News

Marriage of Valli resolves community property v form of title dispute

This month, in Marriage of Valli, the California Supreme Court decided the issue of whether or not simply changing the title of how property is held is enough to defeat the family law presumption that property acquired during the marriage is community property. The court held that if community funds were used to buy property in which only one of the parties were on title; the acquired property remained community property and had to be divide in half upon divorce. The only way that community property could become the separate property of one of the spouses is if there is a formal written transmutation agreement between the spouses.

Attorney B. Stuart Walker

AB 939 will take effect on January 1, of 2011. It constitutes an effort by family law stake holders (judiciary, family law professionals, interested public, and legislators), to resolve two competing interests.

The primary interest, identified by California’s Supreme Court in the case, Elkins v. Superior Court, is that litigants, (especially self-represented litigants) should have their day in court. i.e. the court should hear the parties & witness testimony at the initial and subsequent Order to Show Cause hearings. These are the hearings that often have the practical effect of permanently determining the issues of child custody, support and the parties access to funds from which to pay an attorney. sharing the cost of attorney fees, for the rest of the case. Currently the courts rely on party and witness written declarations and to a greater or lesser extent prevent testimony of parties and witnesses.

The other, and in my opinion, equally important goal is that the parties family law issues are resolved expeditiously and efficiently. Because of the complex procedural requirements in California Family Law many case drag on for years. It is not unusual for parties to discover that the divorce that they believed was completed years ago, was in fact dismissed by the court for procedural defects.

Below are what I consider the significant changes to the California Family Code.

• The post judgment requirement for personal service of the opposing party when modifying custody, visitation or child support has been removed.
• Absent a showing of good cause or stipulation of the parties, the court must receive the testimony of parties and noticed witnesses.
• Upon a request for attorney fees the court is required to make a finding as to appropriateness, disparity in income, and ability to pay. Court Rule and form to be adopted by January 2012.
• The eligibility for parties to file for summary dissolution (divorce), rather than the normal divorce is changed from marriages lasting no longer than five years from the date of marriage to the date of filing to marriages lasting no longer than five years from the date of marriage to the date of separation. Other requirements, (e.g. no children, no real estate) remain unchanged.
• Allows the court to grant a summary dissolution after six months from the date of filing of the petition without an application from one of the parties. Parties retain right to revoke joint petition prior to grant of summary dissolution.
• Mandates that minor’s counsel present the child’s wishes to the court upon request of the child. Court and counsel must follow existing codified duties of minor’s counsel.
• Court may accept a stipulated judgment of Paternity in a protective (restraining) order proceeding.
• If there are orders for custody, visitation or support in the restraining order, those orders will survive the expiration of the restraining order.
• The court may refer all allegations of child abuse to the local child protection agency. Child welfare agency to make child records available to cognizant judges and attorneys in family and probate guardianship cases.

Though now terminated for cases filed after January 2023, one of the anachronisms recently built into our Family Code is California Family Code Section 7643. This is the section that requires a level of secrecy in child custody and/or child support cases involving unmarried or single parents that is not required in cases involving married or formerly married parents. This is a law seemingly made for times when the stigma of illegitimate birth was a genuine issue for those born out of wedlock. Today however, I suspect even the terms illegitimate birth and born out of wedlock have no meaning to all but the oldest among us.

The practical effect of this law is to add to the expense, complication and frustration of a process that can be challenging to even the most reasonable parents. Unlike divorced or divorcing parents, unmarried parents and their attorneys are not allowed to access records of previous actions or upcoming court hearings online. Reviewing case records at the court house requires a party or his or her attorney to prove their identity and in the case of an attorney, prove that they are the attorney of record.

The section reads as follows:

§ 7643. Confidentiality of hearings and records

(a) Notwithstanding any other law concerning public hearings and records, a hearing or trial held under this part may be held in closed court without admittance of any person other than those necessary to the action or proceeding. Except as provided in subdivision (b), all papers and records, other than the final judgment, pertaining to the action or proceeding, whether part of the permanent record of the court or of a file in a public agency or elsewhere, are subject to inspection and copying only in exceptional cases upon an order of the court for good cause shown.

(b) Papers and records pertaining to the action or proceeding that are part of the permanent record of the court are subject to inspection and copying by the parties to the action, their attorneys, and by agents acting pursuant to written authorization from the parties to the action or their attorneys. An attorney shall obtain the consent of the party to the action prior to authorizing an agent to inspect and copy the permanent record. An attorney shall also state on the written authorization that he or she has obtained the consent of the party to authorize an agent to inspect and copy the permanent record.

This issue has been news lately in the Paternity Case between unmarried parents, Oksana Grigorieva and Mel Gibson, due to the leaking of court records in violation of, among other things, this code section.

This is just one of the anachronisms present in our California Code Sections. I’ll address the inefficiencies resulting from the requirements to give public notice (change of name) in newspapers in a later post.