Articles Posted in Unique Family Law Issues

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Same sex couple married in CA seeks same sex divorce in Mississippi. Simple? Not exactly.

Lauren Beth Czekala-Chatham asked a Mississippi court to recognize her same sex marriage, which took place in California, so that she could file for divorce within the State. Although the couple was married in California, they resided in Mississippi for the duration of their marriage. Czekala-Chatham could file for divorce in California because the State exempts same sex couples from residency requirements that ordinarily require at least one divorcing spouse to be a California resident for six months prior to filing. In part, this is so same sex couples who marry in California but reside in states where their marriage is not legally recognized do not have to face the burden of establishing residency before they can file for divorce. However, California courts will not always be able to issue significant rulings related to property ownership, debt, alimony, or children.
Because California cannot issue certain rulings regarding property ownership, debt, alimony, and children, it is not a viable option for some divorcing same sex couples.
In a telephone interview, Czekala-Chatham explained that failing to get divorced could have serious repercussions. Czekala-Chatham has children from a prior relationship and is concerned that her spouse could contest her will and take her children’s inheritance if they failed to get a divorce. According to court filings, Czekala-Chatham is seeking the couple’s marital home in Mississippi as well as, alimony in the divorce. Czekala-Catham says she will go all the way to the State’s Supreme Court in order to have her same sex marriage recognized because she doesn’t see another way out of the situation. If the State were to recognize her marriage, it would not permit same sex marriages in Mississippi, which remain banned under Mississippi law.

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Since the U.S. Supreme Court stuck down parts of the Defense of Marriage Act, several states have faced similar requests.
Several other states which have bans on gay marriage have been faced with similar requests since the U.S. Supreme Court struck downs segments of the federal Defense of Marriage Act earlier this summer. For instance, the Texas Supreme Court is considering whether it has jurisdiction over same sex divorce cases, even though it does not allow same sex marriage. Oral arguments are scheduled for next month. At least two same sex couples have filed for divorce in the State.
However, Mississippi College constitutional law professor, Matt Steffey says the Mississippi case is a long shot because the right does not exist within Mississippi law. He believes the issue of same sex divorce will eventually reach the U.S. Supreme Court.
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In a (perhaps temporary) blow to gay couples and Utah same-sex marriage advocates, the United States Supreme Court has granted a stay on a federal district court judge’s decision overturning Utah’s gay marriage ban. According to a story in The Salt Lake Tribune, the Supreme Court’s ruling, which came down on Monday, will effectively halt same-sex marriages in Utah for the time being.

The district court judge’s decision legalizing gay marriage in Utah came down about three weeks ago, and surprised observers both in Utah and around the country. Overnight, one of nation’s most conservative states was granting marriage licenses to same-sex couples. However, the state plans to appeal the ruling to the 10th Circuit Court of Appeals and, if that fails, all the way to the Supreme Court. The stay means that no more same-sex marriage licenses will be issued in Utah at least until after the 10th Circuit rules on the appeal.

Judge and Gavel

Stay Puts Married Same-sex Couples in Limbo

Many same-sex couples were married during the three-week period between the district court ruling and the Supreme Court stay. The legal status of those couples, in terms of their rights and their ability to receive government benefits, is unclear for now, and no more gay couples can get married until the higher courts sort out the appeals. The Supreme Court’s decision came after both the district court and the 10th Circuit declined to grant stays. An attorney for the Utah same-sex couples who originally sued in district court, objected to the stay and was quoted as saying, “every day that goes by, same-sex couples and their children are being harmed by not being able to marry and be treated equally.”

Similarities and Differences with California Decisions

Utah is the second state in the nation, after California, to have a federal court strike down its law banning same-sex marriage. In California, a district court judge found Proposition 8, the 2008 ballot initiative that banned same-sex marriage, to be unconstitutional. In that case, the district court imposed an immediate stay on the ruling until the issue could be resolved by the higher courts on appeal.

That stay prevented the situation we now see in Utah, where couples may eventually have their marriage licenses revoked, even though they followed the law on the books at the time they were married. It ultimately took about three years for the California case to go from the district court to the U.S. Supreme Court. The district court’s decision overturning Proposition 8 was affirmed by the Supreme Court last year in Hollingsworth v. Perry. It is very possible that the Utah case will take just as long to resolve.

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Utah’s anti-polygamy law was ruled unconstitutional this month when a federal district court judge in Utah struck down the state’s prohibition of “cohabitation,” perhaps opening the door for the eventual legalization of polygamous marriage. The case continues the recent trend, in courts and in the nation as a whole, toward changing the way we think about marriage and the regulation of personal relationships by the government.

Polygamy Hands

The challenge to the Utah statute was brought by a Utah man (and reality television star) who lives with his four wives and 17 children. The court found that, under the First Amendment’s guarantee of the free exercise of religion, the statute’s language banning “cohabitation” is unconstitutional. The state can still prohibit actual polygamy by not allowing anyone to have more than one valid marriage license. However, the decision may pave the way for the legalization of polygamy sooner rather than later.

Another Significant Change to Domestic Relations Law 

The decision is the latest in a line of cases, from Lawrence v. Texas in 2003 through US v. Windsor earlier this year, in which the federal courts have expanded the right to privacy and limited the government’s ability to regulate private sexual behavior. The Utah court specifically cited Lawrence, which struck down anti-sodomy laws in Texas. In that case, the majority opinion stated that the Constitution protects people from “unwarranted government intrusions into a dwelling or other private places” and “an autonomy of self that includes freedom of thought, belief, expression and certain intimate conduct.”

The dissent in Lawrence famously argued that the decision would inevitably lead to the legalization of same-sex marriage, polygamy, and other non-traditional familial arrangements and sexual practices. If marriage is nothing more than a matter of choice by consenting parties, reasoned the dissent, then there is no basis for limiting it to opposite-sex couples or to just two people.

In Windsor, the Supreme Court found the Defense of Marriage Act unconstitutional, essentially requiring the federal government and state governments to recognize same-sex marriages from other states. Once again, critics predicted a “slippery slope” in which anti-polygamy laws would no longer stand up to constitutional scrutiny. If decisions about who can get married belong exclusively to the individuals involved, rather than to the community or government, then any regulation of those consensual decisions becomes intrusive.

The plaintiffs’ attorney in the Utah case, however, disagreed with the dissenting opinions in Lawrence and Windsor. He argued that those cases and the Utah decision ultimately come down to privacy, and to each person’s “right to be left alone as consenting adults.” People should be able to do whatever they want in their own homes, as long as they do not harm others. The government, the attorney argued, should not interfere with what its citizens do behind closed doors.

What to Do if You Want to Enter into a Non-traditional Marriage

Since the Utah decision relied on federal law, it would be equally applicable in California and other states. Continue reading →

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Earlier this month, Governor Jerry Brown signed landmark child custody legislation that expands the authority of California family law courts when it comes to making child custody determinations. The new child custody legislation allows California family law courts to recognize three or more individuals as the legal parents of a child. Accordingly, a court’s child custody orders can require more than two individuals to share physical and/or financial responsibility for raising a child.

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Legislation was authored by Sen. Leno in order to ensure that California law reflected current family dynamics.
Senator Mark Leno (D-San Francisco) authored the legislation in order to ensure that California’s family law provisions reflected changes in the way families are structured within the State. Specifically, to recognize the increasing number of same sex couples having children with a biological parents of the opposite sex.
In support of the measure, Senator Leno explained that California’s family law courts should be able to issue child custody rulings which recognize circumstances where multiple individuals act in a parental capacity by providing support and care for a child. He when on to explain that providing judges with the authority to issue rulings that would allow more than two parents to share custody of a child will help prevent situations where a child is forced to deal with separation from an individual they have always considered a parent and is therefore in their best interest.
Senator Leno authored the bill after a 2011 court decision, which sent the daughter of a same sex couple to foster care when both women lost custody. The girl was sent to foster care despite the fact that her biological father wanted to assume custody. The court reasoned that the biological father did not have parental rights.
Conservative groups opposed the legislation, viewing it as an attack on traditional families.
The measure was opposed by a number of conservative organizations who deemed the new legislation as an attack on traditional families. Brad Dacus, president of the Pacific Justice Institute, responded to news of Gov. Brown signing the new legislation by stating that he was disappointed in the decision. He argues that the legislation was a mistake because it will lead to more complicated family law proceedings that will be detrimental to children in the long run.
Last year, Gov. Brown vetoed a bill similar to the one signed into law on Friday. It is unclear what changed the Governor’s mind on the issue.

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cohabitation split.jpgAccording to the U.S. Census Bureau, as of 2012 there were 112 million single individuals over the age of 18 living in the United States. This number represents 47 percent of the country’s adult population.

UNMARRIED, COHABITATING COUPLES ARE ON THE RISE

Of this unwed population, over 12 million live with their romantic partners in nearly 6 million households across the United States. The number of unmarried, cohabitating partners has increased substantially over the past few decades. Between 1960 and 2000, the number of unmarried, cohabitating partners increased tenfold. The number of unmarried, cohabitating partners has grown even more rapidly over the past several years. For example, the number of unmarried, cohabitating partners increased by approximately 88 percent between 1990 and 2007.

Unmarried cohabitation is often a first step for couples who intend to get married. About 75 percent of unmarried, cohabitating partners report that they plan to get married as some point. In fact, over half of unmarried, cohabitating couples get married within the first five years of living together. However, approximately 40 percent of these couples break up within the same five year period and the remaining 10 percent remain as unmarried, cohabitating partners.

In 2000, there were 683,516 unmarried, cohabitating households within the state of California. Based on statistics provided by the U.S. Census Bureau, California contains one out of every eight unmarried, cohabitating households within the United States. California has more unmarried, cohabitating households than any other State, with 12 percent of all unmarried, cohabitating households within the Country.

As these statistics indicate, the legal rights and entitlements of unmarried, cohabitating partners is a subject that will affect a large number of Americans, particularly those residing in California, at some point within their adult lives.

UNMARRIED, COHABITATING CALIFORNIA COUPLES MAY BE ENTITLED TO PALIMONY

California does not recognize common law marriage. Therefore, unmarried, cohabitating couples who hold themselves out as a married couple are not given the same legal rights and entitlements as a legally married couple.

However, in the state of California, an unmarried, cohabitating individual may be entitled to palimony when their relationship comes to an end. Palimony is the division of financial assets and real property between unmarried, cohabitating couples. This entitlement is not based on family law principles, but rather on contractual agreement. Therefore, in order to receive palimony, a former cohabitating partner must prove that the couple had a written, oral, or implied agreement that they would receive some financial benefit in exchange for something of value such as, taking care of their partner, raising children, or giving up a career.

The most well-known palimony case in California occurred in 1977 when the actor Lee Marvin was sued by his long time live in partner, Michelle Triola Marvin for palimony. Michelle claimed that the actor had promised to take care of her financially for the rest of her life and that she had given up a singing and acting career to be with him. While the California Supreme Court did not find that the couple had an agreement, the case did solidify that where a written, oral, or implied agreement did exist, a former unmarried, cohabitating partner would be entitled to palimony.

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Equality.jpgOn March 26, the Supreme Court heard arguments regarding the constitutionality of California’s Proposition 8. The following day, the Supreme Court heard arguments addressing the constitutionality of the Defense of Marriage Act (DOMA), a federal law defining marriage as between opposite sexes.

Proposition 8, which was passed in the November 2008 California elections, amended the California’s Constitution to specify that the State only recognized marriages between a man and woman as valid.

When Proposition 8 was passed in 2008, it resulted in the overturning of a ruling by the California Supreme Court, which found that same-sex couples had the constitutional right to get married. While Proposition 8 banned same-sex marriages going forward, a subsequent court ruling allowed same-sex marriages performed before November 5, 2008 to remain valid.

After its passage, Proposition 8 faced numerous legal challenges. In August of 2010, the United States District Court for California held that Proposition 8 was unconstitutional because it violated the Due Process and Equal Protection Clauses of the United States Constitution. In February of 2012, this decision was affirmed by the Ninth Circuit Court of Appeals. Proponents of Proposition 8 filed a petition for certiorari with the United States Supreme Court, requesting the country’s highest court to rule on the matter. This petition was granted in December of 2012.

The Court heard oral arguments in this case on March 26 and is slated to issue a ruling by July of 2013. During oral arguments, Justice Anthony Kennedy stated that banning same-sex marriage posed an immediate harm to those same-sex couples. He also mentioned that the effects of the ban on the children of same-sex couples should be considered.

Same-sex divorces are rising

Historically, same-sex marriages have had higher rates of success than marriages involving different-sex partners. However, according to a recent New York Magazine article, studies show that the same-sex couples are experiencing a divorce boom, with rates approaching those of their different-sex counterparts.

The process for securing a same-sex divorce can be confusing

Just as the laws surrounding same-sex marriage are in flux, so are the laws surrounding same-sex divorce. Same-sex divorces are complicated because of the differences amongst states and between states and the federal government regarding the legal status of same-sex relationships. The ability to secure a divorce is critical because it has implications on end of life decisions, inheritance, and child custody.

Many states, including California during its same-sex marriage window, do not impose residency requirements for getting married within the state. However, those same states have residency requirements for filing a divorce. This poses huge burdens on couples that reside in other states where same-sex marriages and divorces are not recognized, and who cannot afford to move and establish residency where they married in order to file for divorce.

Furthermore, states and the federal government differ in their treatment of taxes, pensions, and inheritance of same-sex couples. This makes the distribution of assets at the end of a marriage difficult.

Securing a same-sex divorce can be complicated, but a family law attorney can help navigate you through it.

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Putative Marriage.jpgA putative marriage is a marriage that appears to be valid and is entered into in good faith on the part of at least one of the partners, but is legally invalid due to a technical impediment. The most common impediment to a marriage is an earlier undissolved marriage. In other cases, a marriage may be putative if it is between close relatives, underage persons, or people who are incapable of entering into a marriage contract because of mental incompetence. In some cases, a putative marriage has been created if problems arise with the couple’s marriage license, like forgetting to file it. If the putative spouse discovers the impediment and the couple undertakes steps to legalize their marriage within a reasonable period of time, then their marriage may be found valid. In some cases where the parties have a long union that both parties honestly believed was a valid marriage, a court may refuse to declare the marriage invalid and require a divorce to end the marriage. Although California law does not recognize a putative marriage as valid, it does have protections in place for the innocent spouse.
Good faith is an essential element of a putative marriage. Good faith means a bona fide belief that the parties can marry lawfully or were married lawfully. If the spouse becomes aware of the legal impediment to the marriage, then the question becomes how reasonable it is for the spouse to ignore the information and not investigate further.
A putative spouse is different than a statutory spouse, a common-law spouse, or a ceremonial marriage spouse, in that a putative spouse is not legally married. If the putative spouse can establish that they had a good faith believe that their marriage was valid, then they are entitled to certain protections under California law.
In 1994, the California legislature amended the putative marriage law to allow putative spouses to divide property acquired during the putative marriage. Under a traditional divorce, property acquired during the course of a marriage is considered community property. However, because a putative marriage is not considered valid under the California law, the property is considered “quasi-marital property.” With quasi-marital property, one-half of the property belongs to the putative spouse, and one-half belongs to the legal community. The share that belongs to the legal community is distributed to the legal spouse and the common spouse like any other community property. In other words, the legal community property, which is half of the marital property, is again divided so that the putative spouse receives half and the other spouse receives half. As a result, the putative spouse will receive three-quarters of the property acquired during marriage.
In the event putative spouses have children together California family law applies. Child custody and support will be determined under California law, as they would in a valid marriage. If the parties are unable to come to an agreement amongst themselves, they can utilize the legal system, taking advantage of the traditional litigation path or using the alternative dispute resolution options offered.

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Cohabitation in CaliforniaToday, many couples choose to live together, but do not wish to get married. Some do it for legal reasons, where they are still married and do not want a divorce, and some choose not to marry simply because they do not believe in the institution of marriage.
Most married couples do not realize that, by marrying, they entered into a legal contract. The contract defines the rights and obligations they owe to one another as a married couple. Unsurprisingly, unmarried couples can also enter into contracts to establish rights and obligations. While these contracts can be referred to by many names, they are most commonly called nonmarital agreements or cohabitation contracts.
In 1976, the California Supreme Court issued a decision establishing nonmarital agreements. The decision allowed unmarried couples to enter into written and oral contracts covering rights often associated with marriage, such as property rights. In addition, an unmarried couple may create a nonmarital agreement through their actions, without ever writing anything down or specifically speaking about it.
Nonmarital agreements are not right for every unmarried couple; generally, they are appropriate when the couple expects to stay together for a long period of time and a significant amount of money, property, and debt will be accumulated. Even those couples opposed to the institution of marriage should strongly consider a nonmarital agreement to protect their interests, and to ensure that if the relationship ends the property distribution is orderly. Older couples may wish to use a nonmarital agreement to ensure that their property is distributed the way they wish.
Just as every relationship is different, so is every nonmarital agreement. The nonmarital agreement should be tailored to your relationship, and include the level of detail you want. Most nonmarital agreements should contain items discussing:

Acquired property – How should ownership of items acquired during the relationship be determined? Should it be 50% or should the property belong solely to the person who bought it?

Previously owned property – Many couples prefer to solely own the property they owned when they entered into the relationship, but memorializing it can help cut down on confusion.

Expenses – It may be helpful to include information regarding which partner will pay for expenses. You have several options, including an even split, a proportional split based on income, or pooling money in a joint account.

Separation or death – It is important to include information on how property should be distributed if the relationship ends or one partner passes.
While the California courts have upheld nonmarital agreements, they may refuse to enforce an agreement in some circumstances. If the nonmarital agreement appears to include consideration for sexual services it may not be enforceable. For example, if one partner agrees to share his or her income in return for the other partner’s love and companionship, a court may decline to enforce the contract for requiring sexual activity. In addition, some courts may not enforce an oral agreement, because it can be difficult to determine the terms of the agreement without written evidence.

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Chess GameQ: What is an action for contempt against spouse and what is it used for?

You and your soon to be ex-spouse are going through a highly contested divorce proceeding. You believe that your spouse does not play by the rules, and your spouse believes that you are hiding assets. The unfortunate aspect of your divorce is that you have three young children, and there are child custody orders which grant both you and your spouse joint legal and joint physical custody of your children. In conjunction with those orders, you have a child visitation schedule with your three children on a week-on, week-off time-sharing schedule, with exchanges to take place every Sunday at 6:00pm.
It never fails that whenever there is a major sporting event on television, your spouse NEVER exchanges the children on time. In fact, your spouse is always hours late to the exchange, and you never can count on receiving the children on time. This last Sunday, October 28, 2012, the San Francisco Giants were playing the Detroit Tigers for the World Series. If the San Francisco Giants won the game, they would have been crowed the World Series Champion. Well, you knew, just as it always happens, that your spouse would not exchange the children on time. In fact, on this October 28, 2012, after the San Francisco Giant beat the Detroit Tigers to win the World Series, your spouse did not exchange the children but withheld them from you. As far as you were concerned, this was the last straw and you wanted to know how you could compel your spouse to abide to the rules set forth by your child custody court order.
The answer is simple. You have the right to file an action for contempt against your spouse. An action for contempt is a quasi-criminal matter. If found guilty, your spouse could actually be sent to jail or could instead receive a sentence requiring them to perform a significant amount of community service.
Actions for contempt are governed by California Code of Civil Procedure §1209 et al, which states that “(5) Disobedience of any lawful judgment, order, or process of the Court…” are contempts of the authority of the court. CCP §1209(5). Pursuant to CCP §1218(c), in any action where a party is found in contempt pursuant to the family code, “the court shall order the contemner to perform community service of up to 120 hours, or to be imprisoned up to 120 hours, for each count of contempt.” In addition, CCP §1218 prescribes a fine and/or punishment and provides that for each act of contempt the contemnor may be fined up to $1,000.00.

“The purpose of…civil contempt proceeding is not to punish but to secure future compliance with the orders of court…” Wilson v. Superior Court (1987) 194 Cal.App.3d 1259, 1275, citing Toussaint v. McCarthy (N.D.Cal 1984) 597 F.Supp. 1427, 1431.
In order for a party to be held in contempt of Court for disobedience of any lawful order, “the acts constituting the contempt must be clearly and specifically prohibited…” Brunton v. Superior Court (1942) 20 Cal.2d 202, 205. In fact, the “most basic premise in the law of contempt is that such punishment can only rest upon clear, intentional violation of a specific, narrowly drawn order.” Wilson v. Superior Court (1987) 194 Cal.App.3d 1259, 1273.

In your case, where your spouse has consistently disobeyed a Court order requiring exchanges of your children to take place each Sunday at 6:00pm, a Court may find that each instance of your spouse failing to return the children to you on time is a separate and distinct charge of contempt. Therefore, if your spouse has not returned the children on time on five different occasions, theoretically, your spouse could be held in contempt of five distinct charges. Under this scenario, your spouse could be sentenced to over 600 hours of community services, or fined up to $5,000.00.

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Children can be significantly affected by a divorce. Many divorcing parents today are employing written parenting plans to assist themselves and their children with the transition. A parenting plan is a written document that attempts to address many of the potential areas of contention between divorcing parents.

The major benefit with parenting plans is the consistency they offer. Whenever an issue arises between the parents, they can review the parenting plan to determine the proper course of action.

Just as every child, and every family, is unique, so should each parenting plan be unique. Your parenting plan should be tailored to your child’s needs. Those needs will change depending on your child’s age and personality. As your child grows and changes, the parenting plan should be updated accordingly. The plan should also take into account each parent’s schedule and parenting strengths.

Of course, in order to create a parenting plan, the parents must discuss and agree upon many different and diverse issues. Some of those issues will be difficult to agree on and many will be emotionally charged.

Child custody and child visitation should always be discussed at length in a parenting plan. There are many, many different kinds of child custody arrangements and just as many visitation scenarios. Some families prefer to change child custody over short periods of time, while others prefer for the children to reside with each parent for longer periods at a time.

One contentious issue between divorcing parents is transporting the children. When divorcing parents live close to one another, then parents must discuss whether the custodial parent will drop off the child or whether the not custodial parent will pick them up. The situation is more difficult when parents live farther away. In those situations, the child may need to take a train or plane in order to reach the other parent’s home. Until the child is older, they will likely need someone to accompany them, and the parenting plan should specify which parent that will be.

Parenting plans should also discuss the basic care of the child. Such basic care includes food, sleep, and activities. Recently, more and more families are adopting organic, vegetarian, or vegan diets. Parents may wish to include these dietary choices in a parenting plan, to ensure continuity for their child.

Parenting plans can cover any issue that parents wish to address. For example, parents may want to limit the amount or type of visitors that a custodial parent has while watching the child. Parents may also address the usage of cell phones, computers, and the Internet. The plan can also delve into the child’s involvement in sports and other extra-curricular activities. Such activities can be particularly difficult, because some parents may need to discuss how they will attend the child’s events. Finally, one particularly contentious issue that must be addressed is religion. Even when both parents are religiously compatible, the parenting plan should address when and where religious activities will occur, and how the child may participate.

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