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Entries from July 2014

Posted on Jul 15 on 2014

We often hear people jokingly refer to the fact that someone in a divorce is supposed to “enjoy the standard of living to which they have become accustomed” after a divorce. Case law in California does support the proposition that what we lawyers refer to as the “Marital Standard of Living” is a factor that courts are to consider when making an order for spousal support.

The law essentially provides that if there are enough earnings generated by one spouse to allow the spouses to enjoy that standard of living after divorce, a court is to consider that. As you can imagine, in many cases there are not enough funds to support two households at the same economic level that they had before the marriage. In those cases, the parties and their children will not be able to live at the same standard they had before.

In either situation, the standard of living remains an important factor to be determined either by the court or as part of a settlement agreement. Often times it is overlooked. In fact, in just this past month two clients who had other counsel in their divorces approached me about modifying their spousal support obligations. In both situations, their judgment did not address the standard of living. When asked why, they both responded that their lawyers told them “it didn’t make any difference, I’m on the hook for life anyway”. In those situations, what their lawyers missed, and what lawyers often do unfortunately miss, is the importance of attributing an amount to the standard of living for the purposes of putting a cap on what the supported spouse might receive, and for the additional purpose of laying the groundwork for a support reduction at some point in the future.

It is not uncommon that after a divorce, the income level of the spouse who is paying support may rise or fall. If it rises, it is important that the standard of living cost be identified, and that it be broken down into components attributable to each of the parties. The reason for this is that the standard of living is usually considered by the court to be the limit on the amount of support that should be provided. So, in the case of someone paying support who starts to earn more income after divorce, the standard of living can be used to prevent an increase in support being paid to the other spouse, who contends that he or she does not have sufficient funds on which to live.

And, in the situation where the paying spouse wishes to reduce the amount being paid, the standard of living also becomes relevant. Without a clear definition in the judgment, it leaves open the argument by the spouse receiving support that his or her needs were never met, and that therefore, there is no basis for reduction.

It is often hard to determine the standard of living years after divorce when the modification issue arises. It is also costly to then have to reconstruct the records, and perform the analysis. The issues can be raised in a proceeding to modify support—but the better practice is to insure that the issue is appropriately addressed before the case is settled or goes to trial – especially for the spouse who is ordered to make the payments and wants to keep the door open to reduce or terminate them.


Posted on Jul 15 on 2014

A couple becomes married by common law when there is no official ceremony, no marriage license and the couple never fulfills the state’s statutory marriage laws, but the two people consider themselves to be married and fit other specific conditions. Common law marriage, however, does not exist in California. There are an abundance of myths surrounding common law marriages; I will try to tackle a few:

Every state recognizes common law marriage.

Not true. Most states, including California, do not recognize common law marriage. The states that do recognize common law marriage are: Alabama, Colorado, Kansas, Rhode Island, South Carolina, Iowa, Montana, Utah and Texas and the District of Columbia. Utah only recognizes common law marriages if the marriage has been validated by a court order. New Hampshire only recognizes common law marriage for the purposes of probate.

If you live together for a certain number of years you are considered married.

Not true. It does not matter how long you live together, 7, 10 or 20 years, etc., unless you meet other very specific conditions. Even then, you will only be considered married by common law if you reside in one of the states referenced above and meet the statutory requirements of that state.

California will not recognize a common law marriage.

Yes and no, it depends on where you were “married”. If you have lived as a married couple, by common law, in state that recognizes common law marriages and then you move to California, pursuant to Family Code Section 308 “marriages contracted outside this state that would be valid by the laws of the jurisdiction in which the marriage was contracted is valid in this state.”

If the couple was never married, a California court will not order support or property division.

When a couple splits, after having lived together for an extended period of time there might be a right to support and a right to certain property acquired during the relationship. This is commonly referred to as palimony, as well as a Marvin Claim, after the 1976 California Supreme Court decision Marvin v. Marvin.

The basis of a Marvin Claim is dependent upon an expressed or implied contract. Such a claim is brought as a civil action, unless the claim is brought in addition to a dissolution proceeding. Cohabitation agreements are one way that a couple can create a “non marital agreement” that will essentially cover the issues that might arise if they do end their relationship in the future. This agreement can be a way for a couple to avoid the complicated issues of property ownership, commingling of bank accounts and other issues that may arise. Some individuals might be reluctant to sign an agreement as they believe it is a sign of distrust. To the contrary, this is a good way to discuss all of these topics with your partner and know where each stands on the issues.

– Sarah Rosenblatt