Tuesday, December 16, 2008


“A Gut Wrenching Decision for Jewish Men”

In the past six years, our Family Law firm has witnessed a spike in the numbers of divorcing men who must decide whether to pursue either interim support or long term support from their soon to be former spouse. Ten years ago this issue would have been an anomaly. Times have changed dramatically. The vast majority of cases at our firm address support for stay at home Moms or lower wage earning women. However, the trend is clearly shifting. From census studies and other reliable resources, we know that in nearly one third of the marriages, women are the higher wage earners. Yet only 3.3% of men in California seek temporary or long-term support when their marriages last more than ten years. Those upward trends also show that Dad’s role as the primary care taker for the couple’s children happens more frequently when Moms put their career first and are expected to bring home the gelt.

I have been particularly struck with the emotional turmoil a Jewish man faces when he must make the gut wrenching decision to seek spousal support from his soon to be ex-wife. There is clearly a stigma, a feeling of guilt and failure. This is understandable. Young Jewish boys are taught early on in their religious studies that the Children of Israel was founded by men. Abraham, Isaac and Jacob were our role models, and as spiritual ancestors, a direct link to our faith, our commitment to God, and to our families. Although modern trends for equality in our synagogues and our workplaces prevail, it is not unusual to hear extended family members, our mispoche, make comments like, “you father is such a mensch—such a good provider.” We were all socialized to view Jewish men as primary breadwinners.

Therefore, a Jewish man who has been in a less traditional marriage, one in which his wife was the primary wage earner, experiences tsuris when considering whether he should consider seeking temporary support or longer term financial assistance from his wife.

In point of fact, the California Court considers awarding temporary support on need and the ability of the higher earning spouse to pay. The courts routinely award spousal support to men who earn less than their spouses. If spousal support is appropriate, I will fight just as hard for a man as I do for women. However, so often the responses from Jewish men clients are almost uniform. They range from an imitation of Tony Soprano’s” FORGETABOUTIT’ to “I could never face my children or my family.” Others say, “I don’t want be a schnorrer (mooch) I am feeling so guilty.” Or, “I understand that the law is here to protect me, but I just can’t go there.”

I counsel my client to get past this social stigma of the Jewish male patriarch provider. Sometimes I succeed and other times I do not. The bottom line is that we live in an ever changing and challenging social and economic environment. We left the Shetl many generations ago but our minds still return to our great history and of course TRADITION. Many Jewish women who I have also represented and who are the primary wage earners do not resent the payment of spousal support. Ten years ago there would have been major resistance, but this is not the case now. In my experience, many successful women in executive or professional fields are pleased that their former mates are able to spend quality time with their children. Under our Family Code of California, our spousal support provisions are gender neutral.

It is time for Jewish men to realize that there is nothing to be ashamed of when seeking support from a soon to be former mate. For many, the length and duration of support is set so that you may transition into a new life and become self supporting in time. This is particularly important for Dads who have taken on the principal role as day to day caretaker and supervisor and have been out of the work force for some time. Vocational assessment, career counseling and other supportive services will make the path a lot easier for men this transition. A request for financial assistance is based on the path that the couple chose, whether it was career or family focused with children or both. These challenges were not faced by Teyve in Unitika with his wife, Golda. It is time to look at the ending of a marital relationship with dignity, respect and with a clear conscience.

Tuesday, November 18, 2008

Gay Marriage on the Rocks? It's not over until the Supremes sing!

On November 4, 2008, Proposition 8 was passed by a majority of the voters in the State of California, barring gay and lesbian marriages. The voters have spoken. However, opponents of the ban on gay marriage, as the Bard from Stratford-upon-Avon would note, “have not gone quietly in this good night.”

On November 5th, the City and County of San Francisco, et al, as lead petitioners, sought a writ of mandate from the California Supreme Court to consider whether this constitutional ban on gay marriages should be given full legal effect.

Aside from the City and County of San Francisco, many associations, such as the San Francisco Bar Association, the Lawyers Club of San Francisco, the Lawyers Committee for Civil Rights, and the Legal Aid Society, have filed supporting briefs (Amici briefs) in support of this mandate. Collectively, the petitioners claim that Prop 8 would add language to the California Constitution that denies the fundamental right of marriage to a minority group—gay and lesbian individuals.

In a landmark decision last May, the Supreme Court of California held that a statutory provision with language identical to that of Prop 8 violated the state’s constitutional guarantee of equal protection. Prop 8, if given effect, would cause a class of individuals to be treated differently with respect to the fundamental right to marry.

Opponents further assert that the ban is effectively a constitutional revision (rather than an amendment), which cannot be enacted by a simple majority vote, and must go through a Constitutional process—either through a constitutional convention and popular ratification or by approval of a two-thirds majority of the Legislature followed by a special election by the voters of California. An amendment may be added through the popular initiative process. It should be mentioned that this was the same argument that was raised when the City and County of San Francisco attempted to have Prop 8 stricken from the ballot in the summer of 2008, well in advance of the November 4th election. The Supreme Court was not persuaded, and the measure remained on the ballot on Election Day.

Proponents of Prop 8 may well argue that the people of California should be permitted to define the limits of the equal protection clause, just as voters in California were able to define the scope of the prohibition on cruel and unusual punishment when the death penalty was reinstated in People v. Frierson. In Frierson, the California Supreme Court allowed a popular initiative to overturn the holding that the death penalty constituted cruel and unusual punishment on the grounds that this was an amendment and not a revision to the Constitution. However, those opposing the ban on gay marriage will argue that Frierson merely defined the scope of what is acceptable punishment and what is “cruelty” and therefore did not fundamentally revise the Constitution in the way Prop 8 does. Nevertheless, proponents of the ban have a strong counterargument: the people have spoken and the majority of Californians reject gay and lesbian marriages.

Advocates of gay and lesbian marriages will find their greatest support in the Supreme Court decision of Raven v. Deukmejian, which supports the Court’s authority to construe the Constitution in criminal cases and provide greater rights to certain defendants than those afforded by the United States Constitution. The Court in Raven found that the proposition at issue, as a proposed amendment, was actually a “broad attack on state court authority to exercise independent judgment” and was “an invalid revision and could not be enacted as a popular vote.” Similarly, the California Supreme Court must now consider whether a majority of voters of California may take away a right of a minority group through an amendment or if are they blocked from this because this is an impermissible revision to the Constitution. As noted in the landmark California Supreme Court decision Bisby v. Pierno, one of the most fundamental protections of individuals or minorities is that the Supreme Court has the authority to “preserve constitutional rights” from “obliteration by the majority.”

At this stage of the proceedings, I expect that the Court will grant the mandate and set this matter for hearing. The challenge for the Court will be significant, considering that voters passed Prop 8, demonstrating their support for the ban. In addition, Chief Justice Ronald George will be facing a retention election in November 2010 which may impact his decision in this case. These considerations must be balanced with the Court’s clear support of marriage as a fundamental right for all Californians, irrespective of sexual orientation, and prior case decisions striking down state propositions where fundamental rights were impacted. To add to the mix, more than 18,000 marriage licenses have been issued by this State since the Supreme Court ruling in May. These marriages are clearly protected because Prop 8 did not specify in the ballot measure that the ban would apply to marriages taking place prior to Election Day. More importantly, both the United States and California Constitutions prevent ex post facto laws to be given any retroactive legal effect when fundamental rights are being impaired, such as the right to marry. This position is the general consensus from legal scholars and has been supported by the Attorney General and family law practitioners such as myself. Even the supporters of Prop 8 have not questioned the validity of those marriages. Accordingly, those gay and lesbian marriages will in all probability be deemed valid irrespective of the subsequent ruling of the California Supreme Court.

Soon the stage will be set for a decision on the fate of Prop 8 and whether the bar on gay and lesbian marriages will stand. What will the outcome be? It is impossible to say at this point. We may learn more after the Court grants the mandate and schedules a hearing.
Those considering a same-sex marriage at this time should know that California is in a state of legal limbo. The petitioners who are seeking to have the ban declared unconstitutional as a violation of equal protection are also asking the Court to refrain from enforcing the Prop 8 ban pending a final resolution on the merits. If this ban is stayed by the Court, same sex couples will have a window of opportunity to marry, pending a ruling on the constitutionality of Prop 8. Whether the Court will grant this stay, and permit gays and lesbians to marry in the interim, is uncertain. However, should the Court grant this stay and permit same-sex marriages moving forward, I would still urge gay and lesbian couples to defer their nuptial plans. The decision to get married is a serious one and often very stressful. To get married with such a degree of legal uncertainty I believe would add only more stress and anxiety. When deciding to get married, it is far better to know that you are on solid ground. Until we have the ultimate decision by the California Supreme Court, my advice is to “Stop in the Name of Love.”