Monthly Archives: June 2023

Understanding Transmutation During Your California Divorce
California Divorce

Understanding Transmutation During Your California Divorce

When a California couple divorces, one of their primary tasks will be determining how to divide their property. In some cases, a couple’s assets may be subject to a transmutation agreement. If your California divorce concerns transmutation, knowing how this type of contract may affect your case is important. Here is more on understanding transmutation during your California divorce.

California Community and Separate Property

Community Property

In California, the income and assets a couple acquires during marriage are presumed to belong to each spouse equally. These shared assets are known as community property. During a divorce, each person will have an equal ownership interest in these jointly-owned resources.

Separate Property

Outside of certain limited exceptions, what a person owns before marriage belongs solely to them. These premarital assets are known as separate property. During a divorce, separate property generally remains the possession and responsibility of the owning spouse.

Although property may be deemed community or separate, there can be circumstances when spouses may decide to enter into an agreement that changes how these assets will be treated. One way to accomplish this is through a transmutation agreement.

What is a Transmutation Agreement?

Transmutation refers to the conversion of property ownership. A California transmutation agreement is a legal contract that can be used to convert community property into separate property and vice versa. This type of agreement can also be used to transfer assets between spouses.

When are Transmutation Agreements Used?

Spouses use transmutation agreements to establish who has certain ownership interests. Unlike a prenuptial agreement, which couples enter into before marriage, this document is developed and executed after marriage and therefore is considered to be a postnuptial agreement.

What do Transmutation Agreements Do?

When a married couple enters into a transmutation agreement, they change the legal ownership of the property to either community (owned 50/50) or separate (belonging to one spouse). Without a California transmutation agreement, assets and income acquired by the couple during the marriage would be presumed to be community property. Likewise, outside of certain limited circumstances, property owned by one spouse before marriage would continue to be their separate property.

Why Would a Couple Use a California Transmutation Agreement?

Transmutation agreements provide a way to establish and clarify ownership. A couple may elect to use a California transmutation agreement to minimize the possibility of conflict over assets during divorce. There may also be certain tax benefits or other reasons for this decision. In some cases, a transmutation agreement may also be used for estate planning purposes. For example, one spouse may want to designate their inheritance as a community asset, which would normally be separate property.

Transmutation Agreement are Legal Contracts

It’s important to know that a transmutation agreement is a legal contract with significant implications. As with any contract, the document must be entered into knowingly by both parties in order to be binding. If there is evidence that a spouse was forced or tricked into signing the agreement, it may be considered void. In addition, these contracts may impact an individual’s tax liability.

Transmutation agreements can be complex and have a significant impact on those who are subject to the agreement. Someone who wants to use this type of postnuptial document should consult and work with an experienced California family law attorney. Your lawyer can help you evaluate your assets and determine the best ways to meet your goals.

Contact a California Divorce Attorney

Do you have questions regarding a transmutation agreement or other divorce issues? The attorneys at the Law Offices of Judy L. Burger are experienced family law attorneys who can help. 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.

 

Can I Get my California Marriage Annulled?
California Divorce

California Annulment: Can I Get my California Marriage Annulled?

California Annulment:  In California, a couple can end their marriage by divorce and, in some cases, through annulment. Although it may seem as if the requirements should be the same, there are some important distinctions under the law. So, if you are considering legally ending your marriage, you may be wondering: Can I get my California marriage annulled? 

What is an Annulment?

A divorce is a legal end to a marriage. An annulment is the voiding of a marriage. The effect of an annulment is to treat a marriage as if it had never existed. However, annulment is limited to specific circumstances.

Grounds for a California Annulment

In California, a person seeking to annul their marriage must meet certain requirements. There are numerous grounds that can be named in a petition for annulment, including:

Age: The party who commences the proceeding or on whose behalf it is commenced was under 18 when wed, and it wasn’t legal to marry.

Bigamy—When a spouse is already married to someone and marries again, the second marriage is considered invalid.

Tricked—If a spouse was tricked into marrying, they may have grounds to annul the marriage.

Incapacity—Either party was of unsound mind at the time of marriage unless the party of unsound mind, after coming to reason, freely cohabited with the other as their spouse.

Fraud—The consent of either party was obtained by fraud unless the party whose consent was obtained by fraud afterward, with full knowledge of the facts constituting the fraud, freely cohabited with the other as their spouse.

Duress—The consent of either party was obtained by force unless the party whose consent was obtained by force afterward freely cohabited with the other as their spouse.

Physical Incapacity—At the time of marriage, either party was physically incapable of entering into the marriage state, and that incapacity continues and appears to be incurable.

Relationship—Marriage between people who are related within a certain degree is void as a matter of law and, therefore, can be annulled.

How Long Do I Have to Get an Annulment?

Generally, a person who can file for an annulment has four years to do so. However, the timeframe for seeking this remedy depends on the reason for the annulment. If you believe you have grounds to seek an annulment, you should contact an experienced California family law attorney to review your case and determine the applicable statute of limitations.

The Annulment Process

Someone seeking a California annulment will follow a similar process to seeking a divorce. First, the party will file a petition and complete the designated form. Once they have provided the requisite information, the party will serve their spouse. If the couple has minor children, the petitioning party will file a Declaration Under Uniform Custody Jurisdiction and Enforcement Act.

Once the proper documents are filed, the matter will be set for a hearing. During the hearing, the court will hear evidence of your reasons why the petitioning party believes their petition should be granted. If the court grants the annulment, the marriage will be considered void. Those with children will also need to develop custody and support terms.

Contact a California Divorce Attorney

The attorneys at the Law Offices of Judy L. Burger are experienced California divorce attorneys who can answer your questions about annulment and other matters. 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. Call us at 415-293-8314 to schedule a private appointment or visit our website.

Enforcing a California Child Custody Order
Child Custody

Enforcing a California Child Custody Order

When parents divorce or separate, court orders will establish when and how they will spend time with their minor children. These California child custody orders are created according to what is in the best interest of the children involved. However, there can be circumstances when one or both parties may fail to abide by a California child custody order. In that circumstance, it may be necessary for the other parent to file an action seeking enforcement of the court’s custody order. Here is more on enforcing a California child custody order:

California Child Custody Orders

There are two types of child custody in California—legal and physical. Legal custody refers to a parent’s right to make decisions regarding their child’s upbringing, health, education  and welfare. Physical custody concerns a parent’s right to have their children with them and in their care. When parents divorce, they will have a custody order that sets out their respective decision-making authority and the specific times and days they can have their kids with them.

Child Custody Enforcement

After child custody orders are put in place, parents are expected to observe and obey the terms. These legal and physical custody orders may have been developed through the parents’ negotiations or a judge’s decision. When a parent regularly fails to follow a California child custody order, the other parent may have grounds to file an enforcement action. When a parent files this type of case, they are asking that the court hold the violating party in contempt of court and enforce the child custody order.

What Constitutes a Child Custody Violation?

Ideally, a child custody order will be carefully and specifically drafted according to the parties’ unique circumstances. When the parents work with their attorneys to create this type of order, they can usually anticipate and plan for their family’s needs. In addition, working with counsel can help ensure that the orders include functional and realistic terms. When child custody terms are clearly and specifically defined, it can make it easier for both parties to understand what is expected and avoid misunderstandings and conflict.

When developing a California child custody order, parents should consider issues such as:

  • The distance between their homes
  • How they intend to divide time during the school year
  • How summer and holiday time will be divided
  • Any extracurricular activities the children may be involved in now and in the future
  • How transportation details and associated expenses will be managed
  • Times when parents may need to deviate from the schedule

Not Every Violation Will Warrant Going to Court

It’s important to remember that not every variation from a California child custody order will warrant filing for enforcement. For instance, a parent may be late dropping their child off with the other parent because of an unforeseen traffic delay. There may also be times when a parent’s work schedule requires a temporary change. When parents can communicate and work together when these situations arise, they may not have to resort to legal taking legal action.

What to do When a Parent Repeatedly Fails to Abide by the Order

If a parent consistently and willfully violates the child custody order, the other parent may need to pursue enforcement. Before taking the matter to court, the parent should consult with an experienced child custody attorney to review the infractions. However, if the other parent refuses to return the children to the other parent, it may be necessary to act immediately. In either circumstance, the parent will need to advocacy and assistance of experienced counsel.

Contact an Experienced California Child Custody Attorney

Child custody enforcement may or may not be necessary, depending on your situation. The best way to determine your enforcement options is by consulting with an experienced child custody attorney. Your lawyer can review the violations and help you identify your options.

The attorneys at the Law Offices of Judy L. Burger are experienced California child custody attorneys who can help you with your child custody issues. Our firm assists 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. Call us at 415-293-8314 to schedule a private appointment or visit our website.

 

 

 

 

California Community Property and Business Ownership
California Divorce, Property Division

California Community Property and Business Ownership

Owning and operating a family business can be a full-time commitment for a married couple. Should the pair decide to divorce, dividing this type of asset and its obligations can be complicated, especially if both parties want to continue running the enterprise. Depending on how and when the business was formed, it may or may not be considered community property. Here is more on understanding California community property and business ownership.

Business Ownership and Community Property

When a California couple forms a business while married, the entity will be considered their jointly owned (community) property. Consequently, if the two divorced, each would be entitled to their half or community ownership interest.

Dividing a Community Property Business

A business that is a community-owned asset can be divided in a number of ways during divorce, such as:

Paying One Spouse—If one spouse wants to continue operating the enterprise, they could pay the other spouse the value of their community share. This may involve making a direct payment or balancing the division of other marital assets to compensate the spouse for their share.

Shared Ownership— When both want to continue operating the business, the spouses could arrange to share ownership of the entity. This may involve one spouse having stock or exclusive authority to manage or make operational decisions.

Selling the Business—The parties may determine that it’s best for them to sell the business. In that case, they can work with their divorce attorneys to determine the most equitable way to sell their enterprise and divide the proceeds.

Close the Business—If the business is not marketable, and one can’t afford to pay the other for their community share, the parties may determine that it is best to divide the remaining obligations and close the enterprise.

Business Ownership and Separate Property

In a California divorce, outside of certain exceptions, assets a spouse acquired before marriage are considered to be their separate property. When a property is determined to be separate, it belongs to the spouse who owned it coming into the marriage and is not subject to division. However, separate property can be transmuted into community property through a prenuptial or postnuptial agreement.

When one spouse owns and operates a separate property business during marriage, the enterprise will remain their asset during divorce. However, the court can examine the other spouse’s community contribution to the business. For instance, if the owner used community funds to improve or market the business or the other spouse worked to support the success and management of the enterprise, the court may determine that the non-owner spouse is entitled to compensation from the community.

Business Valuation and Divorce

Once it has been determined that the business asset is a community or separate property, it will need to be valued. Depending on the circumstances, business valuation during divorce can become complicated and contentious. For example, the spouse who wants to retain the business will often want it to be given a lower estimate. By contrast, the other spouse may contend that the business has a high dollar value. Resolving this kind of disagreement can be challenging.

During a divorce involving a community property business, the each party will hire their own accounting professional to prepare a business valuation.  This type of business valuation will ordinarily involve a review and neutral assessment of the company’s assets and liabilities, accounts payable, inventory, and profitability. Once each party’s valuation is complete, the parties can use the financial data to determine how to equitably divide their respective interest in the business.

Determining how to divide interest in a community property business during divorce can be complex, and it’s essential that you work with an experienced California divorce attorney throughout the process. Your divorce lawyer can help you determine the best way to value all of your marital assets and equitably divide your interest.

Contact an Experienced California Divorce Attorney

The attorneys at the Law Offices of Judy L. Burger are experienced California divorce attorneys who can help you before, during, and after your divorce. 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. Call us at 415-293-8314 to schedule a private appointment or visit our website.