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 70: Order has been restored to the force! This section legislates that "date
of separation" for purposes of defining what is, and what is not,
community property (and so much more like the length of marriage for spousal
support purposes) means "the date that a complete and final break
in the marital relationship has occurred, as evidenced by both of the
(1) The spouse has expressed to the other spouse his or her intent to end the marriage.
(2) The conduct of the spouse is consistent with his or her intent to end the marriage."
- Family Code section 771: Changed to be consistent with new section 70. The statutory references to the parties' separation were previously described as "while living separate and apart." Now the term "date of separation" is adopted instead.
- 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 914: Changed to be consistent with new section 70. Same changes as to 771.
- 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 [uncommon] circumstances.
- 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 mandatory for 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