Some years, family law is chock full of new laws both from the courts and from the legislature. But, not this year; 2013 was more of a blip than a bang for family law. Here are some of the highlights of the more interesting developments in family law:
- Domestic Violence & Criminal Plea Agreements. One of many factors considered in a spousal support determination, as set forth in Family Code section 4320, is the presumption that a criminal conviction of an abusive spouse shall be considered in a reduction, or elimination of, a spousal support award. Marriage of Priem (2013) 214 Cal.App. 4th 505 provides that a plea of nolo contendre (no contest to any crime) is an admission of guilt for purposes of triggering the presumption concerning spousal support. Lesson: a plea of nolo contendre to any crime is a conviction for purposes of family law.
- Two or More Parents. The modern family finally gains recognition. Several statutes now address child support and custody rights where there are more than two parents. (Family Code sections 4052.5, 4057, 3040 and 7612.)
- Date of Separation. Establishing a date of separation is critical to determining when the accumulation of community property ceases and for defining the length of the marriage for purposes of the duration of spousal support. A major factor in the factual inquiry to determine the date of separation has been whether or not the parties continued to physically live together. Marriage of Davis (2013) 220 Cal.App.4th 1109 addresses this factor and tells us that the courts must look to the essence of the relationship; that there can be a date of separation even when a couple continues to physically reside together in the same household, but live separate lives. The court further states that the mechanical checklist of factors used in the past to assess the date of separation is not alone sufficient.
- Term Life Insurance. Marriage of Burwell (2013) 221 Cal.App.4th 1 adds a confusing dimension to the legal landscape about term life insurance policies. The bottom line is that term life insurance policies may have value in a property division. Therefore, the policies must be disclosed in the divorce action and parties are prohibited from changing the beneficiary designation of such a policy during a divorce [and I would add, probably not during a time where divorce is contemplated].
- Same Sex Marriage. Of course, we had the landmark case of United States v. Windsor, wherein the United States Supreme Court held the Defense of Marriage Act (DOMA) unconstitutional. This has opened the doors to the legalization of same sex marriages in many states, and as recently as this week, the federal government began providing federal benefits not previously available to same sex spouses. It is important to be aware, that a Registered Domestic Partnership (RDP) does not provide spousal benefits and therefore it remains financially detrimental to same sex couples. This means, most same sex couples who are RDP’s are getting married to obtain the “married” persons benefits provided by the law.
- New Property Restraining Order. Effective July 1, 2014, Family Code section 6325.5 will provide ex parte relief to stop a party from cashing, borrowing against, canceling, transferring, disposing of, or changing the beneficiaries of any insurance or other coverage held for the benefit of the parties or their child or children, of any, for whom support may be ordered, or both.
- New Basis for Restraining Order. Effective July 1, 2014, Family Code section 6320 will provide for the issuance of an emergency restraining order against a person who credibly impersonates or falsely personates a protected person. (An example of this is sending an email under the guise of the protected person).
- Conflicting Restraining Orders. Often there are conflicting restraining orders issued by the criminal and family law courts. Effective July 1, 2014, Family Code sections 3100 and 6405 establish the priority of these orders.
- Domestic Violence Victims Get Accommodations in the Workplace. Labor Code sections 230 and 230.5, provide that a victim of domestic violence cannot be discharged from their job because they missed work for a variety of reasons which related to their being a victim of domestic violence; an employer must provide reasonable accommodations in this situation. If this situation arises, it is critical to obtain advice from a labor attorney.
- Firearms. Penal Code section 25200 makes it a crime to keep a firearm (loaded or unloaded) in a location where a child, or a person who is prohibited from having possession of a firearm, can gain access to it.
We will see what 2014 holds for family law.