Our Law Blog

When spouses are not living together, it can be difficult to determine which spouse is legally responsible to pay debts. The timing of when the debt was incurred, the nature of the debt and state law are important considerations in this assessment.

Necessaries Doctrine

At common law, the spouse – typically the husband – was legally liable for the support of the other spouse. This right could be enforced on the spouse, either by the other spouse or by third-party creditors. Today, some states have established statutes that require a spouse to be responsible for necessary or family expenses, even in the absence of an express agreement to pay such a debt.

Divorce is often a contentious experience in which formerly intimate spouses are now adversaries. With this dynamic, spouses may start to hide information or take part in activities that may threaten the well-being of the family. Private investigators are sometimes retained to assist in divorce cases for a number of reasons.

Evidence of Adultery or Misconduct

A private investigator can investigate if a spouse is committing adultery or other types of marital misconduct. Every state has no-fault divorce laws that do not require the evidence of wrongdoing in order to grant a divorce. However, marital misconduct is sometimes relevant for proceedings involving spousal support in states in which support is barred if one party’s conduct led to the demise of the marriage. Additionally, marital misconduct may also help provide more favorable terms for a spouse under a prenuptial agreement.

Although couples do not enter a marriage with divorce in mind, a prenuptial agreement (prenups) can protect both parties and avoid a long, costly divorce process.

Traditionally, wealth was the driving factor behind premarital agreements; today they are commonly thought of as a financial plan that sets forth expectations in a marriage.

Many in the lesbian, gay, bisexual, transgender, and queer (LGBTQ) community celebrating a victory, not only for them, but for the Court’s interpretation of the constitutional rights of all Americans.
In the majority decision of the Court, all states must perform and recognize same-sex marriages, even if the marriage was performed outside of the home state of residence. Citing the protections offered by the Fourteenth Amendment Due Process Clause, the Court has given same-sex marriages the equal constitutional protection that heterosexual marriages are granted.

Justice Anthony Kennedy authored the Court’s opinion stating that the fundamental ideals of marriage are the same for both same-sex marriages and those between a man and a woman. Marriages based on love, fidelity, devotion, sacrifice, and family apply to both types of marriages and should be available to two consenting adults who respect that union. He added that same-sex couples want the same type of committed and respected marriage that heterosexuals enjoy where two people come together and become greater than before. To deny them of that right is unconstitutional in the eyes of the law.

Drafting settlement and separation agreements is an important part of any family law practice because only fifteen-percent of divorce cases eventually go to trial.

Written settlement proposals can be exchanged at any time. They, like interrogatories, may help determine if an agreement can be reached now or in the future. Obviously, you need your client’s direct input and authority when drafting a settlement proposal and it is absolutely vital that they review and approve the proposal. Many times, the first settlement proposal will be quite broad, while subse quent iterations can pin down the details of the agreement.

In California, there is a legal action known as a summary dissolution. This is the dissolution of a marriage that has only been legal for five years or less. A joint petition for summary dissolution can be filed when either spouse meets the standard residency requirements and irreconcilable differences the marriage render the marriage irretrievably broken. A summary dissolution can also be filed when the marriage does not involve any children and the wife is not pregnant (Wikipedia).

Who Can File for Summary Dissolution?

In late June, the Supreme Court of the United States (SCOTUS) ruled that the Defense of Marriage Act (DOMA) was unconstitutional, and that the benefits available to legally married heterosexual couples should be available to legally married gay couples. The 1996 federal law had defined the institution of marriage as a union between a man and a woman, thus denying federal benefits for gay couples whose marriages were recognized at the state level—like joint tax returns, Social Security, health insurance, pension protection, benefits for military couples, and immigration protections for couples from different countries.

The court invalidated DOMA in a 5-4 ruling. Justice Anthony Kennedy, who delivered the decisive vote along with the court’s four liberal justices, wrote the majority opinion stating that DOMA “violates basic due process and equal protection principles applicable to the Federal Government.”

Previously we provided statistics with regards to the prevalence of domestic violence. Today our focus is on the process for obtaining a domestic violence restraining order pursuant to California’s Domestic Violence Prevention Act (DVPA) as set forth in Family Code §6200, et seq.

A domestic violence restraining order is a court order that helps protect people from abuse or threats of abuse from someone they have a close relationship with. Requirements for a domestic violence restraining include: