Monthly Archives: January 2014

The Petition – Header – what to Petition for

January 29th, 2014

This blog promised (on December 9, 2013) to ” address other items found in the Petition and Response.”

  • The Petition is available here at the California Judicial Branch website.  (If you wish to end a domestic partnership, please check here.)
  • The Response is here.

Family law proceedings can be adversarial but do not have to be.  The parties are not identified as “plaintiff” and “defendant” as in other civil actions.  Additionally, one party is not versus or vs. the other.  In fact, the law states that the parties are named “Petitioner” and “Respondent” and the action is to be titled:  In re the marriage of _____ and _____.  Fam. Code § 2330.  It is up to the parties if they want to maintain this less than adversarial posture.

The first question one must address (after filling in the parties’ names and the court address) is what is it the person wants:  Dissolution, Legal Separation, or Nullity.

  • At the end of a dissolution proceedings, the parties will have resolved all issues related to support (child and spousal), the custody/visitation of children, the division of community property, and the payment of attorney’s fees.  The parties will also return to the status of unmarried persons.  Fam. Code § 2300.
    • Not everyone knows that a dissolution (or divorce) will end one’s marriage.  Click here for an example.
  • A Legal Separation will address the same substantive areas listed above.  However, the parties are still married; they are not single nor free to marry (until the marriage is dissolved).
    • The grounds for dissolution and legal separation are irreconcilable differences or incurable insanity.  Neither party needs to prove fault.  In fact, absent statutory exception, evidence of specific acts of misconduct are improper and inadmissible.  Fam. Code § 2335.
  • A nullity may be used when the marriage at its inception was void (in other words – the parties could not have been married because of bigamy, incest, or procedural issues).  Nullity proceedings are rare.  For additional information, see Fam. Code § 22002212.

Before completing either a Petition or Response, you should talk to an experienced family law attorney.

Next up:  Line 1: Residence.

 

Sperm Donors – Beware!

January 23rd, 2014

A sperm donor in Kansas, who claims he waived his parental rights in a contract with the birth mother, was found to be the presumptive father of the child, and therefore ordered to pay child support.  In the Kansas case, the donor failed to “secure the services of a physician during the artificial insemination process.”  To read more, click here.

In California, the donor is “treated in law as if he were not the natural parent” if the donor utilizes a licensed physician or sperm bank.  See Family Code Section 7613.  But if the donor does not comply with the statute, he may be found to be the father and thus liable for support.  See Jhordan C. v. Mary K. (1986) 179 Cal. App. 3d 386.

If you are considering either assisting a friend increase the size of their family or someone seeking a sperm donation, be sure to speak to an experienced family law attorney who can explain everyone’s rights and help ensure you achieve the result you want.