Monthly Archives: September 2024

Can I Get Spousal Support During a Legal Separation?
Legal Separation, Spousal Support

Can I Get Spousal Support During a Legal Separation?

Legal separation may be a good option for couples who are unsure about getting a divorce. However, it’s important to know that legal separation can come with significant financial responsibilities, including potential spousal support. If you need help understanding whether you have to pay or may need spousal support during a separation, Certified CA Family Law Specialist Judy L. Burger can help. She can share the information you need to make the best decision for your specific situation.

What is a Legal Separation?

A legal separation is a legal arrangement where a married couple lives apart while remaining legally married. This separation agreement addresses issues such as spousal support, child custody, visitation, and division of assets and debts. Legal separation can be a suitable option for couples who are uncertain about whether they want to pursue a divorce or for religious or financial reasons. It enables couples to live separately and manage their individual affairs while addressing practical matters similar to those in a divorce.

What Is Spousal Support?

Spousal support, also known as alimony, refers to the financial assistance provided by one spouse to the other during or after a divorce or separation. It is designed to help the recipient spouse maintain a standard of living similar to that enjoyed during the marriage.

Legal Separation and Alimony in CA

The amount of spousal support and the duration for which it is paid can vary widely depending on factors such as the length of the marriage, each spouse’s financial situation, earning capacity, and contributions to the marriage, among others. Spousal support can be awarded on a temporary or permanent basis, and it is an important aspect of many divorce proceedings.

There are two types of spousal support in California: temporary spousal support and permanent spousal support.

  1. Temporary support is alimony that is paid while a case is still pending and before a final order or agreement has been reached.
  2. Permanent spousal support refers to the support order determined at the end of the case. Despite the name, it does not imply an endless support agreement.

Legally separated spouses handle their finances similarly as they would in a divorce, except they cannot sell shared assets. One party often lacks the independent income to adequately support themselves. The court determines each party’s earning capacity and many other factors to determine the support agreement warranted. If there is a significant difference in income or potential earnings, the higher earner may be required to provide support.

These considerations are highly specific to each situation, so you need an experienced CA Family Law Attorney like Judy Burger to help you prepare for a support determination. She can work with you to formulate an equitable and fair support agreement that covers all the relevant factors of the case.

California’s 10-Year Rule and Alimony

In California, a marriage that lasts for ten years or more is considered “long duration,” giving the court indefinite jurisdiction over spousal support in cases of divorce or legal separation. However, according to Family Code 4336, periods of separation during the marriage may also be considered in determining the length of the marriage. This means that if a couple legally separates before the ten-year mark, it may impact whether their marriage is classified as long duration in the event of a future divorce. It can also impact how spousal support is determined during a legal separation proceeding a divorce.

Working with a Certified CA Family Law Specialist like Judy Burger is obviously in your best interests when considering a legal separation and possible spousal support issues. Whether you may need alimony or be more likely to pay spousal support in the event of a separation, you need to know your options and how to prepare. Schedule a consultation with The Law Offices of Judy L. Burger in California to get advice and guidance for your future.

 

Child Custody Matters That Warrant Ex Parte Hearings
Child Custody, Domestic Violence, Restraining Order

Child Custody Matters That Warrant Ex Parte Hearings

If you need urgent legal orders to protect a child from harm, prevent personal injuries, or address other time-sensitive matters pertaining to child custody, you may need an Ex Parte Hearing. Also known as “Emergency Hearings,” these proceedings are typically requested by one party with little or no notice to the other involved parties. They are reserved for situations where imminent harm requires immediate action from the court.

The Law Offices of Judy L. Burger and her team specialize in handling the intricate paperwork and representation for ex parte hearings. Contact one of our California offices nearest you to learn more and get help with child custody matters and emergency hearings.

What Is an Ex Parte Emergency Hearing?

The term “Ex Parte” originates from Latin, meaning “from one party.” It is a request from a single party to present evidence to the court with little or no notice to other involved parties. In California, such hearings are permitted when there is an imminent threat of significant harm and immediate action is necessary to prevent it. This can include child custody matters.

The court can grant this emergency hearing and issue legal orders to protect parties from harm in extreme situations that make custody battles difficult or dangerous.

Child Custody Emergencies

​Child custody discussions between parents can become heated and even violent. If you believe there is a good chance the discussions could turn bad or you feel threatened, you can request an ex parte hearing in a CA family court. If the court finds sufficient proof for emergency orders to protect you and your child, they may grant them even if the other parent is not present. Common reasons to request an ex parte hearing include the following:

  • To Protect a Child: Ex parte emergency orders are typically granted when there are allegations of child abuse, neglect, a threat of abduction, or other similar reasons when a child would need legal protection from serious harm.
  • To Prevent Physical Harm: Ex parte orders can be granted to protect an adult from possible domestic violence or other causes of imminent and serious harm. Preventing a personal injury from a previously violent person is a justifiable cause for an ex parte emergency order of protection. This includes if one parent threatens harmful actions if a sole custody petition is filed with the court.
  • To Prevent Financial Harm: Ex parte orders can also be requested if significant financial harm is imminent, threatened, or otherwise could cause serious loss to the victims. An example would be when one party claims a spouse is willfully destroying joint-owned property, leaving the first party without a means of support.

​The Law Offices of Judy L. Burger can help you obtain ex parte orders in family court when custody matters are threatened by imminent harm or violence. You may also need a temporary restraining order to protect you and your child from an abusive or manipulative spouse/parent. When you or your child experience abuse or feel threatened, that is the time to act. Contact The Law Offices of Judy L. Burger for immediate assistance with obtaining a restraining order. We have eight offices across California to serve you.

Know When to Act

Disagreements between separated or divorcing parents can go awry for any number of reasons. Custody discussions can break down, and alarming reactions may threaten your mental and physical safety and that of your child. It is important to act swiftly and learn about the various legal means at your disposal.

If you find yourself in a situation where an ex parte hearing may be necessary, it’s crucial to seek assistance from a California Certified Family Law Specialist like Judy L. Burger. Her expertise and experience in handling such matters can provide the guidance and swift action needed to address threatening domestic circumstances through legal means. Contact us immediately to explore your options and get the help you need.

 

How Can I Prepare for Sole Custody of My Child?
Child Custody

How Can I Prepare for Sole Custody of My Child?

Are you ready to take responsibility for sole custody of your child? California family courts generally grant joint custody to both parents in a divorce. Obtaining sole custody can be a difficult and involved process, and you need significant assistance from a knowledgeable legal professional. Certified CA Family Law Specialist Judy L. Burger offers some tips to prepare for sole child custody.

What Is Sole Custody?

Sole custody, also known as full custody, is a legal arrangement in which one parent or guardian has the exclusive right and responsibility to make decisions about the upbringing of the child and has the primary physical custody of the child. This means that the child lives with one parent most of the time. The other parent may have visitation rights or parenting time, but they do not have the legal authority to make decisions about the child’s upbringing. In sole custody cases, one parent has the ultimate authority and responsibility for the child’s well-being.

Steps to Prepare for Sole Custody of Your Child in CA

Custody orders are granted by the family court. Until you have a court order, both parents have the same rights. This means that both of you can make decisions about your children. No parent has any more rights to have the children in their care than the other.  

Family Law Attorney Judy Burger can help you with the following steps to file for sole custody of your child in California.

Create a Parenting Plan

When spouses with children separate, they must create a parenting plan to present to the court. Many couples can work out an equitable plan that the court can simply approve. A parenting plan reflecting a sole custody arrangement will likely meet with disapproval by the other parent. 

When domestic violence has occurred, the law allows the court to grant sole custody in order to protect the children and abused spouse. There is specific paperwork for requesting sole custody in domestic violence cases.

Gather The Evidence to Support Sole Child Custody

A family court judge will need convincing evidence to grant one parent sole custody. This evidence must basically prove the other parent is unfit to care for the child. However, it must also prove that you are fit and able to care for the child. The court will consider:

  • Domestic violence history or charges
  • Police reports
  • Medical evidence
  • Witness statements
  • Correspondence
  • Employment history
  • Housing situation
  • Emotional and physical health of the parent
  • Age and health of the child
  • Emotional ties between the parents and the child
  • The child’s ties to the community, family, school, etc.

The primary consideration is always the child’s best interests.

File a Custody Petition with the Court

Your attorney will help you collect the necessary evidence and complete other required paperwork to file a sole custody petition with the court. Completing forms correctly and including all pertinent information is critical. Documentation you may need can include:

  • Parenting plan
  • Request for orders on child custody and visitation
  • Petition to establish a parental relationship
  • Petition for custody visitation
  • Petition for dissolution
  • Official statement about domestic violence (Form MC-030)

CA Custody Attorney Judy Burger can review your case, determine the specific documents you need, and help you complete them correctly.

Attend a Child Custody Court Hearing

After filing for custody, you must attend a child custody court hearing. During the hearing, the judge will review your parenting plan and custody petition and listen to arguments from both sides. The judge will then decide on the custody arrangement that is in the child’s best interest.

Attorney Judy Burger specializes in family law in California and can assist you in securing the best custody and support arrangements for your case. She can help you understand the custody hearing process, gather evidence, prepare for testimony, anticipate challenges during the hearing, develop a parenting plan, and advocate for your interests.

Get Help with Child Custody in California

If you have a child custody case in California, the Law Offices of Judy L. Burger will guide you through the process and fight for your rights. Contact us today to schedule a consultation and get the support you need. 

Spousal Support and Taxes
California Divorce, Marriage, Mediation, Property Division, Spousal Support

Spousal Support and Taxes

Filing for a divorce can complicate your tax situation, especially regarding spousal support. Is alimony (spousal support) taxable? Yes and no. Certified Family Law Specialist Judy L. Burger explains more about how spousal support affects your federal income taxes.

What Is Alimony?

The Internal Revenue Service defines alimony, or spousal support, (also called separate maintenance) as, “Amounts paid to a spouse or a former spouse under a divorce or separation instrument (including a divorce decree, a separate maintenance decree, or a written separation agreement) …”

It further specifies what qualifies as spousal support:

“A payment is alimony or separate maintenance if all the following requirements are met:

  • The spouses don’t file a joint return with each other;
  • The payment is in cash (including checks or money orders);
  • The payment is to or for a spouse or a former spouse made under a divorce or separation instrument;
  • The spouses aren’t members of the same household when the payment is made (This requirement applies only if the spouses are legally separated under a decree of divorce or of separate maintenance.);
  • There’s no liability to make the payment (in cash or property) after the death of the recipient spouse;
  • The payment isn’t treated as child support or a property settlement; and
  • The divorce or separation agreement does not designate the payment as not includable in gross income of the payee spouse and not allowable as a deduction to the payer spouse.”

Alimony and child support are not the same. Child support is never deductible and isn’t considered income.

Is Spousal Support Taxable?

The Tax Cuts and Jobs Act of 2017 changed alimony taxation rules. Here is the law as it stands now (June 4, 2024):

  1. Spousal support or separate maintenance payments made under a divorce or separation agreement executed before 2019 are deductible by the payer spouse and included in the recipient spouse’s income.
  2. Spousal support or separate maintenance payments made under a divorce or separation agreement dated on or after January 1, 2019, are NOT deductible by the payer spouse and NOT included in the recipient spouse’s income.

Some support included in a divorce or separation agreement is not considered spousal support under federal tax guidelines. Family Law Attorney Judy Burger can examine your divorce or separation agreement and determine what is and is not taxable/tax deductible for the current tax year. Many aspects of the TCJA expire in 2025 unless re-enacted by Congress.

Legal Help with Child & Spousal Support

California takes child and spousal support agreements seriously. Child support is never deductible and isn’t considered income. If a divorce or separation instrument provides alimony and child support, and the payer spouse pays less than what is required, the payments apply to child support first. Only the remaining amount is considered alimony. However, Failure to meet court-ordered support agreements is considered contempt of court and can bring serious punishments.

Penalties for contempt of family court can include imprisonment, community service, fines, and/or payment of outstanding debt for financial obligations. California law dictates that sentencing may result in fines of up to $1,000 per act of contempt and/or as many as five days in jail. In cases such as child support or spousal support order violations, fines and jail time will accumulate after months of failure to pay.

Support violations carry a three-year statute of limitations. Any action alleging violations of support orders must be made within three years after the first missed payment.

If you have questions about child or spousal support or need help getting what you deserve, contact The Law Offices of Judy L. Burger. We have eight conveniently located offices across California to serve you.