Adultery, California Divorce, Child Custody, Domestic Violence, Property Division

Do Movies About Divorce Get It Right?

August 30, 2021 Judy Burger

Be aware that there are spoilers ahead if you have never seen the movies about divorce discussed in this article.

Mrs. Doubtfire – Stability Trumps Whimsy When It Comes to Child Custody and Visitation

This 1993 film starring the late Robin Williams focused on divorce, child custody, and visitation in a poignant yet comical way. As Daniel and Miranda Hillard’s marriage ended, Daniel’s whimsical behavior made him look like an unfit parent. He and his children had a great relationship, but the court granted custody to Miranda. After all, she had a good job and a stable home environment. The court also insisted Daniel clean up his act and limited his access to the kids.

Daniel’s response was to transform himself into an older female character – Mrs. Doubtfire – and get hired to be his own children’s nanny. He and the children became closer until his scheme fell apart, making him look even more unstable. Unlike many movies about divorce, this film ends on a high note. But did the movie makers get it right?

Child custody and visitation are significant points. It seemed the court tried to make decisions that were in the children’s best interests at all times. A stable home life is essential, and Daniel, at first, did not offer this. It made sense to give Miranda full custody and to limit Daniel’s visits. So, it appears that the court did get it right

However, the court may not have considered the children’s feelings on this matter. Although children are not always the best judge of character, Daniel’s kids were close to him and needed to see him. Daniel and Miranda worked out a compromise on visitation that the judge probably would have been approved if included in a California parenting plan.

Kramer vs. Kramer – When Home Away from Home Isn’t Home

This 1979 legal drama is about Ted and Joanna Kramer and their son, Billy. Joanna deserts Billy, leaving him Ted. Unfortunately, she had been Billy’s primary caregiver because of Ted’s high-stress, time-consumer job.

After being gone for more than a year, Joanna returns to divorce Ted and claim custody of Billy., despite Joanna’s abandonment, she won custody of her son.

Joanna prepares an apartment for Billy and then tearfully confesses to Ted that Billy’s true home is with Ted. We don’t see any courtroom scenes as the movie ends soon after, so it’s unsure whether Joanna officially yielded custody or not.

Courts in the 1970s still tended to favor mothers over fathers when it came to custody battles. Movies about divorce did, too. The court here seemed to ignore Joanna’s abandonment and Ted’s stepping up to be a good father to Billy. This may be partly due to something called the “tender years doctrine” that presumed moms should have custody of very young children.

In a California divorce, the courts make custody decisions based on many factors, including what is in the child’s best interests. Abandonment is a serious concern, especially when the child’s other parent is not unfit. A California judge faced with this situation today might have granted sole physical and legal custody to Ted. However, both parents may negotiate a parenting plan and present it to the court for approval.

The War of the Roses – Property Division Can Be a Thorny Issue

This dark comedy shares the story of Oliver and Barbara Rose. During their marriage, they had two children and became very wealthy due to Oliver’s legal career. Finally, though, Barbara confesses she no longer loves Oliver, and they decide to divorce.

The real problems begin when they start splitting up their property. The mansion that Barbara had found and filled with expensive possession became the main point of contention. Barbara kicks Oliver out of the house. Despite his attorney’s advice to compromise, Oliver returns to the home. As their conflict spirals out of control, the couple begins destroying their home, its contents, and eventually each other.

As movies about divorce go, this one captures how personal property division can become to divorcing couples. Sometimes it’s not about the actual property. Instead, personal feelings can get in the way, preventing much-needed compromise.

The best way Oliver and Barbara could have prevented the loss of property and life here would have been to heed the advice of their divorce attorney. Since California is a community property estate, shared assets and debts are split 50-50 with a few exceptions. Attorneys with property division experience could have used California law to help the Roses categorize their property and then amicably divide it.

Movies About Divorce Don’t Always Get It Right. Talk to a California Divorce Attorney About Your Divorce.

The attorneys at the Law Offices of Judy L. Burger are experienced at all phases of divorce, legal separation, and annulment. Call us at 415-293-8314 to schedule a private appointment or visit our website. We assist clients along California’s Northern to Southern Coast, including San Francisco, Beverly Hills, Marin, San Jose, Gold River, San Diego, Santa Barbara, Ventura/Oxnard, and surrounding communities.

Child Custody

Is Parental Kidnapping Really a Crime?

August 26, 2021 Judy Burger

After eight years of marriage and the birth of one child, Tina and Derek decided to call it quits. Their divorce became contentious as both parents wanted custody of their child, Alex. Unable to agree on custody and visitation, they presented their cases to a judge, who granted Derek sole legal and physical custody and approved a visitation plan. After a weekend visit, Tina refused to return Alex to Derek. Has Tina committed a crime? Since Alex is her child, is she committing parental kidnapping by refusing to return him to his legal custodian?

Child Custody Arrangements

Parental kidnapping cases usually occur because of custody disputes. Maybe one spouse objects to the judge’s decision to grant custody to the other parent. Often, parental abduction cases stem more from power struggles than keeping children safe from an unfit parent. In our example above, the custody order left Tina feeling powerless. Tina indeed loves her son, but she is also trying to use him as leverage to get more spousal support and joint custody.

There are legal ways to resolve custody disputes without having to resort to kidnapping. Your divorce attorney can explain your options. For example, you may have evidence that your co-parent is unfit that the court never heard. Your attorney might present that evidence to the court and ask that your custody agreement be modified.

But parental kidnapping is the wrong way to handle a disagreement over custody.

What Qualifies as Parental Kidnapping

According to California Penal Code, someone who does not have the right to custody commits a crime by maliciously taking, enticing, keeping, withholding, or concealing a child from his or her lawful custodian.

This is precisely what Tina did –withheld her son from his legal guardian. The judge’s custody order was clear and unambiguous. By ignoring the order, she is committing a crime that is punishable by:

Up to one year in a county jail, a fine of up to $1,000, or both; or
Imprisonment for two to four years, a fine up to $10,000.00, or both.

Unless your child is in clear and immediate danger, it is better to work through the legal system to resolve custody disagreements.

What Isn’t Parental Abduction?

Unusual situations can arise when parents and children are involved. For example, the mother automatically has custody (at least initially) if the parents of a child are not married. Generally, this is true even if the parents were living together with the child.

So, if Tina and Derek were not married at the time of their breakup, Tina would have immediate custody of Alex. If Derek removed Alex from home without her permission or refused to return him, then Derek would have committed child abduction. Derek could get an attorney to help him exercise custody and visitation rights instead of just taking Alex.

Also, if a married couple is still together, and a judge has not signed a custody order, then both parents have custody. If Derek takes Alex on a fishing trip against Tina’s wishes, it is not parental abduction because Derek has the same parental rights to Alex as Tina does.

What Can You Do About Parental Kidnapping?

Maybe you are still married but worry about your spouse taking your children away. Talk to an attorney immediately. But if you or your children are in immediate danger, call 911 first.

Property Division

Yours, Mine, and Ours: Property Division in a California Divorce

August 24, 2021 Judy Burger

Both versions of the movie Yours, Mine & Ours tell the heartwarming story of two large families combining into one. But couples getting divorced face the exact opposite situation. Instead of combining, they are dividing everything from assets, debts, and sometimes even friends. Since California is a community property state, it almost seems like splitting everything 50-50 should be simple. But property division in a California divorce can be extremely complicated and is best handled by an attorney with deep experience and knowledge.

This article looks at property division fundamentals to give you a basic understanding of how it works.

Separate vs. Community

Some states handle property division in a divorce through equitable distribution. A divorce settlement or final order, then, might consider all the couple’s assets and debts, along with a myriad of other factors, then split everything as equal as possible.

Nine states, including California, are community property states. This method of property division, at its most basic levels, splits a couple’s property and debt into one of the following categories:

Separate. Assets each person brings into the marriage usually start out as their separate property. Certain assets acquired during the marriage could be considered separate, including inheritances.
Community. Most property acquired by a couple during their marriage is considered community property that is split roughly 50-50.
Quasi-Community Property. The couple acquired property in another state, but it would have been community property had they bought it in California.
Mixed Community and Separate Property. Sometimes property is “part separate property and part community property.” This type of asset can be especially challenging.

Your California divorce attorney can provide knowledgeable assistance when it comes to categorizing your property.

A Few Potential Examples of Property Division in a California Divorce

The following examples give you an idea of how things might go but are not intended to imply that is the way your property will be divided.

Separate Property. Helene purchased her house several years before she and Max were married. During their seven-year marriage, Helene paid the taxes, insurance, and maintenance from her separate income. If they divorce, the house will probably be considered Helene’s separate property.
Community Property. Max and Helene buy a house together as a married couple. They both sign the mortgage and contribute to the down payment from community funds. Max and Helene made monthly mortgage payments from a joint account. Also, the couple shares maintenance and insurance costs. During the property division part of their divorce, the home probably will be considered community property.
Quasi-Community Property. Since both Helene and Max enjoy skiing and other winter sports, they decide to buy a ski lodge in Colorado. They file for divorce in a community property state, but Colorado is an equitable distribution state. The ski lodge probably will be split according to California divorce laws.
Mixed Community and Separate Property. Let’s look back at the home that Helene bought before she married Max. At the beginning of the marriage, the house would be Helene’s separate property. However, in this scenario, Max pays for home improvements that improve the value of the home. Property division now gets very tricky. Is Max entitled to half of the home’s improved value – or more?

This article can only cover the basics of property division. Your results could vary depending on your unique variables. Therefore, the best way to handle property division is to hire an experienced attorney.

Help with Property Division Is Available

California Divorce

10 Common Reasons Why People Get Divorced

August 19, 2021 Judy Burger

People usually get married because they love each other. But there are many reasons why people get divorced, including the ones listed below.

#1. They can’t communicate.

Some studies show that good communication is one of the most important reasons couples stay together. But sometimes, spouses can no longer talk to each other, at least about the essential things in life. When communication is lacking, divorce is often close at hand.

#2. Couples can’t work together.

Sometimes marriage counselors tell couples to work on their marriage. And, let’s face it, the day-to-day of being married can take a lot of effort. Constant fighting is hard on everyone and can lead people to get divorced.

#3. Spouses no longer love each other.

People fall into love. But sometimes they fall out of love after the wedding. If the love is gone, it may be time to get divorced.

#4. They stop spending time with each other.

Sometimes it’s gradual. Sometimes it happens suddenly, but married couples headed for divorce may notice they spend less and less time with each other.

#5. They realize the marriage was a mistake.

After the honeymoon is over, some couples find that their marriage was not such a good idea after all. And it doesn’t matter whether you got married in a Vegas wedding chapel or after a year of intense planning. It just happens that people find they are just not a good fit.

#6. There’s an addiction.

Being hooked on drugs or alcohol is difficult, but not just on the person with the addiction. Families also suffer, especially in a close relationship like a marriage. At some point, a husband or wife may find they can no longer handle the challenges of living with an addict.

#7. Infidelity is involved.

It’s hard to think of anything that could hurt a marriage more than infidelity. Trust is a big part of having a successful marriage. Breaking that trust by cheating is a common reason people get divorced.

#8. Domestic violence is occurring.

Screaming, punching, and pulling hair are only three signs of domestic violence. An abuser might also demean his or her spouse or withhold money and support. Someone faced with physical, mental, or emotional abuse can find help through a local shelter or domestic violence hotline. For some, divorce is an option.

#9. They’re having financial problems.

Handling money can stress a couple out more than almost anything. Individuals come into a marriage with different ideas about spending and saving. Couples hit with financial problems like unemployment or unexpected expenses may find their relationship becomes as empty as their bank accounts.

#10. They are fighting over the kids.

It’s not uncommon for parents to have differing viewpoints on childrearing. Unfortunately, parents may be unable to negotiate and compromise. They may also refuse to participate in family or marriage counseling that has the potential to forge them into a stronger team instead of getting divorced.

If Divorce Is Necessary, We Can Help.

Talk to an experienced California divorce attorney today. Please call us at (415) 293-8314 to schedule a confidential appointment with one of our attorneys.

California Divorce, Child Custody, Child Support, Domestic Violence, Spousal Support

What Are Ex Parte Hearings and How Do They Work?

August 17, 2021 Judy Burger

From the time a California divorce is filed until it is settled can take time. But the parties sometimes require action from the court that just can’t wait. For example, ex parte hearings address emergency matters that need to be heard as soon as possible.

Ex Parte Hearings in a California Divorce

One or more parties may apply for emergency orders in family law cases.

Courts might hold ex parte hearings for the following reasons:

Preventing danger or harm to another party or any children involved in the divorce.
Preventing immediate loss or damage to property.
Setting a hearing for a time that’s shorter than normal.
Shortening or extending the service time for notices of hearing and other court papers.
Rescheduling a hearing or trial.

Your attorney will know when ex parte hearings are needed and how to get them.

Applying for Ex Parte Decisions

Not every situation requires an expedited or emergency hearing. However, your attorney can ask for an ex parte hearing for the following basic reasons:

Request for an emergency order.
Ask to reschedule a hearing or trial.

Generally, applications must contain the following information:

Contact information for any attorneys involved in the case or the contact information for any party that does not have an attorney if known.
Declarations about facts supporting the request.
Lists of previous orders or applications made about the same issue.
A disclosure of any changes to the party’s status quo resulting from the order.
Specific information about child custody or visitation issues.

The law requires that most parties who request ex parte hearings usually must notify the other parties involved.

The declaration also contains details about how the filing party served the other party. If it was impossible to serve the notice, provide information about all attempts to serve. And finally, the person applying for an ex parte hearing can state any reasons that the notice of hearing should not be served.

We Can Discuss Ex Parte Hearings with You.

As our attorneys work on your case, they will identify any areas that might need emergency orders.

Domestic Violence

The Collateral Damage of Domestic Violence

August 12, 2021 Judy Burger

Often there are witnesses to catastrophic events. We may not realize it, but just seeing something traumatic unfold before you can have a severe and long-lasting effect on mental health. This principle holds true whether the event is large scale or happening right at home. The situation can be even more serious when the witness is a child, especially if domestic violence is involved.

An Expanded Definition of Domestic Violence

But, first, it’s important to understand that domestic violence is more than just physical abuse. It can be defined as any “pattern of behaviors used by one partner to maintain power and control over another partner in an intimate relationship.”

California courts define domestic violence as:

“Physically hurting or trying to hurt someone, intentionally or recklessly;
Sexual assault,
Making someone reasonably afraid that they or someone else are about to be seriously hurt (like threats or promises to harm someone); OR
Behavior like harassing, stalking, threatening, or hitting someone; disturbing someone’s peace; or destroying someone’s personal property.”

It’s entirely possible to witness domestic violence but not realize how harmful it is. For example, a child watching his father demean his mother may not realize the underlying damage. However, the experience will still be troubling and could cause long-lasting effects.

Children and Domestic Violence

While children may not understand exactly what is happening, they usually can tell when someone is afraid. Often, they become afraid also.

Young children who witness violent acts against a loved one might regress in certain behavior like thumb-sucking and bed-wetting. Also, they could begin hiding from adults or have trouble falling asleep.

School-age children might understand more of what’s going on. They may start to exhibit a lot of vague physical symptoms like frequent headaches or stomach problems. In school, their grades could fall, and they might tend to get into trouble more often than other children.

Teenage witnesses of domestic abuse have more risky and dramatic ways of showing they’ve been damaged by what they’ve seen at home. Girls are more likely to be withdrawn and depressed. Boys are more likely to act out by fighting, bullying other kids, getting arrested, or using alcohol and drugs.

The collateral damage associated with domestic violence can last well into adulthood. Some people continue the cycle of abuse. Others take refuge in addictions. At the very least, they may have trouble sustaining healthy, intimate relationships.

How to Help

Just witnessing violent behavior can profoundly affect children, even if no one ever lays a finger on them.

Here are some actions you can take if you are a victim of domestic violence:

Call the National Domestic Violence Hotline at 1-800-799-SAFE (7233) or TTY 1-800-787-3224.
Contact law enforcement and ask for help.
Find local resources for domestic violence victims.
Talk to an attorney about getting a domestic violence restraining order.
If you are married to your abuser, ask your attorney about filing for divorce.

Also, find out about counseling options for your children, especially if they witnessed any abusive behavior.

Children Can Become the Collateral Damage of Domestic Violence

Spousal Support

FAQs About Spousal Support

August 10, 2021 Judy Burger

Couples going through divorce have many decisions to make. Some of the most mystifying issues seem to be about spousal support. The person who needs the support wants as much as possible for as long as possible. But the person paying the support might want to avoid paying any at all. The following frequently asked questions and the answers that go with them might help take some of the mystery out of this crucial issue.

Spousal support is also sometimes referred to as alimony. In a domestic partnership, it’s called partner support.

Is spousal support always awarded?

No. One or both parties can ask the court for temporary or permanent spousal support. Judges look at several factors before awarding spousal support to either party, including the length of the marriage and the standard of living the couple enjoyed during their marriage.

About how much spousal support can I expect?

The judge will decide how much spousal support to award based on some of the same factors used to decide the award. For example, has one spouse stayed home to take care of the house and kids instead of pursuing a career? That person may lack the marketable job skills needed to get a job that supports their prior standard of living. The court will also consider the paying spouse’s income. In some cases, the paying spouse might be ordered to pay around 40% of their net income after expenses.

The couple also could negotiate spousal support as part of their settlement.

How long do I have to pay my ex-spouse?

Here, the length of the marriage plays a part.

For marriages lasting less than ten years, spousal support payments could continue for about half the length of the marriage.

For marriages that lasted longer than ten years, the judge does not typically set an end date for support payments. This does not mean that payments will never end. The family court judge retains jurisdiction. Also, the paying spouse can ask for payments to end and provide proof that support is no longer needed.

Can only women get support?

No, courts can award spousal support to either spouse. Generally, the courts don’t consider gender when reviewing a request for spousal support.

I can’t get spousal support and child support at the same time, can I?

Yes, you can. Different factors go into calculating child support as opposed to spousal support. California courts use a statewide guideline to decide on child support amounts unrelated to spousal support calculations.

Also, both parents are expected to support their children financially under California child support law.

Whether You Have to Pay Child Support Can Be a Major Question

Taking financial responsibility for your children is important. However, splitting into two households can be expensive. Also, if you do have to pay child support, you want to make sure you pay an appropriate amount.

Talk to an experienced California divorce attorney today. Please call us at (415) 293-8314 to schedule a confidential appointment with one of our attorneys.

California Divorce

Tips for Meeting with Your California Divorce Attorney for the First Time

August 3, 2021 Judy Burger

Many people have never met with a lawyer before, for any reason. So, meeting with your California divorce attorney for the first time can be a nerve-wracking experience. But there are ways to make things a little less stressful. That’s what we will look at in this article.

Do a little preparation before meeting with your first meeting.

If you can, take a few minutes to consider your goals. Are you definitely seeking a divorce, or are you open to other options? Do you have children to consider? Will you need support while the divorce is pending?

Then, start writing or typing. Make a list of the questions you might have for your California divorce attorney. It’s very easy to forget details – even important ones – during your consultation.

Finally, gather as much financial information as you can. Your attorney will have to file financial disclosures with your petition. If your spouse is filing the divorce, you need to provide full and complete financial disclosures when responding to the divorce petition.

Try not to be nervous about meeting with your California divorce lawyer.

Make sure you know how to get to the attorney’s office. Check routes, traffic, and parking before you leave the house. This simple advice might just help lower your stress level on the day you consult with your lawyer for the first time.

Be completely honest and upfront with your California divorce attorney

Come prepared to talk.

Divorce and marriage involve highly personal issues. You might be embarrassed or uncomfortable sharing some details with your attorney. But remember two things:

Your lawyer cannot give you the right advice if they don’t have all the facts, and
Your attorney probably has seen people in similar situations and won’t be surprised or judgmental.

The important thing is that you have taken a big step towards a new future. Your divorce lawyer can help you achieve your goals.

Understand what you need to do after you leave the meeting.

You and your lawyer will discuss many things during your first consultation. There’s a good possibility you will leave the meeting with some ‘homework’ assignments.

For example, your California divorce attorney will explain what information you need to file your divorce petition or respond to your spouse’s petition. You might need to gather more information for your attorney.

Also, you might leave the meeting with additional paperwork to fill out.

Finally, your lawyer might give you instructions on things to do or not do while your divorce is pending.

Always listen carefully and help your attorney help you.