William Huestis is the founder of W Legal PC. He is a practicing attorney in the areas of bankruptcy and estate planning. He is a frequest speaker and author.
DLA Piper will employ artificial intelligence (“AI”) developed by Kira Systems to assist in document review in mergers and acquisitions. DLA Piper hopes that the technology will make due diligence faster and more efficient.
DLA Piper is not the only law firm that has employed this type of technology as Baker & Hostetler and Latham & Watkins have also begun using AI to assist in their practice.
The California Supreme Court Clarifies What Living Separate and Apart Means under California Family Code Section 771
Written by Justin Snell, Esq.
In Re Marriage of Davis
The Davis case is extremely important when determining the date of separation of the parties. The date of separation has a substantial impact on a case because property acquired after the date of separation is presumed to be the sole and separate property of the party who acquired it. Prior to Davis, the Courts would generally engage in a separate trial (bifurcated trial) to determine the date of separation based on all facts and circumstances. The key issue in Davis was whether the parties were living separate and apart while living in the same residence. The Court in Davis found that the parties were not living separate and apart despite the fact that they were managing the finances separately. The Court stated that the parties were not living separate and apart under Family Code § 771 because they lived in the same residence, despite the fact that their conduct otherwise demonstrated their intent to end the marital relationship. Living separate and apart is an indispensable threshold requirement in order for the court to affix a date of separation.
The Court did not foreclose the possibility that a couple could live separate and apart while sharing the same residence. However, the Court stated in a footnote,
“Under the facts presented by this case, we have no occasion to consider, and expressly reserve the question, whether there could be circumstances that would support a finding that the spouses were “living separate and apart,” i.e., that they had established separate residences with the requisite objectively evidenced intent, even though they continued to literally share one roof.”
Some critics of this case note that it seems the Court was hinting that if a residence was big enough or perhaps contained a separate guest residence that the Court seemed willing to consider that situation living separate and apart. Thus, it would seem that the test could discriminate economically against those whose residences were typical single family dwellings.
The Court created a bright-line test which may be beneficial in the future. However, the decision certainly changed whether a party’s conception of living separate and apart would be given that same weight and effect in Court. The effects of this case and possible legislative action (perhaps showing legislative disapproval of the Davis ruling) are yet to be fully realized.
IRMO Davis, 61 Cal. 4th 846
Determination of Spousal Support
Written by Justin Snell, Esq.
Spousal/Partner Support, sometimes referred to alimony is when a court orders one spouse or partner to pay a certain amount of money to the other spouse or partner each month. In order for the court to order spousal support, the parties must have separated (For a discussion on date of separation see the article on IRMO Davis).
“Temporary” vs. “Permanent” Support
In order for the Court to award spousal support, a party must file a Request for Order (FL-300) with the court. The Request for Order must state what the party is requesting (ie. Spousal support, child support, attorney’s fees, child custody, child visitation, etc.). In the early stages of the proceedings, a party can request temporary spousal support, meaning support for the duration of the case. Temporary support is different than permanent support which is ordered once a divorce becomes final either through a judgment or marital settlement agreement.
Temporary support is calculated by the court using a computer program. In Orange County, the court uses a program called Dissomaster. Dissomaster determines guideline spousal and child support. The report generated by Dissomaster is used to determine the amount of temporary spousal support.
Permanent support is determined by the application of Family Code § 4320. FC §4320 lists multiple factors that a judge may consider when determining permanent spousal support:
• The duration of the marriage or domestic partnership;
• Determination of the marital standard of living and what each spouse/partner needs to maintain that standard of living;
• What each person pays or can pay (including earnings and earning capacity) to keep the standard of living they had during the marriage or domestic partnership;
• Whether having a job would make it too hard to take care of the children;
• The age and health of both people;
• Community debts, community property, separate property and separate debts;
• Whether one spouse or domestic partner helped the other get an education, training, career, or professional license;
• Whether there was domestic violence in the marriage or domestic partnership;
• Whether one spouse’s, or domestic partner’s, career was affected by unemployment or by taking care of the children or home; and
• The tax impact of spousal support
No one factor is determinative. The process of determining the martial standard of living is a complex and fact intensive process.
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