Concerning Family Law

Child Support for 18 year old Highschool Students in California

noreply@blogger.com (Anonymous) — Thu, 13 Jun 2013 21:26:00 +0000

Just because a minor child turns 18 years old it does not mean that child support ends there. California Family Code Section 3901 states that if a child is a full time student in high school and is not self supporting the custodial parent can receive child support until they graduate or turn 19 whichever comes first.

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Inter-Jurisdictional Custody Disputes under the Uniform Child Custody and Jurisdiction Act (UCCJEA)

noreply@blogger.com (Anonymous) — Wed, 07 Nov 2012 20:58:00 +0000

I had a case recently where a married couple with one child lived in Oregon and the parties had difficulties and separated. The Father moved to California, while the mother left with the children to Arizona. If Father were to file for divorce in California he would have to meet the residency requirements under California Family Code Section 2320. Mother had to meet similar requirements before filing her Petition for Dissolution of marriage in Arizona. Of course, personal jurisdiction of a California Court comes into play especially if mother had no contacts with California, but that issue aside.

In California, each party with children is required to file a UCCJEA declaration on the form FL-105. This declaration is to comply with California Family Code Section 3400 et seq. Essentially, the party is to provide a declaration of the child’s residency for the past 5 years. The UCCJEA declaration is required if you file for divorce in California with children.

Father filed in California for Dissolution even though it was questionable that he met the residency requirements. He also filed a UCCJEA declaration where he did not disclose that Mother filed a Petition for Dissolution in Arizona earlier.

Under the Uniform Act or UCCJEA, the court that has notice of another state’s pending custody action under California Family Code 3421. There are several ways that a California Court can confer jurisdiction over the custody dispute: (1) California must be the child(ren)’s home state; (2) The child(ren) have a significant connection and substantial evidence exists in favor of California asserting jurisdiction. (3) California is the more appropriate forum. (4) No court of any other state would have jurisdiction under (1), (2), & (3).

1. “Home state” means a state where the child lived with the parent for at least six consecutive months immediately before commencement of the custody proceeding. California Family Code 3402(g).

2. “Significant connection” and “substantial evidence” California courts can only exercise custody jurisdiction if all the following conditions are satisfied: (a) No other state has “home state” jurisdiction or a court of the home state has declined to exercise jurisdiction on the grounds that California is the “more appropriate forum” under Cal. Fam. Code § 3427; and (b) The child and the child’s parents, or child and at least one parent have a significant connection with California other than mere physical presences; and (c) substantial evidence is available in this state concerning the child’s care, protection, training and personal relationships. A parent’s short term presence in the state, even if sufficient to confer personal jurisdiction and the exercise of in rem jurisdiction of the marital res, is not sufficient for custody jurisdiction; there must be additional factors establishing closer ties with the state.

3. Other states have declined jurisdiction in favor of California as the “more appropriate” forum: There has been no other state that has declined jurisdiction over custody based on California being the more appropriate forum. This just means that another state had the chance to have jurisdiction or to take the case, but declined or refused to do so because California was more appropriate.

4. California Jurisdiction by “default”: California has jurisdiction to make an initial custody determination if no court of any other state would have jurisdiction under the first three tests. Cal. Fam. Code 3421(a)(4). This means that the court will look at the other states and whether they would be the proper state under the first three tests above.

California Family Code Section 3427 provides a “more appropriate forum” analysis to aid Courts in their determination as to which state, if any, is the most appropriate forum for adjudication of the custody matter. That is, prior to this Court determining whether it has jurisdiction or whether it is an inconvenient forum, the Court is required to analyze as an initial matter whether another state is a more appropriate forum. See Cal. Fam. Code, §3427(a)-(b). To determine whether or not a more appropriate forum exists for child custody matters, the Court looks at all relevant factors, guided by a non-exclusive list set forth in Fam. Code §3427(b)(1-)-(8):

· (1)Whether domestic violence has occurred and is likely to continue in the future and which state could best protect the parties and the child.

· (2)The length of time the child has resided outside this state.

· (3)The distance between the court in this state and the court in the state that would assume jurisdiction.

· (4)The degree of financial hardship to the parties in litigating in one forum over the other.

· (5)Any agreement of the parties as to which state should assume jurisdiction.

· (6)The nature and location of the evidence required to resolve the pending litigation, including testimony of the child.

· (7)The ability of the court of each state to decide the issue expeditiously and the procedures necessary to present the evidence.

· (8)The familiarity of the court of each state with the facts and issues in the pending litigation.

In the above code sections I’ve listed is some of the analysis that goes into a Inter-state child custody dispute. Essentially, California needs to determine if it has an interest in the dispute and if it is convienent for the parties to litigate in California. These along with other legal theories will aid your case. If you have an inter-state or inter-jurisdictional custody dispute or you think that you may have one it is best to get advice from an attorney which understands the law.

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Move Away Cases in California

noreply@blogger.com (Anonymous) — Tue, 24 Jul 2012 19:31:00 +0000

What happens in a situation where the custodial parent after a permanent custody determination wants to get up and move away? What does the non-custodial parent do?

The non-custodial parent has a large hurdle to cross. By statute, the parent with custody of the children is presumed to have the right to move away with the children. Cal. Fam. Code § 7501. Family Code 7501 has codified the California Supreme Court Case of Marriage of Burgess (1996) 13 Cal.4th 25.) In Burgess, the parent with custody of the children decided to move 40 miles away from Tehachapi to Lancaster, CA. The Supreme Court stated that the custodial parent does not need to show that the move is “necessary.” This rule will only apply in situations where there has been a final custody determination not where there has only been a temporary custody determination.

The non-custodial parent has to prove that the move is a detriment to the children. What comes to mind is the detriment of the child of not being able to continue the same relationship with the non-custodial parent. This is just one factor in the court’s determination of whether or not there is a detriment. So the non-custodial parent must file a motion with the court and show a detriment in their motion. In these types of move-away cases it is best to consult an Attorney to draft the motion because they understand the legal standards and procedural loopholes in order to get you the best chance of succeeding on your motion.

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Needs-based Attorney Fees in California Family Law and Divorce Cases

noreply@blogger.com (Anonymous) — Fri, 08 Jun 2012 00:35:00 +0000

Under the California Family Code §2030, needs-based attorneys fees may be awarded to one spouse to ensure equal access to representation. What this means is that it is entirely possible that one spouse usually the breadwinner of the family may have to pay in a dissolution action the attorneys fees for both parties. The purpose under 2030 is to preserve each parties rights in the dissolution (divorce) proceeding.

The exact amount that should be awarded as a needs based fee is under full discretion of the Judge. 2030 says “whatever amount is reasonably necessary.” For a needs-based attorney fee award the court will look at “whether there is a disparity in access to funds to retain counsel, and whether one party is able to pay for legal representation of both parties.” Such an attorneys fees award should be granted early in the proceeding as a way of leveling the playing field between the parties.

So what does this mean for litigants? Say your spouse was the breadwinner of the family and controls most of the community resources, your spouse files a dissolution action against you and lawyers up. You are left to defend the case without an attorney. California Family Code §2030 contemplates that in these types of situations this spouse will pay for both the attorney’s fees to ensure equal access.

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Prenuptial Agreements in California

noreply@blogger.com (Anonymous) — Mon, 02 Apr 2012 18:07:00 +0000

This article will focus on the drafting of prenuptial or premarital agreements in California presently and deals with the most recent laws governing these agreements. You NEED a lawyer if you are going to draft one of these agreements in order to navigate the complex and strict statutory requirements. You NEED a lawyer because the agreement must be upheld in court. With the way the California Family Code statutes are written you will fail if you do not follow the exact steps and meet every single requirement.

Some of the reasons why you might consider a prenuptial agreement in California is to avoid or alter the default California Community Property laws. You also may want to alter the characterization of income acquired in the future such as earnings and so forth. You may also want to eliminate or minimize the surviving spouse’s inheritance rights. Whatever your reason, if you have substantial assets and you are contemplating marriage or even if you don’t, you should talk to an attorney about a prenuptial or premarital agreement.

The difficult thing is to broach the subject with your future spouse the subject of obtaining a premarital agreement. Often and understandable, people simply do not want to contemplate anything that could be perceived as negative. However challenging it may be to bring the subject up, it may be the best and most prudent thing you can do. An effective premarital agreement will make understandable the obligations between spouses both during and if separation or dissolution occurs. Often litigation costs will be lowered because if you have an iron clad premarital agreement, the other party will not even bother litigating it saving both spouses an added headache. A well drafted and effective premarital agreement will possibly solve problems of commingled property.

Prenuptial Agreements can deal with an assortment of topics or issues. For example, parties can put in a provision for Spousal Support. Parties can even waive Spousal Support in the agreement if each party is represented by independent counsel. On the other hand, premarital agreements cannot waive child support. Essentially, you can put anything you want in a prenuptial agreement unless it violates California Public Policy.

The real nuts and bolts of premarital agreements are located in California Family Code §1615. This is why you NEED an attorney to draft and navigate you through the process. Prenuptial agreements cannot be unconscionable. Ok this sounds reasonable. To not be unconscionable you need a fair, reasonable, and full disclosure of property of financial obligations by each party. This means that you must disclose property that you hold to your prospective spouse and once this is completed you need to have your prospective spouse sign a waiver that waives further disclosures.

Further, prenuptial agreements, according to California Family Code §1615, must have voluntariness. Voluntariness is defined by the statute and includes all of the following: the prospective spouse must be represented by counsel at the time of signing the agreement or after being advised to seek independent counsel expressly waives in a separate writing representation by independent counsel. This means that aside from the prenuptial agreement itself, you need a waiver of representation by independent counsel that is essentially a separate agreement not to obtain counsel for the purposes of the prenuptial agreement. Also, seven calendar days must pass before the prospective spouse receives the agreement and the time it is signed. During these seven days, counsel who drafts the prenuptial agreement must fully inform the prospective spouse of the terms and basic effect of the agreement as well as the rights and obligations he or she was giving up by signing the agreement. Further, the prospective spouse must be proficient in the language of the explanation and the language of the agreement.

Essentially, if you miss or do not follow any of the steps in the above paragraph your agreement will be deemed not to have voluntariness and will be worthless no matter how voluntary it appeared to be at the time of the signing agreement. California Family Code §1615 acts as a checklist for voluntariness if you do not check off all the boxes you agreement will be invalid and will not hold up in court and all of your expectations of what you thought your rights were will be extinguished.

I implore you that if you are going deciding to draft or purchase an agreement online to get an attorney to assist you with the process otherwise you are simply wasting your money and time.

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Modification of Spousal Support in California: A Case Analysis

noreply@blogger.com (Anonymous) — Tue, 31 Jan 2012 19:52:00 +0000

The purpose of this post is to help you understand what type of analysis a court uses in determining whether a modification of spousal support is warranted. Let’s use an example.

I’m using the following appeals case of (In re Marriage of Shaughnessy (2006) 139 Cal. App. 4th 1225) as the example of how the courts apply law to a factual situation. This case is a good example of spousal support because the couple has no children. Therefore, you get a cleaner look on how spousal support law works.

Here are the facts: Greg and Michelle Shaughnessy were married in November of 1979 and were separated in March 1995. Michelle had been receiving spousal support from 1995 to about 2003 when Greg filed for divorce. The court ordered Greg to pay $2,000 per month in spousal support to Michelle. In a 2003 judgment the court stated the following regarding spousal support:

"1. The court finds that as of the date of separation the parties enjoyed an upper middle class lifestyle as evidenced by the fact that the parties traveled frequently and they owned two pieces of property.

"2. The court finds that [Michelle's] earning capacity is not sufficient to meet her needs for the following reasons:

"a. [Michelle] does not possess marketable employment skills for the current job market. [Michelle] has a journalism degree, however, she has been a florist during most of the marriage. [Michelle] needs to be retrained and obtain computer skills.

"b. [Greg] earns a high wage and has the ability to pay a reasonable spousal support award.

"c. Based on [Michelle's] needs as established during the marriage [Michelle]'s income and earning capacity are insufficient to meet her needs. [Michelle's] expenses are high as currently presented but even if the amount was reduced to a reasonable amount, [Michelle] still needs spousal support.

"d. [Michelle] has significant separate property assets that produce income for the benefit of [Michelle]. The rate of return on [Michelle's] investments is not enough to sustain her life expectancy since [Michelle] is still a young woman.

"e. The marriage was of long duration, lasting more than fifteen years. The support order is presumed to be open ended in marriages of long duration.

"f. On the issue of health, the court finds there was significant evidence of [Michelle's] depression, however, this factor will not interfere with [Michelle's] ability to obtain employment. [Michelle] is being treated for a benign tumor with medication. The court is unable to determine the effect of that medical condition on [Michelle] in the future and on the issue of ongoing health insurance for [Michelle]. [Greg] appears to be in good health.

"g. The court finds the evidence regarding the issue of domestic violence by [Michelle] against [Greg] to be situational. There was no documentation at the time of the alleged domestic violence.

"h. There are no other tax consequences to the parties except those related to the sale of the parties' rental property. The tax consequences are considered by the court in determining the spousal support award.

"i. The balance of hardships weigh in favor of [Michelle].

"j. The requirement that parties should be self-supporting after one-half the length of the marriage does not apply to a marriage of long duration. [Michelle] began to realize one year ago she needs marketable skills and needs to look at retraining options."

"3. [Greg] will pay $2,000 per month in spousal support to [Michelle] effective January 1, 2003. [Greg] will receive credit for any amount of support he paid to [Michelle] in the months of January and February 2003.

"4. The court retains jurisdiction on the matter of spousal support."

(In re Marriage of Shaughnessy (2006) 139 Cal. App.4th 1225,1232-33.) This is a type of order you might see from a California Family Law Judge when analyzing the California Family Code §4320 factors.

In order for there to be a modification of spousal support, there must be a material change in circumstances. Also, important in this case is Cal. Fam. Code § 4320(l) “The goal that the supported party shall be self-supporting within a reasonable period of time. Except in the case of a marriage of long duration as described in Section 4336,[ fn. 3 ] a 'reasonable period of time' for purposes of this section generally shall be one-half the length of the marriage. However, nothing in this section is intended to limit the court's discretion to order support for a greater or lesser length of time, based on any of the other factors listed in this section, Section 4336, and the circumstances of the parties.” Emphasis added.

Greg filed with the court an OSC to modify spousal support in 2003 and it wasn’t heard until 2005. He argued that the spousal support be reduced from $2,000.00 to $1,000 because the change in circumstances was that Michelle failed to diligently become self-supporting as required by Cal. Fam. Code §4320(l) above. Greg paid eight years of spousal support which was more than one-half the time of the marriage and the court agreed with him. Michelle had a degree in journalism, and worked as a florist during the marriage. Michelle was supposed to receive computer training in order to make her skills marketable and make her self-supporting. The trial court and the appeals court agreed with Greg that the material change in circumstances is the failure to diligently become self-sufficient.

Let’s face it, Michelle may have been “milking it.” In these types of situations, the court should grant a request for spousal support modification.

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Preserving the Family Home Even if Your Spouse Owns it Outright

noreply@blogger.com (Anonymous) — Wed, 04 Jan 2012 18:10:00 +0000

California is a community property state. So property obtained through wages and efforts of each spouse during the marriage are community property and generally divided in half at dissolution. Separate property is property is not included in the category of community property. Separate property is property held by a spouse before marriage, or during the marriage by gift, bequest, or devise. Separate property usually becomes that of its owner after a dissolution action.

If you are in a hotly contested divorce or dissolution action, there may be a way to preserve the family home even if the family home is a separate property asset of your spouse. Preserving the family home when it’s your spouse’s separate property is possible only if you have children and you have primary physical custody. Under California Family Code § 3800 et seq., it is fairly common for Judge to enter a deferred sale of home order for a home that has both a community property and a separate property interest. For example, one spouse has a house that has not been paid off yet before getting married and the other spouse helps pay off the mortgage with community property assets. So this house is separate property with a community property interest. If this couple has children, and then decides to get a divorce, the deferred sale of home order helps the spouse with primary physical custody to keep the children in the family home. The policy of this law make some sense because you want to keep the children’s living situation as stable as possible. In this situation, both spouses have an interest in the family home.

This post takes this one step further. It might be easiest to understand with a hypothetical: Husband owns the family home outright as his separate property and this is quite clear. Wife has primary physical custody of two children and has been living in the family home for 8 years. It may be possible under California Family Code § 3800 et seq. to defer the sale of this home for several years. (Marriage of Braud (1996) 45 Cal. 4^th 797) In this type of situation, the family court will look at the following factors (California Family Code § 3802(b)):

The length of time the child has resided in the home.
The child's placement or grade in school.
The accessibility and convenience of the home to the child's school and other services or facilities used by and available to the child, including child care.
Whether the home has been adapted or modified to accommodate any physical disabilities of a child or a resident parent in a manner that a change in residence may adversely affect the ability of the resident parent to meet the needs of the child.
The emotional detriment to the child associated with a change in residence.
The extent to which the location of the home permits the resident parent to continue employment.
The financial ability of each parent to obtain suitable housing.
The tax consequences to the parents.
The economic detriment to the nonresident parent in the event of a deferred sale of home order.
Any other factors the court deems just and equitable.

Of course, considering all of these factors, the court will grant a deferred home sale order for a property that is entirely the separate property of the non-resident spouse only in certain situations. However, a spouse that has custody of the children and the children have strong ties to the surrounding environment will have a good chance of getting and deferred home sale ordered granted in their favor possibly for several years.

It is best that if you attempt to get an order like this granted you seek the services of an attorney. If you are in need of a Pleasanton Divorce Lawyer please contact the Law Office of Barry D. Witt at (925) 399-9790. Contact a San Jose Divorce Lawyer (408) 883-3884. Contact a San Mateo Divorce lawyer (650) 425-3455. Contact a Castro Valley Divorce Lawyer (510) 244-2400 or visit www.lawofficeofbarrydwitt.com

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Annulment vs. Divorce

noreply@blogger.com (Anonymous) — Wed, 28 Dec 2011 23:51:00 +0000

In this post I’m not going to discuss the inner workings of how a Divorce in California works, unless it is helpful to understanding the differences between a divorce or a dissolution action and an Annulment or Nullity action. I am going to discuss why an annulment would be a good option in certain situations, but may not be possible most of the time. This post is to give you an overall picture of the grounds for an annulment and not to go into specific facts required under each category.

Why would someone want to get an annulment vs. a divorce?

If you are married an annulment sounds like a great option because the result of an annulment is that it’s like the marriage never happened. So if you are against divorce for religious reasons, if you get an annulment, you were never married making it impossible for you to get a divorce. In other words, the marriage becomes void.
If you file for Divorce, you have to deal with the six months and a day cooling off period before your divorce can be final. For an annulment there is no such waiting period before your marriage is declared void.
It may be possible in an Annulment action to prevent the other party from seeking support orders, division of property, attorney’s fees, etc.
Unlike Divorce, there is no statutory residency requirement.
Unlike Divorce, you don’t need to get consent from the opposing party or enter their default.

How can I get an Annulment in California?

The first step in getting an Annulment in California is finding particular grounds for the annulment otherwise you will have to file a petition for dissolution or legal separation. The grounds for an Annulment in California are as follows:

· Void Marriages (Void from the very beginning)

o Incest (California Family Code § 2200, “Marriages between parents and children, ancestors and descendants of every degree, and between brothers and sisters of the half as well as the whole blood, and between uncles and nieces or aunts and nephews, are incestuous, and void from the beginning, whether the relationship is legitimate or illegitimate.”) (emphasis added)

o Bigamy (California Family Code § 2201, “A subsequent marriage contracted by a person during the life of a former husband or wife of the person, with a person other than the former husband or wife, is illegal and void from the beginning…) (emphasis added)

· Voidable Marriages (this marriage is voidable at the option of one of the parties)

o Minority (California Family Code § 2210, “The party who commences the proceeding or on whose behalf the proceeding is commenced was without the capability of consenting to the marriage.”) This means that the minor and the spouse did not get the proper consents before getting married. There are exceptions to this rule.

o Unsound Mind (California Family Code § 2210, “Either party was of unsound mind, unless the party of unsound mind, after coming to reason, freely cohabited with the other as husband and wife.”) So if the person claiming unsound mind figures out what has happened then decides to cohabit with the spouse, the marriage is no longer voidable.

o Fraud (California Family Code § 2210, “The consent of either party was obtained by fraud, unless the party whose consent was obtained by fraud afterwards, with full knowledge of the facts constituting the fraud, freely cohabited with the other as husband or wife.”) Fraud vitiates consent.

o Force (California Family Code § 2210) This is pretty straight forward. If someone is forced to get married there is no consent. There is some case law that states that threats may be sufficient if they took away a parties ability to consent to the marriage.

o Physical Incapacity (California Family Code § 2210, “Either party was, at the time of marriage, physically incapable of entering into the marriage state, and that incapacity continues, and appears to be incurable.”

Problem with an Annulment in California is a Problem of Proof

As you can see in the above lists of void and voidable marriages and annulment is available as a remedy in limited situations. I don’t think that being drunk in Las Vegas can vitiate the consent required. (Although, this might be worth doing some research on in another blog post.) The problem of proof in these situations remains. Are you able to prove with accurate facts to the court that you have grounds for an annulment? This is why annulment actions tend to be highly contested and more expensive because there is a premium on proving for example, unsound mind, or fraud. There is a lot at stake as well because the responding party may lose their ability to receive support in some cases.

If you need assistance with your annulment case or any family law or divorce matter please visit my website at www.lawofficeofbarrydwitt.com

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Family Law and Divorce Do it Yourself Series Part I: How to Modify an Existing Child Support Order in California?

noreply@blogger.com (Anonymous) — Wed, 14 Dec 2011 19:28:00 +0000

This post is to help you file or just simply understand what your lawyer is doing when he or she agrees to assist you in modifying your existing child support order.

1) The first thing you usually want to do is negotiate. If possible, it is always good to try to negotiate a stipulation or agreement outside of court to modify child support with opposing counsel or if your spouse or partner is not represented, then negotiate directly with them. Now this may not always be possible, but if you can agree outside of court that is always better. If you can come to an agreement, then you need to draft a Stipulation and file it with the court stating the amount you agree to. You should include a printout of the child support calculation with the stipulation.

2) If negotiation is not possible, then you would need to draft and file an Order to Show Cause or “OSC”. This is the FL-300 form. It should be good for you to use for the purpose of modifying child support. This form is pretty straight forward, just fill it out. Make sure you check the "Modification" box at the top.

3) You will have to attach an Income and Expense Declaration to the OSC which will tell the court about how much money you make and what expenses you will have. This information combined with the opposing party’s information will be used to calculate the amount of child support that should be paid. It’s important to have updated and complete Income and Expense declaration so the court can make a decision on fresh information. For example, if you just lost your job or for some reason you have less income, you want the court to have the most updated information possible.

4) Next, you need to fill out and attach an Application for Order and Supporting Declaration. On this form make sure you fill out the child support section. On the Second page, you need to use the space on paragraph 10 for your declaration. The declaration should tell the court why you are asking for the modification. You should give the courts facts why they should modify child support. If the space provided is not large enough attach another piece of paper. It’s important to provide facts not just conclusions. The legal standard in California for Modification of Child Support is a “Material Change of Circumstances.” This means that you have to convince the court that there has been a material change between the circumstances that existed at the time the court entered the initial child support order and the circumstances presently.

5) After you file the OSC and accompanying documents, you need to go the court and file the documents. It’s important that you file the OSC at the court which entered the initial child support order. There will be a filing fee. Make sure you bring three copies. One for the court, one for you and one to serve on the opposing party. The clerk will give you a court date.

6) The next step is to serve the opposing party. You can do this by Personal Service, which is where you get someone that is over 18 and not a party to your case to personally hand the documents to the opposing party. This is the best type of service. After you have someone serve the documents you need them to fill out a Proof of Personal Service. This is important: you must file the proof of service with the court before the hearing. Otherwise, the court may not hear your case. You may be able to serve the opposing party by mail if they are represented by counsel. This is a simple process, you just have someone that is over 18 and not a party to your case mail the documents to the opposing party’s counsel. This person has to fill out the Proof of Service by Mail form. Then like the Proof of Personal Service form you have to file either with the court before the court date set up by the clerk.

The links are to the California Judicial Council Website and all of the forms are subject to change. Also, processes change. Remember that each Attorney or county may have their own forms or special rules to follow. So each party has to be familiar with the local rules of the court. More often than not this entire process is best handled by a Family Law Attorney or a Divorce Attorney.

If you should need any assistance with your modification of child support in the bay area please visit my website at www.lawofficeofbarrydwitt.com

I can be reached via email at barry@lawofficeofbarrydwitt.com

No Common Law Marriages in California, EXCEPT…

noreply@blogger.com (Anonymous) — Mon, 05 Dec 2011 19:49:00 +0000

No matter how much anyone tries to convince you that common law marriages exist in California do not believe them. There simply is no common law marriage in California or any marriage-like rights that are recognized under the California Family Code. This means that there is no spousal support arising out of a marriage-like relationship, nor are there any property rights created. So if you want to break up with the live-in boyfriend or live-in girlfriend and you do not have any children, they will not have rights under the California Family Code to assert against you for spousal support or property.

I gave it away with the title, there are exceptions to the general rule that there are no common law marriages in California. I’m not really sure you can call them exceptions. More accurately, they are different theories outside of the normal California Family Law Courts that you may turn to in seeking a remedy.

First, to dismiss and get out of the way is the Putative Spouse Doctrine. The Putative Spouse Doctrine is where one party has a good faith belief that the marriage is valid or legal. When in truth, this good faith belief is mistaken because, most commonly, the other party is already married. In these cases that putative spouse will have similar if not the same rights as a spouse with a completely legal marriage.

Often, the putative spouse doctrine will not apply. So then what are you left with? Rest assured, you may seek what is commonly called a Marvin Claim. This is an action in Civil Law Court for breach of an express or implied contract. The Marvin Claim allows nonmartial cohabitants to seek relief from fellow cohabitants to enforce obligations arising out of property, support, and other financial claims.

The (Marvin v. Marvin (1976) 18 Cal.3d 660) case is famous because the Defendant in the case was the famous actor Lee Marvin. The Plaintiff and Lee Marvin lived together for 7 years and apparently made an oral agreement. Specifically, “that while ‘the parties lived together they would combine their efforts and earnings and would share equally any and all property accumulated as a result of their efforts whether individual or combined.’ Furthermore, they agreed to ‘hold themselves out to the general public as husband and wife’ and that ‘plaintiff would further render her services as a companion, homemaker, housekeeper and cook to ... defendant.’” (Marvin at 666). It’s kind of hard to imagine someone would say, “I agree to render my services a companion, homemaker, housekeeper and cook in exchange for your companionship.” It is important to note that a Marvin claim cannot rely solely on sexual services.

To establish a Marvin Claim you do need at least some cohabitation and it make sense because how can one party render services if they are rarely ever there? Really, what the Marvin Claim is a Contract claim. For a Contract claim you need some kind of Offer, Acceptance, and some kind of bargained for exchange or Consideration. That being said, there is also available, equitable relief. Equitable relief is another way for a court to give a remedy to a party that deserves it because it's fair.

The result of the Marvin Claim is that the person seeking the remedy may be able to be compensated for the services rendered as a result of the breach of contract. In some cases spousal support may be available.

What is interesting as well is the fact that a Marvin Claim is also available for same-sex partners as there is nothing in California Law presently to prevent such an action being brought.

Therefore, in all fairness, there are really no exceptions to the rule that there are no common law marriages in California. There are however, some alternative theories in which a competent Family Law Attorney will assert for their clients.

If you have any questions feel free to comment below or contact me at barry@lawofficeofbarrydwitt.com or visit my website at www.lawofficeofbarrydwitt.com

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Determining Custody: Child's Best Interest

noreply@blogger.com (Anonymous) — Mon, 03 Oct 2011 17:59:00 +0000

In determining child custody where there hasn't been a permanent custody order by the court, the court will analyze the following factors in deciding what custody arrangement is in the best interests of the child (California Family Code Section 3011:

The health, safety, and welfare of the child.
History of physical abuse against either the child, spouse or partner.
History of drug or alcohol abuse.
Contact with parents (for example: does either parent show an interest in frequent contact with children?)
The court will consider the stability and continuity of the environment that the child is currently in.

If you need assistance in your family law matter that involves a possible custody dispute please don't hesitate to contact me at lawofficeofbarrydwitt@gmail.com or visit my website at lawofficeofbarrydwitt.com

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Long-Term Marriages in California

noreply@blogger.com (Anonymous) — Mon, 12 Sep 2011 16:26:00 +0000

Under California law, ten-year plus marriages are presumed to be “lengthy” marriages or marriages of long duration for the purposes of spousal support. By default, according to California family Code 4336, a marriage 10 years or more the court will retain jurisdiction over the spousal support issue unless you agree to something else your marital settlement agreement.

During the marriage if there is an interim separation and then a reconciliation the court may consider these periods when they determine whether the marriage is of a long duration. However, the court will still consider factors under California Family Code 4320: the earning capacity of each party; the marketable skills of the supported party; how the parties earning capacity was affected by the parties previous domestic duties during the marriage, contribution to education, ability to pay, earning capacity, obligations and assets (including separate property), standard of living, duration of the marriage, ability to seek gainful employment, age and health of the parties, domestic violence, tax consequences, balance of hardships, other factors which the court finds just and equitable.

The court will have ultimate discretion on determining the factors above.

If you have any questions, please send me an email at lawofficeofbarrydwitt@gmail.com or you can find me at www.lawofficeofbarrydwitt.com

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Grandparent Visitation in California

noreply@blogger.com (Anonymous) — Mon, 01 Aug 2011 19:40:00 +0000

The most likely route for Grandparents seeking visitation rights of their grandchildren is under California Family Code section 3104. This code section provides conditions in which grandparents may petition the court for visitation. Notice must be give to each of the child's parents, stepparents or one who has physical custody of the child. This is done by personal service.

California Family Code section 3104 lays out several requirements. First, there must be a preexisting relationship between the grandparent(s) and child which created a bond between them and visitation would be in the best interests of the child. Second, the court must balance the interests of the child with parental authority. This section potentially clashes with due process and constitutional concerns. See Troxel v Granville, 530 US 57 (2000).

If the natural or adoptive parents are married the grandparents' petition may have some roadblocks in 3104. The default rule is that the petition for visitation will not be considered if the parents are married unless one of the following five conditions exist.

(b)(1) The parents are currently living separately and apart on a permanent or indefinite basis.

I did some research in the legislative history to find out what "permanent" or indefinite means. Unfortunately the Assembly Committee docs don’t define or give any guidance for the use of the terms “permanent” and “indefinite.” This language is included without explanation in the earliest legislative history I could find, but is full of broad sweeping language about the rights and interests of grandparents.

(b)(2) One of the parents has been absent for more than one month without the other spouse knowing the whereabouts of the absent spouse.

Again, I did some research in the legislative history about this provision. The issue I asked is whether the (b)(2) means that the parent has to be absent for more than one month currently (i.e. at the time of the action) or the parent is gone for more than one month and has now returned. The concern from the Assembly Committee that can be tied to the parent’s absence is the concern of negligence of the parent, but is somewhat of a stretch:

“The problem of drug/alcohol addicted parents who are neglecting their children is rampant and is cited as a basis for both this bill and SB 592 (Russell), which creates a new category of legal custody called a "relative caregiver." Both of these bills attempt to bolster the legal rights of the grandparents who are doing the real caregiving and who may be the only stabilizing factor in the lives of the children involved. However, by providing a legal band-aid of visitation or a caregivership for a problem that is a gaping wound, the law may be providing nothing more than a smokescreen behind which the negligent parent can continue in his or her neglectful ways. This can actually act to the detriment of the child who suffers from a lack of any competent adult with complete authority and control. This increases, not decreases, the instability and insecurity in a child's life.” CA Bill Analysis, S.B. 306 7/14/1993.

The other 3 circumstances require less explanation. (b)(3) One of the parents joins in the petition with the grandparents, (b)(4) The child is not residing with either parent, and (b)(5) The child has been adopted by a stepparent. It should be noted that, "At any time that a change of circumstances occurs such that none of these circumstances exist, the parent or parents may move the

court to terminate grandparental visitation and the court shall grant the termination.

Just a thought…Another way to look at this particular provision is by looking at the 3104 itself where it allows for the parent or parents to move the court to terminate grandparental visitation if one of the circumstances in (b)(1)-(5) change. If (b)(2) means that the parent was gone for more than a month and the other parent not knowing the whereabouts, but now the parents are back together, it is not clear how there could be a “change in circumstances” possible under this scenario. In other words, if the parents are back together and the event already occurred where one parent leaves for more than a month, it is impossible to change. Thus, it can be inferred that the parent would have to be gone for more than a month currently, otherwise the change in circumstances provision would be inapplicable and useless to (b)(2).

I also looked at Lopez v. Martinez, 85 Cal.App. 4^th 279 (2000) which much of the reasoning can be questioned since the 2006 amendment to 3104 adding (b)(5) possibly abrogating Lopez. However, there is some good discussion about legislative intent and public policy behind 3104. Lopez says that the reason 3104 was enacted was so that grandparents were not limited to visitation of a marital action between the child’s parents. The overarching concern or “primary impetus” being the best interest of the child trumps the interests of the grandparents. Some policy reasons generally: (1) gives great deference to the integrity of the family unit, and (2) recognizes importance of family ties and the value of the grandparent-grandchild relationship. Lopez says the family unit must be already “disrupted” in some way before even a grandparent may petition the court for visitation, which is in reference to (b)(1)-(4) as (b)(5) did not exist at this point in time. Disruption as a description might be a fairly obvious description of the limitations in (b), but I thought it was worth mentioning. A few law review articles also characterize the limitations in (b) as non-legal disruption of the marital relationship has taken place. California happens to be a statute that is “closed-ended” meaning that whether the parents are intact will determine whether the grandparents get visitation rights, whereas other states have an “open-ended” statutes which allow visitation regardless of marital status.

Fenn v. Sherriff, 109 Cal. App. 4^th 1466 (2003) also has a good discussion mostly echoing the discussion of legislative intent in Lopez. To note, immediately following the legislative intent discussion, Fenn states on pg. 1476 of the opinion that “courts have no power to award grandparent visitation over the objection of both parents living together in a family unit under 3104.” (CF Harris, where a rebuttable presumption is created) Albeit, this is a case where the father tried and failed to limit a 3102 action through the use of the limitations in 3104(b).

The other potential roadblocks are the rebuttable presumptions created by the 3104. There is a rebuttable presumption created when the natural or adoptive parents agree that the grandparent should not be granted visitation. Also, a second rebuttable presumption is created if the parent with sole custody objects to the visitation.

As you can see Grandparent visitation is a difficult proposition. This makes sense because the courts do not want to interfere with parental rights. However, if there are major problems in the family and the visitation is in the best interest of the child the statute is workable.

If you have questions about grandparent visitation it is best that you discuss this with a California Family Law Attorney.

Hope this helps.

If you need assistance with your family law case please view my website at www.lawofficeofbarrydwitt.com

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