The 2017 Updates to the California Family Code
It's that time again. Each year we like to provide you a head's
up as to the legislative additions and changes to the Family Code pertaining
to divorce and family law that take effect in January. Sometimes they
are exciting or controversial, but this coming year definitely not so
much. Yep, it's mostly a yawner - except for new
Family Code section 70, enacted to abrogate the California Supreme Court's 2015
Marriage of Davis decision, just about everything else our lawmakers did to the code was
simple language tinkering. We interpret this as meaning that our new and
improved Family Code is perfect, just perfect!
Here's a list of the 2017 statutes affected:
Family Code section 910: Changed to be consistent with new section 70. Same changes as to 771.
However, particularly as to sections 910 and 914, involving liabilities
of the community estate or of spouses, these wording changes could affect
creditor's rights or claims between spouses if "living separate
and apart" was a slightly different animal from physical separation
for purposes of ending the marriage.
- Family Code section 4338: Changed to be consistent with new section 70.
Same changes as to 771.
- Family Code section 143: This is an important new addition to our family
law jurisprudence. In case you wondered, the word "spouse" as
used throughout the Family Law Act now specifically includes a "registered
domestic partner," as defined by Family Code section 297.5.
Family Code section 215: 215 is important to know so that you can dazzle
and confuse your colleagues, and maybe trial court judges. It deals with
service of papers post-judgment. Before, certain post-judgment proceedings
like an application to modify spousal support orders required that the
other party be served in the same manner as when the proceeding was initiated,
and not simply upon the party's attorney of record. Subsection (b)
created an exception for post-judgment modifications of custody, visitation,
or child support orders to permit them to be served by mail. Those rules
remain the same. A new subsection (c) has been added to clarify that,
in proceedings pending for a bifurcated trial prior to the disposition
of the entire case, any other motion that has yet to be finally resolved
can be served upon the attorney of record or, if the other party is self-represented,
then upon the party themselve
unless neither party has filed any pleading with the Court for a period of six
months after entry of a bifurcated judgment - in which case service your
motion must be made upon both the party at their last known address and
their attorney of record.
And you say, what? I am going to have to research exactly when this situation might arise
and come back to this blog, but in the meantime avoid the trap to the
unwary and remember to serve both the party and their attorney under these
Family Code section 302: As another exercise in obscurity, section 302
involving underage marriages required a court order granting permission
to marry based upon the written consent "of
the parents of each underage person, or of one of the parents or the guardian of each
underage person," has been rewritten in the 2017 version to delete
reference to "the parents" so that it is uber clear that only
one parent's consent is required, even though the prior statute said
that as well. Housekeeping, neh, or is this intended to circumvent stubborn
fathers of daughters from saying "oh no, no, no you don't!"?
Family Code section 304: Also involving underage minors, former section
304 made it mandatory for judges to require a minor, before marrying,
to "participate in premarital counseling concerning social, economic,
and personal responsibilities incident to marriage." Now the court
may require the counseling, "if it considers it necessary."
This begs the question when our legislature will finally make such counseling
adults, and further require that such counseling cover the
legal responsibilities of marriage. Of course, that would unnecessarily cut
into the business of family lawyers down the line, such as myself, so
it would be a bad idea!
- Family Code section 306.5: This change involves the election of a person
who marries to take the other person's present or birth last name,
or both in a single word, if they do so at the time they fill out the
marriage license application. However, what makes it odd is that the only
change in the newest version is evidently a prohibition at subsection
(b)(3) against taking hyphenated names - where before this was specifically
allowed, reference to hyphenated names has been deleted. And people call
California the "nanny state"?
Family Code section 308: Another important legislative change for the thinking impaired. This
statute grants validity to lawful marriages in other jurisdictions, including
same-sex marriages. Where before that marriage would be valid in this
"State," now it is valid in "California." This is
good for those who aren't sure what state they're in. (A little
bird told me this clarification is necessary given the legalization of
marijuana, but ... maybe it was a hookah-smoking caterpillar that gave
me the call instead; I forget which).
- Family Code section 360: Involving issuance of duplicate marriage licenses
where a license is lost, damaged, or destroyed after the ceremony but
before it is filed with the county recorder, new section 360 makes it
plain that the duplicate license "shall" not be issued later
than one year after the marriage. This makes bureaucrats' lives easier,
which is a good thing since you can no longer argue with them about it!
It used to say "may" not be issued.
- Family Code section 400: This section sets forth who may solemnize a marriage,
and also gives a person the right to refuse to be required to solemnize
a marriage that is contrary to their faith. The 2017 change expands the
list of who may solemnize a marriage, most notably to permit former (as
opposed to presently serving) legislators to do so, so long as they weren't
kicked out of office for an offense comprising moral turpitude. Which is nice.
- Family Code section 420: This prescribes that no particular form of ceremony
is required for a valid solemnization of marriage, beyond the statement
that each party takes the other "as spouses". It also permits
solemnization for soldiers overseas who cannot be physically present by
using a power of attorney. Nothing new here, just some sentence structure changes.
- Family Code section 500: The 2017 version requires health certificates
of unmarried people otherwise already living together "as spouses"
who seek to be married. Formerly that was not required, probably because
it was just considered to be too late to worry about such things. Now,
we need to know.
Family Code section 2103: The new version provides that a preliminary declaration of disclosure
need not be served if service has been waived under
section 2107, by court order where a noncomplying party failed or refuses to serve
their own. This allows people to get past the judgment clerks and enter
their settlement agreements even where the other party hasn't filed
their proof of service of their PDD. Note this is not a problem in cases
of defaults, but it can be where the other party appeared in the action
but now possibly wants to stall or block the dissolution by refusing to
participate further. Bummer that the party trying to move forward still
has to go back to court, though.
- Family Code section 7613: This section deals with who the natural parent
is under the law for women conceiving through assisted reproduction with
someone other than their spouse. There is no substantive change.
Okay, that was painful but I promise more painful for me than you. If you
find any other revisions or additions to the family code, or rules of
court, please notify us.
The good news is that now you can impress people with your wide-ranging
knowledge of these earth shattering minutiae at the upcoming firm and
family law Christmas parties!
Be safe out there and have a great new year!
Author: T.W. Arnold III