The Common and Not-so-Common

One common and one not-so-common issue in divorce cases: What about drug testing in family law cases? The California Family Code does not permit courts in custody and visitation proceedings to order drug testing by means of hair follicle test of a parent, even when the court has determined that parent is engaged in habitual, frequent or continual use of controlled substances. When a court makes an order for drug testing, the court must order the least intrusive method of testing for the illegal use of controlled substances or habitual use of alcohol. The State of California can only use testing that is in conformance with the procedures and standards established by the United States Department of Health and Human Services for drug testing of federal employees. Right now, that means urine testing only. Experience has shown that you’ll need some evidence that your spouse or ex-spouse uses drugs or abuses alcohol besides a “he said, she said” type argument.

What about a house we purchased prior to marriage? This question sometimes comes up in situations where, for example, a man and woman purchased a house prior to their marriage in joint tenancy as unmarried individuals and one of them uses his or her separate property for the down payment. Is that spouse, upon dissolution of their marriage, later entiteld to reimbursement under the Family Code? In the recent case of Marriage of Weaver, the Court of Appeal said “yes.” The appellate Court held that a trial court, at the time of the marital dissolution, might divide property owned by the parties prior to marriage in accordance with the same procedures for, and limitations on, division of the community estate. In other words, the trial court can treat the entire house as community propety even though the couple was not married at the time they purchased the residence together.

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For more information, please call Philip A. Wasserman at 661-294-8484 or email him at pawlaw@earthlink.net.