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California: Summary of 2002 California Statutes Affecting the Practice of Family Law
(provided by Glen Rabenn, Esq.)
The following is a summary of state legislation affecting the practice of family law in California. It is intended as general information and should not be considered legal advice. The author does not represent that this summary is an all-inclusive listing of all statutes that pertain to or impact upon family law. To obtain more detailed information you should directly contact a qualified attorney in your geographic area. If legal advice or other expert assistance is required, the services of a competent professional person should be sought.
Revocation of Consent to Adoption
Family Code §8814.5
A birth parent has 90 days to revoke her consent to the adoption.
The period for revoking consent has been reduced to 30 days. If the consent has been revoked, it can be reinstated by another written consent, in which event a new 30-day period commences.
Consolidation of Paternity and Adoption Proceedings.
Family Code § §7630, 8919, and 9001; Welfare & Inst. Code §16010
Welfare & Inst. Code §16005
A child's natural mother, or a man presumed to be the child's father, among other specified persons, may bring an action to determine the existence or nonexistence of the father and child relationship, as specified. Such an action must be consolidated with an action to terminate the parental rights of the father in an adoption proceeding.
A paternity action that is consolidated with an action to terminate the parental rights of the father in an adoption proceeding, must be heard in the county in which the action to terminate parental rights is filed, unless the court in the paternity action finds, by clear and convincing evidence, that transferring the paternity action to the other county poses a substantial hardship. If the court determines that there is a substantial hardship, the bill would require that the consolidated action be heard in the county in which the paternity action is filed.
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Limitation on Automatic Stay of Out-of-State Move-Away Orders
Code of Civil Procedure §917.7
Judgments or orders allowing, or eliminating restrictions against, removal of a minor child from the state are automatically stayed for 7 days if entered in a juvenile court proceeding, and 30 days if entered in any other trial court proceeding, in order to allow time for an appeal
Judgments brought pursuant to the Uniform Child Custody Jurisdiction and Enforcement Act, the Parental Kidnaping Prevention Act of 1980, or the Hague Convention on the Civil Aspects of International Child Abduction, implemented pursuant to the International Child Abduction Remedies Act are excluded from these automatic stay provisions.
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Disabled Noncustodial Parents
Family Code § §4504, 5246, and 17500
Family Code §17400.5
If a court has ordered a noncustodial parent to pay child support, payments for the support of the child made by the federal government pursuant to the Social Security Act or the Railroad Retirement Act because of the retirement or disability of the noncustodial parent and transmitted to the custodial parent or other child support obligee each month are credited toward the amount ordered by the court to be paid for that month by the noncustodial parent for support of the child, unless those payments were taken into consideration by the court in determining the amount of the support to be paid.
The Franchise Tax Board has the responsibility for accounts receivable management of child support delinquencies. The Franchise Tax Board is responsible for actions taken on any child support delinquency account transferred to that agency as necessary for recovering delinquent child support payments. Among other duties, the Franchise Tax Board is responsible for issuing and modifying earnings assignment orders on behalf of the local child support agency in order to take collection actions to recover delinquent child support payments. Existing law establishes a state supplementary income program which provides a monthly income based on need, as specified, to aged, blind, or disabled persons
Federal payments now include benefits paid by the Department of Veterans Affairs. A custodial parent who has been notified that the noncustodial parent is receiving any of the federal benefits must to contact the appropriate federal agency within 30 days of receiving that notification to verify the eligibility of the child to receive payments from the federal government on the basis of the noncustodial parent's disability. The local child support agency that is collecting support for the custodial parent must prepare and file a motion to modify a support obligation within 30 days of receiving verification from a noncustodial parent \or other source of the receipt of specified benefits. The provisions of Family Code §3653 [child support modification may be retroactive to the date the motion is filed] applies to such motions.
A child support delinquency may not be referred to the Franchise Tax Board and if already referred, must be withdrawn, rescinded, or otherwise recalled, if the obligor is receiving payments under the state supplementary income program for aged, blind, and disabled persons, or but for certain excess income, would be eligible for those payments, as specified.
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California Child Support Enforcement Program
Family Code § §5246 (d) and 17500 (b)
Family Code § §17500 (c)
Family Code § § 17400 (in part) and 17501
A. A local child support agency is required to transfer child support delinquencies to the Franchise Tax Board in the form and manner and at the time prescribed by the Franchise Tax Board. The Franchise Tax Board has responsibility for accounts receivable management of child support delinquencies in support of the child support activities of the Department of Child Support Services and local child support agencies.
B. The Franchise Tax Board is authorized to collect child support delinquencies in any manner authorized by law for the collection of a delinquent personal income tax liability, except by the issuance of an order and levy in the manner provided for earnings withholding orders for taxes.
C. The Department of Child Support Services has been established to implement the operation of the child support enforcement program through local agencies. The director of the department is required to establish uniform forms, policies, and procedures for local child support agencies, and imposes related regulatory requirements, including various time deadlines for the implementation of these regulatory requirements.
D. The department is required to pay to each county a child support incentive for child support collections, and allows the department, after July 1, 2000, to implement an annual incentive program to reward local child support agencies, in accordance with specified criteria.
E. The local child support agency has the authority to establish liability for child support against the noncustodial parent in any case in which separation or desertion of a parent or parents from a child or children results in aid under the CalWORKs program being granted.
A. The Franchise Tax Board has been relieved of the responsibility for accounts receivable management of child support delinquencies in support of these child support activities and would make related changes. The legislation also revised and recast provisions relating to the transfer of child support delinquencies to the Franchise Tax Board.
B. The Franchise Tax Board is now authorized to collect child support delinquencies in that manner until the California Child Support Automation System is operational in all 58 counties. The Franchise Tax Board, with the concurrence of the Department of Child Support Services, is required to establish a process whereby a local child support agency may request and is allowed to withdraw, rescind, or otherwise recall the transfer of a child support delinquency accountthat has been transferred to the Franchise Tax Board.
C. Certain regulatory implementation deadlines applicable to the establishment of the above uniform forms, policies, and procedures have been extended. This legislation created the Child Support Collections Recovery Fund, which will be administered by the department, consisting of all public moneys transferred by public agencies to the department for deposit, as permitted by federal statutes and regulations, and any accrued interest, and that would be used, upon appropriation by the Legislature, for purposes of making payments or advances to local child support agencies of the federal share of administrative payments for costs incurred pursuant to the child support enforcement program.
D. The performance standards and other criteria for the above incentive programs have been revised. After July 1, 2001, the department is required to pay an additional incentive, from specified county collections, to the counties with the 10 best performance standards to be used by the counties for specified child support-related activities.
E. Each local child support agency, on a monthly basis, is required to remit to the Department of Child Support Services both the federal and state public assistance child support payments received pursuant to existing law.
Earnings Assignment Orders; Penalties Against Employers
Family Code §5241
Existing law provides for the enforcement of child support. Employers are required to withhold child support payments from employees' earnings that are subject to an earnings assignment order. If an employer withholds support pursuant to an earnings assignment order, but fails to forward the support to the obligee, the local child support agency is required to take appropriate action to collect the withheld sums.
The child support obligee or the local child support agency upon application may obtain an order requiring payment of support by electronic transfer from the employer's bank account when the employer has willfully failed to comply with the assignment order or when the employer has otherwise failed to comply with the assignment order on 3 separate occasions within a 12-month period. In addition, the court may impose a civil penalty on the employer of up to 50% of the support amount that has not been received by the obligee under specified circumstances. In addition, the employer can be held liable to the obligee for any interest incurred as a result of the employer's failure to forward the payment pursuant to the assignment order.
Time Limits for Resolution of Complaints
Family Code § §17800
Each local child support agency must maintain a complaint resolution process and to provide a written resolution of a complaint within 30 days of receiving the complaint.
The director of a local child support agency can extend that period for resolution of a complaint an additional 30 days.
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Protocol for Coordination of Criminal and Civil Restraining Orders; Transmission of Modifications of Restraining Orders to the Department of Justice.
Family Code § §6380, 6383; Penal Code §136.2
If a defendant is charged with a domestic violence crime, the court with jurisdiction over that matter may, upon a good cause belief that harm, intimidation, or dissuasion of a victim or witness has occurred or is reasonably likely to occur, issue specified orders, including restraining or protective orders against the defendant. A restraining or protective order issued in a domestic violence criminal case has precedence over any other court order against the defendant.
The Department of Justice is required to maintain a Domestic Violence Restraining Order System containing information regarding various protective and restraining orders and injunctions, including orders to protect victims of violent crime from specified types of contact with the defendant. When a court issues an order to protect a victim of violent crime from contact with the defendant, the court or its designee must transmit that order to law enforcement personnel within one business day. Specified information regarding the order must be transmitted to the Department of Justice for inclusion in the Domestic Violence Restraining Order System.
A criminal restraining order or protective order has precedence in enforcement over any civil court order that pertains to the same persons. The Judicial Council is to promulgate a protocol, for adoption by local courts, to provide for coordination of all orders regarding the same persons. The protocol is to include mechanisms for communication and information sharing, and permit family or juvenile court orders to coexist with criminal court orders as long as the orders protect the safety of the parties, as specified.
A court that modifies, extends, or terminates an order protecting a victim of violent crime from contact with the defendant to transmit that modification, extension, or termination to the law enforcement agency that entered the protective order into the Domestic Violence Restraining Order System. Modifications, extensions, and terminations of orders protecting victims of violent crime from contact with the defendant must be issued on forms adopted by the Judicial Council and approved by the Department of Justice.
The uncodified portion of this legislation set forth the legislative intent behind it:
The Legislature recognizes that both criminal courts and civil courts may issue protective orders or restraining orders to prevent domestic violence. Orders issued by the criminal court also serve to protect the safety of a victim or a witness in a criminal proceeding. In addition, a restrained person and the victim or witness may have a child or children in common, and, if a court deems it appropriate to grant visitation, civil protective or restraining orders may permit contact between the parties for exchange of the child or children. In those cases, it is the intent of the Legislature to (a) permit appropriate visitation between a defendant and his or her children pursuant to civil court orders, but at the same time provide for the safety of the victim or witness by ensuring that a "no contact" order issued by the criminal court is not violated, and (b) request the Judicial Council to establish a protocol for the timely coordination of multiple orders that involve the same parties. The purpose of the protocol is to protect the rights of all parties and enhance the ability of law enforcement to enforce orders."
Family Code §6210
Family Code §6211(c) includes in the definition of "domestic violence" abuse perpetrated against "[a] person with whom the respondent is having or has had a dating or engagement relationship."
A "dating relationship" is defined as "frequent, intimate associations primarily characterized by the expectation of affection or sexual involvement independent of financial considerations."
Uniform Interstate Enforcement of Domestic Violence Protection Orders Act
Family Code § §6400-6409
Family Code §6380.5
Existing law provides for the issuance and enforcement of protective orders in cases involving domestic violence. A protective or restraining order related to domestic or family violence and issued by a court of another state, a tribe, or a military tribunal is to be deemed valid if the issuing court had jurisdiction over the parties and the matter.
California has now adopted the Uniform Interstate Enforcement of Domestic Violence Protection Orders Act, which authorizes the enforcement of a valid foreign protection order in a tribunal of this state under certain conditions. The legislation prescribes the criteria for a determination of validity and provides that registration or filing of an order in this state is not required for the enforcement of a valid order. A law enforcement officer of this state must enforce a foreign protection order upon determining that there is probable cause to believe that a valid foreign protection order exists and has been violated.
Family Code §6300
Family Code §6306
A court may issue a protective order, either ex parte or after a hearing, to restrain any person to prevent a recurrence of domestic violence.
Prior to a hearing on the issuance or denial of a protective order, the court must ensure that a search of specified records and data bases is or has been made to determine the proposed subject of the order has any specified prior criminal convictions or outstanding warrants, is on parole or probation, or is or was the subject of other protective or restraining orders. In determining whether to issue an order, the court must to consider only specified information revealed by the search, and is to release this information to the parties or, upon either party's request, to their attorneys. The court must advise the parties that they may request the information, and to give the parties a specified admonition.
The information obtained as a result of the search and relied upon by the court must be maintained in a confidential case file. This case file must be disclosed to the court-appointed mediator assigned to the case and the child custody evaluator. The court must order the clerk to notify appropriate law enforcement agencies of the issuance and contents of the protective order, in specified circumstances. If the results of the search indicate that the subject of the order is currently on parole or probation, the Court must order the clerk to notify the appropriate parole or probation officer of the issuance and contents of the protective order. Officials so notified must take specified actions with respect to the restrained person.
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MARITAL PROPERTY AND DEBTS
Statute of Limitations on action based upon the marital liability of a deceased spouse
Family Code §914
A married person is personally liable for debts incurred by the person's spouse for necessaries of life and the married person's separate property may be applied to the satisfaction of these debts. There are various statutes of limitations for the commencement of civil actions.
An action based upon the marital liability of a deceased spouse must be commenced within a one-year period. However, If the surviving spouse had actual knowledge of the debt prior to expiration of the one-year period and the personal representative of the deceased spouse's estate failed to provide the creditor asserting the claim under this section with a timely written notice of the probate administration of the estate in the manner provided for pursuant to Section 9050 of the Probate Code, the statute of limitations set forth in Section 337 [4 years for written contract] or 339 [2 years for oral contract], as applicable, shall apply.
Fiduciary Duties Owed by Spouses to Each Other
Family Code § §1101, 2100, 2102, 2105, 2106, 2107, and 2122
A. Each party is required to give the other party an accurate and complete disclosure of all assets and liabilities in which one or both parties have or may have an interest. Existing law provides that each party has a continuing duty to update and augment that disclosure to the extent there have been any material changes, as specified.
B. Each party, from the date of separation to the date of the distribution of the community property, must provide the other party with an accurate and complete written disclosure of any investment opportunity that presents itself after the date of separation, but that results from any investment of either spouse from the date of marriage to the date of separation, inclusive. A written disclosure must be made in sufficient time for the other spouse to make an informed decision as to whether he or she desires to participate in the investment opportunity.
C. The fiduciary duty owed by spouses continues from the date of separation to the date of the distribution of the community asset or liability in question,.
D. The fiduciary duty applies to all activities that affect the support rights of the other party.
A. The fiduciary duty now includes the obligation to provide the other party with an immediate, full and accurate update or augmentation to the extent there have been any material changes in the assets or liabilities.
B. The disclosure must contain any investment opportunity, business opportunity, or income-producing opportunity that presents itself after the date of separation, but that results from any investment, business activity, or other income-producing opportunity of either spouse from the date of marriage to the date of separation, inclusive. The written disclosure must be made in time for the other spouse to make an informed decision as to whether he or she desires to participate in the business or other potential income-producing opportunity. The court is to have the power to resolve any dispute regarding the right of the other spouse to participate in the opportunity. Specified standards apply to all activities that affect the assets or liabilities of the other spouse, and the income or expenses of the party.
C. The fiduciary duty continues from the date that a valid, enforceable, and binding resolution of the disposition of the asset or liability in question is reached, until the asset or liability has actually been distributed.
D. From the date of separation to the date of a valid, enforceable, and binding resolution of all issues relating to child or spousal support and professional fees, each party has fiduciary obligations as to all issues relating to the support and fees, including immediate, full, and accurate disclosure of all material facts and information regarding the income or expenses of the party.
Probate Code § §
The Probate Code provides that a dissolution of marriage revokes any provision in a will that transfers assets to the former spouse, unless the will or trust specifically says that its provisions will remain in effect after the marriage is terminated.
This provision has now been extended to non-probate transfers, such as trusts, marital property agreements, mortgages, account or deposit agreements, pension or employee benefit plans and IRAs.
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Family Code § §1612 and 1615
A premarital agreement is not enforceable if the party against whom enforcement is sought proves either that he or she did not execute the agreement voluntarily or that the agreement was unconscionable at the time it was executed, as specified.
Existing law provides that the parties to a premarital agreement may contract with respect to any matter not in violation of public policy or a statute imposing a criminal penalty.
When it rules that the premarital agreement was executed voluntarily the court must make the following findings: (1) The party against whom enforcement is sought was represented by independent legal counsel at the time of signing the agreement or, after being advised to seek independent legal counsel, expressly waived, in a separate writing, representation by independent legal counsel. (2) The party against whom enforcement is sought had not less than seven calendar days between the time that party was first presented with the agreement and advised to seek independent legal counsel and the time the agreement was signed. (3) The party against whom enforcement is sought, if unrepresented by legal counsel, was fully informed of the terms and basic effect of the agreement as well as the rights and obligations he or she was giving up by signing the agreement, and was proficient in the language in which the explanation of the party's rights was conducted and in which the agreement was written. The explanation of the rights and obligations relinquished shall be memorialized in writing and delivered to the party prior to signing the agreement. The unrepresented party shall, on or before the signing of the premarital agreement, execute a document declaring that he or she received the information required by this paragraph and indicating who provided that information. (4) The agreement and the writings executed pursuant to paragraphs (1) and (3) were not executed under duress, fraud, or undue influence, and the parties did not lack capacity to enter into the agreement. (5) Any other factors the court deems relevant.
A provision in a premarital agreement regarding spousal support, including, but not limited to, a waiver of it, is not enforceable if the party against whom enforcement of the spousal support provision is sought was not represented by independent counsel, or if the provision regarding spousal support is unconscionable at the time of enforcement. An otherwise unenforceable provision in a premarital agreement regarding spousal support does not become enforceable solely because the party against whom enforcement is sought was represented by independent counsel.
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Civil Code § 1714.01; Government Code § 31780.2 ; Health and Safety Code Section 1374.58; Insurance Code §10121.7; Probate Code §37, 1813.1, 2700, 2803, 2805, 4716 6122.1 6122, 6240, 8461, 8462, and 8465. Rev. & Tax. Code §17021.7
Code of Civil Procedure, § 377.60; Family Code § § 297, 299.5, 9000, 9002, 9004, and 9005; GovÕt Code §22871.2 ; Labor Code §233; Probate Code § §1460, 1811, 1812, 1820, 1821, 1822, 1829,1861, 1863, 1871, 1873, 1874, 1891, 1895, 2111.5, 2212, 2213, 2357,2359, 2403, 2423, 2430, 2504, 2572, 2580, 2614.5, 2622, 2651, 2653,2681, 2682, 2687; Insurance Code § §1030, 1032, 1256; Unemployment Insurance Code §2705.1 of the Unemployment.
(1) Tort Causes of Action: A party can file a cause of action for negligence, including the negligent infliction of emotional distress and a cause of action for wrongful death.
(2) Definition of Domestic Partnership: Provisions exist for the registration of domestic partnerships, as defined, and limits the legal effect of the registration of the domestic partnership to specified provisions of law. Existing law provides that persons of opposite sexes may not establish a domestic partnership unless they are both over the age of 62 and both persons meet specified eligibility criteria under the Social Security Act.
(3) Medical Benefits: Under the Public Employees' Medical and Hospital Care Act, state and local employers may elect to offer health care coverage and other benefits to domestic partners of employees and annuitants; however, a domestic partner is not eligible for continued health coverage upon the death of the employee or annuitant.
(4) Health Care Decisions: Under the Uniform Health Care Decisions Act, an individual to give instructions about personal health care decisions or authorize someone else to act as a surrogate to make these decisions.
(5) Health Care Plans: health care service plans and disability insurers must provide coverage for certain benefits and services.
(6) Sick Leave: Existing law requires any employer who provides sick leave to employees, as specified, to allow the employees to use the sick leave to attend to the illness of a sick child, parent, or spouse.
(7) Conservatorships: Existing law provides for the creation of conservatorships and trusts, and for the management of the estates of decedents. A court official, employee, or a person related by blood or marriage, as defined, who is involved in the appointment of a conservator or guardian, or the processing of any document relating to a conservator or guardian, is prohibited from purchasing, leasing, or renting the personal or real property from the estate of a conservatee or a ward whom the conservator or guardian represents.
(8) Wills: Provisions exist for the transfer of the property of a deceased person by will, and prescribes a statutory will form. Dissolution of a marriage revokes a bequest of property made in a will to a former spouse, among other things.
(9) Appointment as Estate Administrator: The surviving spouse is entitled to be appointed administrator of the decedent's estate and shall be given priority over other persons in relation to the decedent.
(10) Exclusions and Deductions for Medical Expenses: The Personal Income Tax Law provides for an exclusion from gross income for certain amounts expended for medical care and for certain employer-provided coverage under an accident or health plan. That law also allows a deduction for certain health insurance costs of self-employed individuals and with respect to certain group health plans.
(11) Unemployment Benefits: An individual who leaves his or her work voluntarily or without good cause is disqualified from receiving unemployment benefits.
(12) Disability Benefits: If a person is eligible to receive disability benefits, but is mentally unable to make a claim, the claim may be made by the spouse of the individual, and the payment is to be executed upon the affidavit of the spouse, or other qualified person.
(1) Tort Causes of Action: These provisions are now applicable to a domestic partner as well as a surviving spouse.
(2) Definition of Domestic Partnership: This legislation expands the legal effect of the registration of a domestic partnership to any provision of law specifically referring to domestic partners. It also expands the class of persons who may establish and register a domestic partnership by providing that persons of opposite sexes may establish a domestic partnership if one or both of them are over the age of 62 and one or both of them meet the specified eligibility criteria under the Social Security Act.
(3) Medical Benefits: A domestic partner, and a child of a domestic partner, are to be eligible for continued health coverage upon the death of the employee or annuitant if the domestic partner is receiving a beneficiary allowance. However, a surviving domestic partner is prohibited from enrolling additional family members in a health benefits plan.
(4) Health Care Decisions: A domestic partner is authorized to make health care decisions on behalf of a patient in certain circumstances.
(5) Health Care Plans: A group health care service plan and a policy of disability insurance that provides hospital, medical, or surgical expense benefits must offer coverage to employers and guaranteed associations for a domestic partner of an employee, subscriber, insured, or policyholder to the same extent, and subject to the same terms and conditions, as provided to a dependent of an employee, subscriber, insured, or policyholder. If an employer or guaranteed association has purchased coverage for domestic partners, a health care service plan or a policy of group disability insurance that provides hospital, medical, or surgical expense benefits for employees, subscribers, insureds, or policyholders and their dependents shall enroll as a dependent a domestic partner of the employee, subscriber, insured, or policyholder when that employee, subscriber, insured, or policyholder in accordance with the terms and conditions of the group contract, as specified. A health care service plan or policy of group disability insurance may require a copy of a valid Declaration of Domestic Partnership and notification of termination of the domestic partnership.
(6) Sick Leave: An employer must allow the employee to use sick leave to attend to an ill domestic partner or child of a domestic partner.
(7) Conservatorships: A domestic partner of a proposed conservatee can participate in conservatorship proceedings. A domestic partner now has preference for selection of a conservator and a person nominated by the domestic partner. A petition for conservatorship must set forth the names and addresses of the domestic partner of the proposed conservatee or the names and addresses of any children of a predeceased domestic partner. Notice of a conservatorship hearing must be sent to the domestic partner of the proposed conservatee and the domestic partner is authorized to appear at the hearing in support or opposition to the petition. A domestic partner is prohibited from petitioning for the appointment of a conservatorship of his or her domestic partner under specified conditions. A domestic partner is now included within the definition of a family member for the purposes of requiring a domestic partner, when acting as a conservator or a guardian, to reveal his or her relationship to a ward or conservatee when petitioning a court for approval of certain property transactions. Domestic partners are now included within the class of people who can be prohibited from purchasing, leasing, or renting the personal or real property from the estate of a conservatee or a ward.
(8) Wills: Termination of a domestic partnership revokes a bequest of property made in a will to a former domestic partner, among other things. The statutory will form has been revised to, among other things, provide for the inclusion of a domestic partner among the beneficiaries to whom the testator may indicate a desire to leave his or her principal residence, automobiles, household, and personal effects, or residuary estate.
(9) Appointment as Estate Administrator: The right to be appointed as administrator of a decedent's estate has been expanded to include children of a domestic partner and to the parents of a predeceased domestic partner and their issue.
(10) Exclusions and Deductions for Medical Expenses: The exclusion and deduction for medial care expenses are now available to domestic partners.
(11) Unemployment Benefits: The act of accompanying one's domestic partner to a place from which it is impractical to commute and to which a transfer by the employer is not available is now included within the definition of good cause.
(12) Disability Benefits: A domestic partner is now allowed to make the claim and execute the affidavit for payment of benefits.
Information provided by:
Glen Rabenn, Attorney at Law
California Divorce Source
California Divorce Laws
California Community Forum
California Divorce Resources
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