ject of the domestic relations of husband and wife, parent and child, belongs to the laws of the States and not to the laws of the United States.’ . . . ‘[T] his Court has limited review under the Supremacy Clause to a determination [of ] whether Congress has “positively required by direct enactment” that state law be pre-empted.’” Id. at 555–556 (emphasis in original).
The Court of Appeal found that Congress had not in- tended for a military allowance to be excluded from child or spousal support. The court concluded that “[t] he nontaxable status of military allowances does not suggest Congress had any preemptive intent with re- gard to either child or spousal support.” Id. at 556. The court found that federal tax law defines taxable income, irrespective of whether nontaxable income is used for support. The court further concluded that “the protec- tion of certain military allowances from wage garnish- ment for support arrearages does not indicate Congress intended to preempt state family support law.” Id. at 558. The court found that “[t]he purpose of federal garnishment law is ‘to avoid sovereign immunity prob- lems, not to shield income from valid support orders.’” Id. at 559. Finally, the court found that courts in other states have held that “federal preemption is inapplica- ble to military allowances.” Id. at 560.
FAILURE TO REGISTER A MARRIAGE MAY BE IRRELEVANT
In In re Marriage of Cantarella, the Court of Appeal held that a failure to register a marriage does not bar alimony upon divorce if the marriage was entered into before 1994. 191 Cal.App.4th 916, 920 (4th Dist., Div. 3 Jan. 11, 2011). The court further held that this is true even though such a failure after 1994 may bar support under the Family Code. The Family Code only became effective in 1994. Before then, the Family Law Act governed marriage.
In a divorce proceeding, Joseph Cantarella sought a modification of a spousal support order. In 1991, a judge conducted a marriage ceremony for Joseph and Tanya Cantarella. After their marriage certificate was rejected twice due to a technical error, they did not re- submit it for registration. In approximately 2002, they
44 FALL 2011
were married in a new ceremony. When they dissolved their marriage, the court ordered that Joseph pay Tan- ya spousal support for several years. In his request for modification, Joseph argued that the couple had been legally married only since 2002. However, after a hear- ing, the Superior Court in Orange County found that the couple had been married since 1991. The court denied the request for modification and ordered that Joseph pay Tanya permanent spousal support.
The Court of Appeal affirmed. It held that a failure to register a marriage certificate does not invalidate a mar- riage entered into before 1994. The court explained that although the Family Law Act required registra- tion, it did not specify whether it was essential to a val- id marriage. The court concluded that under the act, a valid marriage was created when a couple exchanged vows in a marriage ceremony:
[A] marriage ceremony culminated in the parties’ declaration that they accepted each other as husband and wife. Common sense and tradition tells us this is the moment at which the parties’ valid consent creates a marriage. Id. at 924 (emphasis added).
The court found that to hold the act required registra- tion for a valid marriage would violate public policy in support of marriage:
To hold that a failure by a party to register a cer- tificate voids a marriage would invalidate “marriages already solemnized in this state and would, among other results, affect the marital status of the parties, their property rights and rights of inheritance.” Id. at 925 (emphasis added).
POTENTIAL RETIREMENT MAY BE IRRELEVANT
In In re Marriage of Kochan, the Court of Appeal held that the potential retirement income of a spouse, who has current and long-term employment, is irrelevant in the calculation of alimony. 193 Cal.App.4th 420, 428 (2nd Dist., Div. 8 Mar. 9, 2011). The court further held that this is true even if the potential retirement income would be greater than the current employment income.
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