Bay Area Divorce Lawyer Blog
In a recent opinion, California’s Fourth District Court of Appeals explained that when a couple has children and later marries, the marriage nullifies a child support order entered prior to it, even if they later divorce.
Mark Wilson and Tamara Bodine were not married when their son was born in August 2001. Bodine obtained a child support order in July 2002 that required Wilson to pay $1,600 a month in support and granting sole legal and physical custody to Bodine. The couple had a second child in June 2003. Then they married in 2005 and separated two years later. A court entered a judgment dissolving the marriage in January 2009.
Wilson filed an action in state court on June 2010, seeking a modification of the 2002 child support order. According to Wilson, he had recently received a notice from the Department of Child Support Services indicating the he owed more than $150,000 in arrears for unpaid support, including payments covering the time during which the couple lived together and were married. Claiming that the couple was operating under 50 percent time-share with both children, Wilson asked that the support award be re-determined based on this arrangement. In response, Bodine argued that Wilson owed unpaid support for a 15-month period after the order was entered and before the couple married.
Following two hearings, a lower court issued a ruling in July 2011, ordering Wilson to pay $100 per month “on undetermined arrears.” The court did not determine the specific amount of arrears owed.
On appeal, the Fourth District ruled that Wilson could not be required to pay support following the divorce because the couple’s marriage nullified the previous support order. The court explained that the situation was analogous to one in which a couple divorces and later remarries after a court has entered a child support award. Pursuant to the state Supreme Court’s 1968 decision in Davis v. Davis, the support award is extinguished by the second marriage in such a scenario.
“In California, paternity actions, like divorce actions, involve a determination of the separate rights and liabilities of parents for their children, the Court explained. “The marriage or remarriage by those parents automatically creates joint rights and liabilities for custody and support of the child and extinguishes any preexisting order of child support entered for the child’s benefit.”
The Court reversed the trial court’s order that Wilson was responsible for arrears accruing after he and Bodine married. It further ruled, however, that Wilson was responsible for any arrears covering the period before the marriage and remanded the case to the trial court to determine the amount owed.
As this case shows, the law on the books doesn’t necessarily cover the specific circumstances of a certain family situation and, as a result, complicated issues often arise in divorce, custody and child support matters. It is therefore imperative to seek the counsel of an experienced attorney in navigating California’s family law system. With offices throughout the region, Bay Area divorce lawyer Lorna Jaynes provides innovative legal tools to resolve family law disputes.
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