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Divorce

DIVORCE/DISSOLUTION

California has a “no-fault” divorce system, which means that a dissolution can be granted if the court finds “irreconcilable differences” as the cause of the divorce. A requirement to dissolution is that one spouse must be a resident of California for 6 continuous months and of the county for a continuous 3-months prior to filing the Petition.

Dissolution takes place after six months and a day have passed since the Summons and Petition have effectively been served in the Respondent. Generally one spouse requests temporary court orders by filing for an Order to Show Cause hearing.

Discovery is then engaged in. During discovery, the parties exchange documents and information that is relevant to the case. A Preliminary Declaration of Disclosure is one aspect of discovery. This document is a court form which each party is required to list the community and separate property of the spouses. Following discovery, the parties and their attorneys will often attempt to settle the case without incurring the expenses of trial. If the case is agreed upon at this stage, a Marital Settlement Agreement will be prepared by an attorney. This agreement will have all the essential terms that the parties agreed on. The agreement is a contract which is signed by the parties and their counsel. In the event that a settlement is not reached then the parties attend a settlement conference, if the parties still can not reach a settlement, then  a trial will likely take place.

A Judgement of Dissolution of Marriage is prepared by one of the attorneys after either the parties sign the Marital Settlement Agreement of after the trial is concluded. The Judgement contains all the court’s orders. After the Judgement, and other court required documents are prepared, it is filed, and the court mails a Notice of Entry of Judgment to both attorneys.

DOMESTIC PARTNERSHIP LAW

  1. Domestic partners are two adults sharing their lives in an intimate and
    committed relationship of mutual caring.

  2. Requirements to Become Domestic Partners:
    1. Both persons must file a Declaration of Domestic Partnership with the Secretary of State
    2. Both persons must have a common residence
    3. Neither can be married to another or be a domestic partner with another, which marriage or partnership has not been terminated, dissolved, or adjudged a nullity
    4. The two persons are not related by blood in a way that would prevent them from being married to each other in this state.
    5. Both persons are at least 18 years of age
    6. Either:        
      1. both persons are members of the same sex, or
      2. one or both of the persons meet the eligibility criteria under Title II of the SSA as defined in 42 USC Section 402(a) for old-age insurance benefits or Title XVI of the SSA as defined in 42 USC Section 1381 for aged individuals.
    7. Both persons are capable of consenting to the domestic partnership.

  3. Registered domestic partners shall have the same rights, protections, and benefits, and shall be subject to the same responsibilities, obligations, and duties under law, whether they derive from statutes, administrative regulations, court rules, government policies, common law, or any other provisions or sources of law, as are granted to and imposed upon spouses.

  4. Termination of Domestic Partnership:
    1. Termination Without Filing a Proceeding for Dissolution only if:
      1. The Notice of Termination of Domestic Partnership is signed by both domestic partners.
      2. No children have been born or adopted into the relationship, either before or after registration, and neither of the partners, to their knowledge, is pregnant.
      3. The domestic partnership has been in existence no more than 5 years.
      4. Neither party has an interest in real property wherever situated, with the exception of the lease of a residence occupied by either party which satisfies the following requirements:
        1. The lease does not include an option to purchase
        2. The lease terminates within 1 year from the date of filing the Notice of Termination.
      5. There are no unpaid obligations (excluding automobile obligations) in excess of $4,000 incurred by either or both parties after registration of the domestic partnership.
      6. The total fair market value of community property assets (excluding encumbrances and automobiles) is less than $32,000 and neither party has separate assets (excluding encumbrances and automobiles) in excess of $32,000.
      7. The parties have executed an agreement setting forth the division of assets and the assumption of liabilities of the community property, and have executed any documents, title certificates, bills of sale, or other evidence of transfer necessary to effectuate the agreement.
      8. The parties waive any right to support by the other.
      9. The parties have read and understand a brochure prepared by the Secretary of State describing the requirements, nature, and effect of terminating a domestic partnership.
      10. Both parties desire the domestic partnership to be terminated.
      ***Termination shall be effective 6 months after the date of filing the Notice of Termination of Domestic Partnership with the Secretary of State.

    2. Termination Through a Court Dissolution Proceeding:
      1. Termination after January 1, 2005 requires the partners to go through a court dissolution proceeding unless you meet the above requirements a.-j.          

    3. Termination if No Longer Living in California:  Domestic partners must agree to allow CA courts to have jurisdiction over dissolution and other proceedings regarding domestic partner status.

  5. CA’s Recognition of Non-CA Same Sex Unions: A legal union of two persons of the same sex, other than a marriage, that was validly formed in another jurisdiction, and that is substantially equivalent ot a domestic partnership shall be recognized as a valid domestic partnership in this state regardless of whether it bears the name domestic partnership.

  6. Treatment of Marital Property as Something Other Than Community:
    1. For Couples Who Registered Before January 1, 2005:
      1. You had until June 30, 2005 to draft and execute a pre-registration agreement if you wanted your assets divided differently than they would be under CA community property law.
      2. The pre-registration agreement must meet the same substantive requirements that a valid pre-marital agreement must meet to be enforceable.
      3. If the agreement is not entered into by June 30, 2005, the parties may enter into a post-registration agreement (having stricter requirements that a pre-registration agreement) to divide assets in a manner different than they would be divided under CA community property laws.
                         
    2. For Couples Registering After January 1, 2005
      1. If a couple wants assets to be divided other than how CA community property law will divide it, they must enter into any pre-registration agreement before registering as domestic partners.
      2. If the couple does not enter into a pre-registration agreement they must enter into a post-registration agreement if they want their assets to be divided in a manner other than CA’s community property laws would divide the assets.

    3. Inability to Resolve Matters Before June 30, 2005
      1. Terminate your domestic partnership, enter into a pre-registration agreement before re-registering, and re-register.

  7. Children and Parentage
    1. A child born to registered domestic partners will be considered the legal child of both partners without regard to either partner’s biological relation to the child.
    2. Inclusion on the Child’s Birth Certificate:
      1. Lesbians using artificial insemination can both be included on the child’s original birth certificate.
      2. Gay men using a surrogate must obtain a court judgment of parentage to both be included on the birth certificate.
        1. To obtain a court judgment, complete an adoption or obtain a judgment of parentage.
    3. Adoptions:
      1. Second Parent Adoption:
        1. Available to all couples
        2. The legal parent is not required to give up any of his rights to the child for his partner to adopt
        3. More costly
        4. More invasive home studies
        5. More time to complete
      2. Step-parent/Domestic Partner Adoption:
        1. Available to registered domestic partners only
        2. The legal parent is not required to give up any of his rights to the child for his partner to adopt
        3. Easier because child is presumed to be residing in the home and the person chosen to adopt has been chosen by a fit, custodial parent

  8. Be Cautious About Registering as Domestic Partners . . .
    1. Where One Partner is not a US Citizen: the federal government will not   recognize the   partnership as validating the non-citizen’s presence
      in the US.
    2. Where One or Both are Receiving Federal Benefits: the federal government will not extend benefits to a partner of a domestic partnership and benefits may be terminated
    3. Where One or Both are in the Military.
        
  9. H. Spousal Support
    1. Tax treatment will likely be different for payor and payee
      1. Payor: not deductible
      2. Payee: considered income
    2. The court must consider the tax implications of the award.
    3. Will support be calculated from the beginning of the relationship or from the date of registration?
    4. The right to collect spousal support will likely be terminated upon entering into a new domestic partnership.

  10. Considerations in Determining the Validity of Pre-2005 Written Agreements
    1. Was it written before or after registration?
    2. Was it written before or after the 2003 changes in the law?
    3. Was each party represented by separate counsel?
    4. Does the agreement look like a typical pre-marital agreement?
    5. Was the document created and executed in contemplation of registration as domestic partners?

  11. Division of Federally Held and Federally Regulated Assets
    1. Federally Held Assets: unknown, but the Defense of Marriage Act will likely have an adverse impact on dividing these assets due to the Supremacy Clause:
      1. Suggestion: let employee partner keep pension and offset the remaining assets to non-employee spouse; some courts will not permit this.
    2. Federally Regulated Assets:
      1. ERISA pensions: preempts state law;
      2. ERISA and IRA:
        1. Suggestion: treat like employee stock options; offset to non-employee spouse

  12. Employment Benefits
    1. Public and Private Employers Must Provide Domestic Partner Employees With:
      1. paid leave to care for either a seriously ill domestic partner or a partner’s child;
      2. use of paid sick leave (if provided) to care for sick domestic partner or a partner’s child;
      3. paid leave in connection with child birth, adoption or placement of a child in foster care;
      4. the right to collect unemployment benefits if a partner must quit a job due to relocation/employment of his domestic partner.
    2. Public Employers Must Provide Domestic Partner Employees With:
      1. health insurance benefits for the non-employee partner;
      2. in the event of the employee’s death, eligibility for continued health insurance for an enrolled surviving domestic partner and the deceased’s children.
    3. New Benefits Public and Private Employers Will Likely be Required to Provide:
      1. health and welfare benefits to the same extent they are provided to spouses;
      2. the right to take extended unpaid leave to care for a domestic partner;
      3. moving expenses, membership, membership discounts, travel benefits, and any other non-ERISA benefit that is currently offered to spouses;
      4. the same rights concerning non-discrimination as provided to spouses.
    4. New Benefits Public Employers Will Likely be Required to Provide:
      1. public retirement plans and survivor benefits equivalent to those provided spouses;
      2. state government hiring preference for surviving domestic partners of veterans;

Sources: Seminar with Sandra Blair, California Family Code, Assembly Bill No. 205, nclrights.org, findlaw.com.

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