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Family Law Question

This is the first time I have done this on JDU, but since I cocolawyer03/06/18
Bump come on guys real question cocolawyer03/06/18
I would argue a loss similar to gambling...i.e. the effusive becksquire03/06/18
Section 2625; Section 1000(b)(2) and Section 2627; Breach of guyingorillasuit03/06/18
I think my co-worker is on the adverse side where they do no cocolawyer03/06/18
How close to the filing of the divorce was it? If she dumped fettywap03/06/18
3 weeks later and don't know not my client. I cannot see a c cocolawyer03/06/18
I don't think that's the correct angle. I think the issue i jeffm03/06/18
How does his actions benefit the community? cocolawyer03/07/18
Women support men who molest children all the time. See Jerr fettywap03/07/18
If the community is facing a greater liability and he settle jeffm03/07/18
Coco, There is some weird ass case I read once, 99% sure it jorgedeclaro03/06/18
Nothing to add except this is why I'm happy I'm in an equita thirdtierlaw03/06/18
In Texas, which is also a community property state, we have jeffm03/06/18
I don't think there's a notion of torts being subdivided int onehell03/08/18
Yeah I imagine that most courts would agree although there a cocolawyer03/08/18
As far as there being a "layer of protection," I assume you jeffm03/08/18
Yup. Not a whole lot of appellate caselaw in the family law onehell03/08/18
Well there is not a lot of appellate court decisions because cocolawyer03/08/18
cocolawyer (Mar 6, 2018 - 7:19 pm)

This is the first time I have done this on JDU, but since I no longer have access to the same research material during private practice I thought maybe one of you fine Family Law Practitioners (California) may know.

So a former co-worker asked me this question and frankly I was at a loss, as I have never taken a case that involves a criminal conviction for child molestation.

Facts: CL is convicted of molesting his granddaughter and spends time in prison for it. When he is released he settles his civil case against the molested granddaughter for $50,000.00. The $50,000.00 was completely community. The OP separates from him 3 weeks later. Date of separation is not an issue.

Now the normal tentiments surrounding community property is that both parties have equal power to dispose of community property during the marriage, without reimbursement. There are some exceptions as related to prostitution, gambling, drugs; as the court has found no community benefit. I would think the Court would likley find no community benefit for diddling a grandaughter; however if its still during the marriage the benefit of a settlement may be to prevent further financial costs. It seems like this should be an exception (as the community is not benefited from the perv).

Anyone have any wisdom to bestow.

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cocolawyer (Mar 6, 2018 - 7:48 pm)

Bump come on guys real question

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becksquire (Mar 6, 2018 - 8:17 pm)

I would argue a loss similar to gambling...i.e. the effusive conduct of OP led to a loss to the community; essentially an 1101(e) breach of fiduciary duty. I'd throw 721 in there as well but it is a good bit less relevant. From there, throw in some IRS code for the innocent spouse filings that occur when one party to the marriage commits tax fraud. Under the same reasoning, only one spouse is liable for the malfeasance.

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guyingorillasuit (Mar 6, 2018 - 8:17 pm)

Section 2625; Section 1000(b)(2) and Section 2627; Breach of Spousal Fiduciary Duty (possibly?)

If the mitigation argument comes up ("I settled this to mitigate further exposure to the community"), the response would be that all the exposure would have been separate property obligation anyway (see Sec. 1000(b)(2)).

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cocolawyer (Mar 6, 2018 - 8:22 pm)

I think my co-worker is on the adverse side where they do not want it to be separate rather community. B2 is still helpful as there was on separate property to satisfy the judgment with.

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fettywap (Mar 6, 2018 - 8:21 pm)

How close to the filing of the divorce was it? If she dumped him because of it, the judge might feel bad for her and give her the money. What is equitable can vary depending on your judge.

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cocolawyer (Mar 6, 2018 - 8:23 pm)

3 weeks later and don't know not my client. I cannot see a court viewing payment for sexual abuse crimes as a benefit to the community.

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jeffm (Mar 6, 2018 - 11:05 pm)

I don't think that's the correct angle. I think the issue is whether H's separate estate benefited from the community.

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cocolawyer (Mar 7, 2018 - 9:42 am)

How does his actions benefit the community?

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fettywap (Mar 7, 2018 - 9:55 am)

Women support men who molest children all the time. See Jerry Sandusky's wife. If she supported him through a criminal trial and stayed with him while he was in prison, you could argue she supported what he did and got some benefit out of paying the victim to keep quiet.

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jeffm (Mar 7, 2018 - 10:04 am)

If the community is facing a greater liability and he settles, that'd be your answer.

However, that seems to be a strained way to try to apply reimbursement theory. The community *paid* the money. By asking how the community benefited, you are jumping the gun. You seem to be assuming the community must benefit or it is entitled to reimbursement. I don't think so. You should be looking for benefits by *another* estate - namely, his separate estate.

Isn't that the way reimbursement theory works in California? One estate pays; the other benefits, and equity demands the other reimburse the former? If so, you have to ask how did his *separate* estate benefit.

I also bet you have holdings which say reimbursement claims are reduced by offsetting benefits. For example, when H & W pay community funds toward the mortgage of H's separate property home, W can claim the community is entitled to reimbursement; however, the value of the occupancy of the home is its rental value. Accordingly, the community received the rental value in return for its payment; thus, no reimbursement is due. This latter rationale is only used to rebut a prima facie reimbursement claim. If his *separate* estate did not benefit, you have no reimbursement claim in the first place.

All this talk about reimbursement and benefits... maybe you are talking about "wasting" community funds, such as when H showers his mistress with gifts paid for by community funds. Wasting is a different theory altogether. I don't think the correct standard for "wasting" assets is whether the expenditures benefited the community. It's more like whether the expenditures were *without the other spouse's knowledge and consent* and were for an "improper purpose." https://www.texasdivorceattorneyblog.com/2018/02/07/wasting-community-assets-texas/

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jorgedeclaro (Mar 6, 2018 - 9:10 pm)

Coco,
There is some weird ass case I read once, 99% sure it was out of Washington, where the court found community liability for a molestation. Let me see if I can find it on Westlaw.

Edit: pretty sure this is it
http://www.kolerlaw.com/2008/08/30/wifes-liability-for-husbands-sex-crimes/

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thirdtierlaw (Mar 6, 2018 - 9:21 pm)

Nothing to add except this is why I'm happy I'm in an equitable division state, this would be a no brainer.

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jeffm (Mar 6, 2018 - 11:02 pm)

In Texas, which is also a community property state, we have reimbursement theories as well. I think reimbursement is appropriate when an adjustment is necessary to equalize a benefit to one estate made at the expense of the other - like making mortgage payments on a separate home with community income and using community income to pay down a spouse's separate student loans.

There are provisions in our Family Code which, at first glance, might provide a good counter-argument that reimbursement theories should not be applied:

Sec. 2.501. DUTY TO SUPPORT. (a) Each spouse has the duty to support the other spouse.

(b) A spouse who fails to discharge the duty of support is liable to any person who provides necessaries to the spouse to whom support is owed. http://www.statutes.legis.state.tx.us/Docs/FA/htm/FA.2.htm#2

I don't know off-hand whether the duty to support is any different than the duty to provide necessaries (a vs. b), but at least we have a general duty of spouses to support each other.

Couple the duty support with this (also from our Family Code):

(d) All community property is subject to tortious liability of either spouse incurred during marriage. http://www.statutes.legis.state.tx.us/Docs/FA/htm/FA.3.htm#3.202

I realize this provision is merely articulating the rights of creditors of the spouses.

I have no idea if we have case law which holds one way or the other; we probably do. California is a big state. I would bet you have case law on this.

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onehell (Mar 8, 2018 - 12:31 pm)

I don't think there's a notion of torts being subdivided into "separate torts" and "community torts," but he could certainly be held to account for waste of community assets. But honestly, there's not much need to get so technical when you are in front of what is essentially a court of equity. I'm not in CA, but in my state family court judges definitely shoot from the hip, which they can do as cases are usually 99% facts and 1% law.

It would be a really interesting question if this were an unpaid judgment and the creditor was trying to reach CP, but that's not the issue here. Between the spouses, division of community property has to be equitable, but not necessarily equal.

There's no need for a court to get into the technicalities. In the end, the equitable thing to do is reduce his share of the community by 50k. The facts are so incredibly sympathetic to the innocent spouse that I can't imagine a judge doing otherwise.

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cocolawyer (Mar 8, 2018 - 2:12 pm)

Yeah I imagine that most courts would agree although there are family code statues he can point to as a layer of protection.

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jeffm (Mar 8, 2018 - 2:40 pm)

As far as there being a "layer of protection," I assume you mean something to argue on appeal. I wonder how you'd preserve a good record in a case such as this. If the judge simply hears all the evidence/arguments and makes a division, how will a court of appeals know whether he/she misapplied the law? It could just be an equitable division as far as a reviewing court is concerned.

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onehell (Mar 8, 2018 - 5:12 pm)

Yup. Not a whole lot of appellate caselaw in the family law space because of exactly this. Jurisdictional and support guideline disputes mostly. The rest are just findings of fact followed by an order that would basically only be reviewed for abuse of discretion.

Although not technically so, in practice family court is primarily a court of equity. And like the mediaeval ones, the whole point is that the judge is just calling it like they see it. Going to trial means you roll the dice and live with wherever they land.

Luckily, if there's kids involved you can petition to modify anytime there's "changed circumstances." But in a pure asset case, if you go to trial you roll the dice and you pretty much have to live with the outcome.

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cocolawyer (Mar 8, 2018 - 5:33 pm)

Well there is not a lot of appellate court decisions because of 1)Lack of record and 2)Lack of funds.

Being able to tell that it was an inequitable division, or a misapplication of the law/mistake of law is provable but you need to insure the basics occur. You need a court reporter and you need to request a statement of decision from the judge. The problems on appeal is it costs a lot to do an appeal, and most appellate courts HATE family court. They would rather burn their eyes out then have to deal with a legal issue related to family law.

Now to touch on two of your points. Family Court is a Court of Equity and not Law...that is true; however Equity is still only utilized to fill the grey area where the law does not speak to. In family law admittedly that is a majority of the areas. That being said there is law that does speak to this issue as there was no separate property available to pay the debt and the entire debt was paid during the marriage.

That being said, ultimately I agree with both of you, that I cannot see a court agreeing that a rat B*s*t*r* should benefit for diddling little girls. The one point of law "the benefit of the community" is likely enough where the Court can say "Oh I determine its not for the benefit of the community so no mistake of law HA."

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