Whose Fault is it? One of the most common topics for discussion is why you and your soon to be ex are splitting. Like the irresistible urge you felt long ago to worry a loose tooth when losing your baby teeth, the urge to explain that it is your ex, and not you, who really caused the divorce, is common. That is just normal human nature at work. A good divorce attorney will remind you that the California Courts, with certain exceptions, do not want to hear whose fault the divorce was. In fact, California Family Code §2335 makes most specific acts of misconduct improper and inadmissible. If this statute were the entire story, then there would not be much to say about fault, which was undoubtedly the intent of the California Legislature when it drafted that statute. Alas, the nirvana of silencing all the chatter about whose fault it is can never be fully achieved. The California Legislature also drafted various disclosure requirements (Family Code §2100 et. seq.), and fiduciary duties (Family Code §721, §1100, §1101). The unavoidable conflict between the no fault theme and disclosure obligations just is not likely to be resolved any time soon. In IRMO: Brewer & Fredereci (2001) 93 Cal.App.4th 1334 the Appeals Court explained that a failure to fully disclose could be a basis for a set aside of a Judgment. In IRMO: Feldman (2007) 152 Cal.App.4 th 1470 incomplete disclosures resulted in a financial sanction. In IRMO: Tharp (2010) 188 Cal.App.4 th 1295 a Trial Court’s failure to exercise its discretion and order legal fees as a sanction when there were abuses of discovery and one party simply lied about having a premarital agreement (there was no signed agreement) resulted in the case being reassigned to another judge to consider the fees question. The Appellate cases requiring full financial disclosure and sanctioning financial fault just keep coming. So what’s the point? California Family Law is internally conflicted regarding the question of fault. Financial fault, where your soon to be ex takes financial advantage of you is relevant to point out to the Courts. You could even get your soon to be ex sanctioned, if you can prove the bad financial conduct. Personal fault, where the source of your pain did something that hurt you emotionally and to the core are probably still off limits. The Court will probably tell you that your heartache is just not relevant. The distinction between the two forms of fault could be a fine line. If your soon to be ex went to a gentleman’s club, the money spent on a lap dance could be a breach of fiduciary duty while the emotional pain associated with finding out could be wholly irrelevant. The Court could hear you about the specific number of dollars spent on the bad conduct, but not about your feelings of betrayal – despite the undeniable fact that the emotional harm might be huge compared to the small financial harm. The money spent on beer at the club might not even be relevant. The words “could” and “might” are used on purpose – there is not complete clarity regarding how the Courts treat these issues. Nevertheless, a good divorce attorney will work with you to figure out which parts of your story and which aspects of fault are worth telling to the Court. At the Law Office of Thomas Chase Stutzman, A Professional Corporation, knowing which parts of your story the Court will consider relevant and when to point out that the other party is at fault is what we do. If you are looking for a divorce attorney in San Jose or the South San Francisco Bay Area, call our office for a free initial consultation.
The law Office of Thomas Chase Stutsman, a best divorce attorney, family court, financial fault in San Jose or the South San Francisco Bay Area, call our office for a free initial consultation or visit our website.
Published on Mar 24, 2011
In IRMO: Feldman (2007) 152 Cal.App.4th 1470 incomplete disclosures resulted in a financial sanction. The Appellate cases requiring full fin...