Despite progress in recognition of old and out of state same-sex marriages, challenges still remain.

This month Governor Jerry Brown signed a bill into law which updates the wording of California’s marriage laws to reflect the reality of same-sex marriage in our state. The new law will also ensure that same-sex marriage licenses issued by other states are recognized in California. But despite this progress, same-sex couples still face difficulties in receiving equal treatment, as one famous case involving two gay marriage pioneers clearly shows.

In 1975, Anthony Sullivan and Richard Adams hopped on a flight from LA to Boulder, Colorado to visit a forward-thinking county clerk. The clerk gladly issued the two men Colorado Marriage License #1860 and the couple was married in front of witnesses in the First Unitarian Church of Denver. Though the clerk soon resigned, none of the 6 marriage licenses she had issued to same-sex couples were ever revoked or voided. Instead, they were simply ignored.

Adams and Sullivan tried to use their marriage license to secure a green card for Sullivan, an Australian citizen. However, their application was denied on the grounds that they had failed to prove they were really married, despite having a legal marriage license from Colorado. In the first federal lawsuit demanding recognition of same-sex marriage, the couple sued the INS, but they lost the case as well as all subsequent appeals.

By the 1980s, Sullivan was stuck in immigration limbo, unable to leave the country even for his mother’s and brother’s funerals for fear of being separated from his partner, who had already been denied residency in Australia.

Adams passed on at the end of 2012, just before the Defense of Marriage Act was struck down. Now, Sullivan has one last chance to get the green card—via a widower’s petition. Spouses of deceased citizens have two years to file a petition for a green card. Will this be enough time for Sullivan? In a few months we should know.

Meanwhile, it is important to understand that as the laws regarding same-sex marriage change, so do the interpretations and precedents available for use in family law cases. If you have had a family law issue related to a same sex marriage that has not been resolved to your satisfaction, now may be the time to try again. Please feel free to consult the Law Offices of Torrence L. Howell for advice.

Being the spouse serving papers rather than getting served can offer strategic benefits in a divorce case.

Besides the emotional gratification that can come from doing the rejecting rather than being rejected, there are some very compelling reasons why you might want to make sure you file for divorce before your spouse has a chance to. Here are a few of the key benefits that filing first can bring.

No Rush to Find the Right Attorney

Choosing the right divorce attorney is essential for getting the best possible outcome from your divorce. You need to find a seasoned professional who has a good track record of fighting effectively for their clients’ rights and securing fair divorce decrees. If you’re scrambling to respond to divorce papers your spouse has served on you, it can be difficult to really do your homework and research as many attorneys as you’d like. But if you are in control of the process and you know you are highly likely to be the party filing first, you can take your time and never risk moving forward with an attorney before you’re completely comfortable.

Time to Secure Documentation

Another important benefit of filing first is the opportunity to secure copies of all relevant financial records before your spouse has a chance to interfere with them. This can help prevent assets from getting transferred to secret accounts or otherwise “overlooked” when your spouse presents their own accounting of your marital assets and property. Be sure to gather all of the following types of documentation:

• Bank statements
• Tax returns
• Life insurance policies
• Wills and trusts
• Retirement account/pension statements
• Real estate records
• Asset inventory

Time to Settle Your Finances

A divorce proceeding will cause you to incur certain legal costs. When you are in control of the process, you can delay filing until you are sure you have the cash or credit required to cover all your expenses. If you wait for your spouse to file, you may not be so lucky. You may have to choose a subpar attorney or even go without representation.

Ability to Choose Jurisdiction

Finally, for couples who may reside separately in different states or counties, or live together but split their time between different properties, filing first may provide the opportunity to determine which jurisdiction’s laws will apply to your divorce case. If you are uncertain of the pros and cons of filing for divorce in a given location, you should definitely contact an experience divorce attorney and ask for advice.

Recent case highlights importance of securing proof of dissolution of prior marriages.

A celebrity divorce getting messy and making headlines is nothing unusual. But in the case of Congressman Alan Grayson’s divorce proceedings, the headlines are unusual indeed. Grayson’s wife Lolita filed for divorce in January, seeking custody of their minor children as well as alimony, child support, and possession of their marital home. In April, Grayson’s attorneys filed papers accusing his wife of bigamy. According to these documents, Lolita Grayson did not actually obtain a divorce from her first husband until 1994, four years after she had married the congressman. Therefore, the documents argue, the marriage was bigamous and Lolita Grayson should not be entitled to custody, alimony, or marital property. Rather, she should be ordered to repay Congressman Grayson for all of the property and money received during their supposed marriage.

In an affidavit released last week, Lolita Grayson finally responded to the accusations of bigamy, stating that she believed she was divorced in 1981, when her first husband presented her with divorce papers to be filed in Guam. She denied all knowledge of the alleged 1994 divorce proceeding.

While we will have to wait and see how this case plays out, it does bring up an important point for anyone getting a divorce, make sure you are really and truly divorced before you remarry! You cannot just assume that you are divorced because you filed the paperwork. You need to wait until you receive the final divorce decree. The date on this decree is your official date of divorce.

Penalties for Bigamy

Under California law, any marriage in which one spouse is actually still bound by a prior marriage to another person is considered bigamous. Knowingly entering into such a marriage is punishable by a fine of $10,000 or 1 year in jail if you are the married person or $5,000 if you are the new spouse of the married person. The only exception is if you reasonably believed the prior marriage to be terminated due to the death of the other spouse. This could be true if the person has been absent for 5 years and not known to be living during this time.

A bigamous marriage also carries an indirect penalty in the sense that if you want to end this new marriage, you will not be able to divorce (without first legally ending the prior marriage). Instead, the bigamous marriage will have to be annulled, which will deprive you of the rights to community property and spousal support that are normally available in a divorce.

Ending a Bigamous Marriage

The good news is that annulments have no waiting period, so you can proceed with an annulment immediately. If you require assistance or advice regarding ending a bigamous marriage please don’t hesitate to contact the Law Offices of Torrence L. Howell.

Learn how a family law attorney can help you get the support needed to care for your children.

Any time a couple conceives a child—regardless of whether or not they are married—they are both responsible for that child. However, not everyone lives up to their legal or moral responsibilities regarding their children. This is why the law provides for individuals to be compelled to support their children through child support orders. Here is a brief overview of obtaining and enforcing child support orders.

Obtaining Child Support Orders

In order for a child support order to be obtained, paternity must be established. For married couples, this is automatic. For unmarried couples, it can be done voluntarily by signing a form at the hospital when a child is born or at any time thereafter. Unwed mothers can also petition for paternity to be established without the father’s consent, in which case the court will order genetic testing to prove paternity.

The actual child support order can be enforced on the mother or the father of a child by whichever parent the child is living with. This may be done as part of a divorce proceeding or as its own family law case. A child support order can also be enforced on either parent by action of the state when the child is in state care.

The amount of the child support will be determined based on a variety of factors, including each parent’s income, the custodial time share, and the child’s needs. Parents may make voluntary agreements to cover things like college tuition, but these are often not enforceable by the court.

Enforcing Child Support

Ideally, parents will voluntarily comply with child support orders and send the court-ordered amount to the child’s primary caregiver each month. However, experts estimate that 30 percent of all parents don’t support their kids. When a parent attempts to evade their child support obligations, the local child support agency can take a variety of actions including:

• Withholding wages
• Placing levies on bank accounts
• Intercepting state or federal tax refunds
• Garnishing unemployment, workers’ comp, or state disability benefits
• License suspensions
• Passport denial
• Property levies

Modifying Child Support Orders

Over time, personal circumstances change. One spouse may require more or less support, and the other spouse may be more or less able to pay. For example, if the spouse receiving support gets a new job, the one paying may petition for support to be decreased.

Whether you already have a child support order you want changed, or you need help establishing a new order, family law expert Torrence L. Howell can help.

Support must be based on the actual income of the spouse, not the family fortune.

One wealthy family has managed to neatly snip their son’s ex-wife out of the family fortune without resorting to a prenup. This unusual case highlights an important point about spousal support, namely that it must be based on the actual income of the spouse paying it, not on the family fortune.

The case involves the divorce of Frederick and Mary Kate Williamson, she a former Ann Taylor clerk and he the eventual heir to the fortune of real estate mogul and former LA Times publisher Harry Chandler. During the marriage, the couple lived a lavish lifestyle bankrolled almost entirely by Frederick’s mother, who controlled the bulk of the fortune. Both spouses and each of the children were given the maximum tax-free gift of $26,000 every year, for a total of $130,000 in income per year. Plus, the family also received numerous one-time gifts, “loans,” and advances on Frederick’s inheritance, along with a little income from Frederick’s trust.

In 2005, Frederick quit his job to manage the complicated renovation of one of their many estates, liquidating $470,000 in stock and accepting a $2.2 million dollar “loan” or advance on his inheritance in the process. When the couple separated in 2009, they were spending roughly $45,000 a month despite neither spouse having a job.

When Mary Kate petitioned for spousal support as part of the divorce proceeding, she asked for about half of what she and Frederick had been spending per month. However, in the final divorce decree she received just $2,000, an amount far, far below the standard she had been accustomed to.

Now, in many divorce cases part of the goal of alimony or spousal support is indeed to help the supported spouse maintain a standard of living similar to that which they enjoyed during the marriage. However, in this case a complication arose because their standard of living was not funded by their own marital income, but by gifts from Frederick’s parents.

For the purposes of asset division in a marriage, gifts are counted as joint property. But they are not necessarily counted as income, especially if the gifts appear to have ceased, as was the case for the Williamsons. Frederick’s father testified that he cut his son off from future advances or loans from the trust in 2010.

The court found that the only gift that was regular enough to be considered part of Frederick’s income was the annual $26,000 tax-free gift. Moreover, Frederick’s parents could not be compelled to pay for their son’s divorce. Therefore spousal support was calculated based on Frederick’s own income of $60,000 from a newspaper job begun in 2010, $13,000 in annual trust income, and the $26,000 annual gift.

Even if your finances are nowhere near as complicated as the Williamsons’, it is wise to consult a financial planner who specializes in divorce, as well as an experienced divorce attorney, before finalizing any agreements.

High-profile custody battle raises questions about sperm donor rights.

The parental rights and responsibilities of sperm and egg donors can get pretty confusing, with courts across the country issuing conflicting opinions. Before donating sperm or eggs to another couple or conceiving a child using those materials, it is highly advisable to consult an attorney to help you understand the custody rights and support obligations that may result.

In California, we have a state law that was designed to strip the rights from anonymous donors so that they could help others conceive without fear of being targeted for child support later. However, it turns out that this law actually leaves two scenarios where a donor can have custody rights and child support obligations.

First of all, the law requires that a licensed medical professional be involved in the process. If the parties decide to do an informal donation, the protection of the law is lost. The donor can make a custody claim and the recipient can ask for support.

Secondly, the law can be overridden by another law, which provides for any individual who develops an intimate parental relationship with a child to petition for custody of that child. This is known as “psychological parenthood.”

This second scenario has garnered national media attention recently in a Hollywood paternity battle involving “Lost Boys” star Jason Patric. Patric donated sperm for his former girlfriend, Danielle Schreiber, to use in conceiving a child in 2008. When Schreiber suddenly cut off all contact with him in 2012, Patric took her to court in an attempt to get custody rights for what he regarded as his son.

Schreiber said that she had always intended to raise her son alone. However, by allowing Patric to play a role in the child’s life early on, she undermined her legal ability to do so. Patric said that he saw his son regularly, helped with things like toilet training, and was even referred to as “Dada” by Schreiber in front of the child. The court found that Patric had developed a strong relationship with the child, and that losing that relationship was not in the best interests of the child. Therefore, the court found that Patric did have the ability to seek custody, despite his sperm donor status.

This case is regarded to have set an important precedent for paternal rights of sperm donors. However, it is important to note that the street goes both ways—if the donor can have custodial rights, they can also be targeted for child support.

If you are involved in any kind of child custody dispute with your child’s natural parent, donor parent, stepparent, psychological parent, etc., contact the Law Offices of Torrence L. Howell for expert representation.

A family law attorney can help you navigate the overburdened family court system more efficiently.

California Chief Justice Tani Cantil-Sakauye is calling the current level of cutback-driven dysfunction in our court system the next great civil rights crisis. After all, what good are the protections of the law if the people cannot access them through the courts in a reasonably convenient manner?

Over 50 courthouses have closed and 3,900 fulltime workers have been let go due to budget cuts over the past few years. This has resulted in serious hardships for Californians in rural areas, where the nearest courthouse may be over 3 hours away. For example, the community of Needles is now so far from the nearest courthouse that residents are no longer called for jury duty.

Long drives to get to court are only the tip of the iceberg. Once there, wait times to file paperwork can be hours or even days—a sign in the Victorville courthouse warns that individuals who don’t have attorneys and need help may not been seen that day. And even if the paperwork gets filed with the clerk, in some courthouses this is no guarantee it will get to the judge. In Contra Costa County, one judge found 20 feet of unfiled civil law paperwork in a clerk’s office. Clerks in this courthouse have actually received complaints from divorced individuals who were unable to remarry because their paperwork had never been processed.

It will take time and money for this situation to be rectified. In the meantime, you would be well served to hire an experienced family law attorney to guide you through any and call court proceedings rather than attempting to handle things on your own. Here are some big benefits of having an attorney.

Get Paperwork Right the First Time

With the current backlog resulting in significant delays even in best case scenarios, it is more important than ever to file the correct legal documents on the first try. Whereas if you attempted to represent yourself you might make a mistake and have to start all over, with an expert family law attorney on your side you can rest assured the paperwork will get completed and filed correctly the first time.

Avoid Lines

Even if you don’t have to drive for hours to get to your nearest courthouse, you may still have to spend hours standing in line in order to file your paperwork. Rather than taking time off of work to do this, you can simply hire a family law attorney, who will have staff to handle this activity for you to save you significant time and aggravation.

Resolve Issues Outside of Court

Of course, in any kind of family law case there will be certain forms that must be filed and receive a judge’s signature. However, when time is of the essence it is often preferable to minimize the interaction with the court system. In other words, you may want to try to resolve custody, alimony, and child support issues outside of court through mediation or negotiation with your spouse’s attorney rather than waiting for a court date. Having an attorney on your side during this process can help ensure your rights are protected and you do not inadvertently agree to any unfair provisions.

A bill is under consideration that would update the Family Code with gender-neutral language.

Currently, the California Family Code defines marriage as between a man and a woman. A bill that would replace this language with gender-neutral terms accommodating gay marriage has passed the Senate and may soon become law. The bill, known as SB1306, would redefine marriage as a personal relation arising from a civil contract between two people and also enable gay individuals married outside the state of California to have their same-sex marriages recognized in California.

While detractors of the bill balk at excising the “man and woman” language, supports point out that marriage in California has essentially already been redefined. All the bill does is bring the language of the Family Code into alignment with the reality of marriage already ongoing in our state.

This bill comes on the heels of years of legal changes regarding same-sex marriage in California:

January 2000: California allows same-sex couples to register as domestic partners and receive insurance benefits and hospital visitation rights.

May 2000: California passes Proposition 22, a ballot measure stating “marriage” is reserved for heterosexual couples.

September 2003: Governor Gray Davis provides registered domestic partners with additional rights including custody rights and rights to government benefits belonging to a deceased partner.

February 2004: Nearly 4,000 gay couples are married in San Francisco when Mayor Gavin Newsom authorizes city officials to issue them marriage licenses. The practice is stopped by order of the California Supreme Court in March.

August 2004: The California Supreme Court finds that Newsom exceeded his authority and declares all the marriage licenses to be void.

September 2005: A bill legalizing same-sex marriage passes the Senate and Assembly but is vetoed by Governor Arnold Schwarzenegger who argues that the bill would wrongly reverse the ballot initiative Proposition 22.

October 2007: Governor Schwarzenegger again vetoes a same-sex marriage bill, pointing out that the courts need to rule on the legality of Proposition 22 before any law can contradict it.

May 2008: The California Supreme Court finds that the right to marry is a “fundamental right” belonging to everyone and therefore same-sex marriage bans are unconstitutional.

November 2008: The California Marriage Protection Act, aka Proposition 8, passes, demonstrating that 52 percent of Californians do not want to redefine marriage.

August 2010: US District Court finds Proposition 8 unconstitutional because it discriminates against gay individuals.

February 2012: The Ninth Circuit Court upholds the District Court’s ruling against Proposition 8.

June 2013: The Supreme Court also finds Proposition 8 unconstitutional, making gay marriage legal in California.

If the right to marry is a fundamental right in our society, so is the right to divorce. Whether you have a domestic partnership from the old days or a same-sex marriage, an expert divorce attorney like Torrence L. Howell can help to facilitate a legal separation from your former spouse and ensure a fair and equitable division of assets and custody.

Learn what factors affect how pets get treated in a divorce

According to a recent survey from the American Academy of Matrimonial Lawyers, pet custody disputes in divorce cases have been on the rise over the past five years. About 27 percent of the divorce attorneys who responded to the survey said that they had noticed an increase in the number of clients who had concerns about which spouse would get to keep the family pet after their divorce. The overwhelming majority of these pet custody disputes involved dogs, but the occasional cat, bird, or reptile was also disputed.

Considering the strong emotional bond that forms between pets and their owners, it’s no surprise that divorcing couples are fighting over pet custody. In many cases, however, the fight is inspired by a desire to hurt the other spouse rather than any real love for the pet. When one spouse desperately wants the pet and the other does not, pets can be used as pawns or as leverage in negotiating the divorce agreement. One spouse may ask for more money or property or a more favorable child visitation agreement in exchange for not contesting custody of the pet. The good news is that you do not have to fall victim to these tactics. With help from an expert divorce attorney, you can create a strong argument for who is best equipped to care for the pet and let the court decide. Here are the primary factors that a court might look at to determine custody of a pet.

Pre- or Post-Nuptial Agreements

If you have a valid pre- or post-nuptial agreement that describes who will get to keep the pet after a divorce, a court will respect this and award the pet accordingly.

Personal or Marital Property

Although we’re using the term “custody” here, in the eyes of the law a pet is actually just another piece of property like a boat or a car. As such it is subject to the same rules governing all marital property in California. If the pet was acquired prior to the marriage, it is personal property, but if it was acquired during the marriage with shared funds it will most likely be community property which each spouse has an equal right to.

Pet Care

A court may also be willing to consider evidence regarding which spouse has traditionally provided the majority of the pet care and give preference to that person. The court may also be sympathetic to arguments that one spouse or the other will be able to provide better pet care in the future due to their lifestyle.

Pet’s Relationship with Kids

If your children also have a strong relationship with the pet, it may be possible to argue that the pet should live with whichever spouse has custody of the kids, or, in cases of joint custody, with whichever spouse has physical custody of the kids the majority of the time.

Courts consider the best interests of the child when parents with custody agreements want to move.

Very few people live out their whole lives in the same town anymore. Instead, people often relocate to other cities, states, or even countries in search of new opportunities. In cases where parents are divorced, separated, or otherwise living independent lives, it’s hardly surprising that one or the other will want to move at some point. Parents are always allowed to move, but they may or may not be able to take their children with them.

In the state of California, the custodial parent (who has the child at least 60 percent of the time) is presumed to have the right to move away and take their child with them. The burden of proof is on the non-custodial parent to prove that the move would be detrimental to the child. In the case of a shared custodial agreement where neither parent has custody more than 60 percent of the time, the court will decide what is in the child’s best interests without prejudice to one parent or the other.

Either way, the following factors may be used to determine what the child’s best interests are.

Distance of the move: In general, shorter moves are not seen as very disruptive to a child’s life or their relationship with the non-moving parent. However, international or cross-country moves will be scrutinized more closely.

Reason for the move: A move can be made for any reason or no reason, as long as it is not done in an effort to interfere with the relationship between the child and the other parent.

Child’s age: A court is more likely to see a long-distance move as detrimental to a young child than an older one. Young children often have strong attachments to both parents and lack the understanding of time that will enable them to understand how long they will have to wait to see the other parent.

Co-parenting abilities: The better the parents are at communicating with one another, the easier it will be to continue to foster a relationship between the child and the non-moving parent.

Child’s wishes: In the state of California, children who are at least 14 must be allowed to testify at a child relocation hearing. Younger children may also testify if the court finds it appropriate, or else talk to a court-appointed evaluator about their preferences.

Child’s relationship to each parent: A child custody evaluator may be assigned to the case to help assess the child’s relationship to each parent and advise the court of how a move would affect those relationships.

Need for continuity in the child’s life: The child’s connections to the community, including their school, friends, and other local relatives, will also be considered in a child relocation case.

If the court finds that the move is not in the child’s best interests, the court may grant custody to the other parent so the child does not have to relocate. If the court finds that the move would not be detrimental to the child, it may nonetheless amend the custody agreement to ensure adequate contact with both parents.

Whether you are seeking to move or responding to your co-parent’s plan to move, you need a skilled child custody attorney on your side to help you understand how best to present your case to a judge. Contact Torrence L. Howell today for expert assistance.