June 2, 2011

Landmark Divorce Rulings

Posted in Family Law tagged at 7:03 am by demetriagraves

As a Family Law attorney its important to know about the history of family law and be familiar with many of the landmark cases that fundamentally changed divorce law as we know it. Family court judges use such cases as precedents when determining divorce settlements and custody agreements. It’s not just a matter of deciphering the dissatisfied grumblings of estranged spouses and sifting through a mountain of papers and legal evidence. I was recently asked about the most important divorce cases to date–those that had a profound effect in changing divorce law and became known as landmark rulings. So here’s a quick summary of some of those historic cases and their rulings.

Diemer v. Diemer (1960): William and Gilberte Diemer were married in a Protestant ceremony in 1947, despite their differing religious affiliations–he was a Protestant; she a Catholic. Their religious differences became a problem in 1954, when, after suffering an accident, Mrs. Diemer consulted a priest and issued an ultimatum to her husband: she would not have sexual relations with him unless he agreed to a second marriage ceremony in the Roman Catholic Church. Unable to change his wife’s mind, Mr. Diemer left home and sued for separation. A New York Appeals Court ruled in his favor, stating that refusal to have sex with one’s spouse constitutes an abandonment of the marriage.

See v. See (1966): In this 1966 decision, the Supreme Court of California ruled that property acquired during a marriage is presumably joint or “community” property, owned jointly by both spouses and divided in the event of divorce. If a spouse has “co-mingled” separate and community property in one account, and suggests that an asset acquired during the marriage is “separate property,” he or she has the burden of proving that there was a deficit in the community funds when the asset was purchased. If such a deficit cannot be proven, the asset is considered “community property.”

Kulko v. Superior Court (1977): In this case, a father from New York sent his children to visit their mother in California, who then attempted to modify their custody agreement under California law. The Supreme Court held that state courts do not have jurisdiction over nonresidents. Therefore, the act of sending a child to a different state to live with or visit a custodial parent does not give jurisdiction to that state over the parent who does not live there–in this case, the father. This case has had far-reaching implications both in terms of civil cases concerning jurisdiction over out-of-state residents, as well as in custody cases where there are ongoing issues regarding interstate custody of children.

McCarty v. McCarty (1981): A California court initially ruled that military retirement pension is joint property, and therefore dividable after divorce per California’s dissolution of marriage laws. However, the Supreme Court overturned the ruling in 1981, saying that military retirement pay is the personal property of the retiree. One year later, Congress passed the Uniformed Services Former Spouse Protection Act (USFSPA), which effectively overturned the Supreme Court decision. The law states that military retirement can be considered joint property based on the divorcing couple’s state of residence.

Re-Marriage of Burgess (1996): In this case, the Superior Court of Kern County reversed a decision by a California Appeals Court that said that if a custodial parent wishes to relocate to another city or state with his or her children, he or she is required to prove that relocating is in the “best interest” of the minor children. The Superior Court ruled that “a parent seeking to relocate does not bear a burden of establishing that the move is ‘necessary’ as a condition of custody,” unless the non-custodial parent has proven that the move would cause a “detrimental impact” upon the parent-child relationship. If the detriment is proven large enough, the court would decide if a change in custody is appropriate.

Gonzales v. Munoz (2007): According to this California Appeals Court ruling and under the Domestic Violence Protection Act, a trial court is authorized to make custody and visitation orders without both the mother and father proving parent-child relationship when the orders are necessary for the safety of the child. The order reads: “In making a determination of the best interests of the child and in order to limit the child’s exposure to potential domestic violence and to ensure the safety of all family members, if the party who has obtained the restraining order has established a parent and child relationship and the other party has not established that relationship, the court may award temporary sole legal and physical custody to the party to whom the restraining order was issued and may make an order of no visitation to the other party pending the establishment of a parent and child relationship between the child and the other party.”


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