Oyler & Woldman

In practicing Family Law for approximately 40 years, I have found it extremely helpful from the very first intake phone call to attempt to ascertain which of the parties is the 'Victim Spouse'.

First of all, my definition of a 'Victim Spouse' is that spouse that does NOT desire the separation. I find that there are some Family Law Matters where both spouses equally desire termination; however, this is the exception rather than the rule.

The importance of identifying the victim spouse cannot be over-emphasized by reason of the fact that the spouse who desires the separation generally will inquire of the attorney or his secretary how much are the fees; how quickly can the matter be resolved; and what are the probable results. The victim spouse, on the other hand, simply wants to whine, complain, and do everything possible to interfere and sabotage any rational attempt to bring the matter to a constructive resolution.

By way of example, he or she will do everything possible to prevent the sale of the family residence (irrespective of how necessary financially that may be) because the residence is that spouse's psychiatric 'nest' and to sell the house is an objective manifestation of the fact that the marriage is over!

Often times, the victim spouse is not only emotionally out of control, but will frequently change counsel, strike out at the Courts, and ultimately sue his or her own attorney for alleged malpractice at worst, and at best, not pay the fees.

By reason of the foregoing, it is imperative to identify the victim spouse and ascertain whether or not your firm should even represent him or her. If you are persuaded to take the case (i.e. a substantial retainer is a good motivation) I would insist that that spouse immediately seek counseling from a mental health professional to separate him or her from the emotional divorce.

For a number of years Family Law experts have debated as to whether or not spousal support could be waived in pre-marital agreement and I was of the minority of attorneys who felt it could be.

The majority took the position that for public policy and statutory reasons it could not be waived. In connection with the latter contention the Uniform Pre-Marital Agreement Act permitted the, "modification and elimination of spousal support...." However, the California legislature in 1985 in adopting the act omitted the foregoing section and, therefore, the majority of the attorneys concluded that on the basis of statutory intent, the legislature indicated its view that a pre-marital agreement in California could not deal with the issue of spousal support.

On March 26, 1998 the Court of Appeal in Pendleton v. Fireman (98 Daily Journal D.A.R. 3087) concluded that under the facts before it, two wealthy individuals adequately represented by counsel could in fact waive spousal support and reversed the trial court which held such an agreement in all instances violates California Public Policy.

In so holding, the court reasoned "the public policy considerations of the 19th century have little, if anything, to do with the lives we live on the eve of the 21st century. A system of laws that has abandoned fault-based divorce and unequal control of community property in favor of a statutory scheme imposing mutual and androgynous support obligations should not per se prohibit pre-marital spousal support waivers or limitations."

The court also noted the absence of any binding Supreme Court authority, stating that "[t]he Supreme Court has not addressed the substance of this issue since before the California Act was adopted or at any time since the adoption of no-fault divorce." This, coupled with the legislative purpose behind the California Act of "allowing California case law to continue to prevail on the issue of spousal support in premarital agreements," gave the court "the green light to recognize the simple fact that premarital spousal support waivers and limitations no longer violate public policy."

With that authority, the court found that "[a] rule that does not per se prohibit all spousal waivers or limitations is consistent with other, related laws." For instance, the court notes the ability of "a prospective spouse to make premarital decisions controlling the disposition of the spouse's entire property upon death." In this regard "there is something perverse" about prohibiting premarital decisions controlling support obligations if the marriage ends in divorce.

Finally, the court noted the increasing popularity of premarital agreements and the increasing reasons therefore. "By careful premarital planning and a willingness to mix realism with romance, the bride and groom can protect their existing assets, assume responsibility for their existing debts, characterize after-acquired property, allocate income earned during the marriage, address income tax issues that will arise during marriage and in the event of dissolution or death, and cover general testamentary issues as well as those that may exist if there are children from prior marriages."

Because premarital agreements serve such vast purposes, the court rejected the notion that said agreements promote divorce. Rather "[a]s the law is starting to recognize, premarital agreements may in fact encourage rather than discourage marriage."

To answer the above question, I must indicate my response to a question often asked of me to wit: "What is a major cause of Divorce?" Children, money, sex, etc. This question is crucial inasmuch as half the marriages are ending in divorce and if anecdotal tales have any statistical value, the other half of so called 'intact marriages' are working very hard at keeping their marriages together.

At this point I'm reminded of a cartoon I saw in Time Magazine where a long line of men are standing in front of a pharmacy with a sign 'Viagra on Sale' and the adjacent business establishment was a movie theater showing Titanic with a long line of women waiting, with one customer saying to the other, "It is too bad they do not have pills for commitment."The principal problem causing divorce is the inability, or (in many cases) the unwillingness, of one or both parties to WORK AT THEIR RELATIONSHIP. Simply stated, many people can not and do not have the emotional capability to work to make a relationship work, period.

In assessing a prospective mate one should determine the length of time he or she has held his or her present job; the length of time he or she has lived at their present location; how he or she characterizes and/or describes his or her prior relationships (married or otherwise); his or her relationship with children, siblings, and particularly with the parent of the opposite sex, etc.

As you become skilled in subtlety delving into these sensitive areas (preferably after two martinis), you will be able to ascertain a lifestyle pattern which you may or may not wish to buy into by reason of the fact that in many cases people do not change - even with your charm, sexuality, patience and magnetism. Therapists often use the analogy, "Has he ever hung his pictures up on the walls of his apartment?"

Finally, I firmly believe that the most important aspect of a marital relationship is friendship. And, although it sounds somewhat unromantic, one must ask him or herself, is this individual truly my friend?

For many years a concept has developed in the family law arena where a parent has been ordered to pay support and is in arrears to some extent in connection therewith.

The Civil Code provides for what is commonly known as Debtors’ Exam where a Creditor can compel the Judgment Debtor (of any sort) to answer the questions concerning his or her assets, income etc.

In the family law context, however, the defaulting parent has often argued that he or she should NOT be required to respond to the questions and/or submit documents pursuant to a subpoena dues talcum that might incriminate him or her.

In the recent case of Marriage of Sachs (February 1, 2002) DJDAR 1311, the Court of Appeal was faced with this exact situation, in which the father was in arrears in connection with support. The Court stated, "We must balance the competing interests: Jeffrey's interest in avoiding self incrimination and Gail's interest in the disclosure of information that could enable her to collect the support that Jeffrey owes her and the children." The Court then engaged in and extensive and exhaustive discussion of the competing interest of the Fifth Amendment in protecting a debtor versus the right of children to be properly supported under the court in citing Cal. Fam. Code Sec 3552 ( the parties to a family law proceeding involving child and/or spousal support must submit tax returns) that Jeffrey must submit to a Debtors Exam at which time Jeffrey must submit his tax returns and Gail may question him regarding their contents- subject only to confidentiality - even if the income disclosed on those returns result from criminal activity.

Simply stated, this decision clarifies the law in the family law arena where the debtor must answer fully all questions concerning his tax returns, and the tax returns themselves must be produced!

It will be interesting to know whether or not the Supreme Court grants a review.

P.S.: We represented wife #3