First Location Weddings, Now Location Divorces in California

A location wedding is the idea of combining a wedding and a vacation in one (wacation?) by marrying at some resort spot.  Maui is a preferred one, although many like the cliffs overlooking the sea down in Laguna Niguel, California.  At sunset.  Challenge for photographers but romantic.

Now, however, you can have a location divorce by those same cliffs . . .

Existing law prohibits a judgment of dissolution of marriage from being entered unless one of the parties to the marriage has been a resident of this state for 6 months and of the county in which the proceeding is filed for 3 months before the filing of the petition.

This bill would authorize a judgment for dissolution, nullity, or legal separation of a marriage between persons of the same sex to be entered if the marriage was entered in California and neither party to the marriage resides in a jurisdiction that will dissolve the marriage.

Query:  what law applies?  One of the factors of someone being domiciled in a state (putting aside military) is that they are there voluntarily and thus have made themselves open to the law of the state.  Many people do not realize that you can get married anywhere but generally must get divorced in the jurisdiction where you are domiciled.  And while there are many similarities between the divorce laws of ach state, there are also some distinct differences, one of the more significant being that California is a community property state.

So, let's say John and Tom[1] were legally married in California during the period when such unions were legal (after In re: Marriage Cases and before Proposition 8 passed).  John and Tom dream of owning a gay dude rnch (why not?) and move to Tennessee, where Tom uses $100,000 of a trust fund as a down payment on 50 acres.  Because Tom has lousy credit, though, the property title and mortgage is in John's name alone, with Tom signing a quit claim in Tennessee.  For five years they have worked together to build up Fabulous Dude Ranch.  But a handsome cowhand, Sven, hired to keep the chaps smooth with regular applications of lanoline, caught Tom's eye and, alas, the love is gone.  On January 2, 2012 (one day after this law will be in effect), John flies back to West Hollywood and, heartbroken but bitter, files for Dissolution of Marriage in Los Angeles Superior Court.

How is the property divided?  Well, both are now legal residents of Tennessee, so does the California law apply Tennessee law would give each probably a half interest under an equitable division?  Does Tom get back his investment of $100,000, which would be applicable under California Family Code section 2640?  Is the property John's separate property under the California case Marriage of Mathews because Tom is not on title?  What if Tom wants to fight even getting divorced?  Under Tennessee law, John would have to prove fault (presumably, adultery with the cowhand) whereas in Califrnia, he only checks the box for "irreconcilable differences."  And if Tom gets an order for spousal support from the California court, would Tennessee honor the wage garnishment for something it does not recognize?

Of course, a workaround would be for John to file for a Legal Separation in California, which has no jurisdictional requirement, and remain in the state for six months to establish jurisdiction, then petition the Court to turn it into a Dissolution of Marriage.  But John has fallen in love with the Smokies and Vols football (Tom always suspected John had straight tendencies he was keeping in the closet) and wants to remain in Rocky Top forevah.  So the question remains.

I point this out because I have seen where legislators in Sacramento like to pass laws without running them by attorneys and judges in the field, just to see, you know, how these laws would actually be implemented.  I think this is an example.  If I am representing either, I am going to fight to apply the law which favors my client.  I might argue that the Tennessee quit claim is evidence of a contract in which it is implied Tennesee law holds.  Without delving into legal reseearch, I know brilliant - and utterly stupid - legal minds that could make arguments on either side of the issue and will.  And so long as they are made in good faith (and even that's debatable), the court must hear them.  And remember, whn faced with thorny - read, not clear cut - legal issues, the judicial officer is always thinking in the back of his or her mind, shit, if this goes up on appeal, am I gonna get overturned?

I still think professional photographers should be hired for divorce pictures.  I'll do it.

[1] Names chosen because I know two gay guys, one named Tom and one named John.  Y'all can speculate who they are.