Given the much-publicized intent of newly inaugurated President Trump to repeal the Affordable Care Act (“Obamacare”) and to clamp down on illegal immigration, questions are beginning to arise about how the new Administration in Washington, D.C. will affect family law cases here in California.
California has been at the so-called “bleeding edge” of social issues and movements for decades, many of which run counter to the beliefs of conservatives in the state and across the country. And for better or for worse (I would argue “both”), the state shows no signs of slowing down that trend. In family law, those social issues affect family law participants in three distinct ways. First, with respect to same-sex relationships. Second, with respect to health insurance issues. And third, with respect to illegal immigration.
The good news for same-sex couples is that the United States Supreme Court ruled in June of 2015 that same-sex marriage is a fundamental right under the 14th Amendment to the United States Constitution. As a result, there’s not much that the new Administration can do short of trying to pass a Constitutional amendment, and so not much is likely to change in the relatively near future.
On the other hand, the bad news is that the Administration and its allies in Congress can do substantial damage to the healthcare system for those who need and rely on health insurance. I say “bad news,” because thus far all we’ve really heard out of Washington, D.C. is bluster and hyperbole about “repealing” Obamacare, but not very much about how they intend to replace it. One of the fundamental difficulties some spouses have after their marriages are terminated is that they no longer are eligible to remain on the other spouse’s health insurance plan through employment. Prior to the Affordable Care Act, couples frequently had to devise creative ways to maintain health insurance for a stay-at-home or an ill spouse, including sometimes not terminating the marriage at all (e.g. legal separation), or reaching agreements where the higher wage earner would subsidize the other spouse for some period of time. In the wake of the ACA, the need for those creative solutions has mostly gone away because the premium subsidies and the guarantees of coverage for people with pre-existing conditions removed many of the barriers to insurance. The best I can say about this issue for now, is to stay tuned.
Finally, there are concerns being raised by some in the family law community about whether or not undocumented residents of the state should be afraid to appear in court to litigate custody, visitation or child support for their minor children. While I am no expert in immigration law, and don’t purport to have the answer to those questions, I tend to believe that those worries are a bit unfounded at this time. The California family courts have never, in my experience, ruled against a party regardless of that party’s immigration status. I have witnessed family court judges make the same custody, visitation, child support, alimony and property division orders in cases where one (or both) parties were undocumented as they do in cases where both parties are full-fledged citizens.
California law does not require the family courts to report immigration status to state or federal officials, and so they don’t. In fact, the federal government can’t force states to comply with federal immigration law at all (although they certainly try and can influence states’ decisions by threatening to withhold federal money). Until there is some major policy shift in California to require cooperation with federal immigration law, which I don’t see coming anytime in the near or not-so-near future, I don’t expect that the family courts will operate in any other manner than that in which they currently do. Now, having said that, there is one caveat: family court proceedings in California are almost always open to the public, which means that any member of the public who attends a hearing in which a party is identified as an undocumented resident could potentially make a report to immigration authorities. Yet, my sense is that these kinds of tips fall to the very bottom of the pile for immigration authorities who are already overworked, underpaid and overwhelmed with their own caseloads.
For more information about California family law and divorce issues, please contact attorney Gary D. Sparks at (925) 465-2500 or (707) 398-6008. You may also contact us directly through our website by clicking on the “Contact Us” links and buttons to the right of this article.