By Certified Family Law Specialist, Don Schweitzer, and Family Law Attorney, Nitasha Khanna,
Schweitzer: As you know Nitasha, Donald and Shelly Sterling were back in the national spotlight recently, as members of the media reported on Shelly Sterling’s knockout blow against V. Stiviano. The Los Angeles Superior Court ruled in Shelly Sterling’s favor and ordered V. Stiviano to pay back money and return valuable property to the Sterling estate. The ruling was based on Shelly’s claim that Donald Sterling gave his former girlfriend, V. Stiviano, large sums of money and property while he was married to Shelly and his act constituted a violation of his fiduciary duty.
Many people expressed shock after hearing about this ruling because they were unaware of the fact that the court has authority to make such orders, while others hailed Shelly Sterling as sort of an iron lady who did the right thing by going after her husband’s paramour. I wonder, however, wasn’t this all about revenge? After all, the Sterlings are billionaires and it hardly seems worth Shelly Sterling’s time, money, and effort to pursue a $2.6 million judgment. Is this the type of claim you would encourage one of your clients to pursue? And what about V. Stiviano’s loss? Does this case put all would-be-paramours on notice that they may be hauled into court to give back gifts received from their lovers? We know from the evidence admitted in the Sterling case that V. Stiviano conspired with Donald Sterling to keep Shelly Sterling from knowing about the gifts, but what about the type of case where the mistress does not know her lover is married? Should the law be amended to create something called the “innocent paramour” doctrine?
Khanna: Don, it could be revenge, or simply a matter of principle….sometimes, it is just not about the money. And, yes, depending on the facts of the case, I would encourage a client of mine to pursue such a claim. In some cases, where for example, the cheating spouse bought his paramour flowers, perhaps some lingerie, and dinners, or maybe took her on a vacation, it actually may not be worth the expense to litigate the claim in court. However, when we are talking about gifts as lavish and expensive as the ones given by Donald Sterling to V. Stiviano, the costs in litigating the claim would be worth pursuing the claim.
As far as V. Stiviano’s loss is concerned, I do not think it can be looked at in a vacuum – one must look at both her loss and Shelly Sterling’s right to the community property spent by Donald Sterling on an extra-marital affair. Between the two, public policy and California Community Property laws both favor Shelly Sterling’s interests.
As far as your last question is concerned, a doctrine such as the “innocent paramour” doctrine may be a slippery slope. I am not sure family law judges would go down that road considering it would attack the very sanctity of the marriage by holding an illicit lover’s interests higher than that of a spouse who was cheated on, and essentially stolen from.
Schweitzer: Nitasha, I understand your analysis and respect the tenacity you have in protecting your clients’ interests, but I am still having difficulty with the notion about the “innocent paramour.” As you know, the law provides relief for people who are deemed to be “bona fide” purchasers of property. In fact, I have experienced cases where spouses have sold real property and cars to bona fide purchasers and the family courts refused to allow me to join those people for the purpose of getting the property back. So why should we treat an innocent paramour any different?
Khanna: Don, I think it goes back to protecting the sanctity of the marriage. In my opinion, an “innocent paramour” is distinguishable from a bona fide purchaser of property – in the first instance, a spouse has essentially gifted away community property to his paramour that was not entirely his to gift, in exchange for nothing that benefitted the community; in the latter instance, the bona fide purchaser paid value for purchase of the property and entered into a contractual relationship with the spouse who sold the property - essentially the spouse selling the property made a business decision for the community.
I think, in the end, it is about whose interest we want to protect. Between the “innocent paramour” and the community, public policy and California Community Property laws favor the community. Between the bona fide purchaser of property and the community, public policy and Contract law favor the bona fide purchaser.