Top Family Law Legislation and Cases of 2009

A good starting point for this year is to review some of the major new family law statutes and cases of 2009. The following is not comprehensive, but it does provide an eclectic list of favorites, especially those with “cross-over” implications regarding other areas of law:

Statutes

Debt Collection – Pro-debtor: Especially with so many families filing for bankruptcy, AB 1046 was important in increasing the homestead exemption under Code of Civil Procedure section 704.730 to $75,000 at the minimum, $100,000 for married couples living in the home and $150,000 for certain disabled or older debtors.

Debt Collection – Pro-creditor: On the other hand, AB 121 amends Code of Civil Procedure section 697.510 to provide a procedure for continuing judgment liens against personal property (including accounts receivable and equipment) without having to file a new one. A creditor now only needs to file a continuation statement within six months of the usual five-year expiration period.

Estate Planning Crossover – Community Property Transactions where One Spouse Lacks Capacity: SB 556 amends Probate Code section 3140 to limit a court’s discretion to appoint an investigator regarding community property transactions involving a spouse who lacks legal capacity. Rather, the court now may make such an appointment only in cases where the investigation is actually “necessary.” New section 3140(f ) allows the investigator’s costs to be paid from the proceeds of the transaction, where it would not create a hardship.

“Family Law Headache Relief act” (Waiver of Declarations of Disclosure): Earlier this decade, the Legislature significantly tightened the requirements of each spouse to disclose his/her respective income and expenses, as well as assets and debts, to the other. This well-intentioned thrust, however, created headaches where one of the parties stuck his head in the sand (which is not uncommon in the family law world). The problem was that Family Code section 2106 prevents a court from entering any judgment concerning the parties’ property rights without the mutual disclosures. As such, the “ostrich” party could obstruct the case’s completion (although section 2107 does allow the cooperative party to a motion to compel or a motion for pertinent evidentiary sanctions). AB 459 eases this in amending section 2107 to also allow the complying party to file a motion for the court to proceed to judgment on all issues through a “waiver” of the “ostrich” party’s disclosures.

Motions to Set aside Judgments: Family law judgments are nowhere as solid as other civil judgments. Rather, family law litigants have an array of tools, well beyond those set forth in Code of Civil Procedure section 473 (see, e.g., Fam. Code § 2122), for potentially setting aside judgments. AB 459 also provides that, if a court grants a motion to waive the “ostrich” party’s disclosures, as set forth above, then it may only potentially set-aside the judgment at the request of the cooperative party. Thus, the ostrich party may not take advantage of his failure to cooperate (except in cases where he might establish actual fraud or perjury).

Same Gender Marriages from Out of State: Family Code section 308 makes valid in California marriages from out of state, as long as they were legal in the jurisdiction where they were conducted. Thus, even Mick Jagger’s 1990 “marriage” to Jeri Hall in Bali, which would not have met this state’s requirements, would still have been upheld here had it been Kosher in Indonesia, so to speak. SB 54 “clarifies” (because, based on the above, it purports to make no new law) that out- of-state same-gender marriages that were valid in other states prior to November 5, 2008 (when Proposition 8 was passed) are also valid. Not everyone realizes that same-gender marriages performed in this state during the short window of May 2008 (following the California Supreme Court’s holding in In re Marriage Cases) until November 5, 2008 also remain valid.

Custody/Confidentiality of Custody Evaluation Reports: The confidentiality of custody evaluation reports, issued under Family Code section 3111, is an ongoing practical issue for family law attorneys. Although the current law requires such reports to be kept confidential, parties, having proceeded through difficult (they all are) custody evaluations, often have trouble refraining from vindicating themselves (and trashing the other parent) by disseminating the reports (or portions thereof ). AB 1877 amends this section by allowing a court to impose a monetary sanction against a party who makes a reckless or malicious disclosure. The sanction may be high enough to deter further disclosures without imposing an unreasonable financial burden.

Cases

Recurring Financial Gifts May Equal “Income” for Support: A parent’s recurring gifts to pay her son’s expenses could be included as income to the son towards calculating (and enhancing) his child support obligation. (In re Marriage of Alter, 171 Cal.App.4th 718.) If you represent the supported party and the supporting party claims, without bona fide documentation, that such payments are “loans,” then argue that, under Evidence Code section 412 (“[i]f weaker and less satisfactory evidence is offered when it was within the power of the party to produce stronger and more satisfactory evidence, the evidence offered should be viewed with distrust”), the argument lacks credibility and should be disregarded. If you are providing recurring financial gifts to a supporting party, say your son, recognize that you may end up with a result where you might as well just write the former daughter-in-law a check, too!

No Post-Separation Oral Community Property agreements: Greasing the wheels for the resolution of many cases is the fact that Family Code section 2550 allows parties to “horse-trade” and otherwise agree on unequal divisions of community property. But, such agreements must be in writing or stipulated in open court to be enforceable. (In re Marriage of Dellaria and Blickman-Dellaria, 172 Cal.App.4th 196.)

Enough with the attempts of “Estate Planning Only” Transmutations: A written property transmutation that otherwise meets the MacDonald requirements will be enforced even if it is expressly supposedly “for estate planning purposes only.” (In re Marriage of Holtemann, 166 Cal.App.4th 1166.) Either there is a non-revocable gift (“transmutation”) for tax purposes or there is not–– you can’t have it both ways.

Kids Must be Considered when Imputing Income to Spousal Support Recipients: (In re Marriage of Mosley, 165 Cal.App.4th 1375.)

The Probate Code Can Still Matter in Enforcing Premarital agreements: An inheritance waiver in a Premarital Agreement (“PMA”) can still be upheld under the Probate Code, even if the PMA may fail to meet the requirements of Family Code section 1615. (Estate of Will, 170 Cal.App.4th 902.)

As the scope of the above illustrates, developments in family law can affect other disciplines. In light of that, future columns this year will discuss estate planning, the dangers of the mediation privilege and other cross-over issues.

Greg Herring is a State Bar certified specialist in family law and is a partner with Ferguson Case Orr Paterson LLP. He is a Board member of the Southern California Chapter of the American

Academy of Matrimonial Lawyers and past Chair of the Executive Committee of the State Bar’s Family Law Section.