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.
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.
Every day we see one of the offshoots of the sexual revolution; the freedom to have children outside of marriage without the social stigma which both children and parents of children born out of wedlock were subjected to thirty or more years ago.
Coupled with the freedom to have children outside of wedlock comes the feeling that one does not have to rush to have children. Parents now are much older when they have children than in decades past. Along with the freedom to wait, however, comes a price: the ability to conceive a child later in life is fraught with biological complications and difficulty. The fertility business is growing, and with increased demand, is expected to continue to do just that.
All of these forces give rise to a new scenario becoming more common each day. Adults who are not married want to have children. They need the genetic material as well as fertility procedures to do this. A woman can use the sperm of a friend, a romantic partner, an acquaintance or someone who anonymously provided sperm through a tissue bank. A man can have a child using an egg obtained in a similar manner, carried by a surrogate. Gay couples can have children using some combination of both. It’s a brave new world when it comes to conceiving and raising children. And in many cases, the potential parents and providers of genetic material haven’t thought all the details through before deciding to proceed.
People engaging in this process need to understand the legal and financial implications of what they are about to do. They don’t always do that. Recently, Sue and Bob came to me for a parentage agreement. They met online on a site seeking to match potential “parenting partners”. They were ready to proceed quickly to create embryos and had already been screened medically. All fine and good. However, there was apparently never a discussion about the number of children that would be created if there were multiple viable embryos. One party wanted the right to implant all of them, the other did not appreciate how many children could result from this process. And, coupled with that, is the substantial financial responsibility that comes with each child born as a result of these procedures which hadn’t been thought through in enough detail, either.
Janet and Julie, recently married, wanted to start a family and use their mutual friend Dale’s sperm. Dale was willing to provide it and thought he would have the opportunity to be the “uncle” to Janet and Julie’s child that the child would otherwise not have. Janet and Julie wanted Dale to be involved, but only to a certain extent–they wanted to maintain full legal control over the child that would result, and allow Dale to visit, interact, and maybe take the little boy or girl for overnights when they wanted a weekend break. What neither realized was that the simple sperm donation which would otherwise have protected Dale from child support, and which would have kept him legally out of Janet and Julie’s family, might not in the end protect either one if there was a change of heart down the road and the contemplated events of being an “uncle” in the manner described had occurred.
What people need to understand is that things are not that simple. The law provides safeguards here to a certain extent. But future actions can change what the final outcome is and that can be surprising to all of the parties concerned.
People need to know what their rights and risks are before they enter into these arrangements. The issues need to be discussed with a lawyer ahead of time. When a child is or children are going to be born, it isn’t a matter of quickly drawing up something and moving on. It is a lifelong commitment that can be rewarding for the parents or a big source of strife. Unfortunately, while one would think that those who wait to have children are wiser, this is not always the case.
The other day a client was in my office discussing the amount of child support he was paying. My client, who is in the entertainment industry, makes a large amount of money. As a result, he pays a fairly significant amount of child support to his ex-wife for their two children. His ex-wife does not work. In addition to that, he pays her spousal support. She also receives half of his royalties accrued during their marriage.
My client was not complaining about the fact that he was paying this money to her, although he certainly would like to pay less. He was telling me a story about how the week prior his daughter came to him needing shoes. Prior to that, she told him she needed an article of clothing for school. In fact, for some time now, on a regular basis both his son and daughter have come to him and asked him to buy them this or that. When he has asked them why they are asking him for these things, they give the same answer: “Mom said your dad needs to take care of it.”
My client does provide clothing and other items to his children. They live with him part of the time and have their own clothing and personal effects at his house. What my client is objecting to is paying child and spousal support and then still being put in the situation of either having to supplement those items further by buying these things for his children, or telling his children that he is going to do so. After all, if he is paying child support, it seems that the children’s mother should be spending the money on things that his children need. This is not an uncommon situation.
In California, as well as in many other states, there are guidelines in effect which determine the amount of support that someone is to pay the other parent. The guidelines have several factors: the income each parent has, the tax deductible expenses that each party pays, and the amount of time that the children are in the direct care of each party. These child support guidelines are implemented by statutes. There is one thing missing from these statutes, however. That is a requirement that the child support money be used for the children, not for the parent to whom the child support is being paid.
Some states impose limitations on the dollar amount of support to be paid. In these states, such as New York, there is a presumed limit which is intended to insure that the children have basic needs, but also intended to make sure that the parent receiving the payment does not get a windfall. In other states, such as California, this limit does not exist. We often see articles in the tabloids and mainstream press about battles going on in court over child support.
In the cases of children born out of wedlock where the parents do not live together, child support alone can provide sufficient income for the parent who is receiving it to maintain not only the child’s lifestyle, but also that parent’s. In extreme cases, the payment of child support can mean that the receiving parent does not have to work. Child support is intended to be just that: support for the children, not the parent with whom they are living. One way to counter this problem is to require the parent who is receiving the support to actually spend it on the children. Our statutes go into great detail about how to calculate the amount of support, but they are completely devoid of any requirement which mandates that the parent receiving it account for the expenditure of the money received.
These statutes are devoid of any court procedure to allow a party to question how the money is spent, nor do the statutes grant judges the authority to curtail the amount of support paid or mandate how the support received is expended.
If there were a mechanism in place for oversight, there would be much less abuse of this process. Oddly enough, our legal system gives judges broad discretion to make orders concerning custody arrangements, but it severely limits that discretion over the amount of support paid for the benefit of those very same children.
We expect fiscal accountability on so many levels in our society: of government, of corporations, of financial institutions, of recipients of welfare and food stamps. We are outraged by the fact that lack of personal financial accountability contributed in large part to the housing bust and our present recession. Why then, does it seem that we simply do not care if child support is not used for the direct needs of the children for whom it is being paid?