Revisiting California’s Date of Separation

May 11, 2021 Judy Burger

Certain dates are memorable in a person’s life. Many dates, like birthdays and anniversaries, are celebrated. But when a marriage is over, and it’s time to file for divorce, another date becomes critical – the date of separation. California law has evolved on this subject, but people thinking of filing for divorce need to understand the effect that date can have on their divorce settlement.

A Simple Term, Right?

“Date of separation” seems straightforward and easy to understand. In a divorce case, however, the date is much more than a square on your calendar.

Courts will use the date of separation as defined by California law when deciding property division issues in your divorce. Here’s what California Family Code Section 70 says:

70.(a) “Date of separation” means the date that a complete and final break in the marital relationship has occurred, as evidenced by both of the following:

(1) The spouse has expressed to the other spouse his or her intent to end the marriage.

(2) The conduct of the spouse is consistent with his or her intent to end the marriage.

This means that certain aspects of your divorce depend on getting the date of separation right.

Property Division and the Date of Separation

Married couples usually acquire assets and debts during their marriage. Most of those assets and debts are considered to be community property owned by the couple. However, couples often have separate property and debts that only one spouse owns.

During your divorce, it’s necessary to decide what’s community and what’s separate. In a community property state like California, community property is usually split roughly 50-50 between the spouses. There are some exceptions, however.

The “complete and final break in the marital relationship” can be hard to determine. Some couples decide to split but continue to live together and commingle funds. Couples can continue to live together during the divorce, but at least one spouse must exhibit conduct that “is consistent with his or her intent to end the marriage.” Calculating the date can be difficult but is necessary.

For example, one spouse might get a large bonus from work while the divorce is pending. Did this happen before or after the date of separation? If before, then the bonus could be community property. But if it’s paid after the couple is officially separated, it might qualify as separate property.

In fact, division of financial payments, property acquisitions, and so on that occur while the divorce is pending could become complicated if the date of separation is unclear.

We Can Help Sort Out Your Date of Separation and Other Divorce Issues

The attorneys at The Law Offices of Judy L. Burger are well-versed in divorce and the dissolution of registered domestic partnerships. Judy Burger is a California Certified Family Law Specialist and founder of the Law Offices of Judy L. Burger. Please call our offices at 415-293-8314 to set up an appointment with one of our attorneys. We assist clients along the Northern to Southern California Coast.

Visitation

Can Grandparents Get Visitation Rights?

May 4, 2021 Judy Burger

Danny was confused by so many things going on in his life right now. His mom and dad were splitting up, which meant they would not all be living together as a family anymore. Danny and his mom had to move away from his school and friends. But one of the worst things was not being able to see his grandpa and grandma. His parents had some pretty loud arguments about something called visitation. Danny wondered if grandparents get visitation rights, too. Let’s look at what the law says about visitation rights, specifically for grandparents.

Children and Parenting Plans

Judges usually will not finalize a divorce where the couple has children until a parenting plan is complete. If the parents are unable to agree on a plan, the judge will do it for them.

Parenting plans cover:

What type of custody each parent will have (joint physical custody, for example),
When the children will spend time with each parent (visitation), and
How the parents will make decisions about their children.

For example, Danny’s parents both want full custody of him. But he has always spent more time with his mother than his father, and his father travels a lot for his business. The judge might consider giving Danny’s mom sole physical custody, with a generous visitation schedule for his dad. An alternative might be sole legal custody of Danny with joint physical custody. If his parents cannot agree on custody, the judge will do what’s best for Danny.

Parenting plans spell out visitation in detail, including where the child will spend holidays. For example, Danny might spend Christmas with dad one year and mom the next. Summer holidays might be split between the parents, or he might get to spend several months with his dad exclusively. Parenting plans should conform to what is best for the child’s individual needs as much as possible.

But what about grandparents? Are they included in the plan?

Grandparent Visitation Rights

Parents could let their child’s grandparents get visitation rights and add them to the visitation schedule. Sometimes one or both parents are not okay with granting access for some reason. There are ways for grandparents to see their grandkids if they are not in the parenting plan.

In California, grandparents can petition the court for reasonable visitation rights. However, the family court judge will need to see:

That there’s a pre-existing bond between the child and his or her grandparents.

AND

That allowing grandparent visitation can be balanced with the parent’s rights to make decisions for their children.

The law states that courts may use their discretion to award reasonable visitation rights to “any other person having an interest in the welfare of the child.” So, courts could order that grandparents get visitation rights. However, either or both parents could ask the court to deny visitation.

The Final Word on Whether Grandparents Get Visitation Rights or Not

A family court judge will make the final decision on visitation, including allowing grandparent visitation. Doing what is right for the child will always be the default position for family court judges. Judges can and do deny access if visitation is not in the child’s best interests.

Please call us at (415) 293-8314 to schedule a confidential appointment with one of our attorneys. Ms. Burger is a California Certified Family Law Specialist and founder of the Law Offices of Judy L. Burger. We assist clients in California’s Northern to Southern Coast, including San Francisco, Beverly Hills, Gold River, San Diego, Santa Barbara, Ventura/Oxnard, and surrounding communities.

California Divorce

How Long Does It Take to Get a Divorce?

April 27, 2021 Judy Burger

It’s almost impossible to give a one-size-fits-all answer to this question. Just as some marriages last 30 years while others last 30 days, some divorces are fast and others – not so much. However, we can look at the minimum time it takes to get a divorce, as well as any factors that could delay your divorce proceeding.

A ‘Typical’ Timeline

After someone decides to get divorced, the next step is usually to get started on the paperwork. An experienced California divorce attorney can advise on the best course of action and do all the paperwork for you.

So, once the divorce petition is filed, how long does it take to get a divorce?

California has a six-month waiting period, so the earliest you could get a final order is six months after filing your divorce petition. However, you may encounter roadblocks along the way.

Issues That Could Prolong Your Case

You must serve your divorce petition on your spouse. When your spouse is on board with your decision to terminate the marriage, he or she might agree to accept service. However, a reluctant spouse could refuse service or dodge a process server. In some cases, your spouse may live out of state or out of the country, potentially making it difficult to serve the petition.

Your spouse has 30 days from the date served to respond to your divorce petition. If your spouse refuses to answer, you might ask the judge to consider your case a default or uncontested divorce. The judge will review your paperwork before deciding to grant the declaration of disclosure and terminate your marriage.

It can take longer to get a divorce if you and/or your spouse have a high net worth. Property division can become a contentious issue when there is a lot of money or property involved. More negotiation might be involved, and forensic accountants and investigators may be hired. A lawyer with property division experience can help wade through a high-net-worth divorce.

Spousal support can also be a hot issue. Deciding whether one spouse deserves support from the other can be difficult. Calculating the amount of support and length of time it will be paid is often challenging.

Finally, divorces can take longer when children are involved. Both parents must negotiate a parenting plan. If they cannot reach an agreement, they might participate in mediation or attend a court hearing. Any additional meetings or hearings could delay your final decree.

You Need Experienced Legal Advice If You Decide to Get a Divorce

We can’t tell you that your divorce will be final 6 months, 3 days, and 2 hours after filing your petition. We can tell you that we understand the urgency behind many divorce petitions and that we understand all the issues that you will be facing.

Talk to an experienced California divorce attorney today. Please call us at (415) 293-8314 to schedule a confidential appointment with one of our attorneys.

Please call us at 415-293-8314 to discuss your case. The attorneys at the Law Offices of Judy L. Burger assist clients along California’s Northern to Southern Coast, including San Francisco, Beverly Hills, Gold River, San Diego, Santa Barbara, Ventura/Oxnard, and surrounding communities.

Same Sex Marriage and Divorce

Establishing Parental Rights in a Same-Sex Marriage

April 20, 2021 Judy Burger

Children need their parents, even after a divorce. That’s why California courts focus so much on doing what is in the child’s best interest when deciding on child support and visitation issues. Another important and basic issue that pops up in many divorces involving children – parental rights. It’s not always an easy situation for the parents or their children. With the rise of legal same-sex marriages, establishing parental rights became a little more challenging for some couples.

Opposite-Sex Couples and Parenthood

Before same-sex marriage became legal, establishing parental rights usually meant proving the father’s identity. This step is usually easy for married couples because the law generally assumes that the mother’s husband is the baby’s father. When there is uncertainty, however, an opposite-sex couple can establish fatherhood through:

Testing,
Signing a Voluntary Acknowledgment of Paternity,
Obtaining a court order.

In the past, same-sex parents sometimes found it difficult for both partners to be accepted as a child’s legal parent.

California Law and Presumed Parents

Generally, one spouse is presumably the parent of the other spouse’s child under the following conditions:

He or she was married to the child’s mother when the child was conceived or born.
The presumed parent attempted to marry the child’s mother or was engaged in a marriage later deemed invalid when the child was conceived or born.
They married the mom after the child was born and agreed to be added to the birth certificate or to support the mom’s child.
One spouse treats the other spouse’s child as his or her child.

These legal presumptions apply to all married couples and people who registered a domestic partnership after January 2005. Couples in same-sex marriages have the same right to be a presumed parent under the conditions mentioned above.

Potential Roadblocks to Establishing Parental Rights

In marriages where the spouses are of the same sex, they might become parents through:

In vitro fertilization,
Using a surrogate mother, or

In the past, the spouse that gave birth to a child was considered the child’s parent. The same-sex partner did not automatically get parental rights. Instead, they would have to adopt the child their partner gave birth to, even though they acted as the child’s parent. Without the right legal framework, partners could be denied access, visitation, or custody to the child they had raised from birth.

Using the assumptions that California law allows, it would appear that same-sex couples would both have parental rights, regardless of the biological origin of their children or whether one gives birth. However, other states and countries may not recognize parenthood given the same set of circumstances. It may be best to err on the side of caution. After all, you want to make sure your parent-child bond stands up in court if necessary.

Call to Learn More About Establishing Parental Rights in a Same-Sex Marriage.

Establishing parental rights is best done well before a breakup. Most people can save time, money, and some serious angst by ensuring both halves of a same-sex marriage are considered parents of any children born during the marriage.

The attorneys at the Law Offices of Judy L. Burger are experienced at all phases of divorce, legal separation, and annulment. Call us at 415-293-8314 to schedule a private appointment or visit our website. We assist clients along California’s Northern to Southern Coast, including San Francisco, Beverly Hills, Gold River, San Diego, Santa Barbara, Ventura/Oxnard, and surrounding communities.

California Divorce, Debt, Property Division

Do These 5 Things Immediately After Divorce

April 13, 2021 Judy Burger

Divorce seems to come in several stages: First, you try to decide whether to end your marriage or not. That’s sometimes a huge decision. Then you contact an attorney and start the paperwork. After negotiating a settlement, and a parenting plan if you have children, you get your final divorce order. Instead of breathing a sigh of relief, and planning your next party, take some time to do these things immediately after your divorce is final.

#1. Make Sure You Understand the Terms of Your Settlement or Decree.

Even if you actively participated in the entire divorce process, give your divorce settlement a final, thorough review. Take note of anything you are required to do or not do. It’s also important to know your ex-spouse’s obligations, particularly those related to your children. Contact your California divorce attorney if you have any questions.

#2. Change Beneficiaries on Financial Accounts.

Naming beneficiaries for your financial, insurance and investment accounts is always a best practice. But it’s easy to forget that your beneficiary designations probably include your ex and maybe even some of your former in-laws.

Contact each institution to learn how to change your beneficiary designations. It’s usually a relatively easy step that people often overlook.

#3. Change All Usernames and Passwords.

Most people have several online accounts that require usernames and passwords. If you have not already done so, change all your logins immediately after your divorce. Make sure that you don’t use passwords that your ex-spouse could easily guess.

#4. Let Your Employer Know About Your New Status.

It’s important that you tell your boss that your marital status has changed. However, you do not have to tell your employer every detail of your divorce. Only share what is necessary and what you feel comfortable revealing.

#5. Change Your Estate Planning.

Estate plans typically include a Will, a durable power of attorney for finances, and an advance health care directive. Other common documents are the living will and the revocable living trust.

These documents reflect your last wishes and how you want your financial and medical decisions to be handled if you become incapacitated. Not many people would want their ex-spouse to be in charge of their bank accounts or deciding when to pull the plug.

It’s usually best to contact your estate planning attorney during your divorce. Immediately after your divorce, though, make sure you change these important documents.

Help with Your Divorce Is Available

California Divorce

Should I Avoid Social Media During My Divorce?

April 6, 2021 Judy Burger

Social media is fun – until it isn’t. The news is filled every day with people who have been harmed because someone shared too much online. If you plan to file for divorce or have already done so, this is not the time to air your dirty laundry on social media platforms. In fact, we encourage you to consider the following as you decide whether to avoid social media altogether.

Is Just Needing to Vent a Reason to Avoid Social Media?

Possibly. ‘Think before you post’ is a good practice during your divorce. If you are angry or upset, you might post something that could backfire on you. Also, what you say about your spouse could get back to them.

Another reason to avoid social media if you feel like venting is because of how the courts might view your post. This is especially true if you have children. Courts generally take a dim view of disparagement because it could hurt your children’s relationship with their other parent.

Maybe just meet a close friend or family member for coffee or lunch if you need to vent about your spouse’s latest escapade.

How Friendly Are Your Friends?

If you have been married a while, you and your soon-to-be-ex probably have mutual friends. At some point, you might have added your spouse’s friends and family members to your friends list. Their loyalty might be divided after you announce your pending divorce. At the very least, an angry social media post could make them uncomfortable. However, the worst-case scenario is that they might forward your post to others and tell your spouse what you are saying.

And angry words are not the only thing you should avoid posting on social media. Talking about a new love interest or an expensive vacation could spell trouble during settlement negotiations.

Will Your Posts Negatively Affect Your Divorce?

We’ve already mentioned a few. For example, disparagement could influence how a family court judge views you. So, avoid social media posts that harm your spouse’s reputation. They could actually hurt your reputation more.

Child custody, visitation, and support could be affected if your social media accounts are full of inappropriate pictures and stories. This could be especially hurtful if your children are in any of the pictures.

Also, most if not all of your online activities are discoverable. This means that you might have to give information from your accounts to your spouse’s attorney. If you avoid social media posts that are too revealing, your spouse won’t have anything to work with.

Will Social Media Posts Upset Anyone?

You and your spouse might be at each other’s throats, figuratively, but remember that more than two people are involved in most divorces. If you have children, they could definitely be embarrassed and upset by your social media. Your parents, extended family, and family friends might be exposed to information that would be deeply upsetting. It’s probably just safer to avoid social media use as much as possible from the time you decide to file for divorce until you receive your final order.

Avoid Social Media and Contact Us if You Want to File for Divorce

California Divorce

My Spouse Left Me. Can I Claim Desertion as Grounds for Divorce?

March 30, 2021 Judy Burger

TV shows and movies often talk about people having ‘grounds for divorce.’ Sometimes, you might even see a distressed spouse hiring a private investigator to get photos of their spouse’s wrongdoing to firm up their plan to end their marriage. In some states, couples might have to choose one of several reasons they want a divorce, including cruelty or adultery. But if your spouse has left you, and you live in California, can you claim desertion as the grounds for your divorce?

California is a No-Fault Divorce State

But does ‘no-fault’ means you don’t have to have grounds for divorce when you file your petition?

No-fault means that neither party has to prove that the other party did anything wrong. For example, you don’t have to prove that your spouse committed adultery. You also don’t have to provide evidence that your husband or wife has deserted you.

Under California law, you can state two basic reasons for your divorce:

Irreconcilable differences. This means that your marital bond is completely broken as you and your spouse can no longer live together.
Permanent legal incapacity to make decisions. You are divorcing your spouse due to mental illness or insanity.

Limiting divorce to the two reasons listed above can make the process easier for the spouse who wants the divorce. Also, keep this in mind: It is not necessary for both spouses to want to terminate the marriage. Only one spouse has to file the divorce petition. The other party cannot stop the divorce by simply refusing to participate in the process.

Other Issues Related to Desertion and Abandonment Issues

While you do not have to claim desertion to get your divorce, it can affect your divorce proceedings.

For example, California law requires that you serve your divorce papers on your spouse. You don’t have to prove desertion as grounds for divorce, but you do need to know where your spouse is living if at all possible. If you cannot locate your spouse, you and your family law attorney can explore other options to finalize your divorce.

When one spouse abandons the other, financial support might become an immediate problem. If you have been left with no financial support because of desertion, talk to your attorney to see if temporary orders will help.

Likewise, you might need temporary orders to clarify child custody and visitation. Again, tell your attorney everything so he or she can give you the right advice.

Talk to Us About Your Grounds for Divorce

California family law attorneys understand how the law will apply to your situation. At least you can end your marriage without having to prove that your spouse did anything wrong, like desertion.

Talk to an experienced California divorce attorney today. Please call us at (415) 293-8314 to schedule a confidential appointment with one of our attorneys.

Visitation, Child Custody

Planning Your Children’s Summer Holidays with Your Ex-Spouse

March 23, 2021 Judy Burger

Amanda likes to schedule her children’s summer holidays far in advance. This year, she plans to take them to a camp in Colorado for two weeks in July. In fact, she has already made the reservations. However, the children’s father, Jacob, disagrees with her plan. He was already planning stuff for the kids to do in July and has put down several non-refundable deposits. Since the divorce, Amanda and Jacob have handled their children’s schedules amicably for the most part. But planning your children’s summer holidays with your ex-spouse is no picnic, and they can’t get past their current disagreement. What can divorced parents who disagree about their children’s schedules do?

Look to the Parenting Plan

Parents must negotiate a parenting plan before their divorce can be finalized. There are good reasons for this.

Parenting plans make sure both parents know where they stand when it comes to some very important issues, including their children’s holidays. During negotiations, parents can stake out holidays that mean the most to them. Most people include their children’s summer schedule in their parenting plan.

Under Amanda and Jacob’s parenting plan, Amanda should have the children in June and August. Jacob is supposed to have them the entire month of July. In the current scenario, Amanda’s planned vacation contradicts the negotiated parenting plan.

But Life Changes

Sometimes parenting plans no longer fit. Jacob and Amanda can speak to their attorneys about revising the plan at any time. The children’s summer plans can be changed, as well as any other holidays. If divorced parents cannot settle their disagreements, then mediation or court intervention might be necessary. However, it’s generally best for the children if parents can work out minor disagreements on their own.

Being proactive also can go a long way toward preventing disputes from blowing out of proportion. Had Amanda discussed her plans with Jacob before either of them made reservations or put down non-refundable deposits, they might have reached an amicable compromise. As it stands now, their disagreement could spoil the children’s summer holiday and create tension between the parents and their kids.

Are You and Your Ex-Spouse Fighting Over the Children’s Summer Holidays?

Hopefully not. But if you find yourselves at odds over any aspect of your parenting plan, talk to a family law attorney as soon as possible. And always remember that courts make decisions based on what is best for the children.

Uncategorized, California Divorce

Can You Legally Snoop on Your Spouse?

March 11, 2021 Judy Burger

Simon felt his wife, Terry, was behaving suspiciously. He felt the strong urge to find out what she was up to, but he wasn’t sure what to do. Simon wondered if you can legally snoop on your spouse. Hopefully, he will check with an attorney before doing anything.

Wiretapping, Eavesdropping, and Surveillance – Oh, My!

Some of the ways you might use to snoop on your spouse include:

Installing hidden cameras,
Putting a tracking device on their car,
Adding keylogging software to electronic devices,
Accessing private email and bank accounts, and
Hacking into password-protected devices.

All of these are a terrible idea and could violate a number of laws.

For example, in California, you can put up security cameras around and even in your home. However, audio recordings are prohibited unless all parties give their consent.

More importantly, recording devices cannot be installed where your spouse or other parties have the right to expect privacy.

Right to Privacy in a Marriage

You and your spouse share a home, a bed, and probably at least one bank account. However, you each have the right to keep certain information private. Your spouse is bound by the same surveillance or snooping laws that keep your neighbor from wiretapping your phone.

Grounds Not Required – So Why Snoop on Your Spouse?

You might be tempted to legally snoop on your spouse.

But why?

What you find might firm up your decision to file for divorce – while causing a lot more heartbreak. However, not only will the information probably be inadmissible in court, but you don’t even need it. California is a no-fault divorce state, which means you do not need grounds for divorce.

Breaking the Law Hurts You

Depending on what you find, your spouse might not be held accountable for his or her actions. However, you could find yourself on the wrong side of the law. When you snoop on your spouse, you could be breaking laws regarding illegal surveillance and the right to privacy.

Anyone else you happen to surveil could be angry enough to press charges if you broke the law. It’s simply better all-around to talk to an experienced California divorce attorney before doing anything. There might be ways to legally investigate your spouse’s activities.

Talk to Us Before Trying to Legally Snoop on Your Spouse

Child Support, Child Custody

Understanding California Paternity Laws

March 4, 2021 Judy Burger

Divorce is fraught with sensitive issues. One of the most delicate involves the parenthood of children whose parents are divorcing. If you are thinking of ending your marriage – and you have kids — understanding California’s paternity laws is a must.

Why Paternity Matters

A child’s parentage affects child support, custody, and visitation. In some cases, courts will not sign orders related to a child when paternity is in question. Unless a person is legally established as the father or mother, that person has no rights or responsibilities regarding the child.

Confirming parentage is also important because children have the right to:

Financial support from mom and dad,
Legal documents that identify both parents,
An accurate birth certificate listing both mom and dad,
Insurance coverage,
Inherit from their parents, and
Receive social security, veteran’s benefits, and other government benefits based on their parents.

From an emotional standpoint, most people want to know who their father and mother are. Legally speaking, parentage makes a difference also.

When Courts Get Involved

Generally, children born during a marriage are assumed to be the husband and wife’s biological children. Family court judges usually establish parentage automatically.

However, fathers of children who are not married to the mother when the child was born must legally establish their paternity. Other situations where a man might establish parentage include:

The child was conceived while the father was trying to marry the mother or thought he was married to her.
The man agreed to serve as the father on the birth certificate or agreed to provide financial support to the child.
The man acted as if the child were his own, even though the child is not biologically his.

Family courts may be involved in any case where questions about a child’s paternity exist. For example, a married man who doesn’t believe he is the father of his wife’s child might ask for a determination in order to avoid responsibilities for someone else’s child.

What the Law Says

Some sections of the California Family Code specifically address the parent-child relationship. Frankly, most if not all of the laws related to parents apply to our topic. Before laws related to the rights and responsibilities of a parent take effect, parentage must be established.

We Can Help Decipher California Paternity Laws for You

The attorneys at the Law Offices of Judy L. Burger are experienced at all phases of divorce, legal separation, and annulment. Call us at 415-293-8314 to schedule a private appointment or visit our website. We assist clients in California’s Northern to Southern Coast, including San Francisco, Beverly Hills, Gold River, San Diego, Santa Barbara, Ventura/Oxnard, and surrounding communities.