Santa Rosa Family Lawyer Blog

According 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.

On 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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A 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.

Today, 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.

Q: 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.

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.

When parents divorce, or when unmarried people have a child together, child custody is almost always an issue. After all, both parents will usually want to spend as much time with their child as they can. Prior to starting a child custody battle, many parents are not aware of the different types of child custody.

Physical Custody
Physical custody is the most common custody type available. Physical custody means that the parent has the right to have the child or children live with him or her. Most modern custody agreements give physical custody to one parent and child visitation rights to the other parent. These visitation rights typically include exclusive time with the child on weekends, holidays, and a number of weeks during summer vacation.

Legal Custody
Legal custody means that the parent has the legal authority to make decisions about their child's education, health, and upbringing. Legal custody is often given jointly to both parents, even when one parent has sole physical custody, unless it is shown that one parent is clearly unfit. Joint legal custody requires the parents to come to a consensus about many difficult subjects, such as religious instruction, medical care, and education, all of which will shape the child as he or she grows.

Sole Custody
Sole physical custody occurs where the court determines that one parent is unfit, and the child lives only with the other parent. Sole physical custody most often occurs when one parent has financial, drug, or alcohol problems. It may also be awarded where on parent is living with a new partner and the new partner is deemed unfit to care for the child.

In most instances, the parent with sole custody has both physical and legal custody. Sole custody arrangements are actually rare, and limited to situations where one parent is clearly unfit. Even where one parent has sole physical and legal custody, the non-custodial parent will still likely have periods of visitation with the child. However, where domestic violence or child abuse is involved, these visits may be supervised.

Joint Custody
Joint physical custody means that the child lives with both parents on a scheduled basis. The schedule will often be created by the parents and approved by a judge. Every schedule is different, and is based upon the needs of the child and the parents' schedules. Depending on the child's age, the parents may rotate by day, week ,or even month when both parents live in close enough proximity to the child's school. However, where one parent lives a significant distance away, the child may live with one parent primarily during the school year and the other parent during weekends, holidays, and summer vacation.

A newer form of joint child custody is referred to as a bird's nest custody arrangement. With the bird's nest arrangement, the child or children continue to live in the family home at all times. The parents then rotate who lives with the children on a scheduled basis. The arrangement is seen as beneficial to young because it allows them to attach their emotions to the family home.

See related blog posts:
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Resolving a Child Custody Matter With the Courts

Our experienced Santa Rosa divorce attorneys often explain that the standard issues that arise in a divorce proceeding relate to child custody and marital asset division. Also, it is not unusual to deal with issues of cheating during a divorce proceeding. "Cheating" can refer to many different things in this context, from extramarital affairs or "hidden" assets. In today's digital age, it is not difficult to uncover a spouse's possible cheating behavior, no matter what form it takes.

Given the various methods available on the Internet, smart phones and other investigatory portals, it is relatively simple for any individual to obtain sensitive records that could bring to light unflattering facts of the targeted person being investigated. These accessible modes of investigation tempt suspicious individuals, especially those in the midst of a divorce, to conduct informal detective work with the objective of uncovering cheating behavior.

However, prior to conducting such an investigation, it is vital for an individual to determine whether it is legal to find evidence of cheating behavior in this particular manner.

There are potential dangers of spying on a spouse via his/her digital life. It is possible to overstep the boundaries of privacy by obtaining information through informal digital investigations. If the boundaries have been violated, then the information obtained through such intrusive means cannot be introduced into the courtroom as legally obtained evidence. There have been instances where individuals have installed spyware software into their spouses' computer with the intention of analyzing their every keystroke on the computer. Whether such practice is legal depends on the shared status of the computer. If the computer is shared by both spouses, then installing such spyware is deemed to be legally sound in most cases. However, it appears that California courts are inclined to deem such investigatory behavior as illegal if the computer is exclusively used by one spouse and is protected by passwords.

Suspicious individuals in the midst of divorce proceedings are not the only ones resorting to these methods. In today's technologically advanced age, it is becoming common practice for divorce attorneys to use "advanced research tools" to sort through digital evidence in preparation for divorce cases.

Due to this relatively new practice of evidence collection via digital portals, laws regarding this subject matter have not yet been established. Therefore, it is imperative for an individual going through a divorce to seek the advice of an attorney in order to gauge whether or not he/she is within the legal bounds in terms of uncovering unsavory details regarding his/her spouse. Introducing evidence obtained illegally could not only put an individual in jail, but it could also put the individual in an unfavorable light with the judge of the divorce proceeding. Our Santa Rosa divorce attorneys will ensure that an individual in the midst of a divorce will not obtain evidence through illegal means.

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For decades, California state officials have been trying to get some children to pay for the debts of their parents who received aid from cash assistance programs from years past. These are programs aimed at helping the state's neediest families.

This is caused by accounting errors of county administered cash assistance programs. One such cash assistance program is CalWorks, which provides qualified families with the necessary aid to sustain basic life essentials. For whatever reason, entities like CalWorks have been prone to over-pay their recipients usually because of mistaken paperwork and clumsy accounting errors. This problem is particularly troubling, though because the program's consistently suffer severe budget problems.

As a result of these accounting errors, cash assistance providers are now seeking collection of the overpayments. However, the problem is that county officials are having trouble tracking down the actual recipients of these overpayments. Therefore, desperately some instances they have resorted to seeking collection from the children of the recipients. Our Santa Rosa family law attorney recognizes that it is not legally sound to hold a minor responsible for their parents' debts.

According to an article from The Los Angeles Times, the practices adopted by these cash assistance programs have faced intense scrutiny.

For example, Clarence Ayers has experienced the negative effects of this collections process first-hand. Mr. Ayers provided support for his great-granddaughter by covering the child's expenses from his monthly stipend from CalWorks. Last summer, Ayers' CalWorks payment was reduced by 10% because the public assistance entity had mistakenly disbursed $10,000 to the child's mother and grandfather. Essentially, as Ayers states, "She [his great-granddaughter] was being punished for something she never did."

Recognizing that his great-granddaughter's legal rights should be protected given that it would be unfair to hold her, a minor, responsible for the debts of her mother and grandfather, Mr. Ayers filed a lawsuit to end this unjust collections process implemented by public assistance entities.

Fortunately, Mr. Ayers case was successful.. The lawsuit is currently in the settlement phase, but the California Department of Social Services has stated that refunds will be provided for any unfair withholdings since January 6, 2012. Further as a result of the suitcounties were instructed to stop collecting on past overpayments from adults whose families received assistance when they were children. This direct order circumvents California state law that requires county officials to try to recover overpayment of funds if a family receives an excess of $35 or more. The state law allows the option of county officials to track down other household members, which gives them the choice of unfairly burdening the children of the recipients of the funds with the debt. Our Santa Rosa family law attorney appreciates efforts being made that rightfully relinquish young people from debts that they are not responsible for.

As this situation demonstrates, family law issues can get quite complex. The law treats family members differently under the law than others, often leading to confusing (and sometimes unjust) legal actions. No matter what, our Santa Rosa family attorneys understand that certain rights must be protected in order to avoid one family member facing unfair legal burdens. If you are in need of legal help related to family issues, it is important to seek the advice of a Northern California family law attorney to ensure you are not taken advantage of by others or the even the government.

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