Any transaction between a husband and wife arises in the context of a confidential relationship imposing a duty of the highest good faith and fair dealing on each spouse, with neither side taking unfair advantage of the other. The standard of care stems from California’s public policy that marriage is an equal partnership and that spouses owe each other the same highest duties owed by parties to a fiduciary relationship.

In 2003, the California Legislature redefined the fiduciary relationship between spouses to include all of the duties owed by nonmarital business partners in Family Code Sec. 721(b). This confidential fiduciary relationship includes, but is not limited to:

• Providing access at all times to any books regarding a transaction for the purpose of inspection and copying;

• Providing, upon request, full and true information about any transactions concerning community property; and

• Accounting to, and holding as a trustee for, the other spouse any benefit or profit derived from any transactions concerning community property that occurred without the other spouse’s consent.

When a transaction between husband and wife is advantageous to only one spouse, the law presumes the transaction to have been induced by undue influence. The “advantaged” spouse would need to show that the transaction was freely and voluntarily consented to, with full knowledge (of the other spouse) of all the facts and a full understanding of the effect of the transfer.

The fiduciary duty includes the obligation to make full disclosure to the other spouse of all material facts and information regarding the existence, characterization and valuation of all assets in which the community has or may have an interest; debts for which the community is or may be liable; and to provide equal access to all information, records and books that pertain to the value and character of those assets and debts, upon request.

Spouses should keep each other fully informed regarding major transactions and provide written notice and full disclosure.

BREACH OF DUTY REMEDIES

A spouse can file a civil action against the other spouse for abuse of this fiduciary duty. But these problems that arise between a couple usually result in one spouse filing for divorce. When one spouse fails to act in accordance with the fiduciary duty, the aggrieved spouse has several statutory remedies.

When one spouse’s undivided one-half interest in the community estate is impaired by the actions of the other spouse, a court may order an accounting of the property. Any asset undisclosed or transferred in breach of a spouse’s fiduciary duty could result in a 50 percent or even 100 percent penalty. Remedies may include an award to the other spouse of 50 percent of any asset – plus attorney’s fees and court costs. Remedies when the breach arises from oppression, fraud or malice could include an award to the other spouse of 100 percent of any undisclosed asset.

Be aware. There is no special treatment for pro se litigants. As a party representing her own interests, Martha Rothrock was not entitled to special treatment from the court once she fired her attorney and substituted herself as her own attorney. In re Marriage of Rothrock (2008) 159 Cal.App.4th 223.

The California Supreme Court has specifically held that an in propria persona litigant (self-represented party) is held to the same procedural rules as an attorney.

In other words, self-representation is not a ground for lenient treatment, so don’t expect it. If you made a mistake, as no doubt you will if you choose to act as your own lawyer, don’t tell the judge, “but your honor, I didn’t know. I’m not an attorney”. Except when a particular rule provides otherwise, the rules of civil procedure must apply equally to parties represented by counsel and those who forgo attorney representation.

Likewise, quick and easy should never appear in the same sentence as the word “divorce”. As far as “cheap” – well, you get what you pay for.

It is a frequently appearing ad on the internet, or on a billboard, or in a local newspaper, for the low cost quickie divorce. Especially here in Los Angeles, where it is common for a legal service, not run by lawyers, or for a paralegal to market “Quick” Nevada divorces. This service is often used by non US Citizens who after settling in the US, meet an American boyfriend or girlfriend who is willing to marry him or her and Petition him or her for a green card. Although he or she may live in California, he or she decides to listen to the “Quick Nevada Divorce” pitch that is being made by a lot of paralegal offices and end up hiring the paralegal to do their Nevada divorce for a very low fee.

The problem with this is that all states have a residency requirement before you can file a divorce. In California, at least one of the parties has to have resided in the state for at least 6 consecutive months and in the County for at least 3 consecutive months prior to filing the divorce petition. In Nevada, you must have resided in the state of Nevada for at least 6 weeks prior to filing the divorce petition. Often, these paralegal offices would fraudulently use some dummy Nevada address even though the divorce petitioner actually resides in California. And all too often, the paralegal is not familiar with the law and fails to tell the “client” of these requirements.

The Department of Homeland Security is aware of this issue. Adjudications officers may inquire whether you actually lived in Nevada if you present a Nevada divorce judgment. The DHS may even request additional evidence that you actually resided in Nevada. If the biographical form G-325 does not list Nevada as a residence, it can raise a red flag. If the DHS determines that you never actually resided in Nevada for the required length of time, they can treat your Nevada Divorce Judgment as invalid. As a result, legally, you are still married to your former spouse. This also means then that at the time you married the US citizen you were married to someone else, which completely invalidates your marriage to the US Citizen spouse as bigamous.

It is very important for California residents to file their divorce petition in California and not in Nevada if they have not resided in Nevada. This is even more important if the divorce petitioner intends to later on file an immigration application based on a marriage petition by a US Citizen. To avoid these problems, you should retain the representation of an experienced attorney to make sure that your divorce is done properly and your marriage legally terminated prior to applying for marriage based immigration benefits.