Appellate Court Ruling on DOMA

Today, the Appellate Court for the 1st Circuit (Massachusetts) ruled that certain provisions of the federal Defense of Marriage Act (DOMA) violated the US Constitution's Equal Protection Clause ().  While this is clearly a victory for advocates of marriage equality, it is not the absolute victory that they might have hoped for.  Essentially, this court, led by two conservatives and one moderate, ruled that where a state made same sex marriages legal, such as in Massachusetts, it is a violation of the Equal Protection Clause of the US Constitution to deny those couples federal rights, such as the right to file joint tax returns (and the financial benefit that confers) and social security survivor benefits.

Because the appellate ruling was specifically limited to situations where a state has made same sex marriage legal (currently six states: Connecticut, Iowa, Massachusetts, New Hampshire, New York, and Vermont, plus Washington DC), this ruling has narrow applicability.  It does, however, set a president for the possible overturning of the law in its entirety.

Until the US Supreme Court ultimately rules on this case (which is likely to be appealed by foes of marriage equality) and the recent 9th Circuit ruling on California's Prop 8, the law in this area will continue to be foggy but groups on both sides of this issue continue to hope that the ultimate ruling with favor their position.

Court Budget Crisis and You

Due to unprecedented budget cuts as a result of the economic downturn, the various courts have been forced to adopt plans to reduce expenses.  In Ventura County, the court has decided to close the East County Courthouse for Family Law services, effective June 25, 2012.  As a result, all cases previously assigned to Simi Valley will be reassigned to Ventura as Commissioner Johnson (currently assigned to Simi Valley) will return to the Ventura Courthouse.

Additionally, the court has released notice that they are discontinuing case review conferences and the case plan designation program.  These two items were implemented several years ago to help cases (frequently self-represented parties) move their case toward a resolution by ensuring that the next step is undertaken by the parties.

During this period of staffing and budget cuts, the services of an experienced family law attorney can be essential in keeping your case moving forward and not falling through the cracks. 

Why should I have a will or trust?

Estate planning is not something that most people think about when they are young.  After all, young people don't often have children, perhaps aren't married, and have not yet accumulated much in the way of assets.  But as people age, they often continue to put off this important action.

In California, you are not required by law to prepare a will or trust to determine how to dispose of your property.  The California Probate Code, Section 240, provides a mechanism for distribution of your assets in the absence of an estate planning document.  However, the distribution set forth in the Probate code may not be what you want to have happen with your property.  In order to avoid the court for making decisions for you, a will or trust is needed, as this document (or documents) instructs the court (or in the case of a trust, instructs the trustee) to distribute your assets according to your specific direction.

No matter your age, it is important to take control of your assets and determine your own estate plan.  Leaving this to a court can often bring about unwanted results.

Can A Married Person file for Bankruptcy without their spouse?

A recent potential client contacted me and asked this very question.  The short answer is yes, you aren't required to file a joint petition if you are married.  One spouse can file while the other remain outside the proceedings.  However, doing so may not be in the parties' best interests.

By filing without your spouse, any community debts will be discharged as to the filing spouse (if they qualify) but they will remain enforceable against the non-filing spouse.  As a result, creditors can and often do come after the non-filing spouse to collect the debt owed.

Additionally, the income and expenses used to determine if you qualify for filing can be effected.  If you are considering filing for bankruptcy without your spouse, it is strongly suggested that you contact an experience bankruptcy attorney regarding these and other issues before you file.