Friday, February 10, 2006

Case Law Development: Attempted Remarriage Before Dissolution of First Marriage Does Not Terminate Termporary Orders

This case makes for a good variation on the void marriage problems we typically teach in family law.  Here, Husband and Wife were married for over 13 years. Husband filed for divorce and the court issued temporary orders requiring Husband to pay maintenance to Wife.  While the divorce was still pending, Wife, who had a significant alcohol problem, remarried in Nevada.

Husband asked the court to grant the divorce and to enter the judgment nunc pro tunc, arguing that a nunc pro tunc judgment dissolving the as of a date prior to her remarriage would render her most recent marriage valid and he would be relieved of the obligation to pay temporary spousal support. Husband also argued that Wife's remarriage, even though void, triggered the statutory provision that terminates support orders upon "death or remarriage." California statutes, like the majority of states (See November 8 Family Law Prof Blog post), terminates support orders as a matter of law upon remarriage. The trial court denied Husband's motions and the California Court of Appeals affirmed.

The court reasoned that  "Since remarriage is a legal impossibility in California prior to dissolution of the existing marriage, it is reasonable to conclude that the Legislature never expected or intended that 'remarriage,' within the meaning of [the statute terminating support] would encompass an attempted remarriage prior to dissolution of the first marriage....Our conclusion is consistent with principles of common sense and justice. Application of [the statute] prior to dissolution would deprive the trial court of the discretion so necessary at this unsettled stage of the proceedings. It may be that a spouse's attempt to remarry prior to dissolution would warrant termination of temporary support where the conduct was evidence of a real change of circumstances. The court has discretion to terminate support in that case. But where the attempted remarriage is due to a lapse in judgment on the part of the supported spouse and where the supported spouse actually has no means of support, no funds to prosecute the litigation, and no control over the marital property that has yet to be divided, the attempted "remarriage" does not diminish the supported spouse's need for support pending trial. Automatic termination of the temporary support order in that situation would be manifestly unjust and would conflict with the purposes for which temporary spousal support is intended."

In re Campbell, 2006 Cal. App. LEXIS 155 (February 7, 2006)
Opinion on the web (last visited February 10, 2006 bgf)

http://lawprofessors.typepad.com/family_law/2006/02/case_law_develo_10.html

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