Same Sex Marriage and Divorce, Spousal Support

Getting Spousal Support in a Registered Domestic Partnership

February 28, 2019 Judy L. Burger Leave a comment

Ending a long-term or very close relationship is never easy. Spousal support is one sometimes hotly contested issue in a divorce. If spousal support is appropriate, then how much should be paid? This holds true for registered domestic partnerships, too. Partners embroiled in a breakup may also be facing spousal support questions.

How is a domestic partnership registered in California?

Couples who want to have an opposite-sex marriage must get a marriage license from the County Clerk’s office. Same-sex couples, and certain opposite-sex couples, do not buy a license to memorialize their relationship. Instead, they file a Declaration of Domestic Partnership or a Confidential Declaration of Domestic Partnership with the California Secretary of State’s office. California Family Code Section 297 outlines the requirements for couples who form a domestic partnership.

To terminate or dissolve a registered domestic partnership, the partners may file a Notice of Termination of Domestic Partnership, also with the Secretary of State. Requirements for termination are laid out in California Family Code Section 299.

Can you get spousal support in a registered domestic partnership?

Filing the Notice under Section 299 means that both parties waive their rights to spousal support. To claim support, partnership typically must file a Petition for Dissolution of Domestic Partnership with the California Superior Court.

Parties who file a Notice of Termination do not go through court hearings or mediation. When filing a Petition for Dissolution, however, the parties may attend hearings and ask a judge for temporary orders. Support is one issue that will be addressed by the court.

What does a partner need to do to get spousal support?

As noted above, the first step is to file the Petition for Dissolution. After that, the dissolution proceeds similar to a divorce. The partners will negotiate an agreement on community property and debt, arrive at child custody and support arrangements if necessary, and come to an agreement about support. If the partners are unable to do this through negotiation or mediation, their case may be heard by a judge, who will then issue an order about these issues.

Make sure you get the support you deserve.

Please call us at 415-293-8314. The attorneys at the Law Offices of Judy L. Burger assist clients with dissolution of marriages and domestic partnerships from our offices in San Francisco, Beverly Hills, Marin County, Santa Barbara, Ventura/Oxnard, San Jose, Gold River (Sacramento), and surrounding communities.

California Divorce

My Spouse Lives in Another State. Where Should I File for Divorce?

February 26, 2019 Judy L. Burger Leave a comment

There are times when a divorce crosses state lines. For example, Cynthia and George married in California, then moved to Iowa. After two years, Cynthia abruptly returns to California, leaving George, their condo, most of their furniture, and an automobile back in Iowa. She intends to file for divorce immediately. However, since her spouse lives in another state, she’s left wondering where she should file for divorce – California or Iowa?

Residency Matters

Each state has its own laws and rules about filing for divorce. For example, Iowa requires the person filing for divorce to live in state for 365 days to become eligible to file for divorce. There’s no in-county minimum residency. Had Cynthia stayed in Iowa, she could have filed for divorce since she had lived there more than 365 days.

However, in California, the rules are quite different. The person filing the divorce petition must meet the following residency requirements:

Must have been a resident of the state of California for at least six months prior to filing the petition.
Must have lived in the county where the divorce petition is filed for at least three months.

The rules are a bit looser for same-sex marriages. In some cases, neither partner has to be a California resident. A dissolution may be allowed if the parties live in a jurisdiction that will not recognize or dissolve their union.

Cynthia has not resided in California for six months, so she does not meet the residency requirement. However, she desperately needs to find a way to separate from George.

Other Options

In California, marriages may be terminated in one of three ways: divorce, annulment, or legal separation.

Unlike divorce, there is no residency requirement for filing for a legal separation. In addition, a legal separation may take place as soon as one party files the paperwork with the court. This option may provide some protection for the parties until they have lived in California for at least six months.

Cynthia decided to obtain a legal separation, then convert it to a divorce proceeding once she had lived in California for six months.

Long Distance Divorce Can Be Difficult

The attorneys at the Law Offices of Judy L. Burger are experienced at all phases of divorce proceedings. Call us at 415-293-8314 to schedule a private appointment or visit our website. We maintain offices in San Francisco, Beverly Hills, Marin County, Santa Barbara, Ventura/Oxnard, San Jose, Gold River (Sacramento), and surrounding communities.

California Divorce, Legal Separation

Date of Separation: Changes to the California Family Code

February 21, 2019 Judy L. Burger Leave a comment

A couple’s wedding day is an important date to remember. If the marriage ends in divorce, then the date the couple actually split is also significant. In fact, the California Family Code contains provisions about the date of separation. However, that code changed significantly in 2017.

What is the date of separation?

This might seem like a simple term, but the legal meaning can be complicated. The new California Family Code Section 70 states:

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.

For example, Ted tells Mary he wants a divorce on December 12, 2018. However, they continue living together, share bank accounts, and even plan their annual vacation to Hawaii. A court will consider all relevant evidence when determining the legal date of separation. A judge may decide Ted and Mary had not satisfied both (1) and (2) noted above on December 12, 2018.

Why is the date of separation important?

It is the date beyond which a married couple’s income, debts, and so become separate property.

For example, still considering Ted and Mary, Ted gets a huge windfall on December 13, 2018. During the divorce proceedings, he claims it is his separate property because the date of separation was December 12. Prior to the change in 2017, a court may not agree with Ted, since Ted and Mary did not meet the “living separate and part” requirement.

How and why did the law change?

In 2015, the California Supreme Court handed down a decision in a divorce matter titled In re Marriage of Davis. The decision stated that spouses must be living in separate homes for the date of separation to apply.

However, on July 25, 2016, a bill was signed into law that countered that decision. Section 70 was added to the California Family Code, clarifying that date of separation was to be decided using the tests mentioned earlier in this article.

Let’s consider a different scenario for Ted and Mary. Ted does tell Mary he wants a divorce on December 12, 2018. He remains in the home but separates his financial and personal matters from Mary. From that point on, they behaved more like roommates than husband and wife. A court may consider December 12 to be their legal date of separation.

Simple terms may have unwanted consequences

The legal date of separation can make a huge difference in how your divorce plays out. Talk to an attorney about your divorce as soon as possible.

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 Central California Coast.

Same Sex Marriage and Divorce

Are Domestic Partnerships Registered in California?

February 19, 2019 Judy L. Burger Leave a comment

Sam and Chris have a committed relationship that does not include a formal same-sex marriage. Jon and Julia have lived together for several years. Both aged 65, they don’t want to get married, but they do want some of the tax and financial benefits a marriage offers. Each couple may consider forming a domestic partnership but wonder whether California has a registration process for this type of bond.

What is a domestic partnership?

According to California Family Code Section 297:

Domestic partners are two adults who have chosen to share one another’s lives in an intimate and committed relationship of mutual caring.

A domestic partnership is a legally-recognized relationship between two individuals. California Family Code states that a domestic partnership is formed when both people file a Declaration of Domestic Partnership with the California Secretary of State. At the time of filing, the couple have to meet certain criteria.

Who can form a domestic partnership?

The domestic partners must:

Not be married or partners with another person.
Be at least 18 years of age, unless parents or guardians agree to the partnership.
Either members of the same sex or same sex if at least one of the partners is over 62 years old.

Does California require domestic partnerships to register?

No. The law says that partners may register their domestic partnership with the state.

However, registering gives the domestic partners the same benefits, rights, and protections that other California married couples enjoy.

What’s the process for registering a California domestic partnership?

The California Secretary of State’s Office accepts and processes Declarations of Domestic Partnership and related documents.

Couples that meet the legal requirements may register by filing a Declaration of Domestic Partnership (Form NP/SF DP-1). California also allows to keep their relationship private by completing a Confidential Declaration of Domestic Partnership (Form NP/SF DP-1A).

Have more questions about domestic partnership registration in California?

Talk to a California family law attorney to learn more about your options.

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

California Divorce

Divorce Litigation: When Spouses Can’t Settle

February 14, 2019 Judy L. Burger Leave a comment

Some divorces sail through divorce court with few if any problems. Everyone agrees on everything. For many people, though, that speedy divorce just doesn’t happen. The separating spouses just can’t agree on a settlement, even after several negotiation sessions and mediation. At that point, the case may be headed to trial. That’s what may happen during divorce litigation when spouses can’t settle their differences any other way.

Starting the Process

In California, a marriage may end in annulment, legal separation, or divorce. One person in the marriage or domestic partnership will file documents with the court clerk to get the divorce started, then file them on the other party. Both parties then file a Schedule of Assets & Debts, Income and Expense Declaration, and Declaration Regarding Service of Declaration of Disclosure.

If temporary orders for child support, custody, or spousal support are needed, one of the parties can request them at this time. In some circumstances, the parties will engage in discovery, which may involve answering questions, providing documentation, and giving depositions.

Exits on the Road to Court

Not all divorce cases make it to trial. For some, they find ways to settle their difference as their divorce proceeds. Often, the parties and their attorneys will meet with a mediator. The parties may negotiate a marital settlement agreement and a parenting plan, if one is needed.

Informal settlement negotiations are another option. Attorneys for the divorcing couple communicate demands and concessions until agreements are reached.

Sometimes issues are insurmountable, and settlement is impossible.

When Divorce Litigation Lands in Front of the Judge

Some marriages are complicated, the parties are unwilling to settle, or one of the parties is unable to participate in negotiations. A trial judge will review evidence and listen to testimony given in the courtroom. The judge then hands down appropriate orders that divide the couple’s property and debts, and settles the parties’ child custody, child support, and spousal support issues.

Divorce Litigation Isn’t Easy

But sometimes it is necessary. Make sure your legal representatives know how to guide your divorce case all the way to a judge if that is what it takes.

To discuss how to handle divorce litigation issues, please call us at 415-293-8314. The attorneys at the Law Offices of Judy L. Burger assist clients in San Francisco, Beverly Hills, Marin County, Santa Barbara, Ventura/Oxnard, San Jose, Gold River (Sacramento), and surrounding communities.

Legal Separation

Legal Separation Under California Law

February 12, 2019 Judy L. Burger Leave a comment

Daria met with her attorney, fully intending to file divorce as soon as possible. She and her estranged husband were both confused about whether to end their marriage or try to patch things up. They were also deeply concerned about their two children. As Daria spoke with her attorney, she learned more about divorce and legal separation under California law. She decided to weigh her options carefully to see which fit her situation better.

Procedure

Some states do not recognize legal separation. California is one of the states that does allow legal separation of a married couple. In fact, filing a divorce petition and a legal separation are essentially the same process. A couple going through a legal separation, as with a divorce, may negotiate separation of community assets and debts, a parenting plan if they have children, spousal support, and child support arrangements.

One reason for Daria to choose a legal separation involves the California residency requirement. To file a divorce, either spouse must have lived in California for the past six months AND have lived in the county where the divorce will be file for the past three months. An individual who wants to file for legal separation is not bound by the residency requirement.

If Daria chooses to file a legal separation under California law, she will need to take these steps:

File a petition with the appropriate court asking for a legal separation.
Serve a copy of the petition on her spouse and file a proof of service with the clerk.
Since she and her spouse have children, she will file a copy of the petition with the local child support agency.
Daria’s spouse has 30 days to answer the petition for legal separation. What happens next depends on how the spouse responded. The couple may engage in discovery or meet with a mediator if necessary.
If they reach an agreement, they may each be required to prepare and serve a final Declaration of Disclosure.
The Judge will issue an order finalizing the separation.

Note that a legally-separated couple are still married to each other and cannot marry anyone else. Also, under California law, the parties involved in a legal separation proceeding may convert the separation to a divorce at any time.

Not Sure Whether to File for Legal Separation or Dissolution?

The attorneys at the Law Offices of Judy L. Burger are experienced at all phases of divorce proceedings. Call us at 415-293-8314 to schedule a private appointment or visit our website. We maintain offices in San Francisco, Marin County, Santa Barbara, Ventura/Oxnard, San Jose, Gold River (Sacramento), and surrounding communities. Our new Beverly Hills office is opening soon.

California Divorce

2018 Tax Reform’s Effect on Spousal Support

February 7, 2019 Judy L. Burger Leave a comment

Often one party to a divorce will pay spousal support to the other party. Methods of calculating spousal support can be complicated. For example, tax treatment of spousal support payments differ for the party paying the support as opposed to the party receiving the support. For people currently divorcing, it’s important to consider the 2018 tax reform’s effect on spousal support.

Income Tax Treatment of Spousal Support

Income taxes for spousal support orders signed prior to 2019 were handled as follows:

The spouse who pays the spousal support may use those payments as a tax deduction.
The party that receive the spousal support reports the support as taxable income.

In the post-2018 tax reform world, though, things have changed:

Payers of spousal support can no longer count those payments as a tax deduction on their federal income tax returns.
Recipients do not have to report their spousal support as taxable income.

This seems like an easy change, but it does affect how much tax each party may be expected to pay.

The Tax Reform Effect

One issue is that the payment or receipt of spousal support may move either party into another tax bracket:

Recipients may move to lower income tax brackets since they no longer have to report spousal support as income. This could mean they get to keep a greater percentage of their spousal support than people divorced before December 31, 2018.
Payers of spousal support, however, will now lose the deduction that some call a divorce subsidy. Their income taxes likely will rise due to the loss of that deduction.

In addition, payers of spousal support may offer lower support payments since those payments are no longer tax deductible. This could adversely affect women, who are more likely to be the recipient of spousal support instead of the payer.

Will Your Spousal Support Be Affected by 2018 Tax Reform?

That depends on when your spousal support order was signed. Most orders signed before 2019 will not change, at least related to income taxes. However, support judgments that go into effect in 2019 will adhere to the new tax laws.

California Divorce

Social Media and Your Divorce

February 5, 2019 Judy L. Burger Leave a comment

Chris loved posting to all her social media accounts – Facebook, Twitter, Instagram – she had them all. It seemed like innocent fun and a great way to stay connected. The day she posted about her trip to Las Vegas, however, she learned the perils of social media. Her estranged husband learned she was on vacation and not helping her grandmother recover from hip surgery as she stated when she dropped the kids off at his house. At least a few of her 2,372 Facebook friends wondered how she could afford to stay at the Bellagio Las Vegas while claiming she needed more spousal support and child support. Chris found out the hard way that social media and your divorce are not good partners.

Let’s look at several reasons that people in the middle of a divorce should avoid social media.

Hidden Gold

Boasting about buying a new boat while claiming you’re too poor to pay child support is not a smart thing to do – but people do it. Social media posts may be a veritable treasure trove of financial information. Be aware that the parties to a California divorce are required to submit accurate financial disclosures or face penalties. Lying on divorce disclosures violates California law.

Not All “Friends” Are Friends

This may not be the best time to post a picture of you with your new boyfriend or write nasty things about your ex. If your estranged spouse is on the same social media sites, there’s a strong possibility you may have friends in common. Even if you have unfollowed or unfriended your spouse, he or she may still be able to see your posts.

And, of course, there’s always deliberate sabotage. Some friends may be friendlier with your spouse than with you. In addition, people may carelessly share your posts and photos so your ex-spouse will see them.

Posts = Evidence

Most of the messages and photos you posted on social media accounts may be used as evidence in your divorce case. If you are concerned about social media and your divorce, you may be tempted to delete everything. Talk to your attorney before doing anything with your social media accounts. Deactivating your accounts during your divorce may be the best course of action.

Social Media and Your Divorce? Maybe Not a Match Made in Heaven.

If you’re feeling nervous about past posts, you might consider deactivating your account. However, do not delete pics, posts, snaps, tweets, and another other social media stuff without talking to your divorce lawyer first.

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 Central Coast, including Beverly Hills, San Francisco, Gold River, Santa Barbara, Ventura/Oxnard, and surrounding communities.