HOW DOES MEDIATION WORK?

At the beginning of the formal mediation, the mediator explains their role, the confidential nature of the proceedings, any ground rules, the benefits of mediation, and the procedural steps that will be followed, if any.

During the fact-gathering stage, the mediator will begin to define the issues, helping the parties to focus on the issues rather than their positions.

Once a tentative agreement is reached, the mediator clarifies the terms of the agreement and makes sure all parties understand the terms of this agreement.  The agreement is then prepared in writing.

In general, both spouses will initially sit down and write out their goals, noting specifically what problems they anticipate where custody and support are concerned.  The parties will complete their financial disclosures in a sworn statement.  The mediator will then examine the issues and determine how far apart the spouses are.  From there, the mediator will work close to divide the assets and establish support payments.  If, however, one spouse doesn’t like the way that mediation is going, he or she has every right to consult with an attorney.  Once all the issues are settled, the mediator will write out a divorce settlement, which will need to be looked over by an attorney. Once it has, each spouse will be asked to sign the agreement and submit it to a court.

1. Definition of Mediation. Mediation is a process under which an impartial person, the Mediator, facilitates communication between the parties to promote reconciliation, settlement, or understanding among them. The mediator may suggest ways of resolving the dispute.

2. Authority of Mediator. The Mediator does not have the authority to decide any issue for the parties, but will attempt to facilitate the voluntary resolution of the dispute by the parties. The Mediator is authorized to conduct joint and separate meetings with the parties and to offer suggestions to assist the parties in achieving settlement. If necessary, the Mediator may also obtain expert advice concerning technical aspects of the dispute, provided that the parties agree and assume the expenses of obtaining such advice.

3. Commitment to Participate in Good Faith. While no one is asked to commit to settle their case in advance of mediation, all parties commit to participate in the proceedings in good faith with the intention to settle, if at all possible.

4. Parties Responsible for Negotiating Their Own Settlement. The parties understand that the Mediator will not and cannot impose a settlement in their case and agree that they are responsible for negotiating a settlement acceptable to them. The Mediator, as an advocate for settlement, will use every effort to facilitate the negotiations of the parties. The Mediator does not warrant or represent that settlement will result from the mediation process.

5. Identification of Matters in Dispute. Prior to the first scheduled mediation session, each party shall provide the Mediator with an Information Sheet and Request for Mediation on the form provided by the Mediator, setting forth its positions with regard to the issues that need to be resolved.

6. At or before the first session, the parties will be expected to produce all information reasonably required for the Mediator to understand the issues presented. The Mediator may require any party to supplement such information.

7. Mediation Sessions are Private. The parties and their representatives may attend mediation sessions. Other persons may attend only with the permission of the parties and with the consent of the Mediator.

8. Confidentially. Confidential information disclosed to a Mediator by the parties or by witnesses in the course of the mediation shall not be divulged by the Mediator. All records, reports, or other documents received by a mediator while serving in that capacity shall be confidential. The Mediator shall not be compelled to divulge such records or to testify in regard to the mediation in an adversary proceeding or judicial forum. Any party that violates this agreement shall pay all fees and expenses of the Mediator and other parties, including reasonable attorney’s fees incurred in opposing the efforts to compel testimony or records from the Mediator.  There shall be no record recorded, handwritten notes, or any form of recording of the mediation process.

9. Termination of Mediation. The mediation shall be terminated: a) by the execution of a settlement agreement by the parties; b) by declaration of the Mediator to the effect that further efforts at mediation are no longer worthwhile; or c) after the completion of one full mediation session, by a written declaration of a party or parties to the effect that the mediation proceedings are terminated.

Ms. Ferdin was peacefully protesting in Los Angeles on June 14, 2008, handing out fliers opposing primate research at UCLA, which contained the residence addresses, phone numbers and email addresses of four researchers, which she downloaded from a web site: uclaprimatefreedom.org. That act was the basis for her being tried and convicted of Contempt of Court.

The Regents of the University of California secured a Preliminary Injunction on May 14, 2008, against UCLA Primate Freedom; Animal Liberation Brigade; Animal Liberation Front; Linda Faith Greene; Hilary Roney;, Kevin Olliff; Ramin Saber; Tim Rusmisel and Does 1-100. It prohibited the named individuals and organizations from a variety of actions including “Placing or maintaining upon any website or otherwise disseminating any private or personal information, including home addresses, home phone numbers, mobile phone numbers, email addresses or vehicle license plate numbers, regarding any individual known or believed to be an employee or student of the Regents who conducts, supports, or oversees animal research, or a family or household member who resides with such employee or student.”  Even though the names are similar, uclaprimatefreedom.org was not a named party in the injunction.

Ms. Ferdin was charged with one count Contempt of Court (violation of a Court Order) by the Regents, through their retained lawyers from the mega law firm of Irell and Manella. She was convicted of that one count of Contempt on November 6, 2008, of acting in concert with parties named in the injunction, with inferred knowledge of the terms of the injunction, which had never been served on Ferdin, and she potentially faced, among up to 120 hours of court ordered community service and up to a $1,000 fine, up to five days incarceration.

Neither Judge Terry B. Friedman, who arraigned Ms. Ferdin, nor Judge John L. Segal apprised Ms. Ferdin of her rights under the U.S. Constitution, stated George Seide, Esq., Ms. Ferdin’s court appointed counsel.

Attorney George N. Seide is a certified family law specialist (CFLS), certified by the California Bar’s Board of Legal Specialization, and has significant experience in the prosecution and defense of Contempt of Court. He has been appointed by several Los Angeles Superior Court Judges as “alternate defense counsel”, when a party cannot afford private counsel and is not eligible for representation by the Public Defender.

Mr. Seide was appointed to represent Ferdin, when her right to counsel, protected by the 6th Amendment, was brought to the Court’s attention. Mr. Seide first represented Ferdin at the hearing on the date set for her sentencing and for argument on the Motion to Vacate her Contempt Conviction and was successful in arguing that Ferdin was not advised of her right to have counsel present at every proceeding and that counsel could be appointed for her.

Mr. Seide also argued that Ferdin was not advised that she had the 5th Amendment Right against self-incrimination. She did not have to file any responsive pleadings, nor take the stand and testify, and she did both. In this instance the Court made the correct judgment, recognized its serious errors and vacated the guilty verdict. The Court did not rule on Mr. Seide’s oral motion to dismiss the charges based on a ‘double jeopardy’ argument, but set the matter for a hearing for a written double jeopardy motion and for a new trial.

Even more mistakes were made. The Trial was returned to the Judge who issued the Injunction, who is precluded from hearing the Contempt, so it will have to be reassigned. The Motion for Dismissal was calendared for hearing on the same date as the second Contempt Trial. That means the parties must prepare for Trial, subpoena witness, etc. and on the day set for Trial the contempt charge against Ms. Ferdin may be dismissed. That’s a lot of wasted attorney fees! The Motion should be heard first and if denied then a Trial date should be set.

Mr. Seide was confident the Motion would be granted, but even if it is not, now that Ferdin has knowledgeable counsel, there are too many obstacles for the Regents to overcome in their case and Ms. Ferdin will be acquitted.

Mr. Seide is appalled that the Regents are going to retry Ms. Ferdin, considering the amount of money the Regents spent prosecuting the first Trial. Certainly, now that Ms. Ferdin has counsel, the Regents will incur even greater attorney costs than they did from the first trial.

It has been reported that Irell and Manella had attorney fees and costs between $20,000 -$30,000 through the first Trial.

The Regents have shown potential protestors the lengths they will go to enforce their unction. Mr. Seide is appalled that the Regents are going to waste that significant sum of money, or more, for a second Trial in these difficult economical times, when that money could be used for grants or financial aid. UCLA is a public university, not private, and the money they are going to waste on a second Contempt Trial comes out of the pockets of the taxpayers.

Adelman & Seide, LLP is a full service family law firm representing clients in the Family Courts, Juvenile Court and Child Support Court. Mr. Seide  has  a  sub-speciality representing  same  sex  partners,  whether in  Registered  Domestic  Partnerships or  in  Same  Sex  Marriages.

Code of Hammurabi

The practice of divorce has its origins in ancient times. The earliest divorce legislation appears in the Babylonian Code of Hammurabi, the oldest set of laws in world history, which dates from approximately 1760 BCE.

Under the Code a man initiating a divorce had to return her bridal dowry to his wife, including any money, land or goods, unless she had committed adultery. Not all of the Code was so enlightened. If a woman was considered to have brought her husband into ill-repute then it was within his rights to have her drowned.

Ancient Greece & Rome

Both the ancient Greeks and the Romans also permitted the dissolution of marriages. While Athenians had to take their case to a civil magistrate the Romans took a more liberal approach. Husbands and wives could simply renounce their vows without recourse to legal involvement. However in all of these societies the bond of marriage was strong and the actual number of separations was small.

Divorce in the Middle Ages

In early medieval Europe it was church rather than civil authorities which controlled marriages through ecclesiastical courts. On marriage a woman was seen to become one with her husband with no separate rights. Divorce was rare and wedlock was seen as a holy sacrament which human beings should not tamper with.

A compromise was provided with permission sometimes granted for what would now amount to ‘legal separations’, where the marriage was not dissolved but the man and woman could live apart. The official term for this was the Latin phrase ‘divorce a mensa et thoro’ (meaning ‘separation of bed and board’.) The only other available option was an ‘annulment’ where a marriage would be declared void on exceptional grounds such as the non-consummation of the partnership.

This was not the case in all cultures however. Under Islamic law for example divorce is known as ‘talaq’ and was relatively common in the medieval Ottoman Empire (modern Turkey) although less so in the modern Middle East.

King Henry VIII & Catherine of Aragon

Perhaps the most high-profile divorce case in history took place between King Henry VIII of England and the first of his six wives, Queen Catherine of Aragon. Certainly, its implications were wide-ranging as it played out on the international stage of sixteenth century Europe. The crisis arose from a power struggle with the Pope in Rome as Henry sought to assert his independent rights of kingship.

King Henry took the dramatic step of breaking with the Pope in order to dissolve his marriage with Catherine, who could not bear him heirs. In 1533 Henry had the marriage annulled in order to marry Anne Boleyn. This step contributed to the Reformation in England, and led to a permanent break with the Roman Catholic Church.

Early Modern Divorce

Henry’s challenge to the powers of the ecclesiastical courts initiated a gradual shift so that over time marriage increasingly became a matter for the consideration of the civil courts. However these still upheld society’s view that wedlock was a permanent state which could only be ended under exceptional circumstances.

This was partly a reflection of the fact that marriage, particularly amongst the upper classes, often represented property transactions or the combining of titles, lands and families rather than the expression of love between a man and a woman. It also reflected the fact that, on marriage, women effectively became the property of their husband with few rights and no independence. It was a very unusual case indeed in which a woman initiated the ending of marriage.

Later Developments

Over time the courts extended the exceptional grounds on which a marriage could be ended. Not only did it include non-consummation or other circumstances at the outset of a marriage but also factors occurring after the marriage such as cruelty and adultery on either side.

In these cases one party would have to be found guilty of such practices while the wronged party would need to be upheld as innocent. Courts frowned on situations where both parties were ‘guilty’. They also punished any collusion between a husband and wife who may have tried to manufacture suitable grounds in order to obtain a separation desired by both. This punitive approach continued into the early twentieth century and meant that numbers of divorces remained small.

Modern Divorce

As society’s views and expectations of marriage have altered and with the change in the role of women outside of the home divorce laws have adapted. The courts have made it increasingly straightforward for two people experiencing a relationship breakdown to end their partnership with the least possible acrimony.

In the modern United States an estimated 95% of all divorces are now ‘uncontested’ because the husband and wife have been able to arrive at an amicable settlement in relation to their property and any childcare and access issues. The courts in forty-nine States accept no-fault divorces. This allows partners to cite such grounds as the irremediable breakdown of a marriage without either party having to acknowledge guilt or demonstrate a burden of proof.

Society now recognises the damage which can affect families and children; lawyers and the courts attempt to minimise this to achieve the most harmonious resolution for all parties.

Family Code §771 states:

“The earnings and accumulations of a spouse and the minor children living with, or in the custody of the spouse while living separate and apart from the other spouse, are the separate property of the spouse”.

However, there are three California cases, two major, which provide important law and useful factual analyses on determination of date of separation. Those cases are In Re Marriage of Baragry (1977), 73 Cal.App.3d 444, In Re Marriage of von der Nuell (1994), 23 Cal.App.4th 730 and In Re Marriage of Peters (1997), 52 Cal.App. 4th 1487.

Until von der Nuell, Baragry was the definitive case on the subject of what law and what facts determine when date of separation occurs. Despite language in Baragry, to be discussed below, most practitioners, and judges for that matter, tend to rely on the fact of physical separation as determinative.

In Baragry, Husband moved out of the family home on August 4, 1971. Wife argued the date of separation should have been four years later, on October 14, 1975, the date husband filed the Petition For Dissolution.

The Baragry facts were:

1. On August 4, 1971, husband moved out of the family residence, shortly thereafter moved into his own apartment with his girlfriend and remained living with his girlfriend up through the date of trial.

2. Although husband did not sleep in the family residence, he maintained continual and frequent contacts with his family, including he ate dinner at home with wife almost every night in 1971 and 1972 and thereafter ate at home at least three to five times per week. Husband also maintained his mailing address at the family residence.

3. Husband took wife and daughters on two trips.

4. On one occasion, December 24, 1971, husband slept at home.

5. In 1972 and 1973, he took the family to numerous UCSB basketball games.

6. In 1973, husband took wife, without the children, for a vacation to Sun Valley.

7. Husband frequently took wife to social functions, friends’ homes, dinners for professional and academic groups, etc.

8. Husband also sent wife numerous Christmas, birthday and anniversary cards, including at least one card, in which husband stated he “loved” wife.

9. In 1974, husband filled out an enrollment card for daughter’s private school, which stated in his writing, daughter “lived at home” with both husband and wife.

10. The parties continued to file joint tax returns and husband maintained his voting registration address at the family residence. Husband paid all the household bills.

11. Husband even brought his laundry home every week to wife who washed and ironed it!

12. Husband and wife had no sexual relations after August 4, 1971.

At all times during the period of physical separation prior to filing the Petition, wife maintained she “desired” a reconciliation.

13. Husband never stated he was not coming back to the family residence.

14. When asked why he did not file the Petition for Dissolution until four years after he moved out of the family residence, husband testified that his “solid mid-western upbringing” made him reluctant to file for divorce for a lengthy period of time.

The Baragry Court examined prior law and held that “the question is whether the parties conduct evidences a complete and final break in the marriage relationship. That husband and wife may live in separate residences is not determinative. Even the failure to engage in sexual relations is not determinative.”

The ultimate (financial) issue in debate was whether husband’s earnings from 1971, when he physically removed himself from the family residence, until 1975, when he finally filed a Petition For Dissolution, were community or separate earnings.

On the facts presented, Baragry held the date of separation was 1975 when the Petition For Dissolution was filed.

The law on date of separation remained “dormant” until Justice Klein’s majority opinion in von der Nuell.

The issue in von der Nuell concerned determining the date of separation between November 1, 1987, when husband removed himself from the family residence, and May 12, 1991, when wife filed her Petition to dissolve the marriage.

The facts in von der Nuell were:

1. Husband physically removed himself from the family residence on November 1, 1987.

2. It was a long marriage of twenty-eight years duration.

3. Starting in April, 1988, husband asked wife for an agreement to return home. She refused his request. In June, 1988, husband left his female friend and moved into a separate residence, but never moved back into the family home.

4. On July 13, 1989, husband filed a Petition For Dissolution which was never served on wife.

5. Husband paid support or paid a contribution to wife in the nature of support until May, 1991.

6. Wife always felt the marriage was “salvageable” and that things would be worked out, saving the marriage.

7. Wife sought the services of a marriage counselor and requested husband to participate in the counseling, but he refused.

8. The parties continued to discuss, and in fact attempted, reconciliation on numerous occasions.

9. From early 1988 through the spring of 1991, the parties maintained joint checking accounts, credit cards, tax returns and took title to an automobile jointly.

10. Husband maintained close contact with wife, including frequent visits to the home, taking wife on vacation, going out socially, sending her cards and gifts on special occasions and holidays.

11. Unlike Baragry, husband and wife continued having sexual relations from early 1988 through the spring of 1991.

While examining the prior case law, especially Baragry, von der Nuell reiterated: “The critical inquiry is whether the parties’ conduct evidences a complete and final break in the marriage relationship.”

The Court justified this requirement, based upon its determination it was consistent with the recognition that many marriages “are on the rocks for protracted periods of time and it may be many years before the spouses decide to formally dissolve their legal relationship.” The Court held date of separation did not occur until June, 1991, when wife filed her Petition For Dissolution, because the conduct between the parties did not evidence a complete and final break in the marriage relationship until that date.

In Troxel, the unmarried parents of two girls stopped living together in 1991. Father moved in with his parents (the Troxels). Understandably, the children visited often with the Troxels when they were visiting with their Father. Father committed suicide in 1993. After Father’s death, Mother limited the children’s visits with the Troxels to one short monthly visit. The Troxels found this limited contact unacceptable and petitioned the Washington trial court for visitation.

Washington’s governing statute was broad and expansive; it allowed any third person to seek visitation if the visitation was in the best interest of the minor. Mother was willing to increase the Troxels’ visitation, but not to the extent they requested. The trial court ordered that the Troxels would have formal and significant visitation with their grandchildren.

The Washington Court Of Appeal reversed holding that third persons have no standing to seek visitation unless a custody proceeding between the parents is already pending. The Washington Supreme Court granted the Troxels’ petition for review and affirmed the ruling of the Court of Appeal, but did so on different grounds than the lower court. The Washington Supreme Court held that, under the Federal Constitution, parents have a fundamental right to rear their children as they see fit and, that absent a showing of harm to the children, the state has no right to substitute its judgment.

The U.S. Supreme Court affirmed. Writing for a splintered majority, Justice O’Connor wrote that parents have a substantive due process fundamental right under the 14th Amendment to solely make the decisions regarding the care, custody and control of their children and, absent a showing of parental unfitness, the state cannot interfere with those decisions. It was irrelevant whether the children would benefit from more time with their grandparents or that such visitation would be in their “best interests” as the state had no right to interfere in the first instance.

In deference to the substantive due process fundamental parental rights (above) and California’s strong policy preference for the rights of parents over non-parents (Familv Code §3040 & §3041), California’s fairly complicated scheme generally requires that, if a custody proceeding is already pending, the non-parent, grandparent, or stepparent, must demonstrate the visitation requested is in the best interest of the minor and that the minor will not suffer detriment if the non-parent visitation request is granted. Under Family Code §3I00, the family law court has discretion to grant “reasonable visitation rights… to any other person [a non-parent] having an interest in the welfare of the child.”

If, however both parents object to visitation by the non-parent, there is a rebuttable presumption (which in practice is very difficult to overcome) affecting the burden of proof that the requested visitation is not in the child’s best interest. (See Family Code §3103(d) and §3104(1).)

California has a separate statute, Family Code §3102, which governs requests for visitation if one parent of the child is deceased. On facts strikingly similar to those in Troxel, in Zasueta v. Zasueta (2002), 102 Cal.App.4th 1242, during the dissolution proceedings, Father committed suicide. Father’s parents petitioned for visitation. Mother opposed the request on grounds that the child (2 years old) was too young, that the child was understandably traumatized by her Father’s suicide, and that the paternal grandparents would discuss the suicide with and in the child’s presence.

The trial judge (who still presides in Kern County as of this time of writing), a grandfather of seven grandchildren. without any evidence to find Mother unfit other than she opposed grandparent visitation, found her unfit on that basis. Then, based solely on the court’s personal beliefs, which the court improperly injected into the proceedings, held it was in the best interests of all children to see their grandparents, stating among other decidedly inappropriate remarks, that it is the job of all grandparents to “spoil their grandchildren.”

The Court of Appeal reversed, holding the trial court’s decision plainly ignored and therefore violated Troxel and violated Mother’s 14th Amendment fundamental right to raise her children, absent unfitness, as she pleases. In conclusion, the Court stated:

“At the very least, Troxel teaches that trial courts must resist the temptation to personalize the proceedings and to substitute personal judgments for the decisions made by fit parents regarding visitation.”

related keywords: California grandparent visitation rights, Los Angeles grandparent visitation rights, Los Angeles Family Law Attorney, Los Angeles divorce lawyer,

No longer.  Even though, on May 15, 2008, the California Supreme Court ruled that barring same-sex couples from marriage was unconstitutional, the voters on November 4, 2008 passed a “Constitutional Amendment” identifying marriage as only between members of the opposite sex.

2.    CAN THE PASSAGE OF PROPOSITION 8 BE APPEALED TO THE UNITED STATES SUPREME COURT?

Yes, but it is unlikely it will happen, as a negative ruling in the United States Supreme Court would have a devastating effect on this issue nationwide.  The City Attorneys of San Francisco and Los Angeles and County Counsel of Santa Clara County already filed a petition for a Writ of Mandate with the California Supreme Court to invalidate Proposition 8.  In mid November, the California Supreme Court voted 6 to 1 to hear the matter early in their Spring 2009 calendar, but refused to stay the effect of Proposition 8 until they rule on the larger issue.

3.    DOES THE PASSAGE OF PROPOSITION 8 AFFECT THE RIGHTS OF SAME-SEX COUPLES, WHO WERE MARRIED DURING THE PERIOD IN 2008 WHEN SAME-SEX MARRIAGE WAS LEGAL?

Probably not as most the effect of most statutes is prospective only.  The California Attorney General already stated that those who married on or between June 16 and November 4, will continue to have valid marriages recognized in California.

4.    FOR SAME-SEX COUPLES IN BINATIONAL RELATIONSHIPS, WHO WERE LEGALLY MARRIED IN CALIFORNIA, DOES THAT PERMIT A NON-U.S. CITIZEN TO GAIN LEGAL PERMANENT RESIDENCE IN THE U.S. THROUGH THE MARRIAGE?

No. Immigration is governed exclusively by federal law, which currently refuses to recognize same-sex marriages or domestic partnerships for purposes of “any” federal rights or benefits.  A heterosexual person who marries a non-U.S. citizen can petition to have his or her spouse become a permanent legal resident; however, current federal law does not provide the same right to a lesbian, gay, or bisexual person who is married to a same-sex spouse from another country.

5.    WHEN THE CALIFORNIA SUPREME COURT RULED, EARLY IN 2008, THAT SAME-SEX COUPLES COULD MARRY, DID COUPLES WHO WERE REGISTERED DOMESTIC PARTNERS IN CALIFORNIA AUTOMATICALLY BECOME MARRIED?

No.  Couples who are Registered Domestic Partners were free to decide whether or not they wished to marry.  Those who wished to marry must have gone through the formal legal steps required for any couples in California to legally marry prior to the passage of Proposition 8.

6.    DO CALIFORNIA DOMESTIC PARTNERSHIPS CONTINUE TO EXIST?

Yes.  Domestic Partnerships continue to exist unchanged under current California law.

7.    IN 2004, MANY COUPLES WERE MARRIED IN SAN FRANCISCO, AND THE CALIFORNIA SUPREME COURT SUBSEQUENTLY HELD THAT THOSE MARRIAGES WERE INVALID. DID THE COURT’S DECISION IN EARLY 2008 THAT THEN ALLOWED SAME SEX MARRIAGES RESULT IN REVIVING THE SAN FRANCISCO MARRIAGES AS LEGAL?

No.  The Court determined that those marriages were invalid at the time they were entered and those marriages remain invalid, and those couples would have had to remarry between June 16 and November 4, 2008, for their marriage to be recognized.

8.    IF MY PARTNER AND I WERE LEGALLY MARRIED IN MASSACHUSETTS OR CANADA, WILL OUR MARRIAGE NOW BE RECOGNIZED IN CALIFORNIA?

When the Court’s Ruling went into effect allowing same-sex marriages in California, couples who legally married in another jurisdiction, would have been recognized as married in California as well, but it is doubtful at this time.  The legal morass will have to play itself out in the courts before a definitive answer may be given.

9.    IS THERE ANY REASON FOR COUPLES WHO MARRIED BETWEEN JUNE 16 AND NOVEMBER 4TH TO ALSO REMAIN IN A DOMESTIC PARTNERSHIP?

Yes.  Being in a registered Domestic Partnership may protect you if you travel or move to another state that will recognize a Domestic Partnership, but not a marriage.  Furthermore, it will protect you should the Courts invalidate the marriages of those married between June 16 and November 4th.  This is especially important for those whose health insurance is provided by their Partner/Spouse.  If the Domestic Partnership is terminated and the marriage becomes invalid, it may become expensive or impossible to secure health insurance coverage with pre-existing conditions.

10.    WHEN SAME-SEX MARRIAGE WAS LEGAL IN CALIFORNIA, COULD OUT-OF-STATE COUPLES MARRY IN CALIFORNIA?

Yes.  There was no residency requirement to marry in California.

11.    IF MY PARTNER AND I RESIDED IN ANOTHER STATE AND MARRIED IN CALIFORNIA, IS OUR MARRIAGE VALID IN OUR HOME STATE?

If you lived in another state when you got married in California, you are legally married, at this time, in California.  However, depending on where you live, your home state may not recognize your marriage.  Many states have passed discriminatory marriage laws, and in those states, state and local governments likely will not respect your California marriage.  But even in those states, it is  likely that, at least, some private businesses and other private third parties will respect your marriage, particularly those that already recognize same-sex legal relationships through Domestic Partnerships or a similar system.

12.    DOES THE FEDERAL GOVERNMENT RECOGNIZE MARRIAGES OF SAME-SEX COUPLES WHO MARRIED IN CALIFORNIA OR ANY OTHER STATES?

No.  Under current Federal Law, the Federal Government does not recognize marriages of same-sex couples. This means that married same-sex couples currently do “not” have “any” of the rights, benefits, or protections that Federal Law gives to married heterosexual couples, such as the ability to file joint federal income taxes or receive federal spousal benefits through social security or other federal programs.

13.    WHAT HAPPENS IF WE MARRY IN CALIFORNIA AND THEN WISH TO DIVORCE?

The only legal way to end a marriage in California is to get a divorce.  In order to divorce in California, at least one of the parties to the marriage must be a resident of California for at least six months and of the county in which the divorce is filed for three months before filing a dissolution Petition.  If you move from California to another state, or if you already live in another state, getting a divorce could be difficult.  Currently, the only state other than California in which same-sex married couples have a clearly established right to divorce is Massachusetts; however, Massachusetts has a one-year residency requirement before a person can petition a Massachusetts court for a divorce.

New York law appears to respect same-sex couples’ out-of-state marriages even though same-sex couples cannot yet marry in that state.  So, married gay and lesbian couples may be able to petition for divorce in New York; however, New York also has a residency requirement for divorce.  States with civil unions or comprehensive domestic partnerships, like Connecticut, New Hampshire, New Jersey, Oregon, and Vermont, also may allow married same-sex couples to divorce, but each of those states has a one-year residency requirement.  That means that at least one spouse must be a resident of the state for a year prior to the divorce.

Couples who are unable to obtain a divorce remain legally married. Therefore, being unable to divorce may cause serious legal problems and complications for same-sex couples who find themselves in this situation.

14.    IS DIVORCE OF SAME SEX COUPLES THE SAME AS FOR HETEROSEXUAL COUPLES?

Yes.  The rules and obligations of the Family Code are the same for heterosexual marriages as they are for same-sex marriage and the dissolution of Domestic Partnerships: fiduciary responsibilities of the parties toward each other; the identifi-cation and division of separate and community property; spousal/-partner support; child support if applicable; custody and visita-tion if applicable; and the validity of pre- and postnuptial agreements and pre- and post Domestic Partnership Agreements.

If the same-sex married couple is also in a Domestic Partnership registered with the Secretary of State, they must file, not only for a Dissolution of Marriage, but also for a Dissolution of Domestic Partnership.  At this time in California that is two separate litigations, which should then be consolidated and tried together before the same Bench Officer, as the issues and facts of each are the identical, with the exception of basic identifying terms, i.e. partner/spouse, partner support/spousal support, date of marriage/date of registration of domestic partnership.

The dramatic differences between the dissolution of heterosexual marriages and same-sex marriage/domestic partnerships are in the application of the Internal Revenue Code and distribution of Federal Benefits, where both Domestic Partnerships and same-sex marriages are not recognized, which creates a financial mine field for the parties, hopefully to be crossed by a skillful attorney, experienced in the nuances of same sex legal relationships, such as those in Adelman & Seide, LLP.

For further information or specific questions, please contact George N. Seide, Esq., Certified Family Law Specialist, at Adelman & Seide, LLP, (818) 981-8810, 16055 Ventura Boulevard, Suite 712, Encino, California 91436.

NUMBER OF CHILDREN

Number of minor children of this relationship (until age 18 and graduated from high school if self-supporting, or until age 19 while still in high school).

TIME SHARE PERCENTAGE

Approximate percentage of time that each parent has primary physical responsibility for each minor child of this relationship.

GROSS INCOME

Commissions, salaries, royalties, wages, bonuses, rents, dividends, pensions, interest, trust income, annuities, workers’ compensation benefits, unemployment insurance benefits, disability insurance benefits, social security benefits, and spousal support actually received from a nonparty. The court may, in its discretion, consider the earning capacity of a parent in lieu of the parent’s income in the best interest of the children.

TAX LIABILITY

Tax filing status: single, married, married filing separately, head of household; number of dependents claimed by each parent; and all available exclusions, deductions, and credits.

DEDUCTIONS

FICA; mandatory union dues; mandatory retirement benefits; health insurance or health plan premiums for the parent and any children the parent has an obligation to support; SDI; any child or spousal support actually paid by the parent pursuant to court order, or proven child or spousal support payment; and proven necessary job related expenses.

ADDITIONAL CHILD SUPPORT

Additional child support may be divided one-half to each parent or prorated. The court will require additional child support for child-care costs related to employment or to reasonably necessary education or training for employment skills, and reasonable uninsured health-care costs for the children. The court may include additional child support for costs related to educational or other special needs of the children, or travel expenses for visitation.

FINANCIAL HARDSHIPS

Circumstances evidencing hardship include extraordinary health expenses for which the parent is financially responsible, and uninsured catastrophic losses; minimum basic living expenses of parent’s natural or adopted children from other relationships who reside with the parent.

If you have any questions about child support guidelines, you should talk with a lawyer or contact a Family Law Facilitator, or your local child support agency.

Problems can arise and spin out of control fast when child support payments are not made, for all parties. For the custodial parent, funds that you depend on may dry up. For the non-custodial parent, arrearages can quickly stack up to unmanageable amounts.

If you are a custodial parent who is not receiving support payments, or if you are a parent unable to meet your child support obligations due to a change in financial circumstance, please contact one of our highly skilled and experienced attorneys here at Adelman & Seide to help you resolve this problem.

Below is a list of child support calculators for every state. Please be advised that this is just for general information and not legal advice.

Alabama child support calculator

Alaska child support calculator

Arizona child support calculator

Arkansas child support calculator

California child support calculator

Colorado child support calculator

Connecticut child support calculator

Delaware child support calculator

Florida child support calculator

Georgia child support calculator

Hawaii child support calculator

Idaho child support calculator

Illinois child support calculator

Indiana child support calculator

Iowa child support calculator

Kansas child support calculator

Kentucky child support calculator

Louisiana child support calculator

Maine child support calculator

Maryland child support calculator

Massachusetts child support calculator

Michigan child support calculator

Minnesota child support calculator

Mississippi child support calculator

Missouri child support calculator

Montana child support calculator

Nebraska child support calculator

Nevada child support calculator

New Hampshire child support calculator

New Jersey child support calculator

New Mexico child support calculator

New York child support calculator

North Carolina child support calculator

North Dakota child support calculator

Ohio child support calculator

Oklahoma child support calculator

Oregon child support calculator

Pennsylvania child support calculator

Rhode Island child support calculator

South Carolina child support calculator

South Dakota child support calculator

Tennessee child support calculator

Texas child support calculator

Utah child support calculator

Vermont child support calculator

Virginia child support calculator

Washington child support calculator

West Virginia child support calculator

Wisconsin child support calculator

Wyoming child support calculator

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Enacted in 1999, the domestic partnership registry was the first of its kind in the United States created by a legislature without court intervention. Initially, domestic partnerships enjoyed very few privileges—principally just hospital-visitation rights. The legislature has since expanded the scope of California domestic partnerships to afford many of the rights and responsibilities common to marriage. As such, it is now difficult to distinguish California domestic partnerships from civil unions offered in a handful of other states.

California has expanded the scope or modified some of the processes in domestic partnerships in every legislative session since the legislature first created the registry. Please visit the California Secretary of State website for the most current information.

Scope

As of 2007, California affords domestic partnerships all of the same rights and responsibilities as marriages under state law (Cal. Fam. Code §297.5). Among these:

* Making health care decisions for each other in certain circumstances

* Hospital and jail visitation rights that were previously reserved for family members related by blood, adoption or marriage to the sick, injured or incarcerated person.

* Access to family health insurance plans (Cal. Ins. Code §10121.7)

* Spousal insurance policies (auto, life, homeowners etc..), this applies to all forms of insurance through the California Insurance Equality Act (Cal. Ins. Code §381.5)

* Sick care and similar family leave

* Stepparent adoption procedures

* Presumption that both members of the partnership are the parents of a child born into the partnership

* Suing for wrongful death of a domestic partner

* Rights involving wills, intestate succession, conservatorships and trusts

* The same property tax provisions otherwise available only to married couples (Cal. R&T Code §62p)

* Access to some survivor pension benefits

* Supervision of the Superior Court of California over dissolution and nullity proceedings

* The obligation to file state tax returns as a married couple (260k) commencing with the 2007 tax year (Cal R&T Code §18521d)

* The right for either partner to take the other partner’s surname after registration

* Community property rights and responsibilities previously only available to married spouses

* The right to request partner support (alimony) upon dissolution of the partnership (divorce)

* The same parental rights and responsibilities granted to and imposed upon spouses in a marriage

Eligibility

Currently, a couple that wishes to register must meet the following requirements:

1. Both persons have a common residence.

2. Neither person is married to someone else or is a member of another domestic partnership with someone else that has not been terminated, dissolved, or adjudged a nullity.

3. The two persons are not related by blood in a way that would prevent them from being married to each other in California.

4. Both persons are at least 18 years of age.

5. Either of the following:

* Both persons are members of the same sex.

* The partners are of the opposite sex, one or both of whom is above the age of 62, and one or both of whom meet specified eligibility requirements under the Social Security Act.

6. Both persons are capable of consenting to the domestic partnership.

Also, a legal union of a same-sex couple, other than marriage, validly performed in another jurisdiction, that is substantially equivalent to a California domestic partnership, will be recognized as such in California. Civil unions, such as those performed in Vermont, Connecticut, and New Jersey, would most likely qualify as domestic partnerships in California. A valid same-sex marriage performed in a jurisdiction that recognizes such unions, such as Massachusetts, would not be recognized in California as either a marriage or a domestic partnership. This is due to the fact that California statute prohibits recognition of another jurisdiction’s validly performed same-sex marriage.

British law recognizes California domestic partnerships as equivalent to civil partnerships in the United Kingdom. The attorney general of New Jersey has ruled that California domestic partnerships are equivalent to civil unions in that state and likewise that civil unions in New Jersey can qualify as domestic partnerships in California. Switzerland recognizes California domestic partnerships as comparable to Civil unions in Switzerland, including granting residency rights based on the partnership.

Registration

Domestic partner registration is an uncomplicated process, more simple and less costly than entering into a marriage. Both parties must sign a declaration listing their names and address. Both signatures must be notarized. The declaration must then be transmitted to the Secretary of State along with a $10 filing fee (plus an additional $23 fee for same sex couples must be collected pursuant to CA Family Codes §298, §298.5 and §358, to help fund LGBT-specific domestic violence training and services). In this regard it is not like a marriage or civil union. Those unions require a ceremony, solemnized by either religious clergy or civil officials, to be deemed valid.

Dissolution

In most cases, a domestic partnership must be dissolved through filing a court action identical to an action for dissolution of marriage. In limited circumstances, however, a filing with the Secretary of State may suffice. This procedure is available when the domestic partnership has not been in force for more than five years. The couple must also meet many other requirements that the dissolution be both simple and uncontested: no children (or current pregnancy) within the relationship, no real estate (including certain leases), and little joint property or debt. The parties must also review materials prepared by the Secretary of State, execute an agreement dividing assets and liability, and waive claims to domestic partner support. Where all the requirements are met, the partnership will terminate six months after the filing, unless either party revokes consent.

For questions and consultation regarding domestic partnerships in California, please contact our domestic partnership expert attorney George N. Seide here at Adelman & Seide, LLP. Mr. Seide has lectured extensively on the subject and successfully represented many clients in domestic partnership matters.