction for accomplishing their legal goals. However, during several of my volunteer sessions, it was clear that many clients needed additional assistance. One woman seeking assistance had a special needs child and was trying to get increased custody and support of her son. However, the woman alleged that her son's father filed an unfounded restraining order against her, and she did not have the legal resources at the time to fight it. Another woman who never legally separated from her husband was trying to ensure her interest in her family residence since her husband was involved in a new relationship and told her she had no claim to their house. However, for every difficult story, there is also a rewarding story. The volunteers at Sojourn have assisted countless women in obtaining divorces and restraining orders.
In addition to benefitting from this experience in terms of helping the client, volunteering was a great experience because it gave me a chance to see how other attorneys incorporate pro bono work into their lives. I am thankful that the California Bar and Southwestern are dedicated to offering services to the disadvantaged. Their encouragement has ensured that I will continue to volunteer at Sojourn as well as other non-profit organizations throughout my legal career.
Sojourn keeps its address confidential for the protection of its clients. If you are interested in volunteering, you can find Sojourn's information through the Women Lawyers Association of Los Angeles (WLALA.org). If you are in need of assistance, you can call the 24-Hour Hotline at (310) 264-6644.
Drorit Raiter, one of our associates, volunteers regularly at a domestic violence clinic here in Santa Monica, California. Additionally, she is assisting our Senior Partner, Avery M. Cooper on such an interesting cutting edge case which involves both family law and probate issues, that she has decided to share the important legal rulings which have resulted from this factually common, yet confusing case. In fact, she will continue to post blogs on the progress of this case as results develop. She has authored the following article which can be separately found on our website under the Articles tab:
Who Has Standing to File a Petition for Nullity of Marriage?
Comparing Our Case with Pryor v. Pryor
By Drorit Bick Raiter, Esq.
This year our firm has been working on a nullity proceeding which has raised interesting questions of law with regard to third parties who have standing to file the Petition on behalf of a spouse. Our client filed a Petition for nullity on behalf of his grandmother, based upon the fact that at the time of the purported "marriage" to the 27-year-old purported husband, his 80-year-old grandmother was of "unsound mind," and lacked mental capacity to enter into a marriage contract. A deposition of the Reverend who officiated the marriage revealed that upon request by the "husband," he had issued a "confidential marriage license" to the couple. Several months after filing the Petition, our client's grandmother passed away.
The Issue
When we appeared in Court on this matter, the Court, on its own motion, posed the following question: Whether, during the pendency of a nullity proceeding and before entry of Judgment, upon the death of a Party, does the Family Law Court lose Jurisdiction to enter a Judgment of Nullity of Marriage. At that hearing, the Court asked the Parties to brief the issue and pay particular attention to the recent case of Pryor v. Pryor (2009) 177 Cal.App.4th 1448, which involved the well known actor/comedian Richard Pryor.
The Pryor Case
In the Pryor case, Richard Pryor married Jennifer Lee Pryor in 1981 but then divorced her in 1982, without having any children with her. Twenty years later, on June 8, 2001, Richard and Jennifer remarried pursuant to a confidential marriage license. On December 10, 2005, Richard passed away, leaving behind six children. At some point after his death, one of his children, Elizabeth, discovered her father's 2001 remarriage to Jennifer and on July 17, 2007, a year and a half after his death, she petitioned to annul the marriage on the grounds of fraud.
Our Argument
As we successfully argued in our brief, the pertinent statutes, Family Code § 2210 and Family Code § 2211 reflect that our client clearly has standing because, as differentiated from the facts in the Pryor case, in our case (1) the Petition for nullity was filed several months before his grandmother's death and (2) the nullity action was based on "unsound mind" and not on "fraud."
Family Code § 2210 reads in pertinent part, as follows:
"A marriage is voidable and may be adjudged a nullity if any of the following conditions existed at the time of the marriage:...(c) Either party was of unsound mind, unless the party of unsound mind, after coming to reason, freely cohabited with the other as husband and wife.
(d) The consent of either party was obtained by fraud, unless the party whose consent was obtained by fraud afterwards, with full knowledge of the facts constituting the fraud, freely cohabited with the other as husband or wife...." [Emphasis added].
Furthermore, under Family Code § 2211, the legislature has clearly delineated provisions for who has standing to file a nullity petition, and has provided different limitations periods, depending on the ground for annulment. These distinctions are expressly stated in Family Code § 2211, which reads in pertinent part, as follows:
"A proceeding to obtain a judgment of nullity of marriage, for causes set forth in Section 2210, must be commenced within the
periods and by the parties, as follows:....(c) For causes mentioned in subdivision (c) of Section 2210, by the party injured, or by a relative or conservator of the party of unsound mind, at any time before the death of either party. (d) For causes mentioned in subdivision (d) of Section 2210, by the party whose consent was obtained by fraud, within four years after the discovery of the facts constituting the fraud...." [Emphasis added].
In our brief to the Court, we argued that Family Code § 2211 reflects the legislature's intention that standing for nullity actions based on "fraud" [Family Code § 2210(d)] be limited to "the party whose consent was obtained by fraud." By contrast, standing for nullity actions based on "unsound mind" [Family Code § 2210(c)], is extended to include relatives. Additionally, the period in which to commence the action is limited differently for each cause upon which the nullity may be based. Specifically, a nullity action based on fraud is delimited by the period "within four years after the discovery of the facts constituting the fraud...." By contrast, a Nullity action based on "unsound mind" can be brought, "at any time before the death of either party."
In our case, because our client was a relative and had filed the Petition within his grandmother's lifetime and the nullity action was based on "unsound mind," the trial court ultimately found that our client had standing to file the Petition for Nullity. However, the trial court also ruled that although his grandmother was personally served with a copy of the Petition prior to her death, our client should have joined his grandmother (or her conservator) as a Party and had failed to do so. Accordingly, the Court ordered the case stayed until we joined the grandmother's (as of yet, unappointed) personal representative. Appointing a personal representative for a person now-deceased is unusual, and, as explained below, in our case, this task fell to the Probate Court to accomplish.
Ancillary Probate Matters
In addition to the family law matter, our client is also in the midst of several probate cases concerning his grandmother's $8 million estate. In the probate matters, the salient issue is whether his grandmother had mental capacity to execute certain amendments made to her trust several years before her death. We have recently learned that our client's probate attorney has successfully petitioned the Court to appoint a personal representative, and the Court has appointed a neutral party to so act.
Conclusions
We are grateful that the issue of third-party standing is now behind us and we look forward to taking this complex and interesting case to Trial.
The special topic for this newsletter is:
One of the most difficult and confusing issues in any divorce or legal separation case concerns the issue of the Parties' date of separation. In essence, the starting point in all marital dissolution proceedings begins with the question "On what date did the Parties separate?" Until this date is determined, property cannot be valued and the case cannot really proceed forward because the date of separation will determine not only the length of the marriage (thus impacting spousal support and other issues) but also determining as of what date to value assets.
By way of example, is the marriage a long term marriage (ten years or more)? This issue highly impacts spousal support because the length of the marriage cannot be determined until one knows the date that the Parties separated.
Another example of the need to establish the date of separation concerns determining the existence and value of community assets. The starting point always is, "How much was in the community bank account as of the date of separation?" Again, until the date of separation has been determined, one cannot determine the value of the assets.
Determining the date of separation can often times be confusing. Naturally, in a case where a spouse says to the other spouse words to the effect "the marriage is over ...." and immediately files for divorce the next day, it is clear that there is little or no confusion regarding the date of separation.
However, what if a Party makes that statement but does not file for divorce until five years later? Were the Parties actually separated on that date, or are those words of little meaning, given the conduct of the Parties?
When clients comes to see me, if they are serious about getting divorce, I tell them that it is extremely important to immediately establish their date of separation. The way to establish a separation is obvious. Moving out, hiring an attorney, filing for divorce and dividing up assets, are all easy ways to establish a date of separation.
Problems arise, however, when there is a delay in the action following the development of the intent to separate. When that occurs, the door is open for the argument that the parties were not actually separated until there is clear conduct evidencing the separation.
People often confuse the term "date of separation" with being "separated." Let me give an illustration. When a Husband and Wife start to develop problems and decide that it would be best for them to temporarily separate (i.e. live separate and apart) and, following that, actually live in separate abodes, does that mean that the date that they moved into separate abodes was the actual date of separation? The answer to that would be a resounding "No."
In order for Parties to be separated pursuant to case law, the state of the marriage must have reached an "irremediable breakdown" such that the marriage has a "final rupture" which evidences the fact that the Parties will not be getting back together again. A temporary cessation of the marriage with the possibility of the Parties resuming their relationship does not satisfy these criteria. Thus, when Parties live in separate residences while they are considering the possibility of ending their marriage, they have not necessarily attained the ultimate "date of separation." Likewise, when Parties are separated and go to marriage counseling to help save their marriage, they have similarly not reached the "final rupture" and thus are also not "separated" within the meaning of the law, because, while they are, in fact, "separated" in common parlance, this does not equate to the legal standard of "date of separation" as defined above.
When determining the date of separation, each case is extremely fact-based. Such minor nuances as continuing to file joint tax returns, having intermittent sexual relations, having dinner together, going on family vacations together, bringing the laundry for your spouse to do for you or sending each other cards or gifts, all can be evidence of intent to continue the relationship, or work on continuing it, albeit while still living separate and apart.
As indicated above, the best way to establish a date of separation is to inform the other spouse of your intent and then take clear and unambiguous actions to establish a date of separation. Such conduct would include (as mentioned above) retaining counsel, filing for divorce, separating assets, moving out, etc., within a relatively close time frame.
The Party who states that the marriage is over and fails to act on it can subject himself or herself to significant detriment. Assets will be valued at a future date, which may not be the date that the Party intended to end the marriage. The marriage could be considered to be a "long term" marriage, possibly subjecting one spouse or the other to having to pay spousal support for a longer period of time, affect the receipt of Social Security benefits or deny a spouse access to certain retirement benefits.
As the reader can see, the issue of the date of separation is a complicated one which requires significant analysis.
