Tag: California

Marrying Your Mother-in-Law – Cultural Divorce Part VIII

Marrying Your Mother-in-Law – Cultural Divorce Part VIII is part of Abbas Hadjian’s CULTURALLY SPEAKING series published in The Daily Journal.

Can I marry my mother-in-law?

The other day I received a call from an Iranian client. He asked: “Can I marry my mother-in-law?” The answer is short and relatively simple under Iranian law and many other Islamic (and non-Islamic countries), i.e., No. 

But not in California.

Marriage in Iran creates a zone of privacy around the blood relatives and in-laws of the married persons, called حریم (harim). It forbids marriage to the parents of an ex-spouse (by decree or death) forever. In California, strange as it may sound, the Family Code does not create such a zone of privacy and prohibition; therefore, the in-laws may get married. Under California law, incestuous marriage is limited to blood-related parents and children and for the siblings, full or half-blood. So, under California law, to the question, “Can I marry my Mother-in-law?”  I answered, 

“Yes, you may marry your mother-in-law but don’t disclose it out of the state. It may be a crime elsewhere.” 

Marrying your mother-in-law is not a crime in California.

Hadjian, Abbas. (2023, July 3). Cultural Divorce, Part VIII: Marrying Your Mother-in-Law. The Daily Journal.

Abbas Hadjian is a California divorce attorney and an Expert in Iranian Civil Law.

Good Faith Belief in Valid Marriage is Subjective

In IRMO CEJA (2013 [S193493, Ct.App. 6 H034826, Super. Ct. Nos. CV112520 & CV115283]), decision filed today, the Court concluded that, “Indeed, a reasonable person test would make it markedly more difficult to extend the civil benefits of marriage to those parties most in need of the putative spouse doctrine and its protection, namely, those innocents whose youth, inexperience, or lack of education or sophistication contributed to an honest belief in the validity of their marriages…”
You may get a copy of the case from http://www.courts.ca.gov/opinions-slip.htm.

California: 2002 Prenuptial Agreement Act not Retroactive

Waived Spousal Support in Prenuptial Agreement of 1999, Cannot be Invalidated Based on the 2002 Law

San Diego, California, May 24, 2011: Court of Appeal of California, Fourth Appellate District, Division One held that a spousal support waiver in the parties’ 1999 premarital agreement cannot be invalidated based on the  Fam. Code, § 1612, subd. (c), enacted in 2002. The court of appeal held that § 1612, subd. (c), requiring legal representation by the spouse who waives the spousal support was a material change in the law as to enforceability of a spousal support waiver and the Legislature did not intend it to apply retroactively.
In addition, there was substantial evidence that the wife entered into the agreement voluntarily, was advised but refrained from obtaining  legal counsel, understood the agreement, and there was no evidence of  duress, fraud, or undue influence. Wife argued that she signed the agreement without the benefit of having an attorney,  under duress of having the preparation for the parties’ wedding was contracted and completed, and that canceling the wedding would have created great embarrassment.
For the complete texts of the Decisions, send an e-mail to Admin.

California: Belief in Cultural Marriage if in Good Faith may be Unreasonable

California Appellate Court, 6th District (Santa Clara): Vryonis decision (1988) invalidating Iranian Cultural Marriage was erroneous

Santa Clara, California, April 19, 2011: In Ceja v. Rudolph & Sletten, Inc., the California Appellate Court for the 6th District held that an innocent party to an invalid marriage would be entitled to marital benefits even if her beliefs were unreasonable.

By this holding, the court disagreed with more than two decades of California law reflected in the case of “In re Marriage of Vryonis”, decided in 1988, which declared that good faith belief in validity of marriage must be reasonable.

In Vryonis the court rejected claim of an Iranian woman who believed her private cultural marriage to her Greek husband was valid, although it was made in her home, without obtaining a marriage license as required by California law.

In Ceja, after death of her Husband at work, Mrs. Ceja brought action for wrongful death, but Husband’s employer moved for summary judgment claiming that as a matter of law, Mrs. Ceja did not qualify as a putative spouse because at the time of marriage knew that her Husband is married. 

The trial court agreed and granted summary judgment, applying an objective test for putative status. The court found that it was not objectively reasonable for Mrs. Ceja to have believed that her marriage was valid. The appellate court disagreed. The court believed that good faith belief in validity of marriage asks whether that person actually believed the marriage was valid and whether he or she held that belief honestly, genuinely, and sincerely, without collusion or fraud.

The court disagreed with In re Marriage of Vryonis, which held that the statutory language incorporates an objective test. The court found that: 1. The concept of putative spouse, allowing marital benefits to a spouse even if the marriage is defective is a judicially created relief and the judicial definition of the putative spouse required only a good faith belief in the validity of a marriage. 2. The Legislature codified that definition without intending to change it. 3. The Vryonis court engrafted an objective test to the statutory definition based on the legally unsupported view that “good faith belief” necessarily incorporates an objective standard. 4. The Vryonis court intruded upon the Legislature’s prerogative.

The courts have followed and uncritically accepted Vryonis decision but the policy of stare decisis carries little weight. Despite its widespread acceptance, Vryonis created a conflict with prior cases. The rule of statutory construction is inapplicable, because there is an unresolved conflict in the judicial holdings. https://www.courts.ca.gov/documents/5-s193493-app-nancy-ceja-answer-brief-merits-111411.pdf

CALIFORNIA: Culture & Proposition 8

References to Culture in the Historical Ruling of Judge Walker on Unconstitutionality of Proposition 8

California(August 4, 2010): Judge Vaughn R. Walker,  Chief Judge,  the United States District Court for The Northern District Of California, ruled that California Proposition 8, the voter-enacted amendment to the California Constitution in November 2008, is unconstitutional. Proposition 8 provides that:  ”Only marriage between a man and a woman is valid or recognized in California.”

In his ruling, Judge Walker found that Proposition 8, violates the due process and equal protection rights of the same-sex couples who wish to get married, including 18, 000 same sex couples who have already obtained their license to get married.

In the ruling, titled: PRETRIAL PROCEEDINGS AND TRIAL EVIDENCE CREDIBILITY DETERMINATIONS FINDINGS OF FACT CONCLUSIONS OF LAW ORDER, Judge Walker made reference to testimony of many witnesses who addressed the issue of same-sex marriage from the cultural point of view.

Here are quotations of the ruling referring to culture. .

  • Three Rules of Marriage across Cultures and Times Page 14: “Blankenhorn identified three rules of marriage (discussed further in the credibility determinations, section I below), which he testified have been consistent across cultures and times: (1) the rule of opposites (the “man/woman” rule); (2) the rule of two; and (3) the rule of sex. Tr 2879:17-25.” .
  • Cultural Esteem of Marriage vs. Domestic Partnership Page 19: ”Peplau testified that little of the cultural esteem surrounding marriage adheres to domestic partnerships. .
  • Cultural Understanding of Danger to Children Pages 20-21: “Historian George Chauncey testified about a direct relationship between the Proposition 8 campaign and initiative campaigns from the 1970s targeting gays and lesbians; like earlier campaigns, the Proposition 8 campaign emphasized the importance of protecting children and relied on stereotypical images of gays and lesbians, despite the lack of any evidence showing that gays and lesbians pose a danger to children. Chauncey concluded that the Proposition 8 campaign did not need to explain what children were to be protected from; the advertisements relied on a cultural understanding that gays and lesbians are dangerous to children. This understanding, Chauncey observed, is an artifact of the discrimination gays and lesbians faced in the United States in the twentieth century….”. .
  • Cultural Variations of  Same-sex Marriage Pages 36-37: ”Young has been a professor of religious studies at McGill University since 1978. PX2335 Young CV. She received her PhD in history of religions and comparative religions from McGill in 1978. Id. Young testified at her deposition that homosexuality is a normal variant of human sexuality and that same-sex couples possess Page 37 the same desire for love and commitment as opposite-sex couples. PX2545 (dep tr); PX2544 (video of same). Young also explained that several cultures around the world and across centuries have had variations of marital relationships for same-sex couples. Id. “. .
  • Cultural Rule of Two Page 43: “ Blankenhorn testified that his research has led him to conclude there are three universal rules that govern marriage: (1) the rule of opposites (the “man/woman” rule); (2) the rule of two; and (3) the rule of sex. Tr 2879:17-25. Blankenhorn explained that there are “no or almost no exceptions” to the rule of opposites, Tr 2882:14, despite some instances of ritualized same sex relationships in some cultures, Tr 2884:25-2888:16. Blankenhorn explained that despite the widespread practice of polygamy across many cultures, the rule of two is rarely violated, because even within a polygamous marriage, “each marriage is separate.” Tr 2892:1-3; Tr 2899:16-2900:4″. .
  • Cultural Construction of Sexual Orientation Page 72: ”f. Tr 2176:23-2177:14 (Herek, responding to crossexamination that sexual orientation is a socially constructed classification and not a “valid concept”: “[Social constructionists] are talking about the construction of [sexual orientation] at the cultural level, in the same way that we have cultural constructions of race and ethnicity and social class. * * * But to say that there’s no such thing as class or race or ethnicity or sexual orientation is to, I think, minimize the importance of that construction.)…”. .
  • Social Meaning of Marriage in Our Culture Pages 80-81: “c. Tr 207:9-208:6 (Cott, describing the social meaning of marriage in our culture: Marriage has been the “happy ending to the romance.” Marriage “is the principal happy ending in all of our romantic tales”; the “cultural polish on marriage” is “as a destination to be gained by any couple who love one another.”); d. Tr 2 08:9-17 (Cott: “Q. Let me ask you this. How does the cultural value and the meaning, social meaning of marriage, in your view, compare with the social meaning of domestic partnerships and civil unions? A. I appreciate the fact that several states have extended-maybe it’s many states now, have extended most of the material rights and benefits of marriage to people who have civil unions or domestic partnerships. But there really is no comparison, in my historical view, because there is nothing that is like marriage except marriage.”).”. .
  • Cultural Meaning of Marriage vs. Domestic Partnerships Page 82: “ 54. The availability of domestic partnership does not provide gays and lesbians with a status equivalent to marriage because the cultural meaning of marriage and its associated benefits are intentionally withheld from same-sex couples in domestic partnerships.”. .
  • Cultural Trappings of Statutes Is Clear Message of Inferiority Page 87: “b. PX1273 M V Lee Badgett, When Gay People Get Married at 58, 59, 60 (NYU 2009): “Many Dutch couples saw marriage as better because it had an additional social meaning that registered partnership, as a recent political invention, lacked.” “In some places, the cultural and political trappings of statuses that are not marriage send a very clear message of difference and inferiority to gay and lesbian couples.” “[W]hen compared to marriage, domestic partnerships may become a mark of second-class citizenship and are less understood socially. In practice, these legal alternatives to marriage are limited because they do not map onto a well-developed social institution that gives the act of marrying its social and cultural meaning.”. .
  • Cultural Issues of Stability in Asian Families Page 107: ”o. Tr 1913:17-1914:12 (Tam: Tam supported Proposition 8 because he thinks “it is very important that our children won’t grow up to fantasize or think about, Should I marry Jane or John when I grow up? Because this is very important for Asian families, the cultural issues, the stability of the family.”. .
  • Cultural Superiority of Same-sex Marriage vs. Domestic Partnership Page 116: “The evidence at trial shows that domestic partnerships exist solely to differentiate same-sex unions from marriages. FF 53-54. A domestic partnership is not a marriage; while domestic partnerships offer same-sex couples almost all of the rights and responsibilities associated with marriage, the evidence shows that the withholding of the designation “marriage” significantly disadvantages plaintiffs. FF 52-54. The record reflects that marriage is a culturally superior status compared to a domestic partnership. FF 52. California does not meet its due process obligation to allow plaintiffs to marry by offering them a substitute and inferior institution that denies marriage to same sex couples.”.

CALIFORNIA: Putative Spouse Must be Innocent

Conflict in Qualification of Putative Spouse In California

A party to an invalid marriage may receive the spousal support and one-half of  the community property, if the marriage is  “putative”.  A “putative marriage” is created when both or either spouses believe in good faith that the marriage is valid.

In  “In re the Marriage of GUO and SUN“,  filed July 28, 2010, the Appellate Court of  California  in Los Angeles determined that a “putative marriage” exists when the  “innocent spouse” believes in its validity. This decision contradicts the decision  of “In re Marriage of Tejeda”, by the California Appellate Court in Santa Cruz,  filed November 25, 2009,  which determined that if one spouse is found to be putative, the marriage becomes putative.

CALIFORNIA: Offer to Compromise Joint Claims, May Be Made to Either Spouse

Offer to Compromise Joint Claims

In California, an offer by a Defendant to settle joint claims of a Husband and Wife (under California Code of Civil Procedure 998) may be made to either of them even if the claims are not identical.

This is because recovery from claims of spouses is a community asset (under Family Code Section 760) and either of the spouses have absolute power to  accept or reject such an offer (under Family Code Section 1100(a).

Of course, the non-accepting spouse may have a claim for breach of fiduciary duty against the accepting spouse, for improper compromise of community’s claim (under Family  Code Section 1100 (e)).

In the Case of  Barnett et Al., V. First National Insurance Company of America (2010) 184 Cal. App. 4th 1454, filed May 26, 2010, the Court of Appeal of California, Second Appellate District, Division Seven (Los Angels) reversed a prior decision by the same Court (Weinberg v. Safeco Ins. Co. of America (2004) 114 Cal.App.4th 1075), which required separate offer to each spouse. The Court admitted that in reaching the prior decision, it did not consider the effects of the California community property law on the joint offers.

CALIFORNIA: Parenting Plan For Children Under 3

Assuming the infant is being cared for primarily in one parent’s home, the following are some examples of contacts by the non-residential parent.

BIRTH THROUGH AGE 6 MONTHS:  Three non-consecutive days per week for two hours each day. Many infants take multiple naps and require feeding every three or four hours during the day. If at all possible, time with the nonresidential parent should aim at not disrupting the infant’s nap and feeding pattern.

AGE 7 MONTHS THROUGH 12 MONTHS:  Three non-consecutive days per week for three hours each day. Overnight, if appropriate. If a parent has not been involved in care-giving previously, these short and frequent visits will help to develop a mutually secure relationship and allow the parent to master the tasks and sensitivity required to care for an infant. As the care-giving skills are mastered, the parent-child bond strengthens and the time with the infant may increase.

AGE 13 MONTHS THROUGH AGE 18 MONTHS:  Three non-consecutive days each week for three-four hours each day.  One weekend day for up to eight hours. Overnight, if appropriate. Children at this age still require a predictable and consistent daily routine. Communication between the parents about the infant’s routine and any new developments is essential to enhance the infant’s adjustment.

AGE 19 MONTHS THROUGH 36 MONTHS: One weekend day for ten hours. One mid-week for three hours. Overnight, if appropriate. Children of this age go through many changes, such as weaning from the bottle, toilet training, beginning pre-school, and adjusting to new siblings. Parents should avoid choosing a plan that requires the child to change routines frequently.

For further information, visit the Los Angles County Superior Court Website at: http://www.lacourt.org/selfhelp/familiesandchildren/pdf/parentingunder3.pdf

CALIFORNIA: False Proof Of Service Of Petition & Summons Invalidates Judgment of Child Support

For a Judgment of child support to be valid, the Summons and Petition establishing the support must be personally served. A fraudulent declare of service of Summons and Petition, violates the due process rights of the supporting parent, and  renders the subsequent Judgment void and unenforceable.

This is the summary of the decision in the case of County of San Diego v. Graham, reached by the Court of Appeal of California, Fourth Appellate District, Division One (San Diego), filed on July 21, 2010:

In this Case, the supporting father, Artis Earl Gorham appealed from an order of San Diego Court, denying his motions to set aside a 1998 default judgment obtained against him by the County of San Diego Department of Child Support Services (DCSS) and to dismiss the action. He argued that the trial court never acquired jurisdiction over him in this case because he was never served with a summons and complaint contrary to the fraudulent representation of the process server’s return, and, therefore, the judgment was void. Further, the summons and complaint were not served on him within three years of the date this action was commenced, which requires mandatory dismissal of the case under the Code of Civil Procedure.

The Court of Appeal agreed.
To receive the full text of the decision, send a request to Admin.