Monthly Archives: November 2015

California Divorce, Visitation

As a Grandparent, What Rights Do I Have to Visitation?

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As a Grandparent, What Rights Do I Have to Visitation?
Grandparents can be a stabilizing force for children whose parents divorce or legally separate. Indeed, the California Legislature has recognized this, providing affirmatively for grandparent visitation.


Sections 3100-3105 of the California Family Code describe the circumstances under which grandparents may obtain visitation with their grandchildren.


When One Parent Is Deceased


It is easiest for a grandparent to obtain visitation when one of the parents is deceased. In such an unfortunate case, a court need only determine that grandparent visitation is in the best interest of the child.


However, a grandparent cannot use this provision of the law if the child has been adopted by someone other than a stepparent or another grandparent. Likewise, if a grandparent previously obtained visitation under this section of the law, the visitation automatically terminates if the child is adopted by someone other than a stepparent or another grandparent.


Other Cases of Grandparent Visitation


If both parents are alive but divorced, a grandparent who wants visitation with his or her grandchild must proceed under a different law. Under that law, before reasonable grandparent visitation may be granted, a court must do two things: (1) find that the two have had a relationship in the past that “engendered a bond” between them, rendering visitation in the child’s best interest; and (2) balance the child’s interest in grandparent visitation with the parents’ right to “exercise their parental authority.” Cal. Fam. Code § 3104.


However, a court may not order grandparent visitation when the parents are still married unless one of the following six circumstances exist:

  • The parents are either permanently or indefinitely separated;
  • The whereabouts of one of the parents have been unknown to the other parent for at least one month;
  • One of the parents joins the petition for grandparent visitation;
  • The child does not live with either parent;
  • A stepparent has adopted the child; or
  • One of the parents is either in jail or has been institutionalized.

In these limited circumstances, grandparent visitation may be granted; however, if the supporting circumstance ends, either parent may successfully move to have grandparent visitation terminated.


The attorneys at The Law Offices of Judy L. Burger have extensive legal experience in family law matters. We have handled all types of visitation requests, including those involving grandparents. Contact us today at (415) 259-6636 to learn how we can help you in this area.

The Mechanics of Business Valuation in California Divorces
California Divorce, Spousal Support

The Mechanics of Business Valuation in California Divorces

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In California, the assets of a married couple seeking divorce must be distributed on an equal basis to the extent they were accumulated during the period of marriage. These assets are known as community property. Sometimes, however, one party owns or has an interest in a business that preexists the marriage. That interest is considered separate property.

Even though a business interest may be considered separate property, part of any appreciation in value that occurred during the marriage may be allocated to community property. In order for that to occur, a value must be established for the business. This is a very complicated task that is performed by a variety of professionals such as business appraisers, certified public accountants, economists, and financial analysts.  

Business valuations normally use one of two methods, depending on the nature of the business. These two approaches were established in case law in the beginning of the 20th century and still stand today. Pereira v. Pereira, decided by the Supreme Court of California in 1909, and Van Camp v. Van Camp, decided by the Court in 1921, set the course for allocation of business value to community property.

The difference between the two approaches hinges on the participation of the owning spouse in the operation of the business. Under Pereira, if that spouse was an active operator or manager of the business, appreciation in its market value during the marriage is likely to be considered community property. This is often the case with professional services such as legal or dental practices, as well as with small contractors or retail businesses.

On the other hand, the Van Camp method usually applies if the business was of such a size and structure that the owning spouse did not expend personal effort affecting its income and growth. In that case, appreciation is less likely to be included in community property and subject to equal division. Any amount included would be based on an assessment of the owning spouse’s compensation from the business during the marriage, as well as whether that compensation sufficiently contributed to the accumulation of other community property. This approach would be appropriate for larger manufacturing, contracting, or technology businesses.

The methods of business valuation are complex, and they vary depending on the type of business involved. At a basic level, valuation involves establishing how much a business is worth at the time of marriage and at the time of divorce or separation. The difference in the two values is then considered in light of proper method noted above. Courts will generally accept a business valuation method as long as the evidence on the record legitimately supports the value.

As you might imagine, the value of a business and how it is allocated to marital assets can make a substantial difference in a what both spousal and support orders. If your marriage involves a business interest, you should hire an attorney with substantial experience in complicated divorce cases, especially those involving the valuation of business assets. Judy L. Burger and her team have considerable experience in contested family law matters, and Judy is well-versed in business matters. Submit our Contact form today or call (415) 259-6636 to arrange an appointment.

California Divorce

What is a Deposition and How Are They Used in California Divorce and Separation Proceedings?

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Legal Grounds for a California Divorce or SeparationAll civil lawsuits, regardless of their type, involve the exchange of information between the parties and the adjudication of rights by a court. Family law cases are no exception.


“Discovery” is the official term given to the exchange of information among the parties to a lawsuit. In discovery, much information is exchanged in writing. For example, one party may send written questions for the other to answer in writing or may request that copies of written documents be provided. Another form of discovery is an oral deposition.


A deposition is similar to trial testimony in many ways:

  • The witness is sworn in (swears or affirms to tell the truth);
  • The lawyers for the parties are present and may make ask questions and make objections;
  • A court reporter is there to transcribe and/or record the testimony;
  • The witness is asked, and must answer, questions; and
  • The witness’s answers are used as evidence in the case.


However, depositions are also different from trial testimony. The most significant differences are that depositions take place in advance of trial, no judge or jury is present, and depositions are held in less formal settings, such conference rooms.


Depositions may be taken of the parties to the lawsuit—in family law cases, the spouses. These are known as party depositions. Party depositions allow the lawyer asking the questions to lock in the other spouse’s version of the case.


However, depositions may also be taken to learn more about what other witnesses might know. These are known as witness depositions. Witness depositions may be taken of the parties’ employers, friends or neighbors, as well expert witnesses, such as economists.


California law sets forth specific requirements that parties and their lawyers must follow before and during depositions. For example, a notice of deposition must be provided in writing, and it must lay out the date, time, and location of the deposition. If the person being deposed is required to bring documents to the deposition, that must be stated in the notice, as well. In California, most depositions are limited to seven hours.


When conducted by experienced lawyers, oral depositions are a valuable tool used to collect information from the parties to a California family law case. In hotly contested divorce and support matters, you need an aggressive attorney with extensive experience in family law discovery and trials. Call the attorneys at the Law Offices of Judy L. Burger to learn how we can protect you and your children: (415) 293-8314.

 

Name Changes after Marriage in California: What's Legal?
Marriage

Name Changes after Marriage in California: What’s Legal?

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Did you ever wonder what name changes are legal after marriage in California? People planning to marry often want to change their names, but they aren’t sure what is legal. Fortunately, California law specifically addresses this issue.

Initially, it is important to know that California law allows both parties to a marriage to retain their names; no name change is required of either party. However, if one or both parties wish to do so, California Family Code § 306.5 allows them to change their middle names, last names, or both. The provisions for changing names vary slightly, depending on which name or names are being changed.

Either party to a marriage may choose from the following last names:

  • The current last name of the other spouse;
  • The last name of either spouse at birth;
  • A single last name that combines all or a portion of either spouse’s current last name or last name at birth; or
  • A hyphenated version of the parties’ last names.

The law also sets forth allowable middle name choices after marriage. As with last names, a person may choose to use his or her spouse’s last name as a middle name. Likewise, a person may adopt, as a middle name, the given last name of either spouse at birth. The remaining two options are as follows:

  • A hyphenated version of the middle and/or last names of either spouse; and
  • A hyphenated version of the middle and/or birth last names of either spouse.

In either case, the new name or names are listed on the marriage license application. By law, a certified copy of the marriage certificate serves as proof that the party either retained his or her original name or changed it legally. The same document may be used to show the person’s “true, full name” for licensure under the California Vehicle Code.

These provisions apply when the choice to change a name is made at the time the marriage certificate is issued. The only changes to the marriage license that are permitted thereafter are those to correct clerical errors. Changes due to clerical error may be made to ensure that the names on the marriage license comport with the names on the application for the license.

If a party wishes to change his or her name at a later date, these provisions do not apply. Instead, the person may apply to a superior court for a name change or may change his or her name under the provisions of California common law.

When marriage is contemplated, many legal issues arise, from name changes to prenuptial agreements. Experienced legal counsel can help you navigate these issues and structure your marital expectations commensurate with your wishes. The attorneys at The Law Offices of Judy L. Burger have extensive legal and business experience in family law matters. Contact us today at (415) 259-6636 to learn more.

"Unsound Mind" and the Capacity to Marry in California
Marriage

“Unsound Mind” and the Capacity to Marry in California

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Mental competence is a term often heard in the course of various legal proceedings. We have all heard of criminal defendants being evaluated for competence to stand trial, or of wills being challenged on the basis of the maker not being “of sound mind and body.”

Contracts are also subject to mental capacity requirements, and while marriage is considered a matter of the heart, it is a legal contract. The California Family Code says that for a marriage to be valid, the parties must first be consenting, and then must be capable of making the contract of marriage.

Under California law, there is a rebuttable presumption that people are mentally capable of making decisions such as whether to marry or enter into other kinds of contracts. The Due Process in Competency Determinations Act provides a framework for rebutting the presumption of competence in cases where a person may be of unsound mind. The Act gives examples of mental functions to be considered in assessing mental competence, such as information processing, thought processing, and general alertness. Any deficit in one of these areas may cause a finding of incompetence if it impairs the person’s ability to appreciate the consequences of his or her actions.

Capacity to make a marriage contract by persons with mental deficiencies, however, is treated a little more favorably under the law than capacity for other legal transactions. Specifically, a person with a mental deficit for whom a conservator has been appointed is not automatically considered incapable of marrying. Rather, he or she is free to marry unless his conservator, a relative, friend, or other interested party petitions a court to intervene.

In that case, the law allows a court to order a determination to be made as to competence. In the course of a hearing on the matter, testimony may be heard from any interested party who can provide relevant information regarding the conservatee’s mental state. In this way, the law provides special treatment for the rite of marriage in cases of persons with mental disabilities. Rather than discouraging marriage, it encourages and protects the rights of people to marry, while also protecting those who truly lack the capability to make a marriage contract.

The attorneys at The Law Offices of Judy L. Burger have extensive experience in family law, including cases involving the capacity to enter a marriage contract. Make the call today to learn how our attorneys can help protect your rights or those of a loved one: (415) 298-8314.