www .acfls.org Fall 2012, No. 2 Journal of the California Association of Certified Family Law Specialists Does California Law Support a Finding of More than One Date of Separation? Garrett C. Dailey, cfls Michelene Insalaco, cfls Alameda County San Francisco County [email protected] [email protected] Introduction The Community Ceases to Accrue Suppose your client comes to you and reports that in the year Assets and Debts When Parties Begin 2000 she and her husband split up, and lived apart for five “Living Separate and Apart” years. During this time, your client earned large commissions In California, all property acquired during marriage is pre- and used them to buy an apartment that has been rented. sumed to be community. As explained in In re Marriage of Then the parties reconciled, stayed together for five years, Baragry (1977) 73 Cal.App.3d 444, the community property and separated again recently, prompting the wife’s visit to you. presumption “is fundamental to the community property What advice do you give her about the character of the rental system, and stems from Mexican-Spanish law which likens apartment? the marital community to a partnership. Each partner con- What if the parties actually filed for divorce in 2000, tributes services of value to the whole, and with certain litigated vigorously for the five years of separation, and the limitations and exceptions both share equally in the profits. wife had paid court-ordered support during the entire period? So long as [a spouse or registered domestic partner, here- Different advice? after “spouse”] is contributing [his or] her special services Does California law require that there can only be one to the marital community [he or] she is entitled to share in date of separation? Or, if the facts support the finding, can its growth and prosperity.” (Id. at p. 449, internal citations there be successive separation dates, with a related finding and quotations omitted.) This describes the essence of that property acquired during the initial separation period the community property system. “ ‘Under the principles is the separate property of the spouse who acquired it? Or, of community property law, the [spouse], by virtue of [his does a later separation vitiate an earlier period of separation? or] her position as [spouse], made to that value the same The authors submit that California law permits successive contri bution as does a [spouse] to any of the [other party’s] periods of separation. Continued on page 4 (Dailey & Insalaco) Editor’s Desk . 2 2012 ACFLS Board of Directors . .18 Richard Gould-Saltman, cfls Slate of Nominees for the President’s Message . 3 2012 to 2013 ACFLS Board . .19 Diane Wasznicky, cfls My Ex Lives With Her Girlfriend: ACFLS Awards and the 2012 Honorees . 9 Arguments Supporting Reduction or Termination Camille Hemmer, cfls of Support Based on Same-Gender Cohabitation . 20 Report of the Legislative Director . .10 Dawn Gray, cfls Jill L. Barr, cfls Threads of Interest: Going Retro: Dealing with Retroactivity Topics and Quotes from Your Listserv . 32 in Temporary Support Orders . .12 Laura Dewey, cfls Christopher C. Melcher, cfls ACFLS CLE on DVD Order Form . 36 Constitutional Challenges to Reflections on the Human Side Section 3 of the Defense of Marriage Act: of Family Law Practice: Federalism and Equal Protection . .14 Feeling Like a Client . 38 WHAT’S INSIDE William E. Weinberger, j.d. Heidi S. Tuffias, cfls this paper contains 30% post-consumer waste Dailey & Insalaco Family Code Section 771 and the Continued from page 1 Rules of Statutory Construction earnings and accumulations during marriage. [He or she] The rules of statutory construction support the view that is as much entitled to be recompensed for that contribution there can be successive separation dates. The first such rule as if it were represented by the increased value of stock in is that “to justify construction [of a statute] by either an a family business.’ ” (Ibid.) administrative agency or a court, it must first appear that It is the parties’ respective contribution to the commu- construction is necessary. In United States v. Missouri Pac. R. nity that justifies and forms the basis for their joint owner- Co., 278 U.S. 269, 277, 278, the court held: “ ‘It is elemen- ship of the fruits of their respective labors. California, unlike tary that, where no ambiguity exists, there is no room for all but one other community property state ( Washington1), construction. Inconvenience or hardships, if any, that result has elected to terminate the marital period at the date of from following the statute as written, must be relieved by separation, rather than upon the termination of status. This legislation. Construction may not be substituted for legisla- is in recognition that after the parties separate, there is no tion.’ ” (Dillman v. McColgan (1944) 63 Cal.App.2d 405, 410, longer the joint contribution towards the community and emphasis added.) thus no reason to perpetuate it. This principle is codified in Further, in People v. Johnson (2002) 28 Cal.4th 240, Family Code section 771, which states, “[t]he earnings and 244–248, the California Supreme Court held: “Our role in accumulations of a spouse and the minor children living construing a statute is to ascertain the intent of the Legislature with, or in the custody of, the spouse, while living separate in order to effectuate the purpose of the law. Because the stat- and apart from the other spouse are the separate property utory language is generally the most reliable indicator of that of the spouse” (emphasis added). Thus, in California, a intent, we look first at the words themselves, giving them their judgment of dissolution is not needed to terminate the usual and ordinary meaning and construing them in context. If community. the plain language of the statute is clear and unambiguous, our Case law has held “living separate and apart” means that inquiry ends, and we need not embark on judicial construction. the parties have “ ‘come to a parting of the ways’ with no If the statutory language contains no ambiguity, the Legislature present intention of resuming their marriage.” (In re Marriage is presumed to have meant what it said, and the plain meaning of Baragry (1977) 73 Cal.App.3d 444, 448, citing In re of the statute governs.” (Internal citations omitted.) Marriage of Imperato (1975) 45 Cal.App.3d 432, 435436.) Family Code section 771 states without ambiguity: Michelene Insalaco Garrett Dailey is a Certi- is a partner at the fied Family Law Specialist law firm Sucherman- emphasizing appeals and Insalaco LLP in consultations. His office San Francisco and is in Oakland, California. a Certified Family He was previously a Law Specialist. Lecturer at U.C. Davis Her work focuses School of Law, Golden on complex cases, Gate University Gradu- appellate work and ate School of Taxation representing minors. and the University of Ms. Insalaco is Edinburgh. Mr. Dailey currently a member is a Fellow in both the of the Executive American and Interna- Committee of the tional Academies of Mat- Family Law Section rimonial Lawyers. He was of the State Bar (FlexCom) and the Board of Directors named the 2006 Family Law Person of the Year by the American of the Association of Certified Family Law Specialists Academy of Matrimonial Lawyers, Southern California Chapter. (Director North-Elect). She is also the Vice-Chair Elect He was the recipient of the Association of Certified Family Law of the Family Law Section of the Bar Association of Specialist’s Hall of Fame Award in 1995, the Brandeis Award San Francisco. Ms. Insalaco is a presenter of family from the Los Angeles County Bar Asso ciation in 2003 and is law continu ing legal education programs and she has listed in The Best Lawyers of America. He has been selected received numerous awards for pro bono work in family numerous times as one of Northern California’s Top 100 law including BASF’s James P. Preovolos Award and an Lawyers by SuperLawyer Magazine. Mr. Dailey is co-author of Angel Award from California Lawyer Magazine. ATTORNEY’S BRIEFCASE treatises on California Family Law, Evidence, and Children and the Law. He is also co-author of Lawgic Marital Settlement and Pre/Post Marital Agreements and the author of SupporTax. Fall 2012, No. 2 PAGE 4 ACFLS Family Law Specialist “The earnings and accumulations of a spouse and the minor Section 852 sets forth the requirements for a valid trans- children living with, or in the custody of, the spouse, while mutation. It states that a change in character is “not valid living separate and apart from the other spouse are the unless made in writing by an express declaration that is made, separate property of the spouse.” Were this statute only to joined in, consented to, or accepted by the spouse whose apply after divorce, it would not refer to a “spouse.” Were this interest in the property is adversely affected.” (Fam. Code statute to apply only after “the last separation,” it would so § 852, subd. (a).) Our Supreme Court in Estate of MacDonald state. It does not. Rather, it refers to earnings while spouses (1990) 51 Cal.3d 262, 264, held that a writing satisfies the are “living separate and apart” which can be a period after “express declaration” requirement only if it states on its face an initial separation but before a reconciliation. There is in that a change in the character or ownership of the subject sum nothing in the language of the statute, or the philosophy property is being made. MacDonald also made clear that this behind the statute, that supports the idea that earnings construction of section 852(a) precludes the use of “extrinsic during a period when the parties were living separate and evidence” to prove that the writing effected a transmutation.