Family Law at the High Courts

The United States Supreme Court issued three recent decisions that touch on family law matters:

Not be out outdone, the California Supreme Court also weighed in on family law and community property issues in In re Marriage of Green.

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This post will briefly address Adoptive Couple.  For additional information, click here.

In Adoptive Couple, the Court held that the federal Indian Child Welfare Act of 1978 (“ICWA”) does not apply to a child who was never in the custody of her biological Father after being adopted by another family.  ICWA, among other things, is based on the premise that the “United States has a direct interest…in protecting Indian children who are members of… an Indian tribe.

Bio Dad, an American Indian, and bio Mom were never married.  During the pregnancy, bio Dad texted bio Mom and terminated his parental rights.  Bio Mom put the baby up for adoption; and because of bio Dad’s ancestry, she notified the Cherokee Nation of her intent to put the baby up for adoption.  Four months after the baby was born, Adoptive Family notified bio Dad of their intent to adopt.  Bio Dad first signed papers agreeing to the adoption, and the next day contacted a lawyer to contest the adoption and obtain custody.

The contested adoption/custody trial took place in South Carolina Family Court two years later.  The Court, basing its decision on a provision of ICWA, awarded custody to bio Dad.  The South Carolina Supreme Court affirmed custody to bio Dad determining that ICWA applied because the case involved a child custody proceeding relating to an Indian child.

The US Supreme Court reversed, in short, because bio Dad never had custody of the child and therefore he could not avail himself of the specific protections of ICWA which require 1) “continued custody of the child by the parent” and 2) a “breakup of the Indian family.”  (emphasis added)

The child, now approximately 4 years old, will likely be returned to Adoptive Parents whom she left at 27 months old.

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In Hollingsworth v. Perry (aka the Prop 8 case), the Supreme Court allowed the District Court’s ruling to stand – striking down Prop 8 (which had defined marriage between a man and a woman).  The Court did not, however, affirm gay marriage or reach the underlying merits of the case.  The majority decision simply said that the initiative’s proponents could not bring an appeal.  They did not have “standing“.

The end result is good news for gay marriage in California.  In fact, clerks will likely be able to start issuing marriage licenses in the very near future.  But the ramifications (at least with regard to gay marriage in other states) is limited.

For additional information, please see

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Down with DOMA:  Good News and Bad News

In the Windsor decision, the Court struck down Section 3 of the Defense of Marriage Act (hereinafter “DOMA”) because it was an unconstitutional deprivation of the equal liberty of persons that is protected by the Fifth Amendment.  DOMA attempted to treat “those persons [in same-sex marriages] as living in marriages less respected than others.”  This, it could not do.

Bad News:  In striking down DOMA, the Court did not legalize same-sex marriage in the United States.  Like the Prop 8 case (decided on the same day), the ruling was more limited, which leads to the…

Good News:  The federal government cannot discriminate against same-sex couples.

In the instant case, Ms. Windsor, a New York resident, had legally married her spouse in Canada.  When her spouse died, Ms. Windsor attempted to claim the estate tax exemption for a surviving spouse.  Under DOMA, she was denied.   The Court found that this discrimination was not permitted under the Constitution.  However, it did limit the opinion to “those lawful marriages.”

You can read more about Windsor here.

Gay marriage is legal in some states and not in others.  However, under Windsor, if a state permits same-sex marriage, the federal government must recognize that marriage.

To read more about how this may impact an employee requesting a transfer to a state that permits same-sex marriage, click here.

Other legal rights (sponsoring a foreign-born spouse for immigration purposes, collecting social security, and others) affected by the decision were discussed here.

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Retirement Benefits at Dissolution

In In Re Marriage of Green, Husband had served in the military for 4 years preceding his marriage to Wife. During marriage, he worked as a firefighter and was given the opportunity to purchase up to four years of service credit towards his retirement benefits (with CalPers) for his previous military service. Husband and Wife paid approximately $11,000 of community property funds to purchase the benefit via an installment plan before the parties separated.

Because the military service occurred entirely before the marriage, the service credit related to that service was Husband’s separate property, “except to the extent the community contributed to the payments necessary to obtain it.”  Wife’s interest, at dissolution, was therefore limited to one-half of the community contributions plus interest – not the additional increase in value for those years of service that Wife had requested.

The Court reaffirmed previous rulings regarding the apportionment of an employee spouse’s retirement benefit between the between the spouses’ community property interest and any separate property interest the employee spouse may have. The court has discretion to choose the method of apportionment as long as the result is reasonable and fairly represents the relative contributions of the community and separate estates.

In sum, the Court reviewed the general rules regarding pension division at dissolution (notably: “…all property that a spouse acquires during marriage before separation is community property. (Fam. Code, §§ 760, 770.) Community property may include the right to retirement benefits that the employee spouse accrues as deferred compensation for services rendered. The right to retirement benefits is a property interest. To the extent that such a right derives from service during marriage before separation, it is a community asset.”) and applied them to a specific retirement benefit.  (The San Francisco Chronicle reported on the case here.)

If you have questions about your retirement benefits or your spouse’s retirement benefits, be sure to speak to a qualified family law attorney to help you determine the community v. separate property interest in those benefits.