August 2022 Update
The current update includes changes that reflect recent developments in case law, legislation, and court rules. Summarized below are some of the more important developments included in this update.
In Haley v Antunovich (2022) 76 CA5th 923, the court of appeal affirmed a trial court order requiring a child’s mother to seek work in an appropriate exercise of discretion. The court found substantial evidence that order was in the best interest of the child and was consistent with various principles in Family Code §4053, including that each parent should pay for the support of the children according to the parent's ability. See §3.3.
Family Code §4007.5, which was repealed January 1, 2020, held that absent certain exceptions, every money judgment or order for support of a child shall be suspended, by operation of law, for any period exceeding 90 consecutive days in which the person ordered to pay support is incarcerated or involuntarily institutionalized. Fam C §4007.5(a). See Stats 2015, ch 629, §2 (AB 610). The child support obligation resumes on the first day of the first full month after the release of the person owing support in the amount previously ordered. Fam C §4007.5(b). Legislation effective January 1, 2021, reenacted these provisions, which are in effect until January 1, 2023. See Stats 2020, ch 217, §2 (AB 2325). See §10.3.
The 2021 Omnibus Bill (AB 135), chaptered July 16, 2021 (Stats 2021 ch 85), provides sweeping changes, including wholesale amendments to Fam C §17400 related to child support agency electronic filings, electronic signatures, payment distributions and case closures. Effective January 1, 2023, Fam C §17400 requires a local child support agency to cease enforcement of child support arrears and amounts owed to the state that the Department of Child Support Services (DCSS) or local child support agency (LCSA) has determined to be uncollectible. See discussion in §10.2.
Papers and records (other than the final judgment) from actions filed under the Uniform Parentage Act (Fam C §§7600–7730) are confidential and subject to inspection only by parties to that action, absent a court order for good cause. See Fam C §7643 (applicable to actions filed before January 1, 2023), and Fam C §7643.5 (applicable to actions filed on or after January 1, 2023). See §10.17.
Consideration of a party’s ability to pay under Fam C §3600 must take into account fluctuations in income. In Marriage of Pletcher (2021) 68 CA5th 906, the trial court erred in calculating his average income based on one year that was his highest grossing, even though his income fluctuated significantly year over year. The Pletcher court suggested that the trial court might either expand the data set to include more years of income to get a more realistic figure, or assess an Ostler & Smith percentage to any discretionary bonus actually received over a base support figure. See §§6.18, 7.3.
There is a new Practice Tip from Commissioner Christine Donovan related to the potential application of Fam C §4337’s spousal support termination mandate on registered domestic partnerships under Fam C §297.5. See §6.42. Also, there is new advice regarding the importance of recitation of the Fam C §4320 factors when drafting a permanent spousal support agreements from Commissioner Christine Donovan. See §6.42.
There is no requirement that the court make a finding on each factor in Family Code §4320, as the law only requires that the record reflect the court “considered” those factors. Marriage of Diamond (2021) 72 CA5th 595. See §7.11.
In Marriage of Pletcher (2021) 68 CA5th 608, the court framed the question of deduction of business expenses from a spouse’s net income available for support as “not whether the businesses are related, but instead whether the expenditures were reasonable, and whether including or excluding them from income would work a hardship on either party.” 68 CA5th at 918. See discussion in §7.21.
Under Fam C §1612(a)(7), the court retains the power to shape public policy regarding premarital spousal support agreements executed between 1986 and 2002, to the extent they are not inconsistent with legislative declarations of such policy, and to declare that a premarital spousal support agreement is unenforceable as against public policy solely because it is unconscionable at the time of enforcement. Marriage of Zucker (2022) 75 CA5th 1025. See §5.10.
For a new Practice Tip describing the differing standards of capacity under the Probate Code that apply to transactions such as marrying, entering into a registered domestic partnership, or making a will, versus the capacity required for more complex transactions, such as creating a trust or entering into a contract, see §12.28.