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Entries from December 2015

Posted on Dec 8 on 2015

When we think of a family we think of a child or children and two parents.  Historically, children did not have more than two parents under the law; the law originally contemplated a child have a mother and a father.  In more recent times, a child could have two mothers and no father, or two fathers and no mother.  In the present day, at least in California, a child could have three or more parents.

This came to pass some time ago when the Second District Court of Appeal ruled on a case from dependency court known as In re M.C. 195 Cal. App. 4th 197.  In M.C., two married women had a child who was conceived by one of the women with a man before the two married.  One of the women is the biological mother, the other what we call the “presumed mother” because she was married to the biological mother at the time of birth and there is a legal presumption that a child born during marriage is the legal child of both parties.  The sad facts of this case included a history of mental illness and abuse on the part of the biological mother.   At one point the mother’s new boyfriend (whom she took up with after leaving her wife) attacked her ex-wife with a knife causing severe injuries. This led to the Department of Children’s Services taking the child into protective custody.  While in custody, the biological father requested that he be given custody of the child.  The dependency court found that it could not give parental status to all three parties based on the law which then existed, which it invited the legislature to change.

In response, the legislature enacted SB 274 which amended various sections of the Family Code to state that while most children have two parents, in rare cases the court has the ability to determine that more than two people are the parents of a child, especially where separating a child from a parent can have a devastating psychological and emotional impact on the child.  Circumstances under which these situations could arise vary.  In the case of a step-parent who ends up divorced from the biological parent, that individual has the right to seek a parentage order if he or she can meet the requirements of the California version of the Uniform Parentage Act.  That act requires that a party “receive a child into his home” and “hold the child out as his own”.  Given that many children reside in the home of a biological parent and step-parent this standard should be relatively easy to meet, especially if the step-parent acknowledged to others the child as his or her own.

The ability for a child to have more than two biological parents has ramification beyond the finding of parentage alone. Once a parentage finding is made, the opportunity to obtain a custody order is present. In addition, the third or fourth parent has the potential of being ordered to pay child support as well.  It is conceivable that in these situations, one or more parents may be receiving child support from more than one other parent.

While at this point the number of cases where these issues have been raised has been small, with the ongoing expansion of the definitions of a family in modern times the number of these cases that come up is expected to increase.

-Fred Silberberg, CFLS


Posted on Dec 8 on 2015

If you are thinking of divorcing from your spouse, the thought of what is going to happen to your property has probably crossed your mind. While many people are familiar with the idea of separate property and community property, people fail to consider the significant reimbursements that may affect the division of the marital estate. Below is a brief overview of common reimbursements:

1. Contribution to Separate property from Community- If you own property prior to your marriage and payments are made on that property from earnings during the marriage, the community is entitled to reimbursement for those payments.

2. Contribution to Community from Separate property- Alternatively, if you owned property before marriage and transferred title to the community, you would still be entitled to the value of your property at the time you transferred it to the community.

3. Use of Community Funds not for the benefit of the Community- Another example of reimbursements that are often overlooked are the use of community funds which are not for the benefit of the community. This would include spending money on an affair. Although California is a no-fault state, an affair would not be seen as an expense paid for the benefit of the community and the offending spouse could be liable to the community.

4. Exclusive use and enjoyment of marital property after separation- If you and your spouse own a house but your spouse moved out upon separation, you may be charged with one-half of the rental value of the marital residence. Whereas if you separated and lived together in the same home, there would be no reimbursement.

5. Payments made to maintain the marital estate after date of separation.

6. Student loans- Unless there is a substantial benefit to community, the community is entitled to reimbursement for payments made during the marriage.

7. Payment of alimony for prior marriage- Payment of spousal support to a prior spouse is often not considered a payment for the benefit of the community and will remain the separate debt of the debtor spouse.

There are a lot of factors and variations that may affect the above outcomes, including but not limited to, changes in property value, mixed contributions, changes in title, and waivers. To help you understand what your property rights are, contact Fred Silberberg, Esq. to discuss your potential exposure.

-Myle Nguyen