Articles in "Defense of Marriage Act DOMA"

Only Half of Marriages End In Death, What’s Your Plan If Yours Isn’t One of Them?

by Matthew Bromund

Principal Attorney
July 29th, 2014

Only Half of Marriages End In Death51% of all marriages end in the death of one or both spouses.  The remaining 49% end in divorce.  Married couples buy life insurance, draft wills and engage in estate planning to help prepare each other for the 51% likelihood that death will end their marriage.  No one thinks this is ‘unromantic’ or ‘pessimistic’.  Instead, people see it as an important part of being prudent and caring for each other.

What then makes preparing for the other possibility, divorce, so wrong?

In my opinion, preparing for the other possible outcome is rejected irrationally by most couples based upon the social expectation of a traditional Christian marriage.  I do not contend that this is based upon most couples actually being traditionally Christian in their religious views (we live in a VERY diverse society) nor do I contend that most couples actually intend to engage in what is now called a ‘covenant marriage‘; rather I believe our attitudes about marriage are so shaped by movies, magazines and hyper-romanticization that we don’t truly focus on the realities of our relationships until long after the wedding vows are made.

This tends to make marriages more difficult and divorces more expensive.  A pre-nuptial agreement can help make a marriage easier to manage and less painful to end.

First, how can it make a marriage easier to manage?  Understand that in California, all you are obligating yourself to when you marry someone is to give them mutual respect, fidelity and support.   Actual marriage tends to revolve around agreements on work, residence, sex, children, lifestyle and values.  California’s law has moved from offering a one-size-fits-all set of obligations based on strict Christian religious obligations to a one-size-fits-all set of amorphous and unenforceable obligations.  The practice of ‘mutual respect, fidelity and support’ has no touchstones of performance, no specific proof of acceptability and is absolutely unenforceable.  That’s ok, since ending the marriage merely requires the expression of another amorphous idea, ‘irreconcilable differences’.  These two sets of legal nonsense boil down to one reality:  marriage is the state of consenting to be identified as married and that state ends when either party no longer wishes to so consent.

Most likely, no couple ever existing has had that as the only obligation intended when they marry.  Instead, most every couple has a long list of obligations they intend to see performed through the marriage.  The most common of those relate to working, child-rearing, communication, and resource-pooling.  Oftentimes couples share a set of values and religious practices and they would like to see those values and practices reflected in their marriage.  California law takes no part in making those a part of your marriage.  Through a prenuptial agreement though, you can make it a part of your marriage.

(Sidenote:  I am not contending that California will ENFORCE those agreements or penalize a spouse who doesn’t perform.  It won’t.  Instead, I am contending that if you discuss it with your spouse before you marry, write it down and promise each other that you will live according to those commitments, your odds of having those commitments honored during your marriage improve substantially.) 

California Law permits a prenuptial agreement to cover the following topics:

CA FAM Code Sec. 1612.  (a) Parties to a premarital agreement may contract with respect to all of the following:

  1. The rights and obligations of each of the parties in any of the property of either or both of them whenever and wherever acquired or located.
  2. The right to buy, sell, use, transfer, exchange, abandon, lease, consume, expend, assign, create a security interest in, mortgage, encumber, dispose of, or otherwise manage and control property.
  3. The disposition of property upon separation, marital dissolution, death, or the occurrence or nonoccurrence of any other event.
  4. The making of a will, trust, or other arrangement to carry out the provisions of the agreement.
  5. The ownership rights in and disposition of the death benefit from a life insurance policy.
  6. The choice of law governing the construction of the agreement.
  7. Any other matter, including their personal rights and obligations, not in violation of public policy or a statute imposing a criminal penalty.

You will notice that the only topic invoked by divorce is the ‘disposition of property upon marital dissolution’.  Otherwise, the provisions of a prenuptial agreement are focused on providing a couple a framework for their marriage DURING the marriage.

Besides providing yourself a clearer understanding with your spouse on what your marriage means, why would you want to do a prenuptial agreement?  Quite simply, because it will work to inhibit the growth of irreconcilable differences.  After fifty years of ‘no fault’ divorce, the facts are clear about what causes divorce today.

Top Two Causes of Divorce in the First Five Years of Marriage: 

1. Lack of Understanding at the Outset about Expectations and Resources.

2. Disagreement over Finances or Stress Due to Financial Misunderstanding.

 

 Doing a prenuptial agreement eliminates the #1 cause of divorce in the first five years of marriage by  insuring the couple has a shared understanding of what their marriage will be about.  It also acts as a pretty good cure for the #2 cause since the couple will discuss, in detail, their finances and financial values in preparing a prenuptial agreement.  In my fifteen years of doing divorce work, I have seen these two causes provide the overwhelming majority of reasons for divorce in the first five years of marriage.  (Not adultery, domestic violence or addiction; those three cause substantial marital stress but tend not to result in a dissolution, at least not initially.)  For marriages that end after the first five years, we realize the more commonly understood benefit of a prenuptial agreement:  reduced legal costs and conflict.

When you have a dissolution proceeding, California WILL act to see the terms of a prenuptial agreement enforced if the agreement is fundamentally fair and provides guidance as to how the parties wanted to have their marital estate divided when they married.  This is the conventional wisdom on prenuptial agreements and it is pretty accurate.  Most of the cases I have seen involving a dissolution with a prenuptial agreement cost 80% less than an equivalent dissolution and are resolved within the mandatory six-month pendency period 98% of the time (versus about 65% of the time in non-pre-nuptial agreement dissolutions of marriages lasting more than five years).

Finally, I want to offer some guidance as to how to make a prenuptial agreement work for you in your marriage and, if you are one of the unlucky 49% whose marriage doesn’t end in death, after.

The Big Three For a Prenuptial Agreement that Works:

  1. Fundamental Fairness—No unconscionable terms, at least a seven day waiting period between the date the agreement was offered and the date it was signed, full disclosure of all the terms and their impact and the opportunity to have independent counsel for each party.
  2. Complete Identification of What Is and Is Not Separate Property both Now and Later.
  3. Limit, don’t eliminate, the obligation to pay spousal support; the California courts look much more favorably on limitations rather than waivers.

 

Let the Prenuptial Agreement show that you agree what is fair while you both love each other and see this process as a way of taking care of each other. The Bromund Law Group is happy to offer free prenuptial consultations and will prepare a prenuptial agreement for a flat fee of $250. 

As always, this blog post does not constitute specific legal advice for any case and it does not form an attorney-client relationship between the Bromund Law Group, its attorneys or associates, and any person.  Please contact us at 805.650.1100 for your free consultation (in either English or Spanish) and we will see if we can help you.  We are always happy to receive your referrals or comments.

In California, You Now Have a Spouse, Not a Husband or a Wife

by Matthew Bromund

Principal Attorney
July 26th, 2014

Marriage Equality

After years of litigation and voting, California’s three branches of government have united to rule that the California Constitution is wrong.  By signing SB 1306, Governor Jerry Brown ratified the actions of the State Assembly to enact the ruling of the California Supreme Court:  Marriage is now between two single people who consent to be married.  The Family Code will no longer reference “husbands” and “wives” but rather spouses.

This is a historic step that opens the door for couples of every sexual combination to be legally married.  Since the US Supreme Court’s ruling in June 2013 declaring that the trial verdict against the constitutional amendment stating that marriage was between one woman and one man could not remain a part of California’s constitution would stand, California has effectively been a state permitting same-sex marriage.  Today, however, the California Family Code formally recognizes that fact.  In bringing into alignment all three branches of government, this new law makes clear that two people can marry regardless of their sex.

It will be interesting to see if the availability of same-sex marriage produces a decline in civil unions (the mechanism created to permit same-sex couples the same benefits as a marriage without using the title ‘marriage’).  It will also be interesting to see if the predictions of Proposition 8′s supporters comes true and other groups, currently denied the state of marriage, petition to have their relationships recognized as marriages as well.

For now, it is a remarkable moment in history, when the Christian conception of marriage (one man/one woman/for life) is formally and finally divorced from the law in California.  I predict religious organizations of all types to now promote their definition of marriage as being one binding on the faithful while the law continues to move towards a more pragmatic recognition of family, however constituted, as being valid so long as it is based upon the consent of the adults involved.  In that way, I suspect the First Amendment’s guarantee of the free exercise of religion for all citizens to be more forcefully asserted by those whose own marriage traditions have long been treated as illegitimate in a Christian-dominated legislative arena.

As family law attorneys, what does this mean?

First and foremost, it means advising clients to do ever more work to insure that their expectations in a marriage are reflected in a prenuptial agreement.  Since California’s Family Code now has only three obligations provided for, by law, in the marriage:  mutual respect, fidelity and support (CA FAM Code Sec. 720) and a marriage can be dissolved on the basis of irreconcilable differences, a couple desiring any other vows or requirements should do so in a prenuptial agreement.  Many spiritual practices and religions have additional obligations, obligations that can only be legally enforced if the parties participate in a prenuptial agreement.

Second, it means that conventional dissolutions will soon be occurring for same sex couples.  In the past, these relationships have been spared the usual process of dissolution with all its standardized forms and formal processes, because the civil union body of law was not as cumbersome as the dissolution body of law.  I personally hope that more couples plan ahead and are prepared for the possibility of a dissolution when they first contract a marriage but that hope remains as intense for same sex couples as it is for opposite sex couples.

Third and finally, it means that we can all celebrate the resolution of a long-standing dispute in our society.  While the courts have been given the power, through practice, of telling us what our laws are and should be, there is something important for our democratic republic in seeing that the law is generated by our legislatures and enacted by the consent of our executives.  As long as the elected branches of government are not engaged in the process of drafting the laws and leaving it only to the courts to address, we lose an important part of our sovereignty.  Whether a specific citizen of California hails or hates this new provision of law, we can all now say that this IS the law, enacted by our government.

As always, if you or someone you love has need of assistance and guidance in family law matters in California, the Bromund Law Group is here to help.  We offer no cost consultations and provide comprehensive family law services in English and Spanish.  This blog is not intended to provide specific guidance in your case and is rather offered for general educational purposes.  Please do not rely on this blog for your case nor should you consider this entry to constitute the formation of an attorney-client relationship with the Bromund Law Group.  If you have questions, please call us at 805.650.1100. 

The Limits of Courts to shape the Constitution: DOMA

by Adriana

July 15th, 2013

Welcome to the Bromund Law Group’s law blog. Here we will be sharing the thoughts and analysis of Bromund Law Group attorneys on legal issues of the day and significant concepts relating to the law in the United States. We have four lawyers in this firm now and each one of us has our own unique perspective on the law. In a Republic, that is entirely to be expected, and I hope the reading public will join in on this discussion to make our blog a forum for active citizenship. While we are all advocates for our clients first and foremost, we are also active citizens committed to making ours a ‘more perfect union’.

The first topic for discussion is the Defense of Marriage Act and the recent Supreme Court decision declaring that Congress lacked the constitutional authority to pass this law. The Supreme Court’s action, as noted by Justice Scalia in his dissent, moves the power of judicial review into the arena of cases where there is no controversy between the parties to the lawsuit. (In the DOMA case before the Supreme Court, both parties to the lawsuit agreed that DOMA was unconstitutional.) This is dangerous as it makes the Supreme Court into a ‘super-legislature’ able to declare laws unconstitutional even if there is no controversy between litigants.

Why does this matter? We don’t elect the justices to the Supreme Court and we do not have any means of limiting their power to govern us if their authority sweeps out to embrace any question of constitutional significance. For this reason, the Constitution explicitly limits the federal judicial power to adjudicating cases and controversies, not reviewing all laws and regulations. If this extension becomes accepted, we lose the ability to govern ourselves and instead hand over our sovereignty to the bare majority of judges appointed for lifetime terms.

Please note that this opinion does not address the subject matter of DOMA. I am no homophobe, nor do I have hate in my heart for anyone’s consensual expression of love between adults, so please do not jump to that conclusion. My view is that of a lawyer, focusing on how the means of resolving important questions affects our ability to be self-governing. In that sense, the Supreme Court did violence to the Constitution in this decision, and thereby harmed our republic’s ability to be ‘of the people, by the people, and for the people.

Here’s an excerpt from his dissent: In the majority’s telling, this story is black-and-white: Hate your neighbor or come along with us. The truth is more complicated. It is hard to admit that one’s political opponents are not monsters, especially in a struggle like this one, and the challenge in the end proves more than today’s Court can handle. Too bad. A reminder that disagreement over something so fundamental as marriage can still be politically legitimate would have been a fit task for what in earlier times was called the judicial temperament. We might have covered ourselves with honor today, by promising all sides of this debate that it was theirs to settle and that we would respect their resolution. We might have let the People decide. But that the majority will not do. Some will rejoice in today’s decision, and some will despair at it; that is the nature of a controversy that matters so much to so many. But the Court has cheated both sides, robbing the winners of an honest victory, and the losers of the peace that comes from a fair defeat. We owed both of them better. I dissent.

For me, I entirely agree with Abraham Lincoln, who (in reference to the horribly evil Dred Scott decision) said, “I do not forget the position assumed by some that constitutional questions are to be decided by the Supreme Court, nor do I deny that such decisions must be binding in any case upon the parties to a suit as to the object of that suit, while they are also entitled to very high respect and consideration in all parallel cases by other departments of the government. And while it is obviously possible that such decision may be erroneous in any given case, still the evil effect following it, being limited to that particular case, with the chance that it may be overruled and never become a precedent for other cases, can better be borne than could the evils of a different practice. At the same time, the candid citizen must confess that if the policy of the government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court, the instant they are made in ordinary litigation between parties in personal actions, the people will have ceased to be their own rulers, having to that extent practically resigned their government into the hands of that eminent tribunal.”

And, in case you were curious, I think that the word ‘marriage’ ought to be one that has a social meaning only. I believe that the legal status conveying benefits of inheritance, tax status, and community estates, ought to be ‘legal union’ or ‘domestic corporation’ and that such a term ought to be open to any combination of consenting adults. In the 21st century, I don’t think we have a society of such moral homogeneity that it is appropriate to impose upon all citizens the views of the modern Christian faith (one man/one woman, unified for life until one or the other of them decised to terminate the relationship at their discretion and with the payment of fees to a state court).

Since ‘traditional marriage’, as opponents of same-sex unions promote, is, in fact, the law nowhere in the United States. Traditional marriage is one man-one woman-till-death-do-you-part. Such a standard is the law nowhere.

In a nation with my views, ‘marriage’ would become a term like ‘dating’, ‘in a relationship’, ‘friendship’, or (for some) ‘brother’ or ‘sister’ insofar as it is up to the people using the term to assert its application to their relationship confidently and NOONE has the right to naysay them defining their relationship for them. The nations would only have a right to give benefits, or not, for relationships that the parties elect to submit to the requirements of the state, namely that of licensure and a mandated process for dissolution. I think such a change would be a LOT healthier for our republic.

But we won’t be going that way, even if it happened that the majority of people happened to decide my ideas of how to found the legal instutions conveying benefits for social relationships were adopted. Instead, as a result of our continued shrinking sphere of legislative responsibility for Congress and the states, we will need to await the Supreme Court’s decision to enact this policy change (or any other) according to their sense of what the Constitution means at that time, to them. That doesn’t strike me as self-government.

My worry is that every time the Supreme Court moves the society forward (Brown v. Board, Roe v. Wade, DOMA, etc.) it makes our political branches less responsible for progress and our Republic less self-governing. Congress used to be the forum for our civil liberties expansion (Alien and Sedition Act debate 1797-1801, Civil Rights Act of 1864, the abolition of slavery, the extension of the franchise to women, Prohibition and its Repeal) but as the Court has extended its reach since the 1930s, Congress has become ever-pettier and our civics ever-more impoverished. Lawyers alone cannot govern a nation.

When we try to, we occassionally get it horrifically wrong. Don’t think so? Let me refer you to a few of the Supreme Court’s Greatest Failures:

Plessy v. Ferguson (1857) (Plessy v. Ferguson discussion by PBS) wherein the Supreme Court declared that, “Negroes have no rights, which the white man is bound to respect.” It didn’t cause the Civil War but it did make certain that, even after 600,000 people died to free a race of people from the bonds of slavery, the law would continue the evil lie that ‘all men are created equal’ didn’t include people whose physiognomy included enough melanin to make them appear darker than a person whose forebears came from the North of the North African coast of the Mediterranean Sea. (I have serious biological basis for what people socially identify as a race, so if my phrasing is awkward its because I don’t happen to believe the terms ‘White’, ‘Black’, ‘African American’, etc. are of any useful descriptive quality.)

Muller v. Oregon (1908) wherein the Supreme Court decided it would authorize the government to regulate the working hours of women on the basis of racial welfare. “The physical wellbeing of women becomes an object of public interest and care in order to preserve the strength of the race.”

Kelo v. New London (2005) wherein the Supreme Court decided that the authority of the government to seize private property for public use, paying the owner the current market value of the property, could be employed when the ‘public use’ consisted of selling the land to a private entity for commercial development that would generate more tax revenue for the state. This extension of the ‘takings’ power of the government makes the power so great as to render private property rights irrelevant in the face of a wealthy party who extends a bribe to the public purse to consume someone else’s land. Before this, a private entity had to engage in a voluntary exchange with another private entity to acquire title to land, thereby leaving each of us secure on our own land unless some public need (road, aqueduct, etc.) was apparent. Now, your rights are only secure until someone bribes the government to condemn your land and transfer it to their use.

Lone Wolf v. Hitchcock (1903) wherein the Supreme Court decided the “plenary power” of the United States Congress gave it authority to unilaterally abrogate treaty obligations between the United States and Native American tribes. The decision marked a departure from the holdings of Cherokee Nation v. Georgia, 30 U.S. 1 (1831), and Worcester v. Georgia, 31 U.S. 515 (1832). Given how completely horrible our nation’s history is at fulfilling the treaties even before abrogation, it is shocking to see the Supreme Court go the ‘extra mile’ to make a ‘dependent domestic nation’ into a legal non-entity for no apparent reason.

The Supreme Court writes well, most of the time. It provides a final resolution for lawsuits. These two attributes are useful for our Republic and deserve to be honored and respected.

But it is no fortress of righteousness or bastion for the protection of liberty or self-government. Its actions over the last century have consistently reduced the scope and responsibility of our representative branches of government; and we should arrest that development if we hope to retain our rights under the Constitution our forebears drafted and ratified.