By Ron’s Associate, Robert Borsky, Esq.

Domestic Partnerships: Darrin Ellis vs. David James Arriaga.  (2008)  CA4th ; [Published: May 6, 2008 - full cite pending running of appellate time line, approximately July 6^th, 2008.]

The most recent faire from the California Courts of Appeal, 4^th Appellate District, Division Three, Justices Fybel, Aronson and Ikola is the case of Darrin Ellis vs. David James Arriaga.  This case is not yet final and it could go on to the Supreme Court.

The case is an appeal from the Orange County Superior Court, Judge Millard, wherein a domestic partner who maintains a good faith belief that his or her domestic partnership was validly registered with the California Secretary of State entitled that person to the rights and responsibilities of a registered domestic partner, even if the registration never took place.

The court examined the equitable putative spouse doctrine now codified in Family Code Section 2251.  The Court determined that the legislation enacting this provision is clear, not federally mandated nor tied to federal statutes, nor State referendums. No extrinsic sources needed to be reviewed and therefore only the California State Legislature’s Intent needed to be determined.

This Court felt that the statue was clear on its face and accorded the necessary protections. Following the Domestic Partnership Act, enacted in 2003, which imparts rights and responsibilities between respective domestic partners, and sets forth legislative enactments and amendments giving domestic partners a variety of rights and responsibilities.  It basically establishes a vital set of rights for two persons in a committed relationship in a State the otherwise does not recognize these relationships outside of a valid marriage.

However, even two opposite sex persons can file a domestic partnership, so the rights accorded under the statutes are just a vital to persons who want to live together, but legally build equity in their committed relationship, without the bonds of traditional matrimony.

As explained by my associate, Robert Borsky, Esq.

A key issue is date of separation.  Separation within the meaning of the Family Code §771 (a) requires more than simply an argument or rift in the spouse’s relationship.  It is that date that occurs only when the parties have come to a parting of the ways with no present intent to resume their marriage and their conduct evidences a complete and final break in their marital relationship.   

This date is proven by a preponderance of evidence.  The court looks at a myriad of facts.  The facts must be clear and convincing according to the Evidence Code §115.  There is not only intent, but conduct. Intent is what you have clearly stated and you have done so with the filing of your Petition.  However your conduct may be something else. 

If at least one spouse entertains the subjective intent to end the marriage, and there is objective evidence of conduct furthering that intent; and that intent, it is communicated to the other party, then you have separated.  However, where both of you want to separate, but there is no conduct evidencing that separation, i.e. you are still in the house, still eating meals together, still doing things together with the children, sexual relations, having friends over or going out together, all these are indicative of conduct that is not consistent with the decision to separate. 

The intent is tested objectively.  It is all evidence reflecting the parties’ words and actions during the disputed time and is examined objectively to determine when during the period the actual break in the marriage relationship was final. The most absurd issue is the act of communicating intent to finally terminate the marriage.  It is not in and of itself conduct to support any separation.  The court’s basic statement is “actions speak louder than words”.  There must be non-verbal conduct consistent with the separation date. Therefore the court looks at evidences of economic, emotional, sexual and social ties.  They look at joint checking accounts, credit cards, tax returns, joint acquisitions, joint vacations, exchange of gifts or cards, continuing financial contributions to the marital community in attempts at reconciliation including counseling.  

The classic case is Marriage of Norviel wherein the spouses considered themselves separated for purposes of §771 (a) of the Family Code.  However, they continued to reside together in the family home, even in separate bedrooms, but they utilized joint bank accounts, credit cards, conduct financial transactions together as husband and wife.  They occasionally participated in family meals, outings and vacations.  In one instance, the husband took the wife on a business trip and in one instance, they acknowledged a wedding anniversary with flowers and a card.  This was sufficient to deny the date of separation and continue the marriage, making it only longer.   

Therefore, you must make the decision, given the information above, as to when your date of separation shall be.   

All ties financially and otherwise will mitigate toward any argument that the marriage was continuing.

Divorce filings are up in January, as people decide to change their lives in the new year. Don’t make a mistake you’ll regret later – follow these tips for divorcing couples offered by Sara A Stolberg, CFP™, CDFA™, one of the top Certified Divorce Financial Analysts in the Chicago area.

1. Consider your options before responding to a spouse’s request for a divorce. You can go to marriage counseling, find a mediator, file a collaborative divorce petition, or choose the traditional, adversarial divorce. Each has its own advantages and disadvantages, and a lesser-known alternative may suit your situation better than the conventional divorce process.
2. Gather your financial documents as if you were preparing to see your tax advisor or financial planner. Know what assets you have, debts you owe, how much income you have, and how much you spend.
3. Choose your representatives carefully. Ask relatives, friends, trusted advisors for referrals to attorneys, divorce financial consultants, mediators, appraisers, etc. If you are not yet ready to let others know about your plans to divorce, you can contact national organizations, support groups, and bar associations for referrals. Research these professionals carefully, to ensure that they have the credentials you seek and that their views on divorce match yours.
4. Gather a support network. Your attorney will charge you for every call you make to complain about your spouse. Your friends and family may get sick of hearing about your divorce. Instead, talk to a therapist or join a divorce support group. You will gain the strength you need to endure the divorce process, and be more prepared to start your new life.
5. Think about where you want to be when you are divorced. Do you want to stay in your home? Will you need to go back to school to train for a new job? Is it time to start your own business? Spend some time contemplating your future. Discover what is truly important to you.
6. Be honest with your spouse. Do not hide money, over-estimate the value of your house or underestimate your pension’s worth. It only delays the progress of the divorce and makes it more costly.
7. Keep the kids out of it. Children of all ages, whether toddlers or college graduates, will find the break-up of their parents’ marriage to be painful and confusing. Do not put them in the middle, express your frustration to them, confide your problems in them, or otherwise make them a part of the divorce. They will come out of it better if they are unaware of the details.
8. Look at the long-term consequences of the divorce. Make sure you can live on the support you will be receiving or what you have to live on after paying support. Do not just accept “She keeps the house, he keeps his pension”, since that leaves her without a retirement account and him without a home. Consult with a Certified Divorce Financial Analyst who has special software to manipulate these scenarios.
9. Consider the impact of taxes. Divorce usually involves a tax-free exchange of assets, but taxes affect child support, alimony, capital gains, and more. Consult with a tax advisor before accepting any settlement.
10. Be patient. Divorce has its own timetable. There can be a lot of hurry-up and wait. Sometimes you are waiting for the other side to respond, and other times there may be a delay due to a court calendar. Ask your attorney about accelerating the progress of a case, if it seems to have moved to the back burner.

What’s in it for me?  Truthfully, that is usually the major question in mediation.  Upon deciding to mediate a divorce case, both lawyer and client will want to clearly and specifically identify their ideal solution to the dispute. However, both are advised to carefully consider the other party’s desired outcome as well.   Mediation can be a Win-Win proposition if all those involved will adhere to this idea.  From the outset, I make it my stated goal to design a settlement agreement that will realistically fulfill the basic needs of all of the parties.  I happily and readily employ the word, “compromise.”  Compromise, cooperation, concession, conciliation, finding the middle ground.  This is the stance that enables us to negotiate our way through dispute to agreement.

Attorneys will frequently suggest ‘journaling,’ to clients who are going through dissolution of marriage.  Interestingly, psychotherapists may also ask clients to journal, but the purpose in each case is different.

By creating a journal, the lawyer hopes that the client will produce not simply a piece of evidence, but a written record that memorializes events, sets priorities, and helps to achieve clarity regarding goals.  As Sgt. Friday of Dragnet fame often said, “The facts ma’am.  Just the facts.”  If emotions were simply removed from the divorce equation, and each matter proceeded on facts alone, every lawyer’s job would be much easier.  That, however, is not likely to happen, because the very nature of divorce is fraught with passion and pain.

A therapist friend of mine, Lindy Hill, knows that couples considering divorce often experience overwhelming emotions.   Lindy points out that, “In a divorce, a person may be threatened with the loss of home, financial security (and) or support system.  No one brings them flowers.”  Thus, therapeutic use of Journaling gives a person another avenue to tell his or her side of the story.    Lindy points out that, “By using Journaling, divorcing couples can express feelings in a safe mode, ‘wash out’ resentments, reduce anger and achieve insights.”   For example, she will often suggest that a Client make a written farewell to hopes and dreams for the marriage.  Lindy states that, “My clients are asked to write without self-censuring.  Therapeutic Journaling does not have to be organized or make ’sense.’ In therapy, we process the writing together.  Journaling is one way therapists allow clients to find their own voice and … a point where it is possible to make more rational decisions.  Once a person can think clearly, he or she can move from therapeutic journaling to the type of journaling that benefits the legal progress of divorce – prioritizing and condensing.”

Ms. Hill recommends the divorcing couple choose a team approach: collaborative lawyers who specialize in Family Law, a financial planner able to act as a Neutral, and a psychotherapist to help them navigate the various stages inherent in the process of divorce.   Lindy said that, “While some couples (operate) in a state of shock, others might “melt-down” in the attorney’s office.  How much better it would be to allow emotions to surface within the safety of a therapist’s office.  Journaling is one way to bring Clients to the point where they are able to come an agreement that makes long-term sense for both of them.” 

Cmmr. Weiss took the bench in Dec. 2005 in Dept. K of the Van Nuys Superior Court, with more than 30 years of experience as a Certified Family Law Specialist.

Cmmr. Weiss brings a background of knowledge and experience that is unique to the Family Law Dept. She now holds sway in her courtroom with the heart of a compassionate child-advocate who was for years representing children in contested divorce cases as the neutral attorney appointed by the court. Careful in her approach and in her analysis she prepares her cases four to five days in advance and is very frustrated when cases are settled or continued without notice to the bench.

She does note that she considers it a “polite and a professional courtesy” when attorneys choose to advise her in advance of their intentions to continue or settle a case, so that she is not put to the unnecessary effort of reviewing the entire file for a contested hearing that is being continued or has been successfully settled.

How many of us realize that learning to be an excellent negotiator is closely related to developing our Zen mind?  One might wonder, “What on Earth have ‘Zen mind’ qualities to do with mastering negotiation skills as a lawyer?”   

I have been learning and experiencing this inter-relatedness through the Harvard Law School Negotiation Insight Institute, as they explore and teach the connection.  The classes of which I  was a part during the two weeks that I attended this past July, emphasized the skills of Empathy, Flexibility, Compassion and Focus – all Zen-Master qualities, and all the qualities of a Master Negotiator/ Mediator/Collaborator.

According to our instructors, it is through learning the skill of meditation (read this work carefully) that we are enabled to open blocked channels, release positive energy, and make available to our clients healthier, more vital degrees of freedom of choice.  Does this sound Airy-Fairy?  I assure you, Harvard is not an airy-fairy place.  The faculty would not be teaching these techniques if it was not certain of the viability of these ideas.  Here is the catch:  it is only through constant, vigilant, regular practice of the techniques that we are able to find the way through confusion and chaos to peace and serenity. 

California Certified Family Law Specialists are, as are all specialists, mandated to keep current regarding their area of law.  No other field of law experiences greater or more frequent change than that of divorce, with changes coming on an almost daily basis. 

Unfortunately one of the aspects of Family Law that remains unchanged is that of domestic violence, and while no one we know wants to “specialize” in this aspect, still it’s good to have some clear hard facts under our belts as we proceed in the family law arena.

About 1.5 million women and more than 800,000 men, every year in the U.S. are raped or otherwise physically assaulted by an intimate partner.

In 2002, a national study found that 29% of women and 22% of men had experienced some form of Intimate Partner Violence (IPV – physical, sexual or psychological) during their lifetime.

One 2001 study found that children of abused mothers were 57 times more likely to have been harmed because of violence between their parents, compared with children of non-abused mothers.The consequences of IPV can lead to various symptoms, including depression, suicidal behaviors, anxiety, and low self-esteem. The effects can extend sociologically creating strained relationships with health care providers and employers, and/or isolation from otherwise usual social networks. And, there are economic consequences as well.

A 2003 study found that victims of sever IPV lose nearly 8 million days of paid work – the equivalent of more than 32,000 fulltime jobs – and almost 5.6 million days of household productivity each year.

I have discovered over the years that most people believe that if they change partners they will have changed their lives. Change is an inside job. Most people who change partners find a replacement who is pretty much like the original. If you are considering a family reorganization, think twice and consider counseling instead. However, if you must divorce, make the procedure as positive as you can. Use it as an opportunity to acquire communication skills and develop powerful parenting strategies that are in harmony with the fact that parents are forever. You will be involved with your children’s other parent for the rest of your life. You have the ability to make that relationship healthier.

Get married. Stay married.  Live happily ever after.  Some people marry the right person the first time.  Others are not so fortunate.  How do you know if you have the right partner for life?  Ask yourself the following questions:  If most of your answers are yes, you might want to reevaluate your decision to seek a divorce.

• Which qualities attracted you to your spouse in the first place? Does your spouse still have the character qualities you found so attractive when you first met?
• Is your spouse honest, trustworthy, faithful, loyal, supportive and kind?
• Is your spouse willing to change and grow to meet the dynamics of your relationship?
• In what ways will divorce have a harmful effect on you or your family? Will staying married have a more harmful effect?
• How will the divorce affect your family, especially your children?  How will staying married affect your family, especially your children? Does that matter to you?  How much?