Depublication Request - In re Marriage of Cooper, July 26, 2016
On behalf of the Association of Certified Family Law Specialists (ACFLS), Attorney Frank wrote a letter to Supreme Court of the State the California requesting that the Supreme Court depublish the opinion of the Court of Appeal, Third Appellate District, in In re Marriage of Cooper. The Supreme Court granted the depublication request on August 10, 2016. Attorney Frank's letter, is available here: In re Marriage of Cooper.
The opinion deviated materially from long-established precedent and would have created great
confusion and uncertainty. In this case, the court held that the wife's separate property funds deposited into
joint investment accounts were community property. The court ignored previous cases and case law that requires a
writing to transmute property (Family Code section 852) and Probate Code section 5305 that allows one to rebut the
community presumption by tracing funds deposited into an account to a separate source.
Cooper failed to acknowledge the express-declaration requirement of Family Code section 852 for transmutations of a spouse's property and the decades of case law strictly adhering to it. The Court of Appeal held that, under the joint-title presumption of Family Code section 2581, a spouse "convert[s]" his separate funds to community property merely by placing them into a joint account with the other spouse during marriage, absent certain forms of written rebuttal evidence. (In re Marriage of Cooper (May 5, 2016, C073014) [nonpub. opn.].) In reaching that holding, Cooper never broached the concept of transmutation or acknowledged two cases from last year expressly holding that a spouse urging transmutation must satisfy section 852 before the presumption of section 2581 applies: In re Marriage of Lafkas II (2015) 237 Cal.App.4th 921, at p. 926, and In re Marriage of Bonvino (2015) 241 Cal.App.4th 1411, at p. 1431.
Separately, Cooper neglected to consider in In re Marriage of Brandes, which held that the joint-title presumption of section 2581 bows to Probate Code section 5305, a more-specific statute that allows one to rebut the community presumption by tracing funds deposited into an account to a separate source. (In re Marriage of Brandes (2015) 239 Cal.App.4th 1461, 1483-1484.)
Cooper's publication thus introduced confusion into a settled area of law.
Publication Request - Anne H. v. Michael B., July 5, 2016
As a member of the Amicus Committee of the Association of Certified Family Law Specialists (ACFLS), Attorney Frank wrote a letter to the First Appellate District of the California Court of Appeal requesting publication of the court's decision in Anne H. v. Michael B. Not all appellate court cases are published, and unless they are published, the case cannot be cited in briefs filed with the court. Attorney Frank's letter ( Anne H. v. Michael B.) was filed with the Appellate Court, which agreed to publish the decision in part.
The Appellate Court's decision to publish, in part, Anne H. v. Michael B., will be helpful to family law practitioners. The court concluded that a statement in the custody order specifying changed circumstances which would require a reconsideration of custody arrangements is not binding on subsequent judges.
"The Dramatic Effect of Davis on 'Living Separate and Apart': How to Guide Clients Until Legislative Changes are Made," Family Law Specialist, Journal of the California Association of Certified Family Law Specialists, Fall 2015, No. 4.
Christine Gille and Debra S. Frank wrote an article on In re Marriage of Davis that was recently published in the 2015 fall edition of the ACFLS Family Law Specialist.
When the California Supreme Court handed down the ruling on In re Marriage of Davis on July 20, 2015, the Court reversed an appellate decision on the meaning of "living separate and apart" that many thought was new wisdom for our modern age. Simply put, Davis stands for the proposition that if a couple remains in the same home, they cannot be "separate and apart." If they are not physically living separate and apart, even if at least one of them has an intent to be permanently separated, the Family Code Section 771 starting line, which indicates when separate property may begin to accumulate, is not crossed.
"Abduction, Violence and Secret Recordings: When Family Law Cases Turn Criminal," April 10, 2015.
Attorney Frank's presentation, "Abduction, Violence and Secret Recordings: When Family Law Cases Turn Criminal," explores what constitutes domestic abuse and legal remedies.
The National Intimate Partner and Sexual Violence Survey estimates that 1 in 3 California women will experience rape, physical violence, and/or stalking by an intimate partner in their lifetime. Domestic Violence takes many forms. It is not limited to the actual infliction of physical injury or assault.
DEBRA S. FRANK has been a valuable author for two CEB publications for 15 years, California Marital Settlement and Other Family Law Agreements (3d ed Cal CEB 2005, updated April 2014) and Dividing Pensions and Other Employee Benefits in California Divorces (Cal CEB 2006, updated June 2011).
"California Marital Settlement and Other Family Law Agreements," CEB, Third Edition, updated 4/15.
"A marital agreement is an interspousal agreement, executed during an intact marriage, that affects marital rights and obligations." From Marital Agreements, by Debra S. Frank.
Debra S. Frank authored the chapter entitled: "Marital Agreements," in California Marital Settlement and Other Family Law Agreements, CEB (Continuing Education of the Bar California), 3d edition, 2 looseleaf volumes, updated 4/15. The chapter is available here.
"Dividing Pensions and Other Employee Benefits in California Divorces," CEB, updated 6/11.
"Specialized forms of compensation have long been used by corporations to attract and retain employees and, particularly, key executives. In addition, many private professional firms with a single, highly compensated employee, such as an owner-operator, or small group of highly compensated employees, such as attorneys, physicians, accountants, and architects, provide specialized executive benefits. Stock options have also been popular for start-up companies, particularly during the dot-com boom, to preserve the new companies cash and provide employees with an incentive to give their best efforts for the companies success." from Stock Options and Benefits Under Executive Business Plans, by Debra S. Frank
Ms. Frank also wrote the chapter: "Stock Options and Benefits Under Executive Business Plans," in Dividing Pensions and Other Employee Benefits in California Divorces, CEB (Continuing Education of the Bar California), looseleaf, updated 6/11. The chapter is available here.
"Are Mandatory Fee Arbitration Clauses Enforceable?," ACFLS Family Law Blog, May 28, 2009.
In the May 28, 2009 ACFLS Family Law Blog entry, Debra discusses the recent case of Schatz v. Allen, Matkins, Leck, Gamble & Mallory, LLP (2009) 45 Cal.4th 557, which held that contractual arbitration agreements in retainer agreements are valid. She also provides examples of arbitration provisions in retainer agreements. The full text of Ms. Frank's article can be found here.
“What are my options if my fiancé refuses to sign a prenuptial agreement?” Super Lawyers Supplement to the Los Angeles Magazine, February 2009.
Debra S. Frank’s wrote a brief article on premarital agreements for the Super Lawyers Supplement that appeared in the February 2009 issue of Los Angeles magazine. In the “ask Super Lawyers” column, Attorney Frank gives some suggestions for keeping your separate property as your separate property. The article is reprinted here.
"Media and the Law," The Century City Lawyer 15:11, Winter 2008-09.
Ms. Frank's recent article in The Century City Lawyer discusses the need for an attorney to be able to discuss the case not only within the arena of the Court, but with media outlets, as well. It is no longer standard practice to avoid the press, but instead forge a relationship in which you can convey information about your case and at the same time advance discreet points of law. The full text of Ms. Frank's article can be found here.
"When Markets Collapse, So Do Families, " Los Angeles Daily Journal, Thursday, October 9, 2008, page 6.
In the midst of economic chaos a collapsing dollar, a volatile stock market and massive unemployment the first casualty is often marriage. Attorney Debra S. Frank's insights on impact of the economy on families appeared in the Los Angeles Daily Journal.
Reprinted and/or posted with the permission of Daily Journal Corp. (2008).
"Preparing for a Media Onslaught," Los Angeles Lawyer 31:5, July-Aug 2008.
When it comes to high-profile litigation, lawyers seem to prepare for every contingency; motions, jury selection, delays, evidentiary hearings, surprise testimony, except one: dealing with media coverage. Ms. Frank's recent article in the July/August 2008 Los Angeles Lawyer magazine urges lawyers to learn to deal effectively with the press for the benefit of their clients. The article is available here.