TLD's General Counsel Blog

The Impact of Proposition 8's Passage on Gay Married Couples In California

In the aftermath of Proposition 8's passage, many gay and lesbian couples who took their vows after the California Supreme Court's July 16, 2008 ruling, are now left on a legal "island," without knowing how this constitutional amendment's enactment may impact their marital status.

The Amendment's language is simple: "Only marriage between a man and a woman is valid or recognized in California."

The amendment says nothing about whether it is retroactive to the date the Supreme Court issues its ruling. Generally, there is a, constitutional limitation against retroactive impairment of a vested right without due process of law. The enactment is now under legal challenge, as there is a writ pending with the appellate courts to address these issues.

Practically speaking, the best course of action is for gay couples married between July 16th and November 4th to assume that their marriage is no longer valid or recognized in California. The answers vary on their legal standing; a couple registered as domestic partners may suffer no consequence. Others are left with no clear idea of what to do as we have no answers whether the marriages are nullified or merely dissolved. The verbiage is important in ascertaining whether community property rules which exist in heterosexual marriages and domestic partnerships are in effect; or whether such rights were voided, such that they never existed.

Definitive answers to these perplexing questions may have to wait until the constitutional challenges are addressed. In the meantime, most counties (San Francisco being a notable and predictable exception) have stopped issuing marriage licenses to gay and lesbian couples.

Couples married between July 16th and November 4th who wish to preserve their property rights should each contact independent counsel and negotiate cohabitation, property, or pre-partnership agreements that expressly define those rights. While it may seem like a short stretch of time to be concerned with, there is no harm in memorializing the appropriate terms, and certainly more harm could result by not putting these agreements into writing.

Article Submitted by: Attorney Daniel Gold

Domestic Partnership Is Not Marriage...Or is it??

Unless there is an agreement otherwise, California law provides that spousal support terminates upon the "remarriage" of the supported spouse. In a recent unpublished case, In re Marriage of Garber, (___Cal.App.__, 4th Dist., October 09, 2008 (No. G039050), the 4th District Court of Appeals in California upheld a trial court's decision not to set aside a Judgment ordering spousal support for a supported ex-spouse who had entered into a domestic partnership with her lesbian lover prior to the Judgment being entered. The trial court indicated that a domestic partnership was not a marriage; and given that marriage was the only listed terminating condition in the Judgment, there was no basis for a set aside.

When the case was appealed, however, the Court never got to the juicy political issue because the Court of Appeals did not find evidence that the partnership was actually registered.

Article Submitted by: Attorney Daniel Gold

Real Property and Divorce In A Declining Real Estate Market

Compounding marital dissolutions are the effects of a troubled real estate market. Bloomberg recently reported that foreclosures and mortgage delinquencies have now hit 29 year highs. Couples going through a marital breakup must deal with the whammies of lower incomes, higher payments on adjustable rate mortgages, and tightening credit; all of which serve to make selling and refinancing marital property extremely difficult. These difficulties result in lowering values.

These external factors serve to create problems in valuing and dividing real property. Take the family residence. One spouse may want to keep the house for emotional or practical reasons (e.g. kids in school). In a boom market, that spouse may be forced to "overpay" for the right to keep that house because they are charged with the equity in the marital balance sheet. In a down market, however, it is the "out" spouse who is disadvantaged, watching a property worth nothing when they divorce, increasing in value many years after moving on to new relationships and jobs.

  One way spouses can address these concerns is to pick a date of sale or valuation in the future so that extreme market variances can be minimized. The parties can remain on title together until that time.

Article Submitted By: Attorney Daniel Gold

Your Money In A Declining Economy

In this declining economy, I am always concerned where my clients are putting their money. Cutting costs and minimizing litigation are at the forefront in preserving small businesses. For my clients that are in the business of distribution of name-brand goods, a primary concern is counterfeit goods, or knock-offs. When dealing with new suppliers, I advise distributors to negotiate a situation where the goods are paid upon delivery in order to give the distributor a chance to inspect the shipment for authenticity before paying for the goods. The last thing a small business needs is to have paid for goods only to discover that they are counterfeit after it is too late. Loss prevention is a priority for a small business, and a strategy that we can help implement.

Article Submitted By: Attorney Min N. Thai

Restraining Orders

Restraining orders are powerful tools that we have used to protect our clients in a variety of situations. Restraining orders can limit both physical interactions and communications by telephone, email, or mail. In addition, certain restraining orders can grant monetary damages and even affect long term child custody. While common in domestic violence cases, restraining orders also are not limited to family or romantic relationships. They may also be appropriate in business or real estate disputes where there have been threats of violence or physical altercations. Restraining orders may also be appropriate where there has not been any physical threats or abuse. For example, elder abuse restraining orders may be granted to protect an elder or dependent adult from family, neighbors, caretakers, or any other person who may have engaged in financial abuse or otherwise acted to jeopardize the elder or dependent adult’s physical or financial well-being.

Article Submitted By: Attorney Jennifer Lumsdaine

Divorce by YouTube Probably Not The Way To Go

A recent news story involves the wife of a famous Broadway theatre owner going through a dissolution in New York. It seems she decided to get even with her husband by going on "YouTube" and airing their dirty laundry in a video for the whole wide world to see. Her name is Tricia Walsh-Smith and her clip has been viewed more than 150,000 times.

Any competent lawyer would advise against such a video for two reasons. First, in California, dissolution is no-fault, so the dirty laundry is not legally relevant and does nothing more than to escalate an already bad situation. Second, if the statements in the video are false, it may expose the spouse to damages in a separate defamation action. Although statements made in a lawsuit have some protection from liability, these statements were outside the courtroom, and had to do more with the personal relationship than what was happening in the legal proceedings. As a result, do not be surprised to see the estranged husband (Mr. Smith) at least threatening her with some sort of libel claim.

Article Submitted By: Attorney Daniel Gold

ARC Walk - ARC of Southeast Los Angeles County

A rowdy gang of 34 TL&D supporters showed- up to the ARC Walk on Saturday, April 5, 2008 to show our great support for ARC of Southeast Los Angeles County. TL&D also donated $2,500 to become a diamond sponsor of this special event.

Arc of Southeast Los Angeles County is committed to providing for people with mental retardation and other developmental disabilities the ability to form and work towards goals through training and education, based on their individual abilities. Arc of Southeast Los Angeles County is further committed to helping to reduce and limit the incidence and consequences of mental retardation through education research, advocacy and the support of families, friends and community.

Tredway, Lumsdaine & Doyle has supported ARC for many years through special events such as this, and by hiring people with developmental disabilities as support for the law firm. “Community service is important for any business, but its particularly important for lawyers,” said Joe Lumsdaine, senior partner for the firm, “Lawyers serve in a privileged position. They should be willing to support the community in return.”

Court-Ordered Drug Testing in Child Custody Cases

There has been controversy over the years stemming from situations where a family court is faced with allegations about one parent abusing controlled substances.  Some years ago, judicial officers would routinely order the alleged abusing parent to undergo mandatory drug testing as a condition to having access to the minor children.  While many feel it is important for a Court to be able to make these types of orders, the United States Constitution under the Fourth and Fifth Amendments, restricts the family law court's orders in this regard.

In determining the child's best interest, trial courts must also consider either parent's “habitual or continual illegal use of controlled substances” (as defined in Health & Saf.C. § 11000 et seq.) or “continual abuse of alcohol.” [Fam.C. § 3011(d)]  Before considering allegations of a parent's drug or alcohol abuse, the court may require “independent corroboration”—such as written reports from law enforcement agencies, courts, probation departments, social welfare agencies, medical and rehabilitation facilities, or other organizations providing drug and alcohol abuse services. [Fam.C. § 3011(d)] Under strict statutory conditions, the court may order any person seeking custody or visitation to undergo testing for the use of illegal controlled substances (as defined in Health & Saf.C. § 11000 et seq.) or alcohol; and may order either or both parties to pay the costs of such testing. [Fam.C. § 3041.5 (1/1/08 “sunset date”) (also applicable in Probate Code guardianship proceedings).]

California case law has limited the Court's authority in this area. A family court's power (by itself) to require “independent corroboration” before considering allegations of a parent's drug or alcohol abuse does not authorize the court to order drug testing. (Wainwright v. Super.Ct. (Sinkler) (2000) 84 CA4th 262, 266–269, 100 CR2d 749, 752–754).)  In response to the California Supreme Court's concerns stated in the Wainwright case, the California legislature enacted Family Code Section 3041.5. Section 3041.5 states that "there must be a judicial determination based upon a preponderance of evidence that there is the “habitual, frequent, or continual illegal use of controlled substances or the habitual or continual abuse of alcohol” by the person seeking custody or visitation (parent, legal custodian, person seeking guardianship or person seeking visitation in a guardianship). The determination may be based on (but is not limited to) evidence of a conviction within the past five years for the illegal use or possession of a controlled substance. [Fam.C. § 3041.5(a)] 

Any party who suspects the other parent of using controlled substances in any fashion should be specific in the allegations they make in Court. Specific allegations require evidence from someone who has personal knowledge either by observation or from the alleged substance abuser's statements. That becomes tough if the alleged abuser stays silent. It becomes even more difficult when the parent making the allegation cannot share details because the parent's own observation of the drug use may implicate themselves in the use as well. Other third parties may not wish to come forward to testify under oath for the same reason. Hence, law enforcement involvement, i.e. arrest or incarceration, may be the best hope to get the evidence needed for court-ordered drug testing.

Once the test is ordered, there are further limits on the Court's authority. The court must order the “least intrusive” method of testing. Any substance abuse testing must be performed in accordance with procedures and standards established by the United States Department of Health and Human Services for drug testing of federal employees. [Fam.C. § 3041.5(a)] Presently, the federal drug-testing standards only allow for urine tests; thus, e.g., the court may not order a parent (or other custody/visitation claimant) to submit to a hair-follicle drug test under § 3041.5. [Deborah M. v. Super.Ct. (Daryl W.) (2005) 128 CA4th 1181, 1191–1194, 27 CR3d 757, 764–766 (also noting that proposed amendments to federal standards permitting hair-follicle and other alternative testing methods have not yet been adopted).

The trouble is that urine testing is the easiest testing to fool unless it is random. Urine testing, for example, cannot detect historical drug use or determine whether the situation at issue in the custody dispute is a "one time"occurrence. The question whether the more conclusive hair follice testing will be permitted in California in situations other than when the party agrees remains unanswered.

Because of Fifth Amendment concerns, the test results may not be used for any purpose (whether criminal, civil or administrative) other than to assist a court adjudicating custody or visitation in determining the child's best interest pursuant to Fam.C. § 3011 and the content of the custody/visitation order or judgment. [Fam.C. § 3041.5 (a)

If you are involved in a custody dispute, and suspect the other parent is a habitual drug user it may be imperative to raise it with the court as soon as you can. In doing so, keep in mind the following: (1) you should provide the court with specific facts addressing the drug use, and how it affects the user in making parenting decisions. (2) remember that drug use may not preclude the parent from having access with the children prvovided there are appropriate conditions for a significant duration (Narcotics Anonymous, rehabilitation).  A failure to raise it early on may hurt your crediblity later on.

Article Submitted By: Attorney Daniel Gold

Another Tax Tip

When two separate, determining which parent is going to take the children as exemptions, look to the custody agreement/order first. The parent with greater than 50% custody is entitled to take the exemption. The parents that are on a true shared schedule, on alternating weeks for example, then the parents can each take one of the children (for 2 children) in the same year or alternate each year (e.g. for 1 or 3 children).

It only makes sense to release the exemption to the lower timeshare parent if it maximizes the collective tax benefit. This is because once an exemption is released, the child support under California law should be recalculated upward  to reflect the tax benefit the lower timeshare parent is receiving.  The Court may order the exemption to be released in limited situations. Because of the progressivity of the federal income tax, "the higher a taxpayer's income, the more valuable exemptions become .... As a result, the effect of awarding the exemption to the noncustodial parent is to increase the after-tax spendable income of the family as a whole, which may then be channeled into child support. ...” [Monterey County v. Cornejo (1991) 53 C3d 1271, 1280, 283 CR 405, 411]

When the exemption is released, it is important the child support order also clarifies that the release be conditioned on being current on support for that tax year. The noncustodial parent will want to have a condition that the custodial parent will cooperate in signing the IRS 8332 form required when the tax returns are filed with the exemptions that are taken.

Article Submitted By: Attorney Daniel Gold

Notices Of Pendency Of Action

In a recent article in the Los Angeles Lawyer magazine, attorney Jeffrey Huron discusses recent changes to the law regarding "Notices of Pendency of Action" or as is more commonly called a Lis Pendens.

Lis Pendens are not uncommon in family law matters. The purpose of such notice is to advise third parties that there is a claim that affects title or possession of real property. Most often Lis Pendens are used when the person filing and recording the notice is not on title. This could be a spouse who moved into their husband/wife's house owned before marriage, and were never added to title. It might also be situations where one spouse's parents control title. In either situation, the notice encumbers the property precluding a sale or refinance until resolved and removed.

In some cases, these notices have been loosely used as "chips" in the bargaining or negotiating process; particularly early on in a litigation. Changes in the law, however, force parties and their counsel to be careful. Because the recording of such a notice clouds title, an improper Lis Pendens may expose the recording party to damages for slander of title; and possible attorney fees.

A Lis Pendens is valid if the recording party has a "real property claim" against the property in question. A "real property claim" is one which affects title to, or the right to possession of” real property. Kirkeby v. Superior Court of Orange County (2004) 33 Cal.4th 642, 93 P.3d 395.

When facing a property dispute that erupts in the middle of a divorce proceeding, it is best to address your concerns with a Certified Family Law Specialist.

Article Submitted By: Attorney Daniel Gold