2015: Nine Updates to Family Law for Divorce, Paternity or Legal Separation in San Diego Superior Court: Part Two
Some sections below refer to divorce and legal separation only [such as the preliminary declarations of disclosure] and some sections refer to paternity as well as legal separation and divorce. Whether your case is a legal separation, paternity or divorce, it is complicated and self education and resources to help you will increase your chances of obtaining the results you would like however you must know what is in accord with the law and also local rules and other procedures. This is part two of a three part article.
1. Failure to Disclose: PDOD
It is very important, in a divorce or legal separation, to disclose all assets and debts. It does not matter whether the asset is community[ before date of separation and after date of marriage], separate [after date of separation or before date of marriage] or quasi community [real property located in another state but would be community property under California law].Sanctions are often asked for and sometimes granted and sometimes not. A new case holds that failure to disclose which is not intentional or used to mislead, if corrected timely, will not result in sanctions. The rule which was cited was “no harm/no foul”.
2. Resignation of Employment:
If a payor left or otherwise lost job in a voluntary or deliberate manner to divest resources financially and/or abandoned job, then the payee can ask for imputation of income at past level. Otherwise, ability and opportunity are the test with a vocational evaluation necessary for imputation of income for support calculations.
3. Modification of Adult Child Support Orders:
The prevailing legal opinion is not to enter into adult child support orders. If your case has an adult child support order [college tuition and expenses most common], then you can file a Request For Order for modification. The San Diego Superior Court is a court of equity and can modify an order which leads to unjust results. You must have change of circumstances and look to severe downward departure of income from time of agreement. Support with evidence as mandatory.
4. Modification of Spousal Support when Termination of Child Support:
The procedure, in 2015, is to file the Request for Order six months before termination of child support. Termination of child support is a change of circumstances for modification of spousal support unless expressly otherwise stated in the judgment. Make sure you always have a copy of your judgment to make sure your legal position is in accord with the law.
5. Presumption of Title:
A new case changes the requirements so that the presumption of community property applies from date of marriage to date of separation. The presumption can be overcome with oral testimony of client or third party and no writings are required. Forensic tracing is still recommended and Family Law Code Section 2640 still applies. Evidence Code Section 662 does not apply when it conflicts with the transmutation statute.
6. Move Away & Step Sibling:
For move away cases only, the relationship between the child of the relationship and step siblings does not need a compelling reason to separate unlike if the parents and child and step siblings lived in the same area. This is due to more blended families and would restrict many move away cases. LaMusga factors still apply.
7.Child Custody Evaluation:
Bias is allowed to disqualify. California Rules of Court Rule 5-220 [new] governs Child Custody Evaluations.
8. Supervised Visitation:
California Rule of Court: Rule 5-20 [new] governs.
International child abduction cases are among some of the most complex in family law. There is a one year statute to file the Hague Petition. Per new law, there is no equitable tolling of the one year statute for filing the Hague Petition. There is also no acclimatization defense available.
10. Corporal Punishment:
Parent’s can use corporal punishment as long as reasonable physical discipline. The prevailing opinion of attorneys is to recommend to client’s not to use corporal punishment as the definition of “reasonable” will be an issue and Child Protective Services or the Court can consider corporal punishment in custody and visitation orders.
Family law cases are complicated and can be very emotional. The law office of Doppelt and Forney, APLC can help you to make sure you are in compliance with all laws. Please feel free to contact their office for a complimentary and confidential consultation.