Monthly Archives: December 2015

California Divorce

Why Is There a Mandatory Waiting Period to Get a Divorce in California?

Leave a comment

Can I Recover Attorney Fees in My California Divorce?Many states have waiting periods for a divorce to become final after the process begins. In California, it is six months after the petitioner serves notice on the respondent. The petitioner is the person initiating the divorce, and the respondent is the spouse or domestic partner.


The primary purpose of the waiting period is to give the parties time to consider their course of action and to reconcile if that is possible. Secondarily, the time also allows for the parties to prepare for a hearing or settlement negotiation. There is substantial documentation necessary to effect a divorce, and it can take a lot of time for it to be assembled. Even after that is done, mediation or settlement discussions are common and can take a long time.


Other issues can also make the waiting period seem inconsequential. For example, when children are involved, other time-consuming activities can be required, especially if issues are being contested. At a minimum, the court will require custody mediation, which forces the parties to meet and consider child custody arrangements. If the issue is being contested by either or both parties, then motions asking the court to make decisions will also take time to resolve.


California has one of the shorter waiting periods. Some states have one-year periods, and others are contemplating even longer periods. The main argument against waiting periods at all, and especially long ones, is the possibility of domestic violence during that time.


Many divorcing couples do not have the means to maintain separate households during the pendency of a divorce. In addition, the very nature of divorce is that some level of acrimony exists between the parties. Consequently, many divorcing couples are living in an increasingly uncomfortable situation under the same roof awaiting the dissolution of their marriage. With children in the mix, it can only be worse. Therefore, the waiting period can be a serious problem in certain situations rather than acting as the savior of a marriage.


The attorneys at The Law Offices of Judy L. Burger have extensive experience in family law, including the dissolution of  marriages and domestic partnerships. Make the call today to learn how our attorneys can help you proceed through the divorce process while protecting your rights or those of loved ones: (415) 298-8314.

Child Custody

How Do California Courts Evaluate Requests to Move Out of the Area?

Leave a comment

How Do California Courts Evaluate Requests to Move Out of the Area?Divorced parents often worry about whether they are allowed to move out of the area if they have custody of their children. Fortunately, the California Legislature has a consistent focus on the “best interests of the child,” which permeates all aspects of family law in our state.


Section 7501 of the California Family Code very clearly states that a custodial parent “has the right to change the residence of the child.” The only counterbalance to this, by law, is that a court may “restrain a removal that would prejudice the rights or welfare of the child.”


The right of the custodial parent was not always this clear. In 1996, the California Supreme Court considered whether a custodial parent had to prove that her relocation was “necessary” in order to move away from the area.


In that case, Burgess v. Burgess, the parents agreed at a mediation that the mother would have sole physical custody of the child and that they would share joint legal custody, both on a temporary basis. Their agreement specifically provided for visitation if the mother left the county.


At a hearing several months later, the mother revealed that she was planning to move to a city 40 miles away as the result of a job transfer. Later that year, the court entered an order approving the mother’s move and granting the father enhanced visitation rights.


The first appellate court reversed this order, finding that the mother had failed to show that her move was necessary, instead only showing that it was more convenient for her to move out of the area.


The mother appealed to the California Supreme Court, which ruled in her favor. The state’s high court found that the custodial parent, the mother, was not legally required to prove that her move was necessary. Rather, under the applicable law, Section 7501, she had a presumptive right to move her children. No showing had been made that the move was not in the best interests of the children. Rather, the move would benefit the time she was able to spend with them as their primary caretaker, and their father would still be able to visit with them regularly.


After the Burgess case, the California Legislature specifically added to the law on residence changes that its intention was to declare the ruling in Burgess “to be the public policy and law of this state.”


The attorneys at The Law Offices of Judy L. Burger have extensive experience in family law, including requests of the custodial parent to move out of the area. Make the call today to learn how our attorneys can help you protect the best interests of your child: (415) 298-8314.

Modification of Spousal Support
Spousal Support

Modification of Spousal Support

Leave a comment


One of the most difficult aspects of divorce is spousal or domestic partner support. When matters of the heart are involved, financial matters because even more hotly contested. Modification of support orders is no exception, as they involve the ability of the payer to pay and the need of the payee for financial support. If you are unfamiliar with spousal support in California, please see my prior blog here.


The threshold issue is whether the parties have agreed or a judge has ordered that spousal support may not be modified. If the parties agreed that it could not be changed, they will be bound by that agreement. Likewise, if a judge’s support order does not allow for change, no request to modify it will be granted.


If neither an agreement nor an order bar modification, the parties may agree to change the amount of spousal support themselves. If they do, before it is legally enforceable, they must ask a judge to approve it and enter it as an order of the court.


If the parties cannot agree, one of them may file a request with the court to modify the amount. The party making the request will have to show that there has been a change in circumstances that warrants a change in the amount paid. Following are the reasons in California that might support a change:

  • Reduced ability of the paying party’s ability to pay;
  • Reduced need of the party receiving the support;
  • The failure of the party receiving support to attempt to become self-supporting;
  • The remarriage, cohabitation, or death of the party receiving support; and
  • The inability of your employer or the child support agency to deliver the spousal support for at least six months due to a change in the payee’s address.

As you might imagine, how the facts are presented in a spousal support modification request can make a substantial difference in the outcome. If you’re faced with requesting modification or defending against it, you should hire an aggressive attorney with substantial experience in support matters. Judy L. Burger and her team have considerable experience in contested family law matters. Submit our Contact form today or call (415) 259-6636 to arrange an appointment to begin discussing your case.
How Can a California Minor Become Emancipated?
Uncategorized

How Can a California Minor Become Emancipated?

Leave a comment


Most people associate the term “emancipation” with the Emancipation Proclamation, issued by President Lincoln to free the slaves in 1863. However, more broadly construed, the term actually means “to free from restraint, control, or the power of another.” A minor automatically reaches this stage of life at age 18, but a minor may also become emancipated before that age. When that happens, the minor is free from her parents and gains almost complete control over the decisions in her life; likewise, she gains the responsibility to take care of and provide for herself.


California law provides three methods through which a minor may become emancipated: getting married, joining the Armed Forces, and obtaining a declaration of emancipation from a judge.


Marriage


The first way a California minor may become emancipated is by getting married. To use this option, the minor must have permission of her parents as well as a judge.


Armed Forces


A minor may also become emancipated by joining the United States Armed Forces. However, parental consent is again required, and the minor must be accepted into the Armed Forces.


Declaration of Emancipation


If a minor does not have parental consent for either of the first options, she may ask the court to grant her a declaration of emancipation. To be successful in this method, the minor must show the court the following things:

  • she is at least 14 years of age;
  • she can support herself financially;
  • she does not want to live with her parents;
  • her parents do not mind if she lives on her own, and
  • emancipation would be good for her.


Result of Emancipation


An emancipated minor is treated as an adult for almost all purposes, such as the following:

  • Consent to medical care;
  • Enter into contracts, including contracts for insurance;
  • Buy and convey property and stocks;
  • Sue or be sued;
  • Make a will, trust, or gift;
  • Enroll in school or college.


The minor is also financially independent from her parents, so she has full responsibility for supporting herself.


The only thing an emancipated minor cannot do, assuming she was not emancipated as a result of marriage, is get married. An emancipated minor can only get married with the permission of her parents or a judge.


The decision to seek or to contest emancipation brings up many emotions for everyone involved. When you need an attorney who has extensive experience in family law matters, including emancipation, call the attorneys at the Law Offices of Judy L. Burger. We understand the law underlying emancipation requests, and we’ll help you make the best decision possible. Call today to arrange an appointment: (415) 293-8314.