California Marital Settlements: January 1997 Summary

Legal Developments

Self-Support Admonition

When making an order for spousal support, Family Code Section 4330(b) now requires the court to give the following admonition: "It is the goal of this state that each party shall make reasonable good faith efforts to become self-supporting as provided for in section 4320. The failure to make reasonable good faith efforts, may be one of the factors considered by the court as a basis for modifying or terminating support." The program will automatically include such an admonition in any judgment, and will ask if you want it included in an MSA. You may edit the admonition to be included.

Right to Reimbursement of Health Insurance Expenses

Family Code Section 3781(a) requires that in instances where the court has ordered a party to provide health insurance for a dependent, the court shall also order an assignment of rights to reimbursement. The program now includes this language in judgments, and makes it optional for MSAs (it is optional as well in both judgments and MSAs for health insurance for a spouse).

Conditions for Deferred Sale

In re Marriage of Braud (1996) 45 Cal.App.4th 797, 53 Cal.Rptr.2d 179 held that the trial court should reconsider a deferred sale of home order under the burden-shifting presumption only where cohabitation is a change in circumstances affecting Family Code Section 3808 factors or the parties' economic circumstances. Cohabitation itself was insufficient to order the sale of the residence.

Capital Gains Tax Options

Perry v. C.I.R. (9th Cir. 1996) 91 F.3d 82 provides strong authority to argue that the operative date for determining when the family home no longer qualifies as one party's "principal place of residence" (for purposes of starting the two-year time period for roll-overs) will usually be the date of the property settlement, which gives possession to the other party and does not order an immediate sale of the residence.

Joint Legal & Physical Custody

The first published appellate opinion to interpret Burgess was Cassady v. Signorelli (1996) 49 Cal.App.4th 55, 56 Cal.Rptr.2d 545, which affirmed an order denying a custodial parent the right to move with her child when she had no plans for employment and the move seemed designed to frustrate the father's visitation. Thus, it is not yet clear how significant will be the effect of Burgess on what the trial courts are doing with these cases.