Wednesday, November 14 , 2018, 10:48 am | Fair 70º


Brian Burke: About Your Divorce (Letter 53) — Both Lawyers Are Confident of Victory

Dear Spike and Pinky:

This is going to be the end of Ralph. I’ve gotten to the part about how good lawyering can happen to a good person and still work out badly.

Recall the only legal issue in the marriage of Ralph and Rebecca Robinson is Rebecca’s claim that Ralph should reimburse her for half of all the child and spousal support he paid, as required by the court, to his first wife Irene.

My sense is that there is something basically flawed with the argument Eunice Heep makes on Rebecca’s behalf. When they married, Ralph was earning $15,000 a month; he paid $3,000 for support, so he still earned $12,000 to Rebecca’s $2,000. They both tossed every dollar into their collective pot — for every dollar of hers there were six of his — and now she wants more?

What I’ve just written is more of a feeling than a legal argument. Here’s how Ms. Heep puts it:

» Earned income during marriage is community property. It’s been California law since 1852.

» Each spouse has the right to an undivided one-half interest in all community property.

» One spouse can’t spend community property on something that doesn’t benefit the community.

» Rebecca knew Ralph had to pay support to Irene before they married, but she never consented to it. The only thing she got from Ralph’s support payments to Irene was aggravation. Ralph concedes that Rebecca reminded him repeatedly, “Ralph, the money you send to that woman Irene is more than I earn!”

» Since she didn’t benefit from the payments and now is the time of divorce, Rebecca should get back her “undivided one-half interest” in the support paid to Irene during marriage. The total support paid was $150,000. Rebecca’s half is $75,000; pay up.

It’s a clean argument, and it’s somewhat vulnerable. When Rebecca married Ralph knowing about the support, was there implied consent to those payments? Or, maybe the payment to Irene was of benefit to Rebecca, since it kept Ralph out of jail for non-payment of support.

Ms. Heep has more. Remember it was she who told Ralph to beware of Marriage of Williams, and then Ralph’s new lawyers told him it wasn’t a problem. In very simplified terms, this is what happened in the divorce of Gail and George Williams:

When Gail and George married, George owed his first wife, Loretta, some unpaid support. When Gail and George divorced they sold their house. The amount due to them from escrow was $40,250. It was all community property, so each should get half — $20,125.

Before distribution was made, the District Attorney’s Office appeared and seized $19,250, which was the amount George owed Loretta when he married Gail, plus interest. That left $21,000 of community property to divide. The trial judge knew how to divide by two: George got $10,500 and Gail got $10,500.

When Gail said, “Hey, that support payment didn’t benefit me,” the judge replied, “Hey yourself, the law says premarital debts get paid from community property; then it says community property is divided 50-50 at divorce. Don’t complain to me, complain to the Legislature.”

Unhappy, Gail took an appeal. An appeal is not decided by a single judge. It’s decided by three justices and a research attorney. So that remaining $21,000 was divided by four people trained to think like lawyers, and they decided that Gail got $20,125 and George got $875.

Here’s how they did it:

» Yes, community property gets divided by two. Half of what remains in escrow is $10,500, so that’s what they each get.

» But, and this is why we are on a higher court, Gail gets reimbursed for her half of the community property “used” by George to pay what he owed to Loretta. So, from George’s $10,500, Gail gets $9,625, leaving him with $875 and her with $20,125.

» Funny thing, $20,125 is half of what was in the account in the first place.

Without going into the details of the Williams opinion (I rounded off the numbers), Ms. Heep says, correctly, “Marriage of Williams is a statement of the law of California and no matter how you cut it, the fact is that when a husband’s premarital support obligation was paid with community property, wife was entitled to reimbursement for half that amount at the time of divorce.”

When the contention was put this clearly, Ashley and Jennifer admitted to each other that there might be a problem with Ralph’s case. They already told him that Marriage of Williams wasn’t a problem, so now it’s become their problem, too.

In a situation like this, lawyers do something they prefer not to do. They read statutes, which are the bills the legislature has turned into law. There are people whose job it is to write the bills that become statutes, and they make them obscure because (1) they are taking ESL classes and write bills as a way to practice English composition, or (2) they are aspiring novelists and use the writing of David Foster Wallace as their model, or (3) they are written so they say many different things to many different people, which is the only way one can get enough votes to become law.

Jennifer and Ashley did their statutory research and reported what they found to Ralph — after they accurately described Ms. Heep’s contention and the authority she relied on.

Ralph groaned, “That’s it. The guy paid support he owed before the marriage with community property and then he had to reimburse the second wife for half that amount. I’ve had it. Why didn’t you just say so at the start? I know, because you wanted my retainer. I don’t know who’s the worst, my greedy soon-to-be-ex-wife, her obnoxious lawyer, or you two. How can you live with yourselves?”

Jennifer was calmer than Ashley so she explained the statutory law that answered the same question raised in Marriage of Williams, “Ralph, here’s a copy of the statute from the Family Code. Translated, it says:


(1) You owe support payments.


(2) You have separate property income at the time those payments are made.


(3) You make the payments from your community income.


(4) You have to reimburse your spouse for his/her half interest in the community property used for support payments (instead of separate property income).”

Ralph was puzzled. “What does that mean to me?”

Ashley asked rhetorically, “Have you had any separate property income during this marriage that you didn’t tell us about?”

Ralph answered with a question, “You mean money from a trust or a business I owned before I married Rebecca?”

Ashley and Jennifer said in unison, “Yes, Ralph.”

Ralph replied, “No.”

Jennifer continued, “If you had no separate property income you could have used to pay the support as the payments came due, there is no right to reimbursement. Period.”

Ralph asked, “So what about Williams? George Williams paid the support he owed to Loretta at the time of marriage, plus interest, out of community property. Then he had to reimburse Gail for half. It’s my case, so why does the statute prevail? Did it exist when the Williams case was decided or is it new?”

Jennifer said, “When the Williams case was decided there was no statute with this number.”

Ashley confessed, “But there was another statute that said the same thing.”

“So,” Ralph said, “the statute existed but the court in the Williams case said that it didn’t count, so why should it count in my case?”

It was Jennifer’s turn to explain, “You’re not exactly wrong Ralph. The Williams court knew about the statute and then double-talked itself around it because they didn’t want George to get the benefit of about seventy-five percent of a community estate that’s really supposed to be divided fifty-fifty. That’s why we’ve said from the beginning that Williams isn’t a problem for you. The statute is very specific about what’s required before the court can order reimbursement — separate property income — and you didn’t have any.”

Ralph said, “I guess I’m too dumb to have gone to law school. I still don’t see how the rule can work one way against George in the Williams case and a different way in my case. I’m afraid I think Ms. Heep has the better argument.”

Ashley said, “No, Ralph. Marriage of Williams is an anomaly. It’s an instance where a court came to the right result by running roughshod over a statute. It happens all the time. In your case the court will ‘distinguish Williams on its facts.’ It’s what they do when they follow the clear language of a statute and ignore a case to the contrary.”

Ralph asked, “Are you sure that’s what our judge will say?”

Jennifer replied, “We are very confident.”

Ralph continued, “Very confident. What’s that supposed to mean? Can you guarantee the judge will do what you predict?”

Ashley said, “We can’t guarantee anything that may or may not happen in a courtroom.”

Ralph wasn’t going to let it go, “Can you say with 95 percent confidence that our judge will do what you think she will?”

Jennifer was quick to agree before Ashley could say a word, “Ninety-five percent confident — yes, we can say that.”

On a normal day, Ralph would have appreciated the significance of what Jennifer said as soon as she said it. But he was exhausted, angry, frightened, and confused, so it wasn’t until he got home that he said to himself, “I know what’s meant by a 95 percent confidence interval when a scientist says it, and it will be determined by empirical data. But when my lawyer says it to me, it means nothing more than she really feels like she’ll win. If she doesn’t, oh well, it was that nasty 5 percent!”

By the time Rebecca and Ralph got to court, the lawyers had told both clients, several times each, words to the effect that: “I’m confident you will prevail on this point; it’s the law.”

When this happens, what would cause a lawyer to encourage a compromise? A lawyer might be willing to recommend compromise to avoid the expense of trial — let’s assume here that cost is 10 percent of the claim. How could the lawyer recommend, explain, or justify a compromise of any more than that amount? If the lawyers for each side have done a good job in finding and applying the law and each concludes that the law strongly favors her client, what is the likely outcome of this good lawyering?

Your friend,

— Brian H. Burke is a certified family law specialist practicing family law and mediation in Santa Barbara. A researcher and educator in the field of divorce and family conflicts, he is also the creator of the Legal Road Map™. Click here for more information, call 805.965.2888 or e-mail .(JavaScript must be enabled to view this email address). Click here to read previous columns. The opinions expressed are his own.

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