As divorce lawyers, we understand that divorce is fundamentally about change and an essential element of our jobs is guiding our clients through that change. New family structure. New bank accounts. New furniture. New schedules. A new normal. Each year family law lawyers are tasked with the
This week’s blog post highlights a few new laws and case holdings that will impact family law now and in the years to come:
- No notice, no problem: The court can no longer deny an emergency application for a domestic violence temporary restraining order merely because the other party was not provided with notice. This is a positive change for victims of domestic violence; many victims are often scared to give notice to their abuser for fear of retribution. [Family Code sections 6300, 6326, 6340].
- Duty of child support: Family Code section 3901 now creates an exception to the requirement that a child must be a full-time high school student to receive child support. The original statute provided that the duty of child support continues to an unmarried child who has attained the age of 18 years, is a full-time high school student, and is not self-supporting, until the child completes 12th grade or reaches the age of 19 years, whichever first occurs. Now, the code states that a child is excused from the requirement to be a full-time high school student if the child has a medical condition documented by a physician that prevents full-time school attendance.
- The family pet is part of the divorce, too: The recently enacted Family Code 2605 statute broadened the “pet as property” concept and provides the court with the power to make orders for ownership of a pet taking into account the care of the animal during the divorce or legal separation. Marlo Van Oorschot and Cara L. Boroda explored this new statute in an article published in the Los Angeles Daily Journal on January 9, 2019: http://mvolaw.com/2019/01/pets-in-divorce/.
- Non-Deductibility of Spousal Support: Starting January 1, 2019, spousal support is no longer deductible for the payor of spousal support, or taxable as income to the recipient of spousal support. Our firm has written extensively on this issue. For more information: http://mvolaw.com/2018/02/make-alimony-great-not/
- The Exercise & Sale Rule on Stock Options: In Marriage of Macilwaine (2018) 26 Cal. App. 5th 514, the Court provided that the father’s decision not to exercise his stock options and sell his shares of stock did not exclude such income from child support if the legal restriction in exercising stock options were removed. Accordingly, if the restrictions are removed, the court can consider such funds as income available for child support.
- Spousal support and domestic violence: Changes in the Family Code have strengthened a court’s consideration of the presence of domestic violence before awarding support payable by a victim to a perpetrator of domestic violence. The court must consider domestic violence against a spouse as well as a child when assessing whether support should be awarded to the offender. [ Family Code section 4320]
- A child can have three parents: A child’s biological father had standing to bring an action to confirm his paternal rights of the child because of the father’s strong bond to the child. In this case, the wife conceived the child with a co-worker, but hid the fact from her husband. The marriage remained intact, and the married couple allowed the biological father to be involved in the child’s life. The court found that in this rare case, all three parents were bonded to the child, and each of the three parents were found to be legally recognized as such to prevent detriment to the child. [C.A. v C.P. (2018) 29 Cal. App. 5th 27]
- Mediation disclosure notification and acknowledgment: The newly passed California Evidence Code section 1129 requires that all attorneys with clients participating in mediation provide their client with a written disclosure and acknowledgment form which delineates the laws surrounding the confidentiality of mediation and the disclosure limitations. This new evidence code ensures that participants of mediation understand the risks and limitations associated with mediation. For example, communications made in preparation for a mediation or during a mediation are confidential and cannot be disclosed or used except in extremely limited circumstances.
The lawyers are at Van Oorschot Law Group are here to help answer any questions regarding how the new laws and statutes may impact your case.