Consideration of Fault in Divorce Proceedings After the #metoo Movement
| Publication year | 2018 |
| Author | Rod Firoozye |
Rod Firoozye
Rod Firoozye has practiced law since 1996 in Silicon Valley and been certified as a Family Law Specialist since 2004. Before practicing family law, Mr. Firoozye represented clients in business litigation disputes against various businesses, including Microsoft and Earthlink. He has also previously testified as an expert witness in the areas of spousal support and California family law. Mr. Firoozye has been regularly selected as a Superlawyer by San Francisco Magazine.
The #MeToo Movement has led to a public discussion about the actions of various men in positions of prominence and influence toward women. Since then, this movement and other similar ones have led to many prominent people losing their jobs and facing potential criminal and civil liability to their victims. Furthermore, this movement seems to have caused several high-profile divorce cases.
Many aggrieved spouses in such divorce proceedings may have sought to initiate the divorce proceedings in advance of various civil (and criminal) claims being filed on behalf of the victims against their spouses. This article seeks to address the issue of fault in California divorce proceedings and whether it should play any role in such proceedings. Furthermore, if a court is to consider a spouse's fault, who should have the burden of proof? And what about the impact of conflicting public policies on these matters?
California was the first state in the United States to pass a no-fault divorce law. No-fault divorce was adopted with the Family Law Act of 1969, which became effective on January 1, 1970. This Act codified a general public policy against the consideration of fault in family law proceedings.1 It abolished California's action for divorce and replaced it with a proceeding for dissolution of marriage on the grounds of irreconcilable differences, which continues to be the law today.2
After the enactment of this Act, spouses generally could not maintain a cause of action for alienation of affection.3 Furthermore, in family law proceedings, a party's misconduct was generally inadmissible.4 However, in spite of the stated public policy against acceptance of fault-based evidence in family law proceedings, there are certain limited exceptions that permit the consideration of such evidence.
One area in which where fault-based evidence may be considered is with regard to evidence of domestic violence in determining spousal support.5 Another is in the area of breach of fiduciary duties.
Generally, spouses share equal management and control of their community property.6 However, in 1992, the California Legislature adopted the predecessor statutes to current Family Code §§ 721 and 1100 to further clarify spouses' fiduciary obligations to each other in the management and control of their community property. Section 1100 states that in exercising management and control of the community assets and liabilities, each spouse "shall act with respect to the other spouse... in accordance with the general fiduciary relationship standards specified in Fam. Code § 721(b)."7
Family Code § 721 provides that "in transactions between themselves, spouses are subject to the...
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