Family Law Legal Topics New Legal Developments

New Year, New Laws for Family Law Attorneys

thinkstockphotos-498422290The California legislature has enacted several new laws that may affect your family law practice. Here’s an overview of some of the key statutory changes you need to know about.

  • Separation doesn’t require living separately.
    The California Supreme Court shook things up with Marriage of Davis (2015) 61 C4th 846, which held that an indispensable threshold requirement for parties to be “living separate and apart” (see former Fam C §771(a)) is that they live in separate residences. The Legislature, after an outcry from the family law bar, took action: It amended §771 to take out the requirement that spouses be living separately and inserted the term “date of separation” instead. It then enacted Fam C §70 to define “date of separation” as the date that a “complete and final break in the marital relationship has occurred,” as evidenced by the spouse (1) expressing to the other spouse his or her intent to end the marriage, and (2) acting consistently with his or her intent to end the marriage. Fam C §§70, 771, added and amended by Stats. 2016, ch 114, SB 1255 (effective January 1, 2017).
  • Postjudgment service is getting easier in bifurcated cases.
    It’s long been the rule that once judgment is entered in a marital action, any later orders must be served on the party, not just on the attorney of record (subject to a limited exception). Soon this more problematic rule won’t apply if the court has bifurcated one or more issues for separate trial before disposing of the case. In bifurcated cases, service will be proper if made on the attorney of record (if the parties are represented) or on the parties (if unrepresented). But the old rule still applies if no pleading has been filed in the action for six months after entry of the bifurcated judgment. Fam C §215, as amended by Stats. 2016, ch 67, AB 1735 (effective January 1, 2017).
  • “Registered domestic partner” = “spouse.”
    Since the California Domestic Partner Rights and Responsibilities Act of 2003 became fully operative in January 2005, couples registered with the Secretary of State as domestic partners have had “the same rights, protections, and benefits,” and been “subject to the same responsibilities, obligations, and duties” under California law as spouses. Fam C §297.5(a). A new law clarifies that “spouse” includes “registered domestic partner.” It adds or amends provisions of many other codes to conform their terminology to this definition. Fam C §143, as added by Stats. 2016, ch 50, SB 1005 (effective January 1, 2017).
  • California will soon have explicit jurisdiction to determine parentage in its surrogacy cases.
    California courts have assumed jurisdiction over actions involving assisted reproduction agreements between surrogates and intended parents, but the law never explicitly gave it such jurisdiction or clearly explained the circumstances under which such jurisdiction exists. This has affected some parties’ ability to have other states give full faith and credit to their California judgments. The Legislature stepped in to clarify things: A person who enters into a surrogacy agreement in California has submitted to the jurisdiction of California courts on a parentage action with respect to a child conceived under the agreement. See Fam C §7620, amended by Stats. 2016, ch 385, AB 2349 (effective January 1, 2017).
  • Proxy marriages by service members in war zones can’t be ambushed by county clerks anymore.
    Under a special exception, a military service member serving overseas in a “war or conflict” zone may appear for the licensure and solemnization of his or her marriage through an attorney in fact. This is sometimes referred to as “proxy marriage.” But some county clerks and state officials have questioned the circumstances and rejected these proxy marriages. Soon they won’t be able to do that because a new law makes a service member’s proper completion of the power of attorney for a proxy marriage the last word, and the clerk must accept it. See Fam C §420(b), as amended by Stats. 2016, ch 130, AB 2128 (effective January 1, 2017).
  • More types of victims will be entitled to free copies of police reports.
    As part of the Domestic Violence Prevention Act, domestic violence victims can get a free copy of the police incident report and face sheets from state or local law enforcement authorities up to five years from the date of the report’s completion. Effective January 1, 2017, the ability to obtain these reports will extend to victims of sexual assault, stalking, human trafficking, and abuse of an elder or dependent adult, but they’ll only have to two years from the date of the reports’ completion to make their requests. “Victim” is defined to include a minor age 12 or older. See Fam C §6228, as amended by Stats. 2016, ch 875, AB 1678 (effective January 1, 2017).
  • “Omnibus” family law bill makes numerous clarifying changes and provides for a statewide child support registry.
    A new law amends a whole host of Family Code provisions, most of which just clarify existing law, but also adds the new law measures on child support enforcement. Examples of the many clarified sections include Fam C §§306.5, 308, 360, and 500 on changes of name on marriage, validity of marriage, duplicate marriage licenses, and confidential marriages. The key provisions on child support enforcement are new Fam C §§17390–17393 providing for the development of a Statewide Child Support Registry and amendment of related statutes to change references from the California Child Support Automation System to the California Child Support Enforcement System. Because there hasn’t been a single statewide database with statistical data on child support orders, the “California Child Support Enforcement System may be utilized to provide a single statewide registry of all child support orders.” Fam C §17390. See Stats 2016, ch 474, AB 2882 (effective January 1, 2017).

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© The Regents of the University of California, 2016. Unauthorized use and/or duplication of this material without express and written permission from this blog’s author and/or owner is strictly prohibited.

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