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| 2/8/2013 |
| Father’s Disability Pension Is Separate Property |
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In reversal, a California Court of Appeals has ruled that Trial Court was wrong by awarding Mother a community property share of Father’s California State Teachers’ Retirement System ("CalSTRS") disability allowance because those benefits were Father’s separate property. In the case of In re Marriage of Walker, Father, a school teacher since 1986, married Mother in 1993... more
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| 2/8/2013 |
| Federal Defense of Marriage Act Unconstitutional |
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In affirming the lower court’s decision, a Federal Circuit Court has ruled that Section 3 of Defense of Marriage Act (DOMA), which defines "marriage" as a legal union between a man and a woman, is unconstitutional. In the case of Commonwealth of Massachusetts v. U.S. Dept. of Health and Human Servs., seven same-sex couples who were legally married in Massachusetts, along with three... more
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| 1/20/2013 |
| Fiduciary Duty Ends Upon Divorce |
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In a partial reversal, a California Court of Appeals has ruled that Trial Court was wrong by basing a sanctions order partly on erroneous belief that the parties’ continuing fiduciary duty of disclosure under California Family Code Section 2012(c) extends beyond final judgment until end of Trial Court’s jurisdiction to order child support. But, the Court of Appeals did affirm Trial Cou... more
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| 1/6/2013 |
| Mother’s Partner Is Children’s 2nd Mother |
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A California Court of Appeals has ruled that Trial Court did not make a mistake in ruling that Mother’s former same-sex partner is presumed the parent of Mother’s adopted children where evidence showed that the partner received them into her family home and held them out to family and friends as her natural children. In the case of S.Y. v. S.B., Mother’s former same-sex partner (... more
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| 12/24/2012 |
| Grandmother Not Entitled to Visitation |
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A California Court of Appeals has ruled that a Trial Court did not make a mistake in applying the clear and convincing standard to determine whether a grandmother, who sought visitation over the mother’s objection, had successfully rebutted the presumption that fit parents act in child’s best interests. In the case of Rich v. Thatcher, Mother gave birth to Father’s Child in Decem... more
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| 12/18/2012 |
| US Supreme Court Will Hear Prop 8 Cases |
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On December 7, 2012, United States Supreme Court granted certiorari in Hollingsworth v. Perry and United States v. Windsor. In Hollingsworth, U.S. Supreme Court will consider whether the Equal Protection Clause of the Fourteenth Amendment of the United States Constitution prohibits the State of California from defining marriage as the union of a man and a woman only. In addition, U.S. Supreme Cour... more
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| 8/18/2012 |
| Wife Not Entitled to Attorneys’ Fees to Fight |
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A California Court of Appeals has ruled that Mother is not entitled to a fee award in an unsuccessful challenge to the validity of a Marital Settlement Agreement because the Agreement provided for an award only to the prevailing party and contained an implied waiver of any claims Mother might bring arising out of the Marital Settlement Agreement. In the case of In re Marriage of Guilardi, Mother a... more
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| 8/17/2012 |
| Woman’s 3rd Marriage Valid since Her 2nd Wasn't |
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In reversing the Trial Court, a California Court of Appeals has ruled that Trial Court was wrong in ordering Mother’s marriage to Husband number three annulled as bigamous because the prior marriage on which that finding was based was void under both Nevada and California laws. In the case of In re Marriage of Seaton, Mother married her Husband-1 in November of 1973. They separated in Januar... more
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| 5/4/2012 |
| Grandmother Gets Visitation over Dad’s Objection |
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A California Court of Appeals has ruled that a Trial Court was not wrong by refusing to deny visitation to Children’s grandmother, over Father’s objections, because Father’s reasons for objecting to visitation were neither reasonable nor credible, Father admitted that visitation would be in Children’s best interests, and Father "practically admitted" that he was o... more
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| 5/4/2012 |
| Father Not Allowed to Claim the Kids on His Taxes |
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A U.S. Tax Court has ruled that where Mother was given temporary sole possession of the parties’ family home during the pendency of the divorce case, but Father was awarded family home in the divorce judgment three years later, Father’s absence from family home was not temporary for purpose of the dependency exemption. In the case of Alarcon v. Commissioner, Texas resident, Father, sep... more
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| 4/13/2012 |
| Man Who Slept with Married Woman Is Not Father |
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In affirming the Trial Court’s decision, a California Court of Appeals has ruled that the petition of a man, who sought to assert paternity of twins born during Mother’s marriage to another man, should not have been granted because he had no personal relationship with the twins and he could not rebut the presumed paternity of Mother’s husband under California Family Code Section ... more
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| 4/7/2012 |
| Managing Spouse Must Prove What Happened to Assets |
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A California Court of Appeals has ruled that where a non-managing spouse makes a prima facie showing of the existence and value of community property assets in managing spouse’s post-separation control, the burden of proof shifts to the managing spouse to rebut that showing or prove proper disposition or lesser value of those assets. More specifically, Trial Court made a mistake, according t... more
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| 3/2/2012 |
| Wife Labeled Vexatious Litigant by Appellate Court |
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In affirming the Trial Court, a California Court of Appeals has found no merit in any of Wife’s contentions and has designated Wife as a vexatious litigant. In the case of In re Marriage of Falcone and Fyke (Falcone and Fyke II), Wife, representing herself during pre-trial proceedings, acknowledged that Trial Court had previously precluded her from filing any more motions with the Trial Cour... more
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| 2/25/2012 |
| Prop 8 Case Is on its Way to the US Supreme Court |
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A majority of Federal Ninth Circuit Court of Appeals has ruled that California Proposition 8 is unconstitutional because it violates Equal Protection Clause by targeting a minority group and withdrawing a previously-possessed right from them without a legitimate reason. After the California Supreme Court, in the case of In Re Marriage Cases (2008) 43 Cal.4th 757, ruled that the statutory language ... more
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| 2/4/2012 |
| Life Insurance Policy Is Wife’s Separate Property |
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A California Appellate Court has ruled that Trial Court was wrong in finding that life insurance policy purchased during marriage with community property funds was community property where Father testified that he intentionally made Mother policy’s owner and beneficiary so that "there would be money for everybody," if something happened to him. In the case of In re Marriage of Vall... more
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| 2/3/2012 |
| Second Marriage Valid Without First Divorce |
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A California Court of Appeals has ruled that Trial Court erred by finding that Wife did not qualify as putative spouse because her belief in validity of her marriage was not objectively reasonable. According to the Appealate Court, Trial Court should have focused on triable issues concerning whether Wife had good faith belief in her marriage’s validity. In the case of Ceja vs. Rudolph & ... more
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| 12/4/2011 |
| Wife Can Sue Husband for Domestic Violence |
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A California Appellate Court has ruled that a Trial Court’s consideration of Wife’s claim of domestic violence in making its spousal support order does not preclude Wife from pursuing a separate tort action against Husband for that same domestic violence. In the case of Boblitt v. Boblitt, Wife moved in with Husband in February of 1983, and from the very first day, Husband began verbal... more
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| 12/4/2011 |
| Court Applied Wrong Standard in Move-away Case |
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California Fourth District Court of Appeals has ruled that a Trial Court failed to apply the correct standard in denying Mother’s request to move with the parties’ Child to Minnesota because it determined Child’s best interests based on the assumption that the denial would preclude Mother’s move, instead of assuming that Mother would move and determining the custody arrange... more
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| 12/3/2011 |
| Husband Liable to First Wife Even after Death |
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A California Court of Appeal has ruled decedent’s second wife is personally liable to his first wife for continuing spousal support payments up to the fair market value of real property (including joint tenancy property) he and second wife held at time of his death. In the case of Kircher v. Kircher, Husband married his first wife (Wife-1) on December 10, 1960; they separated on February 13,... more
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| 11/6/2011 |
| Wife with Dementia and Alzheimer Can Get Divorced |
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A California Appellate Court ruled that Trial Court erred by dismissing a divorce case sua sponte on the basis that the dismissal would be in the best interests of Wife who was judged incompetent due to dementia and Alzheimer. In the case of In re Marriage of Straczynski, Wife filed for divorce in August of 2005. Her divorce petition stated that she and Husband were married in 1950. Husband’... more
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| 10/28/2011 |
| Father Can’t Claim Children on His Taxes |
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United States Tax Court has ruled that although a divorce judgment entitled Father to claim dependency exemptions for his two children, he may not do so because Mother refused to sign I.R.S. Form 8332 Release of Exemptions. In the case of Nixon v. Commissioner, Washington State resident, Father, was divorced from his wife in 2002. Their divorce judgment provided that Mother would be the custodial ... more
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| 10/21/2011 |
| Father's Partnership Income is Community Property |
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In a partial reversal, a California Court of Appeals has ruled that Trial Court made a mistake by determining that all of Father’s law partnership distribution was his separate property because Father earned his right to receive those funds before he and Mother separated. In the case of In re Marriage of Sivyer-Foley and Foley, Father and Mother were married on March 21, 1986. Their daughter... more
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| 10/16/2011 |
| Father with Custody Must Still Pay Child Support |
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A California Appellate Court has ruled that a Trial Court did not err in declining to order severe cut in child support payments where Father was a very high earner, Mother’s major source of income was child support, and Mother had minimal timeshare. The Appellate Court further ruled that enabling Mother to maintain current housing and living standard was in Child’s best interests. In ... more
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| 10/16/2011 |
| Home Belongs to Both Despite Wife Signing a Deed |
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Distinguishing the cases of In re Marriage of Haines and Mathews, a California Appellate Court has ruled that a Trial Court did not err in finding that the family home acquired in Father’s sole name in order to qualify for a better loan rate was parties’ community property and for ordering Father to convey the family home to Mother and him as tenants in common. According to the Appella... more
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| 9/5/2011 |
| California Supreme Court Will Hear Prop. 8 Case |
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On Tuesday, September 6, 2011, California Supreme Court will hear oral arguments in the case of Perry v. Brown, S189476, from 10:00 am to 11:00 am in the Supreme Court Courtroom, Earl Warren Building, 350 McAllister Street, San Francisco, California. This case will resolve the issue of whether the official proponents of Proposition 8 have the legal standing to defend it in a case now pending befor... more
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| 6/30/2011 |
| Best Interest Finding Required When Parent Moving |
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A California Court of Appeals has ruled that a Trial Court erred by issuing an order denying a Mother’s motion to relocate with the parties’ child and maintaining the custody status quo where its order was based on the premise that Mother would not move without the child and it failed to determine what order would be in the child’s best interests if the move took place. In the ca... more
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| 5/24/2011 |
| Spousal Support Waiver in Prenuptial Is Valid |
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A California Appellate Court has ruled that a Trial Court was wrong in applying California Family Code Section 1612(c), retroactively to invalidate a spousal support waiver in a prenuptial agreement that was executed by the parties in 1999. In the case of In re Marriage of Howell, Husband and Wife became engaged in 1998, after dating for about a year. On January 30, 1999, in anticipation of their ... more
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| 5/7/2011 |
| Recent Changes in California Related to Family Law |
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New bills (effective January 1, 2011, unless otherwise indicated) made important changes to existing family law statutes:
AB 1050 (Ch 187, Ma) Child’s preference as to custody and visitation
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California Family Code Section 3042 currently requires Trial Courts to consider and give due weight to a child’s preference regarding custody if the child is of sufficient age and capacity... more
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| 5/4/2011 |
| Mother Is Sanctioned for Her Attorney’s Conduct |
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A California Court of Appeals has ruled that Trial Court did not make a mistake by denying Mother’s motion for California Family Code Section 271 sanctions and granting Father’s motion for such sanctions because evidence of Mother’s attorney’s conduct supported sanctions award, while Mother’s evidence regarding Father’s conduct did not. In the case of In re Marr... more
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| 4/6/2011 |
| Father Should Have Been Allowed to Move with Child |
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A California Appellate Court has ruled that a Trial Court was wrong in denying Father’s motion to move to Washington State with the parties’ minor child because it unduly focused on the effect of the move on Mother, failed to apply the best-interests standard properly, made the finding regarding co-parenting unsupported by the evidence, and failed to consider Mother’s prior domes... more
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| 3/9/2011 |
| Father’s Assumed Income Doesn't Count for Support |
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A California Appellate Court has ruled that a Trial Court was wrong by basing its spousal support order partly on what Father’s income would be if he retired, began receiving his pension, then resumed working at his previous job at same salary. In the case of In re Marriage of Kochan, Father and Mother were married in July of 1982. During marriage, Father worked at California State Universit... more
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| 2/17/2011 |
| Back Child Support Loses to Father’s Fraud Victims |
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A California Appellate Court has ruled that a Trial Court did not err in concluding that Mother’s claim for child support arrearages did not have priority over the restitution claims of Father’s white-collar crime victims against the same assets; Mother failed to establish that she had legitimately acquired an interest in Father’s frozen assets or that she was an innocent spouse.... more
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| 1/28/2011 |
| Wife must Pay Attorneys’ Fees for Breach of Duty |
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A California Appellate Court has ruled that Trial Court erred by refusing to award attorney’s fees to Husband under California Family Code Section 1101(g) for Wife’s violation of her fiduciary duty (by incurring $24,000 pre-separation credit card debt without disclosing it to Husband) because an award of attorneys’ fees is mandatory under that statute. In In re Marriage of Fossum... more
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| 1/25/2011 |
| Support is Non-dischargeable in Bankruptcy |
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A Bankruptcy Appellate Court has ruled that a Bankruptcy Trial Court did not make a mistake in ruling that monthly support payments were non-dischargeable in Father’s bankruptcy because they were domestic support obligations under 11 U.S.C. 523(a)(5). In the case of In re Phegley, Mother and Father were married in May 1998. When they were divorced in June of 2009, Missouri Trial Court’... more
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| 1/21/2011 |
| Mother Able to Terminate Father’s Parental Rights |
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A California Court of Appeals has ruled that a Mother has standing to petition the Trial Court, under California Family Code Section 7841(a), to free child from parental custody and control of Father who belatedly filed an action to establish his paternity of the child and sought custody and visitation orders. In the case of T.P. v. T.W., Father filed a petition to establish his paternity of the c... more
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