Presumptions Matter
By: Tom Stutzman | Posted: 30th March 2011
There are a lot of presumptions in the law, and litigating the property in your divorce can be like a game of Rock, Paper, and Scissors. Scissors do not cut Rock and Paper will not smother Scissors. You need to apply the right presumptions in your divorce if you want to get a fair result. Raising the proper presumptions is why you should get the help of a good divorce attorney.
In Re Marriage of Fossum (2011) 192 Cal.App.4th 336 illustrates this point: wife was faced with a situation very similar to In Re Marriage of Brooks & Robinson (2008) 169 Cal.App.4th 176. In Brooks, when wife had her name on the deed, wife was awarded 100% of the property, but in Fossum, when husband had his name on the deed, the property was community and was split 50/50. So what was different?
In Brooks, the husband was in pro per and went up against a third party with an attorney (he lost), but in Fossum wife had a good divorce attorney and the fight was between spouses (she got 50%). According to Fossum, the form of title presumption simply does not apply in cases in which it conflicts with the presumption that one spouse has exerted Undue Influence over the other. (Undue Influence in a divorce usually means taking an unfair advantage of your spouse because they trust you too much (SEE CC §1575)). The husband in Brooks had raised the community property presumption (FC §760), which lost out to the form of title presumption (EC §662). Apparently after reading Brooks, the husband in Fossum raised the form of title presumption, but it lost out to the presumption of Undue Influence (FC §721(b)).
There is another presumption, that statutes mean what they say (it’s called the “plain meaning rule”), and on a less confusing note, Fossum also held that Family Code §1101(g) requires the Court to make an award of attorney’s fees where it finds that fiduciary duties were breached. This is good news if your spouse has done something like the wife in Fossum did, run up credit card debts just before the separation and fail to disclose those debts.
A good divorce attorney will inform you about the rules and presumptions that apply to your case, and ask you if you think the other party may have done anything with the community money that might be unfair. If your spouse was putting unusual charges on the credit cards just before filing for divorce, has transferred money to an account in only their name, or has asked you to sign any deed(s) putting real property in their name only, then you should tell your divorce attorney about it. At the Law Offices of Thomas Chase Stutsman, A Professional Corporation, we strive to keep our clients fully informed regarding what the rules are.
The Law Offices of Thomas Chase Stutzman, A Professional Corporation specializes exclusively in divorce and related family law matters for clients in the South San Francisco, Bay Area, and California. Our attorney provides vast information about rules and presumptions in all aspects of divorce. Call our office for a free initial consultation.
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Tags: third party, game, marriage, ec, credit card debts, conflicts, scissors, presumptions, presumption, 192, unfair advantage, divorce attorney