Interoffice Legal Memorandum
November 8, 2007
Statement of Assignment
You have asked me to research the likelihood of obtaining spousal support for Mrs. Smith given her 10 year marital status and eight year non-marital (cohabitation) status with her current husband. Issue statement
Can the court take into consideration our client, Jane Smith’s cohabitated years with her current husband between their two marriages to each other?
Can the client, Jane Smith, sustain a claim for spousal support where she was married to Sam Smith for ten years, divorced, and is currently remarried to him for an additional four years? Statement of facts
Jane Smith married Sam Smith on April 23, 1985. However, after 10 years of marriage Sam Smith decided to file for divorce. The marriage was dissolved on June 14, 1995. No spousal support was awarded, as Jane Smith was employed full time. Jane Smith was awarded full custody of their son. Shortly after the divorce, Sam moved back into the house with Jane where they cohabitated for about eight years until July 8, 2003, when they re-married. Jane quit working when they remarried since Sam was a well-paid lawyer. Now after four years of marriage Jane has suspicions of Sam being adulterous and wants to file for a divorce. However, Jane has had health problems for the past three years and is unable to work and relies on Sam’s income.
Our client is inquiring as to the possibility of spousal support on her first marriage and the cohabitation in between the marriages. In light of holdings and propositions coming out of Chapman v. Chapman, (1987) 191 Cal. App.3d 1308, 237 Cal.Rptr.84 and Bukaty v. Bukaty, (1986) 180 Cal.App.3d 143, 225 Cal.Rptr. 492, it is likely that a court may consider, among other things, our clients initial marriage and timeframe between the second marriage in determining the spousal support award. However, it is unlikely that the court will consider the duration of our client’s cohabitation with her current spouse as the Family Law Act does not apply to non-marital relationships. Bukaty suggests that for these years, a Marvin type action would need to be filed in civil court to seek a remedy. I. Co-habitation
The court in Bukaty answered in the negative, the question of whether an award for spousal support can be based on the parties’ prior cohabitation. In Bukaty, the parties’ were originally married between 1942 and 1954. After the dissolution of the marriage however, they continued to cohabitate on and off for approximately 27 years and remarried again in 1981. The second marriage faired no better than its predecessor and the two divorced again in 1982. The wife, 64 years old at the time of trial, had been unemployed in the four years leading up to the second divorce, and her health was deteriorating which exacerbated her employability in the future. She also had minimal assets and her monthly income was insufficient to meet her monthly obligations. At trial, she unsuccessfully argued that her cohabitation period should have been considered in determining the award. Both the trial and appellate courts rejected the wife’s reasoning on grounds that the Family Law Act does not apply to non-marital relationships and California did not recognize ‘common-law’ marriage and that wife had failed to allege a Marvin action. In affirming the lower court’s decision, Bukaty reviewed the factors a court must consider, as outlined in California Civil Code § 4801 subdivision (a), and concluded that the trial court did not abuse its discretion. It held that cohabitation was inconsistent with, and therefore would not be considered; in seeking spousal support pursuant to the Family law Act. Bukaty held that in considering any “just and equitable” factors, non-marital relationship was outside of its scope. Bukaty clarified that appellant wife did have other...
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