A common scenario in a so-called Marvin Action between cohabitating adults
who've split up starts with the plaintiff filing a petition for dissolution
of marriage in family law court. The plaintiff claims, under penalty of
perjury, that the couple entered into valid marriage which now entitles
him or her to spousal support and half of the community property amassed
during the relationship.
The respondent will claim that the couple cohabitated but was never legally
married. If the respondent prevails, the family law action for dissolution
of marriage will be dismissed.
The plaintiff then responds by filing a new Marvin Action lawsuit - this
time in civil court, not family law court — claiming that although
the parties were never married, they had agreed to treat each other as
if they were. They entered into an agreement to share all property and
debts acquired during their relationship, and perhaps agreed to support
one another in the event of a break up.
Family law proceedings can be costly, and the defendant will want to recoup
their attorney's fees and perhaps other damages such as for emotional
distress. The law allows for this, but in practice family law judges are
hesitant to award such damages. But if a strong case of perjury can be
established, the judge may be more inclined to award such sanctions.
A second avenue for collecting damages is a claim for malicious prosecution
against the plaintiff or their family law attorney.
A malicious prosecution action is intended to protect an individual from
unjustifiable and unreasonable litigation. [Sheldon Appel Co. v. Albert & Oliker(1989) 47 Cal. 3d 863, 878.] A claim for malicious prosecution asserts
that a party brought an unsuccessful legal action without "probable
cause" and with "malice". Having "probable cause"
may be described as an honest belief, founded on sufficiently strong facts,
that grounds existed for the lawsuit.
[Kennedy v. Byrum (1962) 201 Cal. App. 2d 474, 480]. As against an attorney, the standard
may be whether any reasonable attorney would have thought the claim was
tenable. [Sheldon Appel Co. v. Albert & Oliker (1989) 47 Cal. 3d. 863, 885-886.] But if the client lied to the attorney
about the facts of the case, then the attorney may not be liable for malicious
prosecution unless the attorney knew the facts to be false. [Swat-Fame, Inc. v. Goldstein (2002) 101 Cal. App. 4th 613, 625.]
At The Buncher Law Corporation, we are one of a limited number of family
law firms with expertise in prosecuting or defending Marvin Actions. For
more information and a free consultation