Same Sex Couple Divorce in California

Since same sex marriage is legal in California, it is natural for same sex divorce to be a practice in the state too.

Divorce is basically the termination of a marriage that renders a person free to remarry, if desired. As far as the divorce law in California is concerned, an individual simply needs to inform the court about “irreconcilable differences” with the spouse in order to get a divorce proceeding started. In California, the law is of “no-fault” divorces. Therefore, the focus of the state divorce regulation is on equal division of all assets between the spouses.

The U.S. Supreme Court made a historic decision in June 2015 with regards to the famous Obergefell v. Hodges case: All the legal restrictions against same-sex marriage were removed in the United States. Before the ruling, several gay couples faced multiple challenges in getting a divorce, at least in certain states. Even though same-sex couples had the legal right to get divorced in the state in which they got married, they usually faced a problem if they moved to a different location. Also, majority of the states demand that at least one spouse needs to stay in the state of residence (where the divorced has been filed) for a certain period of time in order for the divorce to be granted.

Issues Related to Same Sex Divorce

The common issues that come up in any divorce case include division of assets (property, vehicles, jewelry etc.), child custody, visitation and support, spousal support, debt responsibility and others.

When a same sex couple files for a divorce, certain complications may arise in all these issues. For instance, child custody is a key area of conflict in same-sex divorce. In this type of marriage, only one parent is actually the biological parent of the child. So unless the couple manages to arrive at a compromise on its own, the courts would have to intervene and look at the biological data and alleged caregiver roles in addition to other relevant legal information to determine child custody.

A big complication that arises in a same sex couple divorce in California is related to the division of assets. It’s been a little less than 5 years since same-sex marriage became legal in California. So what happens in cases that have couples staying together for over 15 years but facing legal prohibition in getting married? A spouse could present a very powerful argument that “equitable” asset division would include at least some of the income and assets that were accumulated in those 15 years and not simply consider the short time that they were legally married.

Domestic Partnership in Same Sex Divorce

Same sex couple divorce in slightly different from regular divorce cases with regards to domestic partnership. In other words, in the case of same sex divorce, the involved parties may also need to dissolve the domestic partnership.

In the state of California, domestic partnerships are seen as similar to marriages. So a same sex couple would have to dissolve a marriage as well as a domestic partnership in case it is legally ruled by both contracts.

Residency Requirements in Same Sex Divorce

As mentioned earlier, it is possible for a same sex couple to get a divorce in California if either of the spouses has stayed for a minimum of six months in the state before filing for a request. Also, one of the spouses has to spend at least three months in the county where the divorce is to be filed.

In case these requirements aren’t met, a same-sex couple can also get a legal separation for a certain period of time.

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Legal Separation: An Alternative to Divorce in California

A common alternative to a divorce is ‘legal separation’. In the event that you are unable to or do not wish to get divorced, you can request the court for a legal separation.

What is a legal separation?

In simple terms, a legal separation will not terminate a domestic partnership or marriage. But you aren’t eligible to enter into any other domestic partnership or remarry in case of a legal separation. For couples that are legally separated in California, it might be possible to file for a divorce sometime later if they meet some specific legal requirements.

There are couples who pick this alternative to divorce in order to put a halt to the relationship, without completely ending the marriage. The reasons for choosing legal separation over divorce could be many. These typically include religious and/or practical reasons. For instance, a couple may opt for legal separation if they agree to use one spouse’s health care plan to maintain the other. But if a couple is getting a legal separation for reasons pertaining to health insurance, it is important to ensure that there is no disqualifying scenario under the legal separation plan.

There are some couples who fail to meet the residency requirements essential for filing for a divorce in California. Both spouses may not like to wait and get the separation process started as quickly as possible. For such couples, legal separation is a good alternative to divorce.

There are certain things that are common between a divorce and a legal separation. For instance, just like a divorce, you could request the courts to take out order related to:

  • Partner/spousal support
  • Custody
  • Child support and visitation
  • Debt payment responsibilities
  • Division of property

Legal separation in California

In the state of California, your spouse needs to give consent to a legal separation for it to valid. Alternatively, if your spouse/partner fails to respond to the served divorce petition, then you are entitled to a legal separation.

For majority of the couples, there aren’t any real benefits of a legal separation except for a divorce. This kind of an arrangement is usually appropriate when the relationship is severely deteriorated and the couple has no desire to remain married, yet they cannot get divorced due to some personal reasons. The state of California does have one other benefit for couples seeking a legal separation. It is possible to fasten the divorce proceedings if you first file for a legal separation in the court.

Filing for a divorce or a legal separation will involve almost identical steps. You would need to file for a petition and disclose all details related to your finances, both to the court as well as to your partner. Numerous couples choose to handle their legal separation on their own, but a divorce attorney in the state could help make the planning of divorce an easier process. It also usually ends up saving costs.

When filing for a divorce in a specific county of California, the individual must reside for a minimum of three months in that county. If they fail to meet this requirement, they can choose to get a legal separation first and amend their Petition later when filing for a divorce (after residing in the stated county for 3 months).

Difference between “separation agreement” and “legal separation”

In California, a couple that wishes to separate could enter into something known as the “separation agreement”. This is basically a legally binding agreement that addresses various aspects of the separation such as spousal support, child custody, alimony and property division. But it is different from legal separation in the sense that couples are not required to visit the court for entering into separation agreement.


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Your Options to Respond to a Divorce Petition


The law in the United States of America allows for either spouse to terminate a legal relationship by appealing to the court. In California, registered domestic partners or a married couple could terminate the legal marital status six months after filing the first documents in the court. The document copies are sent to the respondent once filed with the court.


Getting served with a divorce petition


If you have been served a divorce petition, then you automatically become the respondent and your first duty is to read the petition papers carefully. The petitioner’s demands are stated in the Form FL-100 (i.e. the petition). Form FL-110 or The Summons (Family Law) will provide critical information regarding your rights as well as the separation/divorce procedure. This document also contains restraining orders that limit the respondent’s options with what they could do with their money, property and other debts or assets.


You could easily compare the divorce procedure to a lawsuit. So when the respondent is served with a dissolution/divorce petition, he/she is being sued. It is important for the respondent to take some action with regards to the petition allegations within a fixed period of time (generally 30 days). Otherwise, they would be giving up their right to fight on various grounds such as child custody, property division and so on.


There are various options available to a respondent with regards to responding to a divorce petition:


  1. Take no action


When a respondent decides to take no action, it means that the demands of the domestic partner or spouse, as mentioned in the divorce petition, would likely be granted. The decision of the judge regarding property, custody (in case the couple has children together) and support will be dependent on what the petitioner has asked for in the divorce petition.


This particular situation is also referred to as a “true default”. The reason is simple: the respondent is “defaulting” because he or she is not taking any action and avoiding any kind of involvement in the case.


  1. Dual response


This happens when the respondent files a legal response in the court while also working out an agreement with their domestic partner/spouse regarding the issues stated in the petition. This is also referred to as an “uncontested” case since there is no fight between the partners regarding the issues, that is, the terms of legal separation or divorce are agreed upon.


  1. File a response in disagreement


In this case, the respondent files a response to the petition in the court while disagreeing with the demands of their domestic partner or spouse. This situation is referred to as a “contested” case because the petitioner and the respondent are not in agreement and require the courts to intervene and take a balanced decision in the case.


Regardless of whether a respondent chooses to respond to a divorce petition or not, it is possible to work on an agreement regarding ending the marriage/legal domestic partnership. The key areas where an agreement needs to be worked out include:


  • Division of property and debt
  • Offering of partner/spousal support
  • Terms of custody, child support and visitation, in case the couple has children together


Sometimes, couples are successful in agreeing on all these issues, and at other times, they may agree on only a few of them. When signing the agreement, it is important to ensure that you comprehend everything written in it. There are a few legal requirements that need to be met for issues such as child support. Therefore, it is critical to know and follow the regulations.

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8 Things You Probably Didn’t Know About Surrogacy


Surrogacy has become quite popular among couples who are unable to have a baby and even among same-sex couples. It is an excellent alternative to starting a family but requires a thorough understanding of several legal aspects as they might vary across jurisdictions.


For those who are unfamiliar with the term ‘surrogacy’, it refers to a process in which a baby is carried by a woman with the knowledge that he/she would not be her own. Women who are unable to have their own children may look for a surrogate. A doctor typically implants the woman’s eggs and the man’s sperms into the surrogate for the birth of the fetus. In other words, the surrogate is like an incubator for the couple’s future baby.


Here are 8 important things that you need to take note of when planning for surrogacy:


  1. Finding a surrogate may take time


Not every woman can qualify to be a surrogate. In fact, most agencies have highly strict requirements for surrogates. For instance, the woman should have had at least one healthy pregnancy with an uncomplicated delivery. In addition to this, she would have to undergo various psychological and health screenings besides reporting financial stability.


  1. Get information about your state’s surrogacy laws


Several people assume that the state surrogacy laws are one of the last things that they need to deal with. In reality, this is one of the most important matters in surrogacy. While some states have “surrogate-friendly” laws, such as California, others might have multiple restrictions that could interfere with the process. For instance, paid surrogacy is absolutely banned in some states. Therefore, some couples might think of finding a surrogate living in a different state, where the delivery can take place smoothly without any legal hassles.


  1. Pick an IVF clinic as soon as possible


Selection of an IVF clinic is a key step in surrogacy planning. This is where all the parties involved, that is, the surrogacy agency, the surrogate, the parents, and the egg donor will come together. The IVF clinic will be able to analyze the case thoroughly and raise any red flags regarding the component parts. This will help address potential issues immediately.

  1. Consider family or friends for surrogacy


Sometimes, it is a good idea to ask a relative or a friend to become your surrogate. While this could be controversial, it may help save a lot of money since surrogacy is quite an expensive procedure and involves a number of complicated legalities.


  1. Don’t ignore the insurance aspect


It is important to understand everything about insurance when planning for surrogacy. You need to know if your surrogate has a personal insurance or if you need to get her coverage. The to-be parents might also like to think about whether their new-born baby will be covered under their insurance or a new-born coverage needs to be purchased.


  1. No payment for surrogacy


The majority of the surrogacy arrangements globally are altruistic. This means that besides covering certain medical costs, the surrogate mother does not take any money for her womb services from the parents. But commercial surrogacy is also being commonly practiced worldwide, including various states in the U.S.


  1. The matching process


Intended parents and potential surrogates are matched on the basis of various factors, like common beliefs. These could include selective termination of the plan of action in unexpected scenarios such as if the baby comes out with a birth defect.


  1. You can be a part of the experience


Don’t hesitate to participate in as many doctor appointments as possible. This is a magical experience and something that you will cherish forever.

Commercial surrogacy

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It isn’t uncommon for men and women to opt for relocation following a divorce. In fact, it may be one of the easiest ways to get past the unpleasantness of the situation and make a new beginning in a new place. Unfortunately, shifting base to a new state or country could lead to problems when the marriage bears minor children and the partners are in disagreement with regards to the relocation. An important factor to deal with in relocation is to prepare the minor children to live away from the other parent.


Notification of move and custodial plan


The court typically requires a parent seeking relocation to give notification to their ex-partner well in advance before making the move. The state laws typically specify the timelines for notification.


Your lawyer in the state of California may suggest providing a proper custodial plan to the other parent along with the move notification. This enables them to maintain a constant and frequent connection with the minor kids.


A custodial plan is also a good way to help your minor children deal with the new situation. Based on the distance to your new location, a custodial plan gives sufficient time to arrange for visits during the kids’ summer vacation and other holidays. The plan may also include airfare to the noncustodial parent for visits or other effective compromises which prevent time loss while also maintaining their ability to visit the children on a regular basis.


California requires a consent from the noncustodial parent along with a notification for the move. The matter may be taken to the court in case there is disagreement between the parents regarding relocation.


Here are a few tips that could help prepare your minor children for relocation after a divorce:


Make concrete plans


Your minor child/children will no longer be living close to your ex-spouse. This is going to be a big change in their life and therefore you need to sit them down and have a long talk about how this would work. It is a good idea to let the noncustodial parent know that you would want them to have a good, healthy relationship with the child/children, regardless of the distance.


Working together to make a plan for visitation and other things should be done immediately after the relocation decision. This plan can then be presented to the minor children as it will help ease their anxiety regarding not seeing the other parent too frequently. The idea is to give ample reassurance to the minor children that the noncustodial parent will continue to have a significant parenting role in their lives.


You can even create a calendar for your minor children and highlight the days when the other parent would be visiting them or when they would be taking holidays together.


Make use of technology


Technology has made our lives a lot easier and given us the gift of instant connection. Modern teenagers are extremely tech-savvy and may even teach you how to use things such as instant messenger, Skype and so on. So, another great way to prepare your minor children for the relocation is to encourage them to teach you and the noncustodial parent the amazing ways of connecting through cyberspace.


If your ex doesn’t have the knowledge about these things, he/she can get tips from the children and they can then easily connect with each other anytime, anywhere. This way, the distant parent would not miss out on any important events and milestones in your child’s life.


Emailing pictures frequently could also help maintain a healthy, thriving relationship between the children and the noncustodial parent.

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Handling Pet Custody in Divorce

 According to research, approximately 50 percent of marriages in the United States end in a divorce. Further, nearly 62 percent of all households in the country have a minimum of one pet. This obviously implies that several couples heading towards divorce might be pet owners. So what is the fate of the pet when a couple decides to split?


The decision is sometimes devoid of any arguments or fight. But according to the American Academy of Matrimonial Lawyers, an increasing number of disputes related to pet custody are now being handled in courtrooms.


More rights for pet animals in California


As far as pets are concerned, the matter is primarily related to ownership. However, more and more judges are now deciding on pet “ownership” based on the interest of the animal. In fact, pet companions are now being treated more like children than animals.


The California Code Section 6320 offers protection to domestic animals if it appears that any of the involved parties might be causing harm or injury to the animal. In fact, a law was passed in California in 2007 for protecting animals against domestic violence. In case of domestic abuse, the law would include pets in the restraining orders. Law enforcement would also require the removal of the animal(s) from any domestic violence scene.


Battling for pet custody


Divorce attorneys in the U.S. report that there is a tendency for couples to become quite vicious during divorce proceedings and they may use the emotional attachment with a pet as a factor to get leverage. Also, custody battles may flare up when there are no kids borne by the couple. This leads to pets becoming the focal point of everyone’s emotions.

Handling Pet Custody in Divorce - Shulman Family Law Group 2

Under the U.S. law, pets are usually categorized as personal property and this means that they can be owned and controlled by humans. Certain states, such as California, in the Cities such as San Francisco, have adopted legislation redefining the owner of an animal as a “guardian”.


When a court works under this law (that is, identifies a pet as a property), it only, strictly, has the right to give the pet to any of the two involved parties. In such a case, the law would see allowing visitation of pets or the granting of a shared custody the same as trading of a refrigerator or TV set between the couple on a weekly basis.


In states such as California, mediators are often invited to facilitate communication between the partners so as to arrive at a reasonable solution for pet custody. Ideally, a visitation agreement helps settle pet custody. But if the couple is unable to reach common ground, one of the parties may end up suing the other for pet possession.


A prenup for pet custody


If you want to save yourself from the trouble of dealing with pet custody in case of a potential divorce, it is best to draft a prenup that clearly lays down which partner gets pet ownership in case of separation. This write-up could also include details such as shared expenses for vet visits, boarding, and so on.


How are these types of agreements helpful? Well, they will help reduce a lot of stress in the future, if and when a separation is planned. The judges in the family courts of California would be willing to sign on the majority of the divorce settlements agreed upon by the couple. Divorce attorneys suggest that writing down family pet ownership is the ideal solution to prevent future conflict.


It is important to remember that if there are kids who are emotionally attached to a pet, then the pet should be kept in the same place/household as the kids in case of a divorce.

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When marriages end up in divorce, many questions start to arise. One of the most important questions is to do with spousal support or alimony. Although alimony figures in only about 10 to 15% of divorces, understanding how the law looks at spousal support is important for both spouses.


Is spousal support a default entitlement?


Neither spouse has any automatic entitlement to support. A number of factors may be considered by courts before deciding on whether a spousal support is warranted and the extent of it.


Who pays the support?


Litigations are often fought on the issue of who has to pay and how much when couples fail to reach an understanding on their own. Usually, the higher earning spouse pays the one who earns a lesser income or is not earning at all, such as stay at home moms.


Is the support permanent?


A temporary support is a short term one that is awarded until a final settlement can be made. The Family Court in California has the authority to order one spouse to pay the other, with a pending divorce.

The long-term spousal support is the final or permanent support that is awarded by the court.


A permanent support that lasts a lifetime is only in cases where one of the spouses is disabled or chronically ill and unable to earn. In all other cases, the amount of support awarded is tapered off, so as to encourage efforts of the dependent to become self-supporting. Courts usually consider half of the duration of the marriage as the time required for the supported spouse to become self-supporting.


How is the spousal support calculated?


One of the major factors in deciding spousal support is the gross income of both spouses that includes wages, dividends, royalties, salaries and bonuses. The net disposable income is arrived at after deducting taxes and other expenses.


In California, a computer program Dissomaster uses a formula to arrive at a figure for temporary spousal support. This program cannot be used for permanent or long-term settlements.


In addition, the court will look into various other factors before deciding on the support. These include:


  • Marriages that have lasted more than 10 years may have different considerations in terms of spousal support.
  • Age and health of children or the child as the case may be. The spousal support may be impacted by who gets the custody of the children, the age of the kids and so on. Younger kids may need the full-time attention of a parent, which in turn impacts his or her employment status.
  • The educational qualifications and earning capacity of both spouses and the marketable skills of the spouse that has to be supported.
  • Additional training or education required to gain employment and the expenses involved in this.
  • Whether certain domestic duties such as bringing up children or caring for older people have impacted the earning capacity of the supported spouse.
  • If any contribution was made by the supported spouse to the partner’s education, training or career advancement while married.
  • The standards of living during marital life
  • Age and health of both spouses
  • Domestic violence that has been documented by either spouse. Affairs, on the other hand, is not taken into consideration while deciding spousal support.


When is spousal support terminated?


Spousal support can be terminated or reduced in the following events:


  • Death of either of the spouses
  • Cohabitation or remarriage of the supported spouse
  • Retirement or loss of job of the supporting spouse
  • Early retirement or reduction in income of the supporting spouse
  • Change in earning capacity or income of the supported spouse
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Planning to expand your family with an adoption? Since being declared official and legal way back in 1850s, adoption is a widely accepted way of growing or creating a family. Statistics show that in the United States, more than 135,000 children are adopted each year. Celebrities besides Angelina Jolie, such as Sandra Bullock and Katherine Heigl have garnered media attention when they adopted their kids.

There is no question that adoption is a noble deed, and being able to provide a loving, caring foster home for a kid is a joyful experience. Since adoption is a lifelong, serious commitment you need to make to another human being, there are various factors to carefully consider before you begin the process of adoption.

  1. Where should you adopt from?

If you already have a reference or know the child you want to adopt, you have laid the foundation for the adoption process. But if you are wondering where to adopt from, it is good to visit the government website on adoption services Child Welfare Information Gateway, which gives a state wise list of foster care centers and licensed adoption agencies. There are other independent resources as well that offer detailed information on the adoption laws of each state, and the federal laws common to all states.

  1. Are you eligible to adopt a child?

The legal age at which you are eligible to adopt differs across the states. In at least six states, the legal age for adopting a child is 18. In Colorado, Delaware, and Oklahoma the age requirement for parents who want to adopt is 21 while it is 25 in Georgia and Idaho.


As for resident status, some states like Delaware, Minnesota, and Georgia require that the adoptive parents be a resident of the particular states. But for most other states, there are no resident requirements.


Most states also require the adoptive parents to be at least 10 years older than the child being adopted. The law does not make it mandatory for you to be married to be eligible to adopt.  Whether married or divorced, widowed or single, you would be eligible to adopt, provided you meet the other criteria. But, some states do require the adopting parents to be married for at least two years before considering adoption.


  1. Is consent required?

Although in the US, adoption is mostly governed by state laws, some federal guidelines do state that the consent of the biological mother or father as applicable is necessary. Also, if the child being adopted is more than 10 years old, his or her consent is also necessary.


  1. What does the process involve?

Once you select your adoption agency or foster home, there are a number of processes that need to be completed before you can finally call the child your own.


Apart from a detailed review of your application and your eligibility, a social worker or a licensing specialist will interview each member of your family. The process, called the “home study” can take between 3 to 6 months.


  1. What does it cost?

The costs vary depending on the nature of adoption, as in whether you want to adopt from a foster care system, an international adoption agency or a domestic adoption agency. Most agencies also offer support services including pre adoption counseling and education preparation, support throughout the adoption process, medical documentation and legal documentation.


The adoption process can be as smooth as possible with all the support and help from various agencies. It is good also to be mentally and emotionally prepared to handle all the challenges that come your way to complete the adoption!

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Divorce can be traumatic for everyone in the family, especially for children. Data from Centers for Disease Control and Prevention (CDC) reveal that 50% of first marriages end up in divorce. More than 1 million children are affected in some way annually in the United States by the process and implications of divorce.

Traditionally, until the 1960s or 70s, the “tender years doctrine” was applied by most states in the US when deciding custody. The doctrine awarded child custody always to mothers by default, as being the natural guardians of their children. In the recent times, law has changed in the sense that no parent automatically gets the custody of children.

Each of the states in the US has its own law when it comes to child custody. In most cases, biological parents make decisions on behalf of their child as to all aspects of their upbringing following a divorce. In case there is a dispute on who the actual parent is, the juvenile courts will determine the custody, which takes into account the best interests of the child.

Do Children Have A Voice In Custody Preference?

In families where all members can discuss and come to an agreement out of court as to who will get the custody, the process is smoother. When younger children and infants are involved, either the parents or the court has to decide what is in their best interests.

Many states do consider the preferences of children while considering custody decisions. For instance, in California, the Family Code came into force in 2012, section 3042 of which deals with the child’s custody preference. The code states that “if a child is of sufficient age and capacity to reason so as to form an intelligent preference as to custody or visitation,” the court shall give due consideration to the preference. Besides, if a child is 14 years or older, and wants to address the court regarding custody preference, the child will be permitted to do so.


Experts do understand that interviewing the child during a court hearing can be a very traumatic experience and should be avoided. A private interview is often scheduled at either of the parent’s request with the judge.


There are many reasons why the child’s preference on custody alone is not enough to make decisions:

  1. The custody preferences of the child may be colored by anger. Some kids do not like being disciplined and may show a preference for the more lenient parent who may not be necessarily the more responsible one.
  2. If the child is younger, he or she can be manipulated by any one of the parents in order to secure custody.
  3. The child may not understand all of the reasons behind a parent’s actions or decisions. For example, refusing a trip or a toy may be due to affordability issues, and not based on hatred or irresponsibility.
  4. Many times the child may not even have a preference or may not be sure.
  5. Best interests of the child may be contradicting his or her preference.

Since the judges have to use their discretion in deciding each case based on its merits, they usually take the help of a child psychiatrist or other experts.

Researchers Bala and Birnbaum who studied some of the custody disputes, did find that many children do “want a say in how they are to be involved in the legal process”, but not many were keen on making decisions about their future.

Since the custody decisions are changeable with evolving situations, no child needs to be stuck with an undesirable arrangement long term.

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Brad and Angelina Divorce Highlights the Downsides of Serial Adoption


Months before Monday’s divorce filing by Angelina Jolie, tabloids reported that Jolie was considering adopting a seventh child to bolster her faltering marriage to Brad Pitt.


Now that they are officially divorcing, we can breathe a sigh of relief that that adoption never took place. The couple has already taken serial adoption much further than the average family would be able to get away with: Jolie adopted Maddox from Cambodia in 2002, when he was only a few months old. She adopted Zahara in Ethiopia in 2005 when the girl was only six months old. Pitt adopted both Zahara and Maddox in 2006. Jolie adopted Pax from Vietnam in 2007. Because of local adoption laws, she adopted him as a single parent and Pitt adopted him as his son a year later. The couple has biological children as well: Shiloh, born in 2006, was Jolie and Pitt’s first biological child. Knox and Vivienne, born in 2008, are Angelina and Brad’s biological twins.

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