Monthly Archives: August 2015

Do I Have a Claim Against a Spouse I Supported During Educational Endeavors?
California Divorce, Debt

Do I Have a Claim Against a Spouse I Supported During Educational Endeavors?

A common question when divorce or legal separation is being contemplated is whether a professional license or college degree can somehow be split among the parties. This question is particularly common when one spouse worked to enable the other spouse to go to college or to obtain an advanced degree. While neither a degree nor a license is property subject to division, under California law, the marital community may be entitled to reimbursements for payments made toward education or training. Of course, no reimbursement will be ordered if the parties agreed in writing, such as in a prenuptial agreement, that none would be made.

Several issues are presented when one of the parties to a marriage receives education or training during the marriage or when the couple pays back student loans during the marriage, including the following:

  • Whether the community should be reimbursed for the use of community funds;
  • How any outstanding loan should be allocated; and
  • What the impact of the education or training should be on spousal support.

The first issue is whether the community has a claim of reimbursement from the spouse or partner who received the training or education. If educational expenses were paid out of community funds, reimbursement, with interest, will be ordered if the education “substantially enhances the earning capacity of the party”. If circumstances would render reimbursement unjust, it may be reduced or modified. Those circumstances include the following:

  • When the marital community has substantially benefitted from the education;
  • When the other party also received education or training using community funds, which offsets the education in question; and
  • When the need for a spousal support award is substantially reduced because the education or training enhanced the party’s ability to “engage in gainful employment”.

The second issue is how any unpaid student loans will be allocated. Generally, the law provides that outstanding loans shall not be classified as community debt but shall be allocated to the party who received the education or training. Of course, to the extent this is done, it may offset a portion of the community’s right to reimbursement. See our separate blog here for a general discussion of community debt.

The final issue is the extent to which a spousal or partner support award should be impacted by the additional education or training. The California Family Code provides that several factors are considered in rendering such an award. These include each party’s earning capacity, as well as the extent to which one party contributed to the education or training of the other. An experienced family attorney will recognize these implications to the attainment of a degree or license and will position her client favorably in obtaining a support award.

As you might imagine, how these matters are presented to a court can make a significant difference in both the issue of reimbursements and in a spousal or partner support order.  Judy L. Burger has the experience you need to identify and present issues in family court. Contact her today at (415) 259-6636 to learn more.
How Are Forensic Accountants Used in California Divorce Proceedings?
California Divorce

How Are Forensic Accountants Used in California Divorce Proceedings?

What is a forensic accountant, and when should one be used in divorce or legal separation proceedings? A forensic accountant is a hybrid of an investigator and an accountant. The typical forensic accountant holds a traditional accounting degree, which provides core knowledge in the area of accounting, as well as investigations training, which enables the performance of effective, enhanced investigations. Forensic accounting can be critical in locating, classifying, and valuing assets and debts.

Divorce and separation proceedings provide for the winding up, so to speak, of a couple’s marriage. In these proceedings, all assets and debts are identified and divided, and provisions are often made for spousal or partner support, as well as child support. For the winding up to be fair and equitable, all assets and debts must be identified. This can be difficult in any case, as our economy becomes more diversified and global. A forensic accountant may be used in complex matters, such as helping to identify and value retirement plans, stock options, trusts, deferred compensation plans, and business interests.

Additional challenges will be present if one spouse is intentionally untruthful in an attempt to understate income or overstate debt, such as in the following examples:

  • Attempting to show less income or fewer assets;
  • Hiding income or cash streams;
  • Transferring or hiding assets;
  • Padding business payroll; and
  • Creating fictitious debts or overstating debts.

In cases such as these, the use of a forensic accountant is essential to ensure that you receive proper treatment with regard to support awards and property division. These specialized accountants are experts in tracing funds, and they exercise great discretion in determining where to look for hidden assets and overstated debt. After all, if a court doesn’t know about an asset, it can’t divide it. What’s more, a forensic accountant will present his findings in court, with the assistance of your experienced attorney.

Judy L. Burger’s experience as an aggressive family lawyer is paired with an extensive business background, an invaluable combination in contested divorce and separation proceedings. If you need the assistance of a lawyer who is not afraid to fight in court and who understands complicated financial issues, call her today at (415) 293-8314 or visit her online.

What Is an Annulment and Am I Eligible to Get One?
Annulment

What Is an Annulment and Am I Eligible to Get One?

Have you ever wondered what the difference is between a divorce and an annulment? The term “annulment” is sometimes used to refer to a marriage being annulled by a church or religious authority. However, an annulment has a very specific meaning from a legal standpoint.

A judgment of nullity under California law is commonly called an “annulment”. Whereas a divorce represents the end of a valid, legal marriage, a judgment of nullity, once rendered, declares that no legal marriage ever existed.

There are two categories of annulments in California, marriages that are void and those that are voidable. Void marriages are illegal and void from the beginning. Only incestuous and bigamous marriages fall into this narrow category. Incestuous marriage is defined by law as those between close blood relatives, including parents with children, siblings with half siblings, and uncles or aunts with nieces and nephews. First cousins are not on this list. Bigamous marriages, on the other hand, occur when one of the spouses is currently married to someone else and that marriage has never been terminated, such as by divorce, death, or annulment.

The grounds for annulment based on voidable marriage are explicitly listed in California statutes:

  • Lack of capacity due to age (under 18) and no parental consent;
  • Lack of capacity due to unsound mind, such as extreme intoxication or mental impairment;
  • Consent to marriage obtained by fraud, such as misrepresenting the ability to have children;
  • Consent to marriage obtained by force;
  • Prior existing marriage, in which the party believed his or her spouse had been dead or missing for at least five years; and
  • Lack of physical capacity to be married, such as male impotence, that appears to be incurable.

Marriages based on these grounds are valid unless and until a court enters a judgment of nullity. There is a significant exception, however, for the first four of these grounds: The marriage is not voidable if, after the condition passes (age, unsound mind, fraud, or force), the affected party voluntarily lives with the would-be spouse. For example, if a person marries while 16 years of age but continues to live with the spouse once she is 18, her marriage will no longer be voidable.

There may be unintended consequences to annulments. For instance, there will generally be no right to spousal support because the marriage was never valid, and there will be no presumption of community property for assets acquired during the “marriage.” If children were born, their paternity will have to be adjudicated before custody, visitation, and child support can be determined by the court.

Specific time frames apply to each of these grounds for voidable marriages, and the facts of each situation can change the outcome. If you are interested in learning more about whether your marriage may be void or voidable, you should consult with an experienced family law attorney. Judy L. Burger has extensive experience in all family law matters in Northern California. Call her today or contact her online to learn about how California law applies to the facts of your case.
Watts and Jeffries Credits: What Are They and What Do They Mean for Me?
California Divorce

Watts and Jeffries Credits: What Are They and What Do They Mean for Me?

Often, while divorce or legal separation proceedings are pending, one party stays in the family home. The parties sometimes choose to do this to ease the transition for their minor children or to keep their overall expenses down until their final order is entered. Other times, the court will order that one party may stay in the home. Either way, significant financial implications can result from one party staying in the residence, including the application of Watts and Jeffries credits. This blog will explain what these are and when they come into play.

Watts credits and Jeffries credits are named after the court cases that first recognized them explicitly. In the Watts case, the court held that when one party to a divorce has the exclusive use of a community asset, that party may be required to reimburse the other party for that use. For example, if a married couple owns their home as a community asset and the wife stays there after the date of separation, she may have to reimburse the husband for the fair rental value of the home. Watts makes sense because the spouse living in the home is benefitting from a community asset. She does not have to pay rent somewhere else. Likewise, the spouse not living in the home cannot make use of the property himself, nor can he rent or sell it. If you would like to read more about community property, please see our separate blog here.

The Jeffries case may come into play if the parties own the home as a community asset and still owe money on the mortgage. In Jeffries, the court held that mortgage payments made out of the separate funds of the spouse living in the family home may be applied by the court to offset Watts charges. Therefore, in the example above, if the wife, while living in the family home, paid the mortgage out of her current salary, she could ask the court to reduce any amount she owed under Watts with Jeffries credits.

Whether Watts and Jeffries apply is discretionary with the court. In other words, it is the judge’s decision whether or not to grant them, after considering all the circumstances in the case. They area called “charges” when assessed against a party; they are called “credits” or “reimbursements” when they are granted in a party’s favor.

You may also have heard of Epstein credits, which may be implicated when one of the parties uses separate funds to pay for community debts. If you are interested in this concept, please read our earlier blog here.

In all of these circumstances, accurate recordkeeping is essential. Charges and credits can be significant to the financial outcome of a divorce or legal separation. They require accurate documentation and an aggressive, knowledgeable lawyer. Judy L. Burger has extensive experience in high conflict divorces in Northern California. Contact her today at (415) 293-8314.

Epstein Credits and the Family Home
California Divorce

“Epstein” Credits and the Family Home

As a couple moves toward a divorce or legal separation, one potentially hotly contested issue involves what is known as “Epstein” credits. “Epstein” credits were named after the case in which they were first recognized, In Re Marriage of Epstein, which was decided by the California Supreme Court in 1979. These credits may be given to a party who pays community debt with separate property funds before a divorce or legal separation is final. If you are unfamiliar with the nature of community and separate property, please see our blog here.

The issue of Epstein credits often comes up when one party stays in the family residence with the children after the couple is separated. These credits are based on the notion that the family residence is community property and that both parties have a right to receive the benefit of that property until community assets and debt have been allocated by the court. The parties could benefit from the property in different ways: by staying there themselves, by renting it out, or by selling it. Therefore, when one spouse stays in the home, he or she is receiving a benefit and also depriving the other spouse of beneficial use of the property.

Epstein is not limited, however, to the family home. These credits may be requested any time preexisting community debt is paid with the separate property of one spouse. For that reason, they may apply to credit card debt, vehicle loans, and tax payments. However, the party requesting these credits must be able to show that a community debt was paid with his or her separate funds, such as income earned after the date the parties separated. When Epstein credits are awarded, the spouse who paid the community debt is entitled to be reimbursed out of community property assets.

Additionally, the right to Epstein credits may be extinguished under certain circumstances. For example, no Epstein credits will be awarded if the debt payment was intended as a gift, if the parties agreed that no reimbursement would be made, or if the payments were made in place of spousal support.

As you might imagine, both the date of separation and the nature of the debt involved are critical to a court’s decision of whether to award Epstein credits.

Because the legal issues in determining how property and debt are owned are significant, the assistance of an experienced divorce attorney can materially change the outcome of a divorce or separation matter. For these issues, you need an attorney with substantial experience in Northern California who will represent you aggressively. Please contact The Law Offices of Judy L. Burger at (415) 259-6636 to learn more.