California Marital Settlements: August 2001 Summary

Legal Developments

Premarital Agreement Not Enforceable Where Terms Not Definite

In re Marriage of Shaban (2001) 88 Cal.App.4th 398, 105 Cal.Rptr.2d 863 declined to enforce an Islamic marriage contract which the husband contended was a premarital agreement, because the terms of the document were not sufficiently specific to satisfy the statute of frauds.

IRA Owner Liable for Tax on Funds Withdrawn to Pay Spouse's Share

Bunney v. Commissioner (2000) 114 T.C. 259 held that when the owner of an IRA withdrew cash from it in order to pay the share allocated to the other spouse by the dissolution judgment, the owner was liable for taxes and penalties on the entire amount withdrawn.

Child Support Modification Must Be Based on Both Parties' Incomes

In re Marriage of Hall (2000) 81 Cal.App.4th 313, 96 Cal.Rptr.2d 772 held that a trial court could not make an order prospectively adjusting the amount of child support based only on a percentage of the paying party's income over a certain level, because the guideline support calculation requires consideration of the finances of both parties.

California Supreme Court Considers Standard for Modifying Stipulated Custody Orders

On May 30, 2001, the California Supreme Court heard oral argument in Montenegro v. Diaz, S090699 [see Court of Appeal opinion at (2000) 82 Adv.Cal.App.4th 1, 97 Cal.Rptr.2d 782, review granted, Oct. 30, 2000], which presents the question whether a stipulated custody order constitutes a prior judicial determination of the child's best interests, thus requiring later custody decisions to be based on changed circumstances rather than on the best interests of the child.

Support for Adult Children Should Not Affect Spousal Support Amount

In re Marriage of Serna (2000) 85 Cal.App.4th 482, 102 Cal.Rptr.2d 188 held that a spousal support recipient's financial support for adult children of the marriage who were not disabled should not be considered in setting the amount of spousal support.

MSA Drafted by Attorney for Both Parties Enforceable Based on Conflict Waiver

In re Marriage of Egedi (2001) 88 Cal.App.4th 17, 105 Cal.Rptr.2d 518 held where an attorney obtains informed written waivers of potential conflict of interest, and acts only as a scrivener of the parties' marital settlement agreement, the agreement is enforceable.

Updated Product Features

Default Language for Child Support Waiver Provisions Augmented

When family support is provided in lieu of child support, or when child support for minor children is waived altogether, the document generated by the program includes a provision waiving child support. The default language for each of those provisions has been augmented in this update.

Family Support

In the family support provision, the default reservation of jurisdiction clause (used when you select "Reserve jurisdiction to award child support after family support ends" in Q 366) now makes clear that jurisdiction will end when the child reaches age 18 (or 19 if in high school). The new language restates existing law, so it will not be included automatically in documents for which you have already answered this question. To add the new language manually, go to Q 367, "Impact on Child Sup if Fam Sup Ends," and select "Reinstate Default Answer" under the Answers menu.

Child Support Waiver

In the child support waiver provision, a new clause has been added reserving jurisdiction over child support until the child reaches age 18 (or 19 if in high school). Because courts may require this language, if you open an existing answer file in which child support is waived, the question allowing you to edit this provision (Q 439, "No Support Specified") will automatically be reasked, and the augmented version of the default language will be presented.