This being our first blog of the new year, it seems appropriate to update our readers on changes to family law which took effect on January 1 of this year. For 2015, the changes are few but still noteworthy. The most noteworthy is the change of the legal definition of marriage in our state. While the Family Code once reflected that a marriage was legally defined as a “personal relation arising out of a civil contract between a man and a woman”, the legislature has now removed the gender-based definitions of the parties and change the statute to reflect “between two parties”. Additionally, the gender-based references to the parties are removed in other sections of the Family Code as well. Consistent with this change, the statute that addressed seeking a decrease in spousal support where the spouse receiving support was cohabiting with a person of the opposite sex has now been modified to reflect cohabitation with a “non-marital” partner, bringing into the court’s jurisdiction the ability of a party paying support to seek a reduction when the former spouse cohabits with someone of the same sex. In regard to modification of support, the legislature has also reinstated the right of a party seeking to modify a divorce judgment to conduct discovery in support of their claim. The statute overrules an appellate court decision from 2014 which held that there was no automatic right to conduct discovery in a proceeding initiated after the divorce judgment was entered.
Entries from January 2015
For those of you following our ongoing representation of actor Jason Patric in his battle to establish parental rights over his son, we have exciting news. In September of 2014 the trial to establish parentage as ordered by the Court of Appeal finally took place. After eight days of testimony and argument, the trial court found that Jason met the requirements of establishing parentage under the Family Code. The trial court has ordered that Jason is the legal father of his son. As you may recall, the Court of Appeal in a landmark decision issued last May, held that while Jason could not claim parentage as a result of his biological connection to his son because of the “sperm donor” statute, he did have the right to establish parentage as any other unrelated man would be able to do, by demonstrating he had received his son into his home, and held his son out as his own. The Court of Appeal set forth a further requirement that father and son have a familial relationship. Notwithstanding vigorous efforts by the child’s mother and her multiple law firms to oppose this request, the court found Jason to be the legal father. That decision has now become a final one at the trial court level, as the court just recently overruled mother’s objections to the tentative decision establishing Jason as the legal father. Now pending is the court’s decision on custody. Father and son should be reunited in the next few weeks.
January has started to become known as “divorce month.” Families that have decided to stay together through the holiday period for the sake of appearances, for their children, or try to one last holiday together, usually last until New Year’s Eve and then file.
Right after the holidays and occasionally just before the New Year, there tends to be an increase in divorce filings. This is not unique to the U.S. either; the British law firm of Irwin Mitchell did a survey of 2,000 spouses and found that in the U.K. 1 in 5 couples plan to divorce after holidays, rather than before.
Filing for divorce at this time makes sense for a few different reasons. On a practical note, if you file right before the holidays you are then faced with office and court closures. Attorneys, judges, accountants and even clients might be on vacation.
By the end of the year most financial documents have been prepared, so by the beginning of the following year it is much easier to obtain accurate information. This allows the parties to have a better idea of their respective financial situations. Exact numbers regarding wages, year-end income, investment income, etc. are all relevant when calculating spousal support, child support, and dividing assets and debts.
The start of a new year can be a good time to establish a new custody and visitation order. Since the holidays have passed there is no need to rush to an agreed upon schedule for the next year’s holidays. Additionally, there is still time to determine a summer break schedule, travel plans and whether there will be any changes in schools for the upcoming year. Since hearings are set out usually about a month in advance, if not longer, it is important to start planning and begin the custody and visitation schedule as soon as parents know they are separating.
If there is property at issue, January tends to be a good month to start making improvements on the house, staging the home and meeting with real estate agents. That way as the real estate market picks up in Spring, the house will be ready for sale. Parents usually want their children to remain in the family residence through the end of the school year and by starting to prepare now, it allows for that to be possible.
Finally, a new year hopefully brings a new perspective and fresh outlook. The decision to divorce is not easy, but once the process has started, the parties should seek some comfort in knowing there is a new future ahead of them.