Archive for the ‘Family Law’ Category

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General Information Re Nullity (Annulment) Of Marriage Or Domestic Partnership In California

Petitioning for a judgment of nullity (rather than marriage dissolution) is appropriate where the validity of the marriage is in doubt.

Marital dissolution (divorce) and nullity of a marriage are premised on completely different assumptions:

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  • A dissolution action is maintained to terminate a valid marriage on grounds arising after the marriage (Ca Fam § 2310);
  • A nullity proceeding is maintained on the theory that, for reasons existing at the time of the marriage, no valid marriage ever occurred (i.e., the marriage, from its inception, is either void or voidable; Ca Fam § 2200 et seq.). In other words, whereas a dissolution action seeks to terminate marital status, a nullity action seeks to inquire whether any such status ever existed.

A marriage may be invalid from its inception either because of irregularities in statutory formalization procedures (ordinarily, license, solemnization and authentication; (Ca Fam § 306) or because of other legal impediments that, notwithstanding proper formalization, render the marriage void or voidable (incestuous, bigamous, induced by fraud or force, party under age of consent, etc.; (Ca Fam §§ 2200, 2201, 2210).

General Requirements For A Valid Marriage In California

“Marriage” under California law is a “personal relation arising out of a civil contract between a man and a woman, to which the consent of the parties capable of making that contract is necessary.” [Ca Fam § 300] But the parties’ consent does not alone constitute a marriage. To validate the marriage, the consent must be followed by issuance of a license (Ca Fam § 350 et seq.), solemnization (Ca Fam § 400 et seq.) and authentication (Ca Fam §§ 422-425); and the “certificate of registry of marriage shall be returned” (Ca Fam §§ 359 & 360 (emphasis added)). [Ca Fam §§ 300, 306]

California has abolished the concept of “common law marriage.” A valid marriage cannot be created in California solely by the parties’ consent or mere cohabitation. [Ca Fam § 300]

“Void” vs. “Voidable” Marriages And Domestic Partnerships

A void marriage or domestic partnership (Ca Fam §§ 2200-2201) is invalid and a nullity from its inception. It never legally existed.

A voidable marriage or domestic partnership (Ca Fam § 2210) is valid for all civil purposes between the parties and against the world until adjudged a nullity; i.e., the marriage or domestic partnership is invalidated only from the time it is so declared by a court of competent jurisdiction. Moreover, with the passage of time, a voidable marriage or domestic partnership may, for all practical purposes, become valid (nonvoidable) because a proceeding to annul a voidable marriage/domestic partnership must be commenced within statutorily-prescribed time limits. [Ca Fam § 2211] Once the applicable statutory period expires, a judicial termination of marital/domestic partnership status and adjudication of the bundle of rights and responsibilities incident thereto must proceed by an ordinary dissolution.

Basis For Judicial Determination Of Nullity Where Marriage Or Domestic Partnership Is “Void”

An alleged marriage or domestic partnership may be adjudged a nullity as “void” pursuant to Ca Fam §§ 2200 or 2201 or if otherwise invalid from its inception as follows:

Incest: A marriage or domestic partnership between parents and children, ancestors and descendants of every degree, brothers and sisters (of the half or whole blood), or uncles and nieces or aunts and nephews is incestuous and void from the beginning, “whether the relationship is legitimate or illegitimate.” [Ca Fam § 2200]

Bigamy: A subsequent marriage or domestic partnership is illegal and void from the beginning if either party has a spouse or domestic partner still living unless the former marriage/domestic partnership was dissolved or adjudged a nullity before the date of the subsequent marriage/domestic partnership. [Ca Fam § 2201(a)(1)]

Exception: A subsequent marriage or domestic partnership when a party has a spouse or domestic partner still living is only voidable (valid until adjudged a nullity pursuant to § 2210(b)) where, at the time of the subsequent marriage or domestic partnership, the former spouse/domestic partner (a) has been absent, and not known to be living for five successive years immediately preceding the subsequent marriage/domestic partnership, or (b) “generally reputed” or believed to be dead. [Ca Fam § 2201(a)(2) & (b)]

Marriage/Domestic Partnership Not Lawfully Contracted: Sections 2200 and 2201 (above) do not state the exclusive grounds for invalidating a marriage or domestic partnership as “void.” A marriage or domestic partnership ostensibly contracted in accordance with California law is also invalid from its inception and thus void if the parties failed to comply with the Ca Fam §§ 300 and 306 requirements for a valid marriage or the Ca Fam § 297 requirements for a valid domestic partnership).

Basis For Nullity Where Marriage Or Domestic Partnership Is “Voidable”

Minority Of A Party: The party who commences the nullity proceeding (or on whose behalf it is commenced) was under the age of lawful consent (under age 18) and did not obtain the requisite parental/court consent unless, after attaining age 18, the party “freely cohabited with the other as husband and wife.” [Ca Fam § 2210(a)]

Prior Existing Marriage Or Domestic Partnership: Either party was legally married to another or a member of another domestic partnership, but the subsequent marriage or domestic partnership is not illegal and void because within the § 2210(b)(1) & (3) “voidability” rule (former spouse/domestic partner absent for five years and not known to be living or generally reputed to be dead. [Ca Fam § 2210(b)]

Unsound Mind: Either party was of “unsound mind” (unable to understand the subject matter of the marriage/domestic partnership contract and obligations incident thereto) unless, “after coming to reason,” he or she “freely cohabited with the other as husband and wife.” [Ca Fam § 2210(c)]

Force: Either party’s consent to the marriage or domestic partnership was obtained by “force,” unless the coerced party thereafter “freely cohabited with the other” as husband and wife. [Ca Fam § 2210(e)]

Physical Incapacity: Either party was “physically incapable” of entering into the marriage state (unable to engage in normal copulation) and such incapacity continues and appears to be “incurable.” [Ca Fam § 2210(f)]

Fraud: Either party’s consent to the marriage or domestic partnership was obtained by “fraud,” unless the defrauded party thereafter, and with full knowledge of the facts constituting the fraud, “freely cohabited with the other” as husband and wife. [Ca Fam § 2210(d)]

The type of “fraud” sufficient to support a judgment of nullity must go to the very essence of the marital [or domestic partnership] relation. Thus, fraud or deceit sufficient to avoid an ordinary contract will not necessarily warrant a judgment of nullity. The alleged misrepresentation or concealment must have been “vital to the relationship,” directly affecting the purpose of the deceived party in consenting to the marriage/domestic partnership.

The following are some examples of the kinds of fraud which would warrant a nullity judgment:

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  • As between spouses, concealment of sterility, of existing pregnancy, or of an intent not to terminate a sexual relationship with a “significant other” goes to the “very essence” of the marriage relationship and thus is sufficient ground for a judgment of nullity.
  • As between married persons, a concealed intent not to live with the other spouse, not to engage in sexual relations with the other spouse, or not to have children despite a promise to the contrary supports a judgment of nullity on the ground of fraud.
  • Wife, who was induced to marry by Husband’s false representations he was an honest, law-abiding, respectable and honorable person and that he had a child who was well provided for, was entitled to a judgment of nullity on the ground of fraud where Husband had in fact been convicted of grand theft, was a parole violator and a fugitive from justice, and was guilty of failure to support his children from a prior marriage.
  • A judgment of nullity based on fraud is also warranted where one party’s motive in entering the marriage was solely to obtain a green card (to acquire U.S. residency status) and he or she never intended to engage in sexual relations with the other or to meet marital duties.

On the other hand, “the concealment of incontinence, temper, idleness, extravagance, coldness or fortune inadequate to representations cannot be the basis for an annulment.” The following are some examples of the kinds of fraud which would NOT warrant a nullity judgment:

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  • A party’s false representation that he or she owned a particular business or was a “person of means”
  • Deceit about one’s chastity or moral character is not “vital” to the marital relationship and thus will not justify a judgment of nullity on the basis of fraud.
  • Nor is there sufficient fraud to annul a marriage simply because a party concealed a severe drinking problem (or, presumably, drug addiction), refused to seek employment after contracting the marriage (despite assurances before marriage to the contrary), proved to be a “disappointing” sexual partner, and/or turned from a “polite” and “nice” person before marriage to a “dirty,” “unattractive” and disrespectful person after the marriage. A finding of § 2210(d) fraud cannot rest solely on the fact a spouse “turned from a prince into a frog.”

Valid vs. Invalid Marriage – Substantive & Procedural Differences

Statute of limitations: A nullity cause of action based on a voidable marriage or domestic partnership (minority, fraud, force, etc.) is subject to a statute of limitations. There is, of course, no “statute of limitations” on the commencement of a marriage or domestic partnership dissolution action.

Minority Of A Party: A petition for nullity of a voidable marriage/domestic partnership based on minority may be brought by:

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  • The party who was under the age of consent within four years after reaching the age of consent (Ca Fam § 2211(a)(1)); or
  • A parent, guardian, conservator or other person having charge of the minor at any time before the married minor reaches the age of consent (Ca Fam § 2211(a)(2)).

Prior Existing Marriage: A petition to annul a voidable marriage or domestic partnership based on a prior existing marriage or domestic partnership (former spouse/domestic partner absent for five years and not known to be living or generally reputed to be dead, may be brought by:

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  • Either party during the life of the other (Ca Fam § 2211(b)(1)); or
  • The former spouse/domestic partner (Ca Fam § 2211(b)(2)).

Unsound Mind: A nullity petition alleging voidability on the basis of a party’s “unsound mind” may be brought by the “injured party,” or by a relative or conservator of the party of unsound mind, at any time before the death of either party. [Ca Fam § 2211(c)]

Fraud: A petition seeking a judgment of nullity on the ground of fraud may be brought only by the party whose consent was obtained by fraud and within four years after discovery of the facts constituting the fraud. [Ca Fam § 2211(d)]

Force: An action to annul a voidable marriage or domestic partnership on the ground of force may be brought only by the party whose consent was obtained by force and within four years after the marriage/domestic partnership. [Ca Fam § 2211(e)]

Physical Incapacity: A nullity action based on physical incapacity may be brought only by the “injured party” and within four years after the marriage/domestic partnership. [Ca Fam § 2211(f)]

Rights Of The Parties On Termination Of Invalid Marriage

Parties to an “invalid” marriage or domestic partnership generally do not have the rights and obligations granted to and imposed upon spouses or domestic partners under the Family Code.

But there is an important exception: A party to an invalid marriage or domestic partnership who has “putative” spouse or domestic partner status may be entitled to property, support and attorney fees/costs rights similar to those attaching upon the dissolution of a valid marriage or domestic partnership. [Ca Fam §§ 2251, 2254, 2255] A party to a void or voidable (or other invalid) marriage has “putative spouse” status only if he or she believed in good faith the marriage was valid. [Ca Fam § 2251]

A party’s “good faith” belief in the validity of the marriage is not tested by whether he or she believed a “marriage” lawfully occurred under some private, secular or spiritual set of standards. A putative spouse must have had a good faith belief in the existence of a lawful California marriage (i.e., attempted compliance with statutory requirements).

Whereas unmarried “Marvin” cohabitants have no marital rights under the Family Code, putative spouse or domestic partner status gives rise to cognizable Family Code property, support and attorney fees/costs rights, as well as certain other rights that ordinarily attach only between lawfully married persons or lawfully registered domestic partners.

“Quasi Marital” Property: Property that would have been community or quasi-community property had the marriage or domestic partnership been valid is deemed “quasi-marital property” and, in a proceeding to terminate the invalid marriage/domestic partnership, must be divided between the parties as if it were community property (i.e., generally equally pursuant to Ca Fam § 2500 et seq.). [Ca Fam § 2251(a)(2)]

Support And Attorney Fees: Temporary and/or “permanent” spousal/partner support may be awarded in a nullity proceeding in favor of a putative spouse/partner “in the same manner as if the marriage [or domestic partnership] had not been void or voidable” (i.e., pursuant to Ca Fam §§ 3600 (temporary support) and 4320 et seq. (“permanent” support)). [Ca Fam § 2254] Also, the court may award Ca Fam § 2030 et seq. need-based attorney fees and costs in favor of a party found to be “innocent of fraud or wrongdoing in inducing or entering into the marriage [or domestic partnership], and free from knowledge of the then existence of any prior marriage [or domestic partnership] or other impediment to the contracting of the marriage [or domestic partnership] for which a judgment of nullity is sought.” [Ca Fam § 2255]

Survivorship Rights: Ca Fam § 2251 “quasi-marital property” rights are triggered only in a dissolution, legal separation or nullity proceeding under the Family Code. The statute does not define a surviving putative spouse’s/partner’s legal rights in the other party’s estate at death; rather, that is a matter of probate law.

CLICK HERE TO VIEW FAMILY LAW 101 VIDEO

Family law touches most people at least once in their lives. When getting married or dissolving a marriage, reaching adulthood or having children, people need to be aware of how their legal status changes and what their rights are. Most family law is state law; there is very little federal regulation of families. Because each state has the authority to regulate certain conduct relating to families within its borders, this chapter is specific to California. Related topics are covered in other chapters. Adoption in California is discussed in the Adoption Law Chapter. Legal issues of interest to elderly people, other than elder abuse, are discussed in the Elder Law Chapter.

Reaching the Age of Majority in California

In California, a person legally becomes an adult at age 18 and acquires most of the rights, privileges, responsibilities, and obligations of adulthood. These rights include the right to vote, the right to make contracts, the right to marry without permission from parents or guardians, and the right to serve on a jury.

Marriage in California

In order to be entitled to spousal rights and to be bound by spousal obligations in California, people must be legally married. Common law marriage is not legal in California; however, California does recognize common law marriages that are valid in other states. In fact, California is obligated by the Constitution of the United States to give full faith and credit to any marriage recognized by any other state. Legal marriage in California requires obtaining a marriage license and exchanging vows before an official authorized to formalize the vows. Officials authorized to conduct weddings include judges, magistrates, and licensed religious officials. The exchange of vows must be witnessed.

Who May Marry

An unmarried man and an unmarried woman, both capable of consent and both at least 18 years old, may marry without the permission of others. The parties who are marrying may not be under the influence of alcohol or drugs at the time they exchange vows. Young men and women under the age of 18 years may marry if they are capable of consent, have the consent of both parents or guardians, are capable of consummating the marriage, and obtain a court order granting permission. If they are underage, the parties must have premarital counseling. California law prohibits marriages between people who are already married, as well as marriages between an ancestor and descendant, brother and sister (even if half-brother or half-sister), aunt and nephew, or uncle and niece.

License Requirements

Marriage licenses may be obtained through the clerk of any county in California. The applicants must provide proof of their names. When the county clerk accepts the marriage license application, he or she gives the couple a brochure from the Department of Health Services with information about sexually transmitted diseases and genetic defects. The application is valid for 60 days. After the marriage is solemnized, the person officiating at the marriage ceremony must sign the license and endorse it with a statement that the marriage took place, the date and place of the marriage, and the names, residences, and signatures of the witnesses and the person officiating. In addition, the license must include:

 

• Parties’ names (including the woman’s maiden name or other previous name), residences, and dates and places of birth

 

• Names and birthplaces of parents

 

• Mothers’ maiden names

 

• Number of previous marriages and marital status

 

• Signatures

The endorsed license must be returned within 30 days to the county clerk, who forwards it to the county recorder for recording.

Premarital Agreements

A premarital agreement is an agreement between parties made before they are married regarding property rights when the marriage ends. The issues covered by a premarital agreement usually include the rights and obligations of the parties in property (including the right to encumber, exchange, sell, transfer, and use property) and the disposition of property upon death, separation, or dissolution of the marriage. Premarital agreements made in California are valid and enforceable if they are in writing and signed by both parties.

Rights Within Marriage

Spouses have the right to respect, affection, cohabitation, and fidelity in the marriage. They have a mutual obligation to support one another and their children. Necessities such as food, clothing, and shelter are the responsibility of both spouses. Spouses are responsible for each other’s contracts, debts, and damages. Married individuals have the right to sue and be sued (including the right to sue each other), to make contracts, to act as each other’s attorney-in-fact or agent, to keep their own earnings, and to transfer property. When one spouse dies, the surviving spouse typically has the right to receive property from the deceased spouse. It is difficult, but not impossible, to disinherit a partner to a valid marriage.

Termination of Marriage

Dissolution–also known as divorce–is the legal termination of a marriage. A marriage is dissolved by a judgment and decree issued by a California county superior court. If the parties cannot agree on custody, visitation, child support, spousal support, and the division of property, the court will decide these issues.

At the time of filing for divorce, at least one of the parties must have been a California resident for six months and a resident of the county where the action is filed for three months. Once one spouse files the dissolution papers, the petition for dissolution and the summons to appear in court must be served on the other spouse. After the papers are served, the parties must wait six months until the hearing at which the marriage is legally terminated.

Grounds for Dissolution

California was the first state to have a no-fault divorce law. Under this law, the parties must show only that there are irreconcilable differences in the marital relationship. This means the couple cannot work out their problems, even with counseling. Because divorce is no-fault, a court cannot consider either spouse’s fault in causing the divorce when making its determinations of custody, visitation, or other dissolution matters. Incurable insanity also is a ground for divorce under California law, but this ground is infrequently used.

Effects of a Dissolving of Marriage

People who are going through a divorce may agree with one another on how to handle many of the issues that arise. Matters on which the parties disagree, however, must be decided by a court. Court-ordered guidelines generally include instructions on child custody, visitation rights, child support, spousal maintenance, and division of marital property.

Child Custody

Child custody is determined by a court based on the best interests of the children. There are two different types of child custody: sole custody and joint custody. Sole custody gives one parent primary responsibility for raising the children. In joint custody, both parents share that responsibility. If the parents have joint legal custody the children reside mostly with one parent, known as the custodial parent, who is responsible for the routine decisions affecting the children, but both parents share the responsibility for making important decisions regarding the children. If they have joint physical custody, both parents are involved even in the day-to-day decisions affecting their children, and the children spend time with both parents, although not necessarily an equal amount of time with each.

In California, if people cannot agree about child custody, they are required to try to resolve the problem through family court mediation. Sometimes the mediation is offered through the county superior court at no charge. Mediation is discussed more fully in the Alternative Dispute Resolution Chapter. If mediation does not work, the judge will make a decision about custody.

Visitation

Typically, the non-custodial parent is granted visitation rights unless the court feels that such visits would be detrimental to the children. Parents may make child visitation agreements themselves, but if a friendly agreement cannot be reached, the court sets a schedule for visitation, or it orders that the non-custodial parent be allowed reasonable visitation. Certain other people who have close relationships with the children, such as grandparents, also may be allowed some form of visitation.

Child Support

Child support is financial assistance provided by the non-custodial parent under a court order to help support the children. Factors affecting the amount of child support include the needs and income levels of the parents, the children’s needs, and the number of children. Child support is an independent obligation and must be maintained despite any other problems between the parents, such as disagreements about visitation. A recently enacted federal law requires employers to withhold wages from employees who are under a court order to provide child support. In California, some courts have ordered the employer of a parent who is required to pay child support to make the payment directly to the other parent out of the employee’s salary.

Spousal Support

Spousal support is financial support provided by one ex-spouse to the other. Either spouse may seek spousal support. Factors that a court evaluates in setting spousal support include the standard of living enjoyed during the marriage, the relative incomes or earning potentials of the parties, and the needs of each party. Spousal support may be either temporary or permanent. If neither party needs spousal support at the time the marriage is dissolved, the parties may request to reserve judgment on this issue. This means that if a party’s needs change later, he or she may go back to court and request a court order of spousal support. Like child support, spousal support must be maintained despite any disagreements between the ex-spouses, and sometimes employers may be required to pay the support directly out of an employee’s paycheck.

Division of Property

Courts attempt to divide marital property on a fair, although not always equal, basis. Most property acquired by either spouse during the marriage is community property, including real estate, furniture, appliances, vehicles, cash, life insurance policies, retirement accounts, stocks, and businesses, as well as debts. One-half of all community property is owned by each spouse. At the time of dissolution, this property is divided equally, unless both parties agree in writing to divide it unequally. In the case of a business or another kind of property that cannot be split, the court will award the property to one spouse and order that party to pay the other for the lost interest in the property. Community debts must be divided equally between the parties as well. Property belonging solely to one spouse prior to the marriage, or a gift or an inheritance given only to one spouse during the marriage, is separate property. Separate property stays with the party who had it originally and is not included in the division of marital assets.

Judgment of Nullity and Separation

People who seek a judgment of nullity or a legal separation in California are not required to live in California or a particular county for a specified period of time.

Nullity

A judgment of nullity–also called an annulment–is a court finding that a couple’s marriage never legally existed. A nullity may be granted only if the marriage is voidable. A marriage is considered voidable if one of the following conditions exists:

 

• One of the parties is a minor and proper consent for the marriage was not obtained

 

• One party is of unsound mind

 

• One party is physically incapable of consummating the marriage

 

• The marriage was obtained by fraud

 

• The marriage was obtained by force

Under certain conditions, a marriage is considered void from the start. If there is bigamy, polygamy, or incest, a court will annul the marriage by a judgment that it was void. It is important to note that a legal nullity is different from an annulment granted by a church. A religious annulment is spiritual, rather than legal, in nature and does not affect the legal status of the marriage. Likewise, a legal nullity may not satisfy the requirements for a religious annulment.

Legal Separation

A legal separation involves many of the same procedures as dissolution. A court may make decisions regarding custody, spousal and child support, and property rights. Decisions made in a legal separation are not final. The couple remains legally married and remarriage is forbidden. However, property obtained after a legal separation is separate property, not community property. As with a dissolution, a legal separation is granted on the basis of irreconcilable differences. Sometimes a legal separation is sought by those whose religious beliefs prohibit divorce but who still desire a separate life from their spouse and may need child and spousal support.

Paternity

Paternity is the condition of being the father of a child. While the identity of a child’s mother usually is obvious from birth, the identity of the father may be unclear. Decisions regarding child custody, visitation, and child support frequently depend on whether a man has established his paternity of a child.

California has adopted provisions of the Uniform Parentage Act. Under California paternity law, a man is presumed to be the father of a child if:

 

• He and the child’s mother were married to each other at the time the child was born or the child is born within 300 days after the marriage is terminated

 

• He and the child’s mother marry or attempt to marry after the child is born

 

• He openly holds out the child as his natural child and receives the child into his home

 

• He and the child’s mother execute a voluntary declaration of paternity

Some of these presumptions may be overturned by an action to declare the existence or nonexistence of the father and child relationship. Blood test evidence may be sufficient to overturn a presumption of paternity.

Abuse

Abuse is not easily definable. The legal definition of abuse is evolving and changing in response to society’s developing understanding of the problem. More members of society are becoming responsible for reporting and preventing abuse. For example, under California law, health care workers are obligated to report actual or suspected child abuse or elder abuse. Abuse of family members is against the law, but different rules and standards apply to different categories of abuse.

Domestic Abuse

Domestic abuse–also called domestic violence–is defined by the California Domestic Violence Prevention Act of 1994 as violence against a spouse, cohabitant, fiancee, or other person with whom the abuser has a dating relationship, or someone formerly in any of these relationships. The Act also covers abuse of a minor son or daughter. The types of violence addressed by the Act include:

 

• Sexual assault

 

• Placing a person in reasonable apprehension of being seriously injured, or reasonable apprehension that another person will be seriously injured

 

• Intentionally or recklessly causing physical injury

 

• Intentionally or recklessly attempting physical injury

There are several options available to a victim of domestic abuse. A victim may file criminal charges, file a civil suit seeking damages, or seek a protective order against the abuser. Usually, the first step is to seek a protective order from the judicial officer of the superior court.

Protective Orders

A protective order is a court order issued under the Domestic Violence Prevention Act, the Uniform Parentage Act, or a dissolution, nullity, or legal separation proceeding. The protective order is enforceable throughout the state of California by any law enforcement officer who is shown a copy of the order.

Requirements

A protective order can be obtained from a judge at the superior courthouse in the county where the victim lives. To protect the victim (the petitioner) and substantiate his or her claim against an abuser (the respondent), it is important that application is made soon after the abuse occurs. The petition for a protective order usually must be made by the victim. There is no fee to file an application for an order, and if the petitioner is unable to pay the law enforcement agency to serve the order on the respondent, this fee may be waived.

For a court order to be granted, a petition must be supported with evidence of the abuse, so the abused person must fill out an affidavit describing the events surrounding the abuse and the need for protection. When completing the paperwork, it is helpful if the abused person has a picture of the abuser or, if a picture is unavailable, a description of the offender, along with work and home addresses. A prepared statement of all incidents of abuse, past and present and including dates and notes, helps to document the need for protection for the judge.

If necessary, the abused person may request an emergency protective order. These orders also are called temporary or ex parte protective orders. An emergency protective order might be necessary when an abused person is in danger and the protection is needed immediately. The procedure to obtain an emergency order is different than that for obtaining a standard order. Each court has an appointed judicial officer who is authorized to issue protective orders even when the courthouse is not open. A law enforcement officer must make a statement to the judicial officer that he or she has reasonable grounds to believe that the victim needs the emergency order. This kind of protective order is valid only for five to seven days.

Issuing the Order

A judge issues a standard protective order by holding a hearing with both parties present. The purpose of the hearing is for the abused person and the person accused of abuse to be able to tell the judge of the events surrounding the alleged abuse. In order to notify the person accused of the abuse of the hearing, a law enforcement officer serves the papers on the accused.

Regardless of whether the accused person attends the court hearing, the abused person must be present. At the hearing, the person alleging abuse presents medical records, police reports, and any other evidence of the abuse, including testimony. The respondent also has an opportunity to testify.

At this point, the judge usually rules on the matter by granting the protective order or dismissing the matter. In order to grant the petition, the judge must believe that the petitioner needs protection for his or her safety. Even if the respondent does not appear at the hearing, the judge may still issue a protective order if there is enough evidence of abuse. The protective order may be effective for up to three years. The judge may dismiss the matter if he or she does not believe that the request for protection is supported by the evidence.

Contents of a Protective Order

Usually a protective order prohibits the offender from contacting the victim, including visits to the victim’s school or workplace when the victim is present. Battering, attacking, harassing, molesting, or threatening the petitioner or members of his or her household also are specified as prohibited behaviors. A judge also may include in the order his or her rulings about the use or control of property, or temporary child custody or visitation arrangements. However, the primary purpose of a protective order is to prohibit the abuser from continuing the abuse against the victim or against other members of the household. Respondents are prohibited, for the duration of the protective order, from purchasing or receiving firearms.

Violation of the Protective Order

When a protective order is granted, law enforcement agencies receive a copy and are required by law to record the information in the order into a database. The law enforcement agency with jurisdiction over the order forwards the information to the Department of Justice. If the offender attempts to violate the order, the police should be contacted through the 911 emergency system and should be notified that there is a protective order in existence. They should be able to access information about the protective order through the law enforcement system. Police officers must respond immediately and they have a duty to do everything possible to prevent further abuse. Once a protective order is enforced by the police (usually by removing the abuser from the premises), a complete police report should be filed documenting the incident. Police officers may arrest the abuser. Violating an order is a criminal offense. Stalking, which is discussed in the Criminal Law: Felonies & White Collar Crime Chapter, is a crime that carries more severe penalties if there is a protective order issued against the accused.

Child Abuse

Child abuse is a serious problem that may take many forms, including emotional maltreatment, neglect, physical abuse, and sexual abuse. The California Child Abuse and Neglect Reporting Act provides the definitions, rules, and responsibilities regarding child abuse.

General neglect is the failure of a person responsible for a child to supply necessary food, clothing, shelter, or medical care when that person is able to do so, or failure to protect the child from imminent and serious danger to his or her physical or mental health. Severe neglect is neglect that results in severe malnutrition or failure to thrive syndrome. When a child’s caretaker intentionally fails to provide food, clothing, shelter, or medical care, or willfully allows a child to be in danger, the caretaker may be liable for severe neglect. Neglect may only be charged against a person who is legally responsible for the child. Neglect does not, however, cover instances in which a parent or guardian in good faith relies on spiritual prayer for a sick child.

Physical abuse is any physical injury inflicted on a child by other than accidental means. Any physical injury that is unexplainable by the child’s medical history is physical abuse. Physical abuse also includes discipline or control by any means not authorized by law to manage persons who are mentally challenged or impaired.

Emotional maltreatment, such as verbal assault, causes harm to a child’s psychological capacity or emotional stability. Repeated and habitual mental or emotional abuse by the person responsible for the care and nurturing of the child can cause serious problems in the child. Symptoms of mental injury may include:

 

• Eating, sleep, or speech disorders

 

• Low self-esteem

 

• Inappropriate interaction or inability to communicate with others

 

• Extreme apathy, fearfulness, hostility, or anger

 

• Anti-social behavior

Evidence of such harm is any observable or substantial impairment of the child’s ability to function normally as compared with other children.

Sexual battery, sexual exploitation, or sexual assault of a minor is sexual abuse. Sexual abuse also includes involving a child in prostitution or pornography.

Reporting Child Abuse

Neglect and abuse are leading causes of death in children. By law, certain members of society, by virtue of their professions and positions, are required to report child abuse. Persons required to report abuse–known as mandated reporters–include health care professionals, child protective agency employees such as law enforcement officers, child care custodians such as teachers or camp administrators, firefighters, animal control or humane society officers, and commercial film and photographic print processors. Virtually anyone who works directly with children to provide care, protection, and supervision is required to report instances, actual or suspected, of child abuse.

Mandated reporters are obligated to report any abuse or neglect immediately to a child protective agency. Failure by a mandated reporter to report suspected child abuse is a misdemeanor. Mandated reporters also may be liable in civil actions for damages when the failure to report results in the abuser having the chance to hurt the child again.

Persons who report abuse or neglect in good faith are immune from civil or criminal liability. This means that if an investigation shows there was no abuse, the reporter cannot be sued, as long as he or she reported the alleged child abuse with an honest belief and without knowledge of any facts or events contradicting the abuse or neglect.

Contents of a Report of Child Abuse or Neglect

Mandated reporters may contact a child protective agency by telephone to report known or suspected child abuse. However, within 36 hours of making the report, the reporter also must file a written report. Although it is confidential and may not be disclosed from the report except under limited circumstances, the reporter must give his or her name. To expedite the attention given to a child in an abusive or neglected situation, the reporter also should have the following information ready to report:

 

• Name and present location of the child

 

• The nature and extent of the injury and any evidence of prior abuse

 

• Any other information regarding the child or family that might be helpful

If a child is in immediate danger, any person may report actual or suspected abuse to law enforcement through the 911 emergency system. Medical personnel must complete a medical examination of the child and file a report on a specific form designed for this purpose. Separate forms are used to record information obtained from examinations for sexual abuse, sexual assault, or chronic child sexual abuse. The child abuse report is forwarded immediately to the appropriate law enforcement agency, child welfare agency, and/or district attorney’s office. Once a report is filed, the child protective agency works with law enforcement and district attorney’s office investigators and contacts other relevant parties, such as a probation department or licensed social services facility.

Elder Abuse

Elder abuse is a recognized problem in California. Elder abuse includes physical abuse, psychological abuse, neglect, and financial abuse or exploitation. Neglect is failure to provide food, shelter, clothing, personal hygiene, and medical care. It also includes abandonment or failure to protect the older person from hazards to his or her health or safety. Financial abuse may include embezzlement, extortion, fraud, misuse of financial or other resources, or theft. Typically, the abuser is a member of the victim’s family.

Mandated reporters of elder abuse in California include certain adult protective services and law enforcement workers, elder care workers, and health practitioners. People in these categories are required by law to report even suspected abuse, first by telephone, and then in writing. If the abuse occurs in a long-term care facility, the report is made to a law enforcement agency or to the local long-term care ombudsman. Reports of abuse occurring in other places are made to the county Adult Protective Services Agency in the Department of Social Services. These mandated reporters are immune from civil and criminal liability if they report abuse or suspected abuse, but failure to report is a misdemeanor, punishable by six months in jail, a $1000 fine, or both.

Other Remedies for Abuse

In addition to protective orders and mandated reporting to agencies designed to address the abuse, there are other remedies for victims of abuse. Abusers are subject to arrest for the crimes they commit. In addition to general assault and battery, specific abuse crimes in California include sexual battery, sexual assault, sexual exploitation of children, stalking, and battery of older people. Victims may wish to work with prosecutors to have offenders tried on criminal charges. It is also possible under some circumstances to file a civil lawsuit against offenders for damages. Criminal hearings and civil lawsuits are discussed further in the Process of a Lawsuit Chapter in this Guide.

People with any questions about abuse, or about other aspects of family law such as marriage, divorce, or adoption, should contact the agency or organization that deals with their problem, or seek the advice of an attorney.

Pre-nuptual Agreement – A contract that can save you lots of time and money - Click on the Link to Watch Our Law Video

A prenuptial agreement, sometimes called a premarital agreement, is a contract between people who intend to marry which governs what will happen to their assets in the event of divorce. Historically, courts viewed prenuptial agreements with suspicion, believing that they discouraged people from getting married. Today, most jurisdictions permit prenuptial agreements, taking the opposite perspective that they can actually help facilitate marriage.

“Prenuptial” or “Prenuptual”?
The word “prenuptial” is one of the most frequently misspelled words in legal parlance. The term is derived from the word “nuptial”, which means “of or relating to marriage or the wedding ceremony”. While a hyphenated reference to a “pre-nuptial agreement”, or the short-hand reference to a “prenup”, can be acceptable, the misspelling “prenuptual” is not. If you see a website advertising “prenuptual agreements”, the author of the page probably doesn’t know anything about the subject.

Who Needs A Prenuptial Agreement?
Prenuptial agreements are perhaps most common in situations where one person has considerable assets or earning capacity, or owns a business, and is marrying a person who has significantly fewer assets. An agreement as to a future property settlement or spousal support (alimony) payments can provide the wealthier spouse with financial protection, and at the same time with some assurance that the marriage is about love and not money.

Premarital agreements can also be beneficial for second marriages, particularly when the couple is older and both partners are financially established. People who are financially independent, have accrued significant retirement savings, and have children from prior marriages may wish to provide that their assets and retirement accounts remain separate, and that certain property, such as family heirlooms, remain outside of the marital estate.

A prenuptial agreement can also cover assets which have not yet come into the marital estate, for example by clarifying how inheritances will be treated in the event of divorce.

If you are pursuing a professional degree at the time of marriage, such as a law degree or medical degree, you may wish to obtain a prenuptial agreement which will prevent that degree from being considered a marital asset.

Considerations for Drafting An Agreement
If you are exploring the possibility of a premarital agreement, you should consult with an attorney in your state who has experience drafting prenuptial agreements. The requirements for drafting a valid prenuptial agreement vary significantly from state to state. Further, if you have sufficient assets to require a prenuptial agreement, the cost of having an attorney draft the agreement will probably seem quite reasonable, and the attorney fee can be viewed as a form of insurance in the event that the agreement is subsequently held invalid – the attorney will likely carry malpractice insurance which could provide some recompense in the event that the agreement fails due to the attorney’s negligence. While for a multi-million dollar estate, a prenuptial agreement may cost thousands of dollars to prepare, that is a small amount in proportion to the estate.

You may wish to consider increasing the benefits provided to the less wealthy spouse in the event of major life events such as the birth of children, or in the event that the marriage persists. Depending upon the circumstances, you may also wish to set an expiration date for the prenuptial agreement, such that if the marriage lasts for a certain amount of time the agreement is no longer effective, or that the parties must agree at that time to renew it.

You should note up front that you cannot cover every contingency in a prenuptial agreement. Nothing you declare in a premarital agreement about child custody or child support for children born during the marriage would be enforceable.

If you wish to utilize a prenuptial agreement, please be aware that you will have to provide an honest recitation of your assets as part of that process. If it is discovered that you have hidden assets or misrepresented the size of your estate, you may not be able to enforce the contract.

You should seek to offer a fair prenuptial agreement, as a premarital agreement that would leave the less wealthy spouse destititute would probably not be enforced by a court. Some states look at fairness not only when the agreement is signed, but also when it is enforced. In those jurisdictions, changes in a spouse’s health, financial status, or employability may render invalid a previously enforceable agreement. A lawyer experienced with prenuptial agreements can guide you through these issues.

Considerations for Executing An Agreement
To be most effective, a prenuptial agreement should be drafted and signed well in advance of the wedding – ideally not less than a month in advance. The less wealthy spouse should have an independent attorney review the prenuptial agreement, and if appropriate to negotiate changes. While the less wealthy spouse should select that independent attorney, and the wealthier spouse should not try to influence that choice or interfere with the attorney’s independence, in some situations the wealthier spouse may wish to offer reimbursement of that attorney’s fee. If the agreement is signed on the eve of the wedding, it may be challenged on the basis that it was signed under coercive circumstances.

Post-Nuptial Agreements and Endorsements
If you have not signed a prenuptial agreement, you probably still have the option of negotiating for a similar “post-nuptial” agreement after you have married. Absent a threat of divorce, there is less of a chance that a post-marital agreement could be viewed as coerced. You may wish to check with an attorney if you feel this type of agreement would benefit you and your family.

Similarly, you may wish to endorse a prenuptial agreement after the wedding, so as to reflect that you and your spouse entered into the agreement voluntarily and intend it to be binding now that you are married. This will diminish the possibility that the agreement will be challenged in the future on the basis of coercion. While it can be extremely coercive to be presented with a prenuptial agreement shortly before a wedding with an ultimatim (express or implied), “Sign this, or the wedding is off”, that pressure is gone once the wedding is over.

Who Benefits?
The knee-jerk assumption with prenuptial agreements is that they always benefit the wealthier spouse. In actuality, due to the requirement that prenuptial agreements be fair, they can provide significant protection and assurance to the less wealthy spouse. The less wealthy spouse will often get a relatively clear picture of what life will be like after the marriage in terms of assets and spousal support, and will also be relieved of some of the concern that a divorce would be nasty or contentious, or that a judge might offer less than is provided for by the prenuptial agreement. While premarital agreements cannot assure that a divorce will not be contentious, they often help.