How Are Appraisers Used in California Divorce Proceedings?

How Are Appraisers Used in California Divorce Proceedings?In any divorce, the value of the marital estate must be established before the parties can be allocated their rightful share. The value many assets is obvious, but that is not the case for real estate. This type of property must be assigned a value. Most often, an appraiser will be hired to perform a formal litigation and real estate appraisal.

Real estate in a divorce usually is the family home, but it may also include vacation homes or business property. Business property is sometimes appraised within the context of the business itself being valued. See my previous blogs here regarding business valuations in divorce proceedings.

The parties to a divorce may retain their own appraisers or jointly select one. If the parties ultimately do not agree on a figure as suggested by the appraisal(s), the court will hear testimony and determine the fair market value. The appraisal of property can be pretty straightforward much of the time, but it can also become somewhat complicated and, at times, subjective.

Most appraisals are based on the sales of comparable properties in the geographic area. An average sale price is normally the key indicator, but any special or unique features of a home may increase or decrease the value assigned by a particular appraiser. For example, a detached garage converted to a workshop with special wiring for power tools might cause an appraiser to add to the average sale price. On the other hand, a backyard greenhouse might be seen as a specialty item that clutters the property and cost money to have removed.

It is also important to know that the assessed value of the property by county or municipal governments is researched by the appraiser, but these values usually have no real effect on fair market value. The assessed values are not based on professional appraisals and are also sometimes affected by laws governing the assessment of real property.

In selecting an appraiser, first make sure she is licensed by the state. Second, it is important to find someone who is knowledgeable of the local market and of the type of property being appraised. If there is business property, make sure the appraiser has experience or even specializes in that area. Similarly, if there is vacation property, make sure you hire someone in that market. An appraiser in San Francisco won’t know the business of vacation homes in Vail, Colorado.

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.

Can I Recover Attorney Fees in My California Divorce?

Can I Recover Attorney Fees in My California Divorce?

The payment of attorney’s fees in a divorce proceeding is not always a simple matter. You might think that each party hires a lawyer and dives into the process. California Family Code § 2030, however, requires the family court to ensure that each party has access to legal representation.

In that regard, the court may award attorney’s fees to be paid by one party to the other or her attorney. This happens when an income and needs assessment indicates a disparity in the parties’ access to funds.

An award may be in any amount deemed reasonably necessary to defend or maintain the proceeding during its pendency. The court’s authority to make an award is tempered by the ability of one party to pay the fees of the other. If a party is unrepresented or attempting self-representation, the court may order the other party to pay a reasonable amount to permit the unrepresented party to hire a lawyer before proceedings start.

At all times, the court is required by California Family Code § 2032 to ensure that awards of attorney’s fees are just and reasonable given the relative circumstances of the respective parties. To make such a determination, the court must take into account the need for the award, to the extent that it will allow the parties to adequately present their cases. Awards may be made from any asset of the parties, whether community or separate.

Pursuant to California Family Code § 271, attorney’s fees may also be awarded when one party or her attorney acts in a way that inhibits the progression of the case. The Code states as the policy of the law “to promote settlement of litigation and, where possible, to reduce the cost of litigation by encouraging cooperation between the parties and attorneys.” Such actions may include the refusal to communicate as necessary to advance the case, the filing of frivolous motions, or similar behavior. Awards under this section of the Code are restricted by a party’s ability to pay, and they may only be awarded after notice and opportunity to be heard. Awards of this nature may be paid only from the separate property of the sanctioned party, including her share of community assets.

As you might imagine, the financial positions of the parties to a divorce can be complex and must be accurately portrayed to a court. Judy L. Burger has substantial experience in California family courts, and she also has a business background that allows her to effectively analyze and present financial information. Please contact her at (415) 259-6636 or visit her website to learn more.

Child Preferences Regarding Custody and Visitation

Child Preferences Regarding Custody and Visitation

Child custody in divorce cases can sometimes be hotly contested. Traditionally, courts have made decisions based on the information presented by the parties and their lawyers. The wishes of the children were either not expressed or expressed only through the parents. Since 2012, however, children are permitted to testify regarding custody and visitation arrangements if they so wish.

California Family Code § 3042
provides that if a child is of “sufficient age and capacity to reason,” her wishes will be given due weight. The law makes a distinction between children less than 14 years of age and those 14 or over. If 14 or older, the court is required to permit testimony if the child wishes unless it  determines that it is not in the best interest of the child to allow the testimony. Children under 14 are not prevented from testifying, but the court must find both that the child has the capacity to reason and that the opportunity to testify is in her best interest.

Some parents may be concerned about the opportunity for their children to weigh in on the custody and visitation arrangements of their divorce. The court, however, has both guidelines for hearing from a child and discretion in applying those guidelines.

California Rules of Court 5.250 provides instruction for the court for: 1) determining whether the child wishes to address the court, 2) determining whether addressing the court is in the child’s best interest, and 3) receiving the child’s testimony and other input.

The parties to a divorce or their counsel may inform the court of a child’s desire to address the court. In addition, the following persons have a duty to inform the court of a child’s desire to testify:

  • Counsel appointed to represent the child;
  • A child custody evaluator;
  • A child custody investigator; and
  • A child custody recommending counselor.

To determine whether it is in the child’s best interest to testify, the court must consider the following factors:

  • Whether the child is of sufficient age and capacity to reason;
  • Whether the child is of sufficient age and capacity to understand the nature of the testimony;
  • Whether the child is at risk emotionally if permitted or denied the opportunity to address the court;
  • Whether the child may benefit from addressing the court;
  • Whether the child’s anticipated testimony will be relevant to the court’s decisionmaking; and
  • Whether there are any other factors weighing for or against the child addressing the court.

The court has wide discretion in facilitating the child’s testimony. It can occur in open court as a regular witness, or the courtroom may be closed to the public. It might also be conducted in the judge’s chambers with or without the parties and counsel present. The judge is also empowered to reserve to himself the posing of questions on behalf of the parties. The purpose of these guidelines and the wide discretion granted is to ensure the comfort of the child and, thus, the value of the testimony proffered.

The health and well-being of your children are important not only to you, but to the State of California. In hotly contested child support matters, you need an attorney to fight for you and your child. The attorneys at The Law Offices of Judy L. Burger have extensive experience in divorce, child custody, and child support matters. Make the call today to learn how our attorneys can protect you and your children: (415) 293-8314.

California Supreme Court: Can a Couple Living in the Same Home Be Considered "Living Separate and Apart"?

California Supreme Court: Can a Couple Living in the Same Home Be Considered “Living Separate and Apart”?

Couples who are separated and making their way toward divorce sometimes continue to live in the same home. It is not too hard to imagine reasons why this would happen. Finances are a key consideration.

Many couples struggle to make ends meet keeping just one household. A sudden need to maintain two (on the same amount of money) can be pretty daunting. Children are a second reason that separating couples often continue to live in the same home. Divorce is hard on children, and sometimes a more gradual approach to the physical separation of the parents can be in their best interest.

The problem with continuing to live in the same house after deciding to “separate” is that the separation date plays a huge role in the division of marital assets when a divorce actually occurs. Once a legally recognized separation takes place, the parties begin accumulating separate assets to which the other party has no legal right. This is true whether there is a legal separation granted by the court or whether the parties simply separate on their own.

Continuing to live in the same home confounds the question of whether the couple is separated. A recent case decided by the California Supreme Court answered this question, at least for the particular circumstances of that case. In Marriage of Davis, the Court concluded that the couple were not living separate and apart until the wife moved out of the house. Initially, both parties stated that they were living separate and apart even while still in the house together, but later the husband claimed the separation did not occur until his wife moved out.

Some may view the Court’s decision as establishing a bright line rule that continuing to live in the same house defeats the notion of living separate and apart. This is not the case. The Court determined that in this set of circumstances, the couple was not considered as living separate and apart while under the same roof. It left open the door for a subsequent determination that a couple could show that they “had established separate residences  . . . even though they continued to literally share one roof.”

If you are contemplating divorce, you will need advice early in the process, especially on the issue of living separate and apart. Judy L. Burger is an aggressive, knowledgeable lawyer who has extensive experience in high conflict divorces in California. Contact her today at (415) 293-8314 to discuss your case.