Chapter XV

MARRIAGE

CONDENSED OUTLINE

I. INTRODUCTION

A. Governing Law.

B. Practice and Procedure in Family Code Proceedings.

C. Expansion of Marital Rights.

II. NATURE OF MARRIAGE

A. Creation and Requisites for Marriage.

B. Conflict of Laws.

C. Proof of Marriage.

D. State’s Control Over Marital Relationship.

E. Duty To Support Spouse.

F. Power of Spouses To Contract.

III. DISSOLUTION OF MARRIAGE

A. In General.

B. Grounds for Dissolution.

C. Proceedings.

D. Recognition and Effect of Foreign Divorces.

1

IV. LEGAL SEPARATION

A. In General.

B. Grounds and Defenses.

C. Proceedings.

D. Effect of Judgment.

V. NULLITY OF MARRIAGE

A. Nature and Effect.

B. Grounds.

C. Conflict of Laws.

D. Proceedings.

VI. SUPPORT

A. In General.

B. Support, Attorneys’ Fees, and Costs During Pendency ofProceeding.

C. Permanent Support.

VII. MARITAL SETTLEMENT AGREEMENTS

A. In General.

B. Modification.

C. Enforcement.

D. Termination.

VIII. DOMESTIC PARTNER REGISTRATION

A. Recognition of Domestic Partnerships.

MARRIAGE

2

B. Legal Effect of Status.

C. Termination of Status.

IX. DOMESTIC VIOLENCE

A. Available Remedies.

B. Other Consequences of Domestic Violence.

C. Domestic Violence Prevention Act.

DETAILED OUTLINE

I. INTRODUCTION

A. Governing Law.

1. [§1] Family Law Act.

2. Family Code.

(a) [§2] In General.

(b) [§3] Statutory Framework.

(c) [§4] Definitions.

(d) [§5] Retroactivity of Provisions.

3. [§6] Family Law Rules.

4. [§7] Judicial Council Forms: Family Law.

5. [§8] Texts and Practice Works.

B. Practice and Procedure in Family Code Proceedings.

1. [§9] In General.

2. [§10] Pleadings and Supporting Declarations.

3. [§11] Service.

4. [§12] Meet and Confer Requirement.

MARRIAGE

3

5. Filing Fees and Costs.

(a) [§13] In General.

(b) [§14] Amount of Filing Fees.

(c) [§15] Waiver of Fees and Costs.

6. Temporary Restraining Orders.

(a) [§16] Order in Summons.

(b) [§17] Other Ex Parte Orders.

7. [§18] Ex Parte Communications.

8. [§19] Discovery Motions.

9. [§20] Hearing Procedure.

10. [§21] Live Testimony.

11. [§22] Modification and Enforcement of Judgments andOrders.

12. Attorneys’ Fees and Costs.

(a) [§23] In General.

(b) [§24] Payment Directly to Attorney.

(c) Imposition of Award as Sanction.

(1) [§25] In General.

(2) [§26] Illustrations.

(3) [§27] Showing of Bad Faith Is Not Required.

(4) [§28] Avoidance of Unreasonable FinancialBurden.

(5) [§29] Effect of Attempted Murder of ObligorSpouse.

C. Expansion of Marital Rights.

1. Modern Status of Women.

(a) [§30] In General.

(b) Use of Own Name.

(1) [§31] In General.

MARRIAGE

4

(2) [§32] After Judgment of Dissolution or Nullity.

(3) [§33] In Business Transactions.

(c) Discriminatory Denial or Offer of Credit.

(1) [§34] Statutory Prohibitions.

(2) [§35] Remedies and Penalties.

(3) [§36] Permissible Evaluations and CreditReports.

2. Same-Sex Marriage.

(a) [§37] Introduction.

(b) [§38] California Law.

(c) [§39] Federal Law.

(d) [§40] Commentary.

II. NATURE OF MARRIAGE

A. Creation and Requisites for Marriage.

1. [§41] In General.

2. [§42] No Common Law Marriage.

3. [§43] Capacity of Parties.

4. [§44] License.

5. [§45] Solemnization.

6. [§46] Marriage of Overseas Military Personnel ThroughAttorney-in-Fact.

7. [§47] Confidential Marriage.

B. Conflict of Laws.

1. In General.

(a) [§48] California and Restatement Rules.

(b) [§49] Illustrations.

2. [§50] Valid Marriage Evading Law of Domicile.

MARRIAGE

5

3. [§51] Marriage Contrary to Fundamental Public Policy ofDomicile.

C. Proof of Marriage.

1. [§52] In General.

2. [§53] Presumption of Valid Marriage From Proof ofSolemnization.

3. Second Marriage Presumed Valid.

(a) [§54] Nature and Effect of Presumption.

(b) [§55] Presumption Overcome.

D. State’s Control Over Marital Relationship.

1. [§56] In General.

2. [§57] Licensing of Marriage and Family Therapists.

3. [§58] Vital Statistics.

E. Duty To Support Spouse.

1. [§59] Former Law.

2. [§60] Mutual Obligations.

3. [§61] Spouse Living Apart.

4. [§62] Spouse Incompetent.

F. Power of Spouses To Contract.

1. [§63] In General.

2. [§64] Agreements Altering Spouses’ Legal Relations.

3. [§65] Separation Agreements.

III. DISSOLUTION OF MARRIAGE

A. In General.

1. [§66] Methods of Altering Marital Status.

MARRIAGE

6

2. Former Fault Requirement for Divorce.

(a) [§67] In General.

(b) [§68] Grounds for Divorce.

(c) [§69] Grounds for Denying Divorce.

3. [§70] Fault Theory Eliminated for Dissolution.

4. [§71] Capacity To Terminate Marriage.

B. Grounds for Dissolution.

1. Irreconcilable Differences.

(a) [§72] Nature of Ground.

(b) [§73] Substantial Reasons for Dissolution.

(c) [§74] Evidence of Misconduct Is OrdinarilyInadmissible.

2. Permanent Legal Incapacity To Make Decisions.

(a) [§75] Nature of Ground.

(b) [§76] Proof.

(c) [§77] Support of Incapacitated Spouse.

(d) [§78] Procedure.

C. Proceedings.

1. [§79] In General.

2. Jurisdiction and Power of Court.

(a) [§80] In General.

(b) [§81] Superior Court and Departments.

(c) [§82] Special Appearance by Respondent.

(d) [§83] Family Centered Case Resolution.

(e) [§84] Abatement of Proceeding on Death.

3. [§85] Residence and Venue.

4. [§86] Limited Scope Legal Representation.

5. [§87] Process.

MARRIAGE

7

6. Parties.

(a) [§88] In General.

(b) [§89] Standing of Guardian or Conservator.

(c) [§90] Joinder of Third Persons.

(d) Employee Benefit Plan.

(1) [§91] In General.

(2) [§92] Joinder of Plan.

(3) [§93] Proceedings After Joinder.

7. Pleadings.

(a) [§94] In General.

(b) [§95] Sealed Pleadings.

(c) [§96] Petition.

(d) [§97] Warning of Collateral Effects of Judgment.

(e) [§98] Response.

8. [§99] Notices Concerning Insurance.

9. Orders Pending Trial.

(a) [§100] In General.

(b) [§101] Methods of Obtaining Orders.

(c) Protective and Restraining Orders.

(1) [§102] Mutual Order in Summons.

(2) [§103] Other Orders.

10. Conciliation.

(a) [§104] In General.

(b) [§105] Family Conciliation Courts.

(c) Counselors and Officers.

(1) [§106] Qualifications and Appointment.

(2) [§107] Powers of Supervising Counselor.

(3) [§108] Participation in Domestic ViolencePrograms.

MARRIAGE

8

(d) Procedure.

(1) [§109] Jurisdiction.

(2) [§110] Petition.

(3) [§111] Hearing.

(4) [§112] Orders.

11. Trial.

(a) [§113] In General.

(b) [§114] Rules for Trial and Long Cause Hearings.

(c) Uncontested Proceeding.

(1) [§115] No Requirement of Corroboration.

(2) [§116] Entry of Default and Application forRelief.

(3) [§117] Requirement of Proof.

(4) [§118] Notice of Entry of Judgment.

(d) Bifurcation.

(1) [§119] Judicial Recognition and Codification.

(2) [§120] Issues That May Be Bifurcated.

(3) [§121] Procedure.

(4) [§122] Conditions on Granting Bifurcation.

(5) [§123] Requirements for Pension and RetirementPlans.

12. [§124] Statement of Decision.

13. Judgment.

(a) Development of Law.

(1) [§125] Former Two-Judgment Procedure.

(2) [§126] Elimination of Interlocutory Judgment.

(b) [§127] Entry of Judgment.

(c) [§128] When Judgment Becomes Final.

(d) [§129] Contents of Judgment.

(e) Effect of Reconciliation.

(1) [§130] In General.

MARRIAGE

9

(2) [§131] What Constitutes Reconciliation.

(f) [§132] Setting Aside Judgment.

(g) Entry of Judgment Nunc Pro Tunc.

(1) [§133] Development of Law.

(2) [§134] Power To Enter Judgment.

(3) [§135] Who May Seek Entry.

(4) [§136] Entry After Death of Party.

(h) [§137] Judgment as Determination of Valid Marriage.

14. Appellate Review.

(a) [§138] In General.

(b) [§139] Appeals Where Issues Are Bifurcated.

(c) [§140] Certification Procedure for Bifurcated Issues.

15. Summary Dissolution.

(a) [§141] In General.

(b) [§142] Conditions.

(c) [§143] Joint Petition.

(d) [§144] Revocation of Petition.

(e) [§145] Judgment.

16. [§146] Collaborative Law Process.

D. Recognition and Effect of Foreign Divorces.

1. Entitlement to Full Faith and Credit.

(a) [§147] Background.

(b) Domicile of One Spouse Is Sufficient.

(1) [§148] In General.

(2) [§149] Reexamination of Finding of Domicile.

(3) [§150] Binding Determination of Domicile.

(4) Limited Effect: Divisible Divorce Doctrine.

(aa) [§151] Adjudication of Support or PropertyRights Before Divorce.

(bb) [§152] Adjudication of Support or Property

MARRIAGE

10

Rights After Divorce.

(c) Divorce Without Bona Fide Domicile Is GenerallyInsufficient.

(1) [§153] Nevada Divorce Based on TemporaryResidence.

(2) [§154] Mexican Divorce Without Residence.

(3) [§155] Where Both Spouses Are Present.

(4) [§156] Exception for “Unique Circumstances”.

2. [§157] Uniform Divorce Recognition Act.

3. Estoppel To Deny Validity of Divorce.

(a) [§158] In General.

(b) [§159] Procuring Decree.

(c) [§160] Remarriage.

(d) [§161] Doctrine Applied Against Third Person.

IV. LEGAL SEPARATION

A. [§162] In General.

B. [§163] Grounds and Defenses.

C. [§164] Proceedings.

D. [§165] Effect of Judgment.

V. NULLITY OF MARRIAGE

A. Nature and Effect.

1. [§166] In General.

2. [§167] Void Marriage.

3. Voidable Marriage.

(a) [§168] In General.

(b) [§169] Relation Back Theory.

MARRIAGE

11

(c) [§170] Survival of Cause of Action.

4. [§171] Dissolution Distinguished.

B. Grounds.

1. [§172] In General.

2. [§173] Incest.

3. [§174] Bigamy.

4. Fraud.

(a) [§175] In General.

(b) [§176] Insufficient Misrepresentations.

(c) [§177] Sufficient Misrepresentations.

5. [§178] Minority.

6. [§179] Mental Incapacity.

7. [§180] Physical Incapacity.

8. [§181] Force.

C. [§182] Conflict of Laws.

D. Proceedings.

1. [§183] In General.

2. Jurisdiction.

(a) [§184] Subject Matter Jurisdiction.

(b) [§185] Personal Jurisdiction.

(c) [§186] Presence Without Domicile.

(d) [§187] Effect of Foreign Decree.

3. [§188] Venue, Limitations, Parties, and Pleadings.

4. [§189] Hearing, Incidental Orders, and Judgment.

5. [§190] Temporary Support.

MARRIAGE

12

6. [§191] Attorneys’ Fees and Costs.

VI. SUPPORT

A. In General.

1. [§192] Statutory Framework.

2. [§193] Procedural Provisions.

B. Support, Attorneys’ Fees, and Costs During Pendency ofProceeding.

1. [§194] Development of Law.

2. [§195] Purpose and Public Policy.

3. Proceedings in Which Award Is Allowed.

(a) [§196] Types of Actions.

(b) [§197] Main Proceeding in Trial Court.

(c) [§198] Main Proceeding on Appeal.

(d) Subsequent Proceeding.

(1) [§199] In General.

(2) [§200] No Award in Unrelated Proceeding.

(3) [§201] Effect of Failure To Award SpousalSupport.

4. Circumstances Affecting Right to Award.

(a) [§202] Marital Relationship.

(b) Needs and Ability To Pay.

(1) [§203] Payee’s Needs.

(2) [§204] Payor’s Ability.

(3) [§205] Effect of Payee’s Property, Income, andEarning Capacity.

(c) [§206] Effect of Prior Agreement.

(d) [§207] Legal Services Already Rendered.

(e) [§208] Merits of Action Are Immaterial.

MARRIAGE

13

5. [§209] Award of Attorneys’ Fees and Costs Against ThirdParty.

6. Determination and Payment of Award.

(a) Temporary Support.

(1) [§210] In General.

(2) [§211] Use of Guidelines.

(b) Attorneys’ Fees and Costs.

(1) [§212] In General.

(2) [§213] Factors To Be Considered.

(3) [§214] Considerations Justifying Large Award.

(4) [§215] Excessive Award.

7. Procedure.

(a) [§216] In General.

(b) [§217] Motion or Order To Show Cause.

(c) Request, Response, and Supporting Documents.

(1) [§218] In General.

(2) [§219] Attorneys’ Fees and Costs.

(d) [§220] Allocation of Fees and Costs in Complex Cases.

(e) [§221] Hearing.

(f) [§222] Review.

8. Enforcement.

(a) [§223] In General.

(b) [§224] Contempt.

(c) [§225] Other Remedies.

9. [§226] Modification.

C. Permanent Support.

1. In General.

(a) [§227] Basis of Award.

(b) [§228] Money Judgment Distinguished.

MARRIAGE

14

(c) Forms of Award.

(1) [§229] In General.

(2) [§230] Lump-Sum Payment.

(3) [§231] Automatic Reduction.

(4) [§232] Indefinite Duration.

(5) [§233] Payments for Insurance, Annuity, or Trust.

(6) [§234] Provision for Creditors.

(d) [§235] Where Judgment Does Not Include Award.

(e) Waiver of Right.

(1) [§236] In General.

(2) [§237] Express Advance Waiver.

(3) [§238] Waiver After Judgment.

(f) [§239] Laches Defense Limited.

(g) [§240] Tax Aspects of Award.

(h) [§241] Source of Payments.

2. Amount of Payments.

(a) In General.

(1) [§242] Statutory Standard.

(2) [§243] Marital Standard of Living as Point ofReference.

(3) [§244] Statutory Factors.

(4) [§245] Reliance on Temporary Guidelines orAward Is Improper.

(5) [§246] Discretion of Court.

(6) [§247] Use of Percentages.

(7) [§248] Advice to Supported Spouse.

(b) Supported Spouse’s Needs.

(1) [§249] In General.

(2) [§250] Denial or Small Award Upheld.

(3) [§251] Denial or Small Award Reversed.

(4) [§252] Separate Property.

MARRIAGE

15

(5) [§253] Marital Savings History.

(6) [§254] Postseparation Lifestyles.

(7) [§255] Gifts From Third Parties.

(c) Supporting Spouse’s Ability To Pay.

(1) [§256] In General.

(2) [§257] Ability Shown.

(3) [§258] Ability Not Shown.

(4) [§259] Retirement Plan Contributions andAccruals.

(5) [§260] Earning Capacity.

(d) [§261] Cohabitation of Spouses Before Marriage.

(e) [§262] Prior Marriage of Spouses.

3. Procedure.

(a) Request in Petition.

(1) [§263] Default Cases.

(2) [§264] Contested Cases.

(b) [§265] Reference.

(c) [§266] Examination by Vocational Training Counselor.

(d) [§267] Motion for New Trial.

(e) [§268] Appeal.

4. Enforcement.

(a) [§269] In General.

(b) [§270] Duration and Renewal.

(c) Earnings Assignments.

(1) [§271] In General.

(2) [§272] Definitions.

(3) [§273] Issuance of Order.

(4) [§274] Stay of Service.

(5) [§275] Obligations of Employer.

(6) [§276] Noncompliance by Employer.

(7) [§277] Priorities.

MARRIAGE

16

(8) [§278] Motion To Quash.

(9) [§279] Termination of Order.

(10) [§280] Alternative Procedure in Title IV-DCases.

(d) Contempt.

(1) [§281] Nature of Remedy.

(2) [§282] Procedure.

(3) [§283] Improper Service on Attorney.

(4) [§284] Inability To Pay as Defense.

(e) Execution.

(1) [§285] In General.

(2) [§286] Period of Enforcement.

(3) [§287] Enforcement Against Employee BenefitPlan.

(f) Other Enforcement Remedies.

(1) [§288] Security for Payment.

(2) [§289] Appointment of Receiver.

(3) [§290] Judgment Lien.

(4) [§291] Charging Order Against Interest inPartnership or Limited LiabilityCompany.

(g) Enforcement of Foreign Support Obligations.

(1) [§292] In General.

(2) [§293] Proceedings Under UIFSA.

5. Modification.

(a) Power To Modify.

(1) [§294] Continuing Jurisdiction.

(2) [§295] Limitations on Power.

(3) [§296] Default Award.

(4) [§297] Discretion of Court.

(5) [§298] Retroactive Modification.

(6) [§299] Reimbursement of Overpayments.

MARRIAGE

17

(7) [§300] Effect of Past Contempt.

(b) Change in Circumstances.

(1) [§301] Necessity of Showing.

(2) [§302] Considerations Generally.

(3) Supporting Spouse’s Reduced Circumstances.

(aa) [§303] In General.

(bb) [§304] Career Change.

(cc) [§305] Retirement.

(4) [§306] Supporting Spouse’s ImprovedCircumstances.

(5) [§307] Income of Supporting Spouse’s NewSpouse or Nonmarital Partner.

(6) [§308] Supported Spouse’s ChangedCircumstances.

(7) [§309] Supported Spouse’s Discharge inBankruptcy.

(8) [§310] Supported Spouse’s NonmaritalCohabitation.

(9) [§311] Change in Cost of Child Support.

(10) [§312] Consideration of CircumstancesPredating Last Order.

(11) [§313] Activation and Out-of-State Deploymentof Military Service Member.

(c) Procedure.

(1) [§314] In General.

(2) [§315] Service on Party.

(3) [§316] Discovery.

(4) [§317] Simplified Procedure.

6. Termination.

(a) [§318] Change in Circumstances.

(b) [§319] Death of Spouse.

(c) Remarriage of Spouse.

(1) [§320] In General.

MARRIAGE

18

(2) [§321] Agreement To Continue Support.

(d) Self-Terminating Judgment.

(1) [§322] In General.

(2) [§323] Order for Contingent Period.

(3) Reservation of Jurisdiction To Extend Term.

(aa) [§324] In General.

(bb) [§325] Jurisdiction Reserved.

(cc) [§326] Jurisdiction Not Reserved.

(4) Court’s Duty To Reserve Jurisdiction.

(aa) [§327] In General.

(bb) [§328] Statutory Jurisdiction After LengthyMarriage.

(cc) [§329] Contingent Termination ofJurisdiction as Alternative.

(dd) [§330] Marriage of Short Duration.

7. Setting Aside Award.

(a) [§331] In General.

(b) [§332] Grounds and Time Limits.

VII. MARITAL SETTLEMENT AGREEMENTS

A. In General.

1. [§333] Nature and Validity.

2. [§334] Incidents.

3. [§335] Interpretation.

4. [§336] Approval of Court.

5. Incorporation in Judgment and Merger.

(a) [§337] Purposes of Incorporation.

(b) [§338] When Agreement Is Merged.

MARRIAGE

19

6. Setting Aside Incorporated Agreement.

(a) [§339] In General.

(b) [§340] Illustrations: Relief Granted.

(c) [§341] Illustrations: Relief Denied.

B. Modification.

1. [§342] Pure Property Settlement Is Nonmodifiable.

2. Agreement With Support Provisions.

(a) [§343] General Rule: Support Provisions AreModifiable.

(b) [§344] Agreement Made Expressly Nonmodifiable.

(c) [§345] Purely Private Agreement.

C. Enforcement.

1. [§346] Action on Agreement.

2. [§347] Execution and Receivership.

3. Contempt.

(a) [§348] Agreement Not Merged.

(b) [§349] Integrated Agreement.

D. Termination.

1. Death of Spouse.

(a) [§350] In General.

(b) [§351] Agreement That Obligations Survive.

2. Remarriage of Spouse.

(a) [§352] In General.

(b) [§353] Annulment of Voidable Marriage.

3. Bankruptcy.

(a) [§354] Federal Statute.

(b) [§355] California Statute.

MARRIAGE

20

4. [§356] Occurrence of Condition Subsequent.

VIII. DOMESTIC PARTNER REGISTRATION

A. Recognition of Domestic Partnerships.

1. [§357] In General.

2. California Domestic Partner Rights and Responsibilities Act.

(a) [§358] In General.

(b) [§359] Validity.

3. [§360] Establishment of Domestic Partnership.

4. [§361] Registration Procedure.

5. [§362] Preemption of Local Laws.

B. Legal Effect of Status.

1. [§363] In General.

2. [§364] Patient Visitation.

3. [§365] Health Care Benefits.

4. [§366] Other Rights.

C. Termination of Status.

1. [§367] By Filing Notice of Termination.

2. [§368] By Dissolution, Nullity, or Legal SeparationProceedings.

IX. DOMESTIC VIOLENCE

A. Available Remedies.

1. [§369] In General.

2. [§370] Civil Remedies.

3. [§371] Criminal Proceedings.

MARRIAGE

21

B. [§372] Other Consequences of Domestic Violence.

C. Domestic Violence Prevention Act.

1. [§373] In General.

2. Definitions.

(a) [§374] Abuse.

(b) [§375] Domestic Violence.

(c) [§376] Dating Relationship.

(d) [§377] Other Definitions.

3. [§378] Procedure.

4. [§379] Judicial Council Forms.

5. Emergency Orders.

(a) [§380] In General.

(b) [§381] Grounds for Order.

(c) [§382] Issuance and Effect.

(d) [§383] Duties of Law Enforcement Officer.

(e) [§384] Antistalking Order.

6. Protective and Related Orders.

(a) [§385] In General.

(b) [§386] Mutual Restraining Order.

(c) [§387] Support Person for Victim.

(d) [§388] Criminal Background Search.

(e) Issuance of Ex Parte Orders.

(1) [§389] In General.

(2) Topics That May Be Covered in Order.

(aa) [§390] Enjoining Harassment, Threats, andViolence.

(bb) [§391] Exclusion From Dwelling.

(cc) [§392] Other Topics.

(3) [§393] Temporary Custody and Visitation.

MARRIAGE

22

(f) Issuance of Orders After Notice and Hearing.

(1) Authorized Orders.

(aa) [§394] In General.

(bb) [§395] Support.

(cc) [§396] Restitution.

(dd) [§397] Participation in Counseling.

(ee) [§398] Custody and Visitation.

(ff) [§399] Transfer of Billing Responsibilityfor Wireless Telephone Service.

(gg) [§400] Attorneys’ Fees and Costs.

(2) [§401] Duration and Renewal of Order.

(3) [§402] Modification of Order.

(4) [§403] Termination of Order.

(g) [§404] Orders Included in Judgment.

(h) Registration and Enforcement.

(1) [§405] In General.

(2) [§406] Firearm Possession Prohibited.

(3) [§407] Electronic Transmission and Recording ofData.

(4) [§408] Service of Order.

(5) Foreign Orders.

(aa) [§409] In General.

(bb) [§410] Judicial Enforcement of Order.

(cc) [§411] Nonjudicial Enforcement of Order.

MARRIAGE

23