*IF AUDIO STOPS PLEASE CLICK ON THE TIMELINE TO CORRECT THE ISSUE* On occasion California courts have to struggle with the issue of what constitutes income for the purpose of calculating child support. In a recent California decision entitled "Marriage of Rothrock," the court of appeal had to determine whether or not an uncharacterized personal injury settlement award that was paid into an annuity, constituted income for the purpose of calculating child support. In rendering its' decision, the court of appeal relied on the common law definition of income as well as a federal statute in determining that the monthly annuity did not constitute income. The court's use of the common law definition was somewhat new, in comparison to recent cases where the same issue presented itself. For a more detailed analysis of the court's decision, click onto the above presentation.

Posted by The Law Offices of Donald P. Schweitzer at 4:11 PM | Permalink | Comments (0)

There is always that person that thinks they know some trick that will allow them to escape accountability.  You know who I mean of course.  We all know this person.  He is the slick talking blowhard.   We will call him Mr. Blowhard for the purposes of this article.  Imagine Mr. Blowhard having to go through a divorce in which he will have to give half, of “his” hard earned property, to his wife. Mr. Blowhard will go to any length to avoid such a result.

It makes for an interesting case when Mr. Blowhard enters the divorce process.  His combination of limited legal knowledge and willingness to misstate the facts can turn a divorce proceeding into quite a spectacle.  This article shall focus on the circumstances of a void marriage and the likely thoughts that will cross his mind.

Some husbands, with knowledge that the marriage is void, think they have some sort of a prenuptial agreement that will allow them to escape spousal support, attorney’s fees and property division when things turn bad.  As an example, let’s use a situation in which the marriage is void because of a pre-existing foreign marriage or a foreign divorce that wasn’t quite completed. 

One fine day, Mr. Blowhard and his girlfriend decide to get married in the United States.  The girlfriend has not finalized her divorce in another country. Mr. Blowhard knows of the prior marriage or incomplete divorce, and assures his soon-to-be wife that everything will be alright.  “This marriage is from a foreign country,” he says.  “The government shall never know.”  All the while Mr. Blowhard is snickering to himself because he knows this marriage is null and void and he will never have to pay spousal support or be faced with other obligations should things go awry. 

Well, well, Mr. Blowhard, believe it or not, you are not the first ingenious legal scholar to concoct such a scheme.  In fact, the California Courts have dealt with this issue as far back as 1982, in the Recknor decision.  The Second District Court of Appeal held in this case that a husband that knows of a prior marriage, that nullifies the current marriage and that still holds himself out to be married, is estopped from denying the invalidity of the current marriage. 

Suddenly a light goes on in Mr. Blowhard’s head.  “Hold on,” says Mr. Blowhard. “I never even knew she was married.”  Again, Mr. Blowhard has used his limited legal knowledge incorrectly.  If Mr. Blowhard is able to show that he never knew of the prior marriage he still must divide his “quasi-marital” property equally.  On this point, I’ll cut Mr. Blowhard a break because the treatises even state that the answer is not clearly defined by the California courts. 

If Mr. Blowhard were to do his own research he would see that the California Courts have done everything they can to show that Mr. Blowhard still has to divide his community interest equally.  If Mr. Blowhard proves that he had no knowledge of the prior existing marriage, he is a putative spouse.  California Family Code § 2251 states that if one of the parties had not know of the invalidity of the marriage then that party is a putative spouse and the property acquired during the marriage, (quasi-marital property), shall be divided in accordance with Fam. C. § 2500.  When you read §2500 it states that all property must be divided equally.   

Feeling a bit disheartened, Mr. Blowhard?  Let me put it to rest for you.  In Marvin, the California Supreme Court considered the issue of the bad-faith spouse.  The Court stated that even in cases of a bad-faith spouse, the Court should still award the “guilty” spouse half of the quasi-marital property.  After all, if we were to define an “innocent” spouse as one that believed the marriage as being valid, then awarding the innocent spouse ½ of the property is not frustrating their expectations.

The Courts have been dealing with Mr. Blowhard types since the early days of English common law.  For the most part, all the schemes have been tried and the Courts have developed remedies for them.  This dynamic process of trial and error is what makes our legal system so special.

Written By Antonio J. Fricano

 

 

 

 

 

 

Posted by The Law Offices of Donald P. Schweitzer at 11:42 AM | Permalink | Comments (0)