All posts by Judy Burger

Community Property or Separate Property How Can I Tell the Difference

Community Property or Separate Property: How Can I Tell the Difference?

For some couples, property division is one of – if not the – most important issue to iron out in their divorce settlement. However, when assessing your assets to see who gets what, will you be able to tell whether something is community property or separate property?

Was the property acquired during the marriage?

Most assets acquired by a married couple are considered to be community property. This includes real estate, personal property, and income “wherever situated.” For example, if a married couple living in California buys a vacation home in Hawaii, the home probably will be part of the community property estate if the couple divorce. Separate property is any asset the party acquired: before the marriage, during the marriage, if a gift or inheritance; and after the parties legally separate. Sometimes an asset brought into the marriage may become community property, depending on how the asset is treated during the marriage.

Was the property inherited?

An inheritance received by one spouse is that spouse’s separate property. However, separate property may become community property if the inheritance is commingled with community property or transmuted by the spouse who received the inheritance. For example, Claudia G. inherits $50,000 from her grandmother. The $50,000 should be Claudia’s separate property. However, she deposits the money in a joint bank account and clearly intends that her husband use it. The inheritance might be considered community property.

Did the property increase in value during the marriage?

Sometimes separate property brought into the marriage by one spouse increases in value. If the other spouse helped with the increase, a portion of the property might be considered community property.

Will the asset potentially have future earnings?

Some property may earn royalties or other payments during the marriage. Determining the current value of the asset may be hard enough. Predicting how much income the property may generate in the future is even more difficult. The way the earnings are split may depend, in part, on whether the asset is community property or separate property. If separate property, the next question may be whether the non-owning spouse contributed to the property’s success. For example, an author starts drafting a book while single. The book is published after the author gets married. The author’s spouse assisted with research, editing, and marketing the book. If the couple divorce later, is the book community property or separate property? The author brought at least the first draft into the marriage, but the new spouse contributed to the book’s success.  As with all divorce issues, however, the court will decide how to treat the property if the couple cannot reach an agreement.

Assets and Debts May Be Community Property or Separate Property

Disagreements about property division can complicate your divorce and hold up your final divorce settlement. 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. 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 San Francisco, Beverly Hills, Gold River, Santa Barbara, Ventura/Oxnard, and surrounding communities.
Settling School Issues with an Ex-Spouse

Settling School Issues with an Ex-Spouse

Getting the ‘right’ education can make a big difference in a person’s life. However, who decides what is ‘right’ for the children of divorced parents? It’s great when both parents are active in a child’s life, but how do you handle school issues with an ex-spouse who disagrees with your educational choices?

Look to Your Custody Agreement to Settle School Issues

In California divorces, parents must agree on a custody and visitation agreement before finalizing their divorce. When parents cannot agree, a judge will make the decisions for them. Either way, somewhere there is a document that addresses school issues, even if only to state which parent makes educational decisions for the children. Review your parenting plan for clues. Ask yourself the following questions:
  • Who has physical custody of the children?
  • Who has legal custody of the children?
  • Is the custody sole or joint?
Once you have the answers to these questions, you’ll have a better idea of how to proceed.

Understand How Custody Works

Joint legal custody means that both parents have the right and responsibility to make certain important decisions for their children. This includes education. If you and your ex-spouse have joint legal custody, you’ll need to work out the school issues together. Sole legal custody means that one parent makes all the important decisions for the kids. If you have sole legal custody, you can handle educational matters by yourself. If your spouse has sole legal custody, he or she has the right to settle school issues. However, with either type of custody, one parent can ask for court intervention if necessary.

Get Help Communicating If Necessary

Your first inclination may be to ‘deny, deny, deny’ when your ex-spouse requests anything. But concerns about your children’s education should be considered carefully. In some cases, you may need help discussing school issues with your ex-spouse. Discuss the situation with your attorney. You may need to attend mediation or schedule a court hearing if you and your ex-spouse are unable to reach an agreement about your children’s education.

It IS Possible to Settle School Issues with an Ex-Spouse

It may be best for everyone if you and your ex-spouse work out any school issues that you have. Just keep the best interests of the children in mind. California courts certainly will. Please call us at 415-293-8314 to discuss your case. The attorneys at the Law Offices of Judy L. Burger assist clients with divorce matters in San Francisco, Beverly Hills, Marin County, Santa Barbara, Ventura/Oxnard, San Jose, Gold River (Sacramento), and surrounding communities.
How Pregnancy Affects Divorce

How Pregnancy Affects Divorce

When people learn that a baby is on the way, their reactions may range from euphoria to dismay. A new baby affects every aspect of the new parents’ lives, whether their marriage is strong or on the rocks. Any divorce can be complicated, but how pregnancy affects divorce depends on a number of factors.

Who’s Pregnant?

Pregnancy may affect a divorce if the following has happened:
  • The wife is pregnant with her husband or domestic partner’s child;
  • The wife is pregnant with someone else’s child; or
  • The husband has impregnated someone other than his spouse.
The last option may have caused the divorce. However, the baby may have little or no effect on the final divorce settlement, at least concerning child custody and visitation.

Paternity May Be an Issue

A baby born of married parents is presumed to be the child of both parents. For example, if a woman becomes pregnant during her marriage and is still married when she gives birth, parentage is automatically established. If paternity is a little uncertain, the couple may have to wait until the child is born to determine who fathered the child. A husband has the right to ask for a DNA test to confirm that he is the biological father of the child. As long as the husband is considered the legal parent of the child, he may be held responsible for child support. As you might expect, establishing parentage is complicated. Whether you are the father or mother, discuss your situation with an experienced divorce attorney as soon as possible.

Overall Effect on Divorce

California law does allow a couple to file for divorce when one spouse is pregnant. However, the divorce generally will not be finalized until the baby is born. For one thing, the divorce may be delayed if a paternity test is needed. Also, child support, child custody, and visitation issues usually cannot be resolved until the baby is born. In fact, California law requires that the child be born before custody arrangements can be made.

Pregnancy Affects Divorce in Different Ways

It may take a judge, but any issue that affects divorce, including pregnancy, can be worked out. You don’t have to go through this alone. The attorneys at the Law Offices of Judy L. Burger are experienced at all phases of legal separations and 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.
How and When to Get an Ex Parte Order

How and When to Get an Ex Parte Order

After you file your divorce petition, it may take months to iron out all the details. In some cases, though, the person filing for divorce faces serious issues that cannot wait that long. For example, Sandy’s husband had a violent temper that caused him to lash out at their home and at her. Ben knew he was safe from his wife, Lori, but feared for their children. Finally, Maria’s husband hid their car from her, although she needed it to get to work. Fortunately, courts may provide emergency assistance for situations like these through ex parte orders.

How to Get an Ex Parte Order

The simple answer is that you file a motion with the court asking for the relief that you need as soon as possible. However, each county in California may have its own rules and procedures for obtaining an ex parte order. Failing to follow the rules may cause your motion to be denied. You may file a Temporary Emergency Orders (Ex Parte) (Form FL-305) to request certain temporary emergency court orders. While this form may be used throughout the state, you will need to check the rules for the county in which you file for additional information. Hearings often are heard within 24 hours of filing the request for an ex parte order, at which time a judge will hand down a ruling on your request for Temporary Emergency Orders.

When an Ex Parte Order Is Appropriate

Sometimes the filing spouse may need to get an issue before a judge as quickly as possible because an emergency exists. In fact, the filing party may request an ex parte action for one or more of the following reasons:
  • The spouse who filed the divorce case may be in danger.
  • A child involved in the divorce case may be in danger.
  • The filing party needs temporary use of a marital asset.
  • The filing spouse feels that his or her property might be destroyed or damaged by the responding spouse.
Talk to an attorney immediately if you feel an issue related to your divorce is an emergency.

It’s Complicated.

The attorneys at the Law Offices of Judy L. Burger are experienced at all phases of divorce proceedings, including ex parte orders. 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.
5 Things You Didn’t Know About Gray Divorce

5 Things You Didn’t Know About Gray Divorce

When couples divorce after age 50, it’s called a “gray divorce.” Since this term only recently came into use, there are things you may not know it. While it’s impossible to cover every detail in this article, we will look at five things you didn’t know about gray divorce.

The Gray Divorce Rate Has Increased

Divorce among U.S. adults has actually decreased for younger generations. However, the divorce rate for the 50 and older set has approximately doubled since the 1990s. The divorce rate for people over age 65 has almost tripled during the same time frame.

Longer Life Expectancy Is an Issue

This may be one of the most surprising facts about gray divorce. As some people reach their 50s, they take stock of their lives. If they are in reasonably good health, they may live for several decades. For some, longer life expectancy means more time with a spouse who makes them unhappy. Gray divorce can bring people the freedom they need to discover what will make them happy.

Gray Divorce Is More Common the Second Time Around

In general, people who have been divorced once may be more likely to divorce again. Baby boomers were more likely to divorce than preceding generations. As baby boomers reach age 50 and beyond, their prior marital history may catch up with them, leading to a gray divorce.

Retirement Plans May Be Affected

Whether the parties are retired already or still working, retirement plans often change due to the termination of their marriage. A qualified domestic relations order (QDRO) may give one spouse part of the other spouse’s retirement funds. Spousal support, if ordered, may cut into the amount of money the payer planned to save for their golden years. One or both parties may enter retirement with less money than they had planned on, including Social Security retirement benefits.

Adult Children May Be Upset

Few gray divorcees have to worry about child support and visitation. However, they still need to understand the effect divorce has on children. Even adult children may feel a sense of loss and a need for reassurance from their parents. Divorce can damage relationships between adults and their parents at any age.

Gray Divorce or Not, You’ll Need 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. 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 San Francisco, Beverly Hills, Gold River, Santa Barbara, Ventura/Oxnard, and surrounding communities.
When Can a Marriage Be Annulled

When Can a Marriage Be Annulled?

Magicians sometimes wave a magic wand over objects to make them vanish. When it comes to making a marriage disappear, the courts don’t have a magic wand. Instead, judges wield California laws that allow annulment. However, under what circumstances can a marriage be annulled?

What Really Happens to an Annulled Marriage?

The marriage is considered invalid. In fact, it’s as if it never existed. Some marriages are always considered invalid, whether you request an annulment or not. Spouses cannot be close blood relatives or what might be considered an incestuous relationship. Also, spouses cannot be legally married or in a registered domestic partnership with someone else.

Marriages May Be Annulled Due to a Problem with One Partner

Of course, it takes two people to have a marriage. However, that relationship can be terminated if one spouse is:
  • Underage. Annulment may be granted if one or both people were under age 18 as of the wedding date.
  • Unsound Mind. If one party lacks the capacity to understand the wedding ceremony, the marriage may be dissolved. Someone who is underage, intellectually challenged, or senile may be unable to agree to a marriage.
  • Unable to Consummate. One party may request an annulment if the other party is unable to consummate the marriage due to a physical incapacity that is expected to be incurable.
Marriages may also be dissolved for other reasons.

An Annulment Might Be Requested Because of One Party’s Actions

Sometimes one party may do something that makes annulment possible:
  • Fraud. One party may lie or misrepresent an issue that directly affects the other party’s decision to marry. This is considered fraud. For example, green-card marriages can be dissolved through annulment.
  • Force. Marriages can be annulled when one party forces the other party to marry against their will.

A Marriage Can Be Annulled, but Deadlines Apply

Annulments must be requested within certain time frames. For example, you have four years after the date an underage spouse turns 18 within which to request an annulment. Other deadlines apply, depending on the reason for the annulment. Please call us at 415-293-8314 to discuss your case. The attorneys at the Law Offices of Judy L. Burger assist clients with divorce matters in San Francisco, Beverly Hills, Marin County, Santa Barbara, Ventura/Oxnard, San Jose, Gold River (Sacramento), and surrounding communities.
I’ve Been Served with Divorce Papers. What Now

I’ve Been Served with Divorce Papers. What Now?

Maybe you were expecting it. Maybe it was a complete surprise. Either way, being served with divorce papers is a wakeup call for most people. This is not the time to sit and lament the end of your marriage, however. Once you have the divorce papers in your hands, the clock starts ticking.

You’ll Need to Read Carefully

The divorce papers you just received are important to your future. Take some time to review them, paying attention to the details. You may be able to figure out what your spouse wants to get from the divorce.

Reflect on Your Situation

Start thinking about your marriage and especially how you would like to proceed. Would you like to try to save your marriage, or is it time to move on? If you have children, how will you help them handle the new state of affairs? However, don’t take too much time. You need to respond within 30 days from the date you were served with divorce papers.

Then File a Response … or Not

Most people do something in response to being served with divorce papers. You have four basic options:
  • Don’t file any response. However, your spouse or domestic partner may get everything he or she wants. This is called a “true default.”
  • Prepare a written, notarized agreement signed by you and your spouse. When divorcing partners agree on everything, you may be able to submit this agreement in lieu of filing a formal response. Courts may call this a “default with agreement” case.
  • File a response and prepare a written agreement. This type of case is considered uncontested since you and your partner agree on all issues.
  • File a response that disagrees with some or all of your spouse’s assertions and requests. This is truly a “contested” case. The court may decide any issues that remain unresolved, including property division, child custody, and spousal support.
Divorce cases can be very complicated. You may need some help navigating the system and protecting your rights.

Served with Divorce Papers? Take Action

You don’t have to go through this alone. The attorneys at the Law Offices of Judy L. Burger are experienced at all phases of legal separations and 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.

Renewing a Family Law Judgment

A money judgment from a family law case does not expire. The judgment is active and valid until all monies have been paid in full. There are reasons, however, to have your family law money judgment renewed. Family law judgments accrue interest at the rate of 10% per year. For example, if you have a judgment for $20,000, the annual interest would be $2,000. After 5 years with no payments, the amount owed would be $30,000. If you were to have the judgment renewed, all of the money owed would become the new principle. In the example above then, the new principle is $30,000. So, the interest added each year thereafter would be $3,000 instead of $2,000. There is a filing fee, and you must renew the judgment within the first ten years after the date of the judgment. The debtor must be served with the new judgment and will have thirty days to file a motion to vacate or modify the renewal. If you received a judgment awarding you money in a family law case and have not received full payment, contact our office today. Judy L. Burger is known for aggressively representing clients in high conflict cases in and around the San Francisco Bay and Sacramento areas. Call today to learn more about how we can help at (415)293-8314 in the San Francisco Bay area or (916)631-1935 in the Sacramento area, or contact us online using our confidential inquiry form.

What Are Your Options When A Former Spouse Refuses to Pay?

What are your optionsSometimes family law judgments are even harder to collect than regular debts because of the unpleasant emotions attached to the judgment in the mind of the payer. The anger and bitterness that develops during divorce or custody proceedings often continues, even after the court battle is over. If your former spouse or partner was ordered to pay money directly to you, his or her emotions can blur logic and lead to refusal to pay. If this situation is all too familiar to you, and your best efforts to work out payments have failed, then it is time for you to contact an aggressive family law attorney to help you collect. Clients frequently call on us for help to enforce payment of family law judgments. When we first meet with you, we will gather information about your case and explain your options.  Here are a few things we may recommend, depending on your circumstances:
  1. Using legal discovery methods to gain information about the former spouse’s assets. Before attempting to collect, we’ll need to know what assets he or she has that may be subject to levy or seizure.
  2. Placing a lien on the delinquent payer’s real estate.
  3. Placing a lien on the delinquent payer’s personal property.
  4. Seeking an Earnings Withholding Order to get part of the delinquent payer’s wages directly from his or her employer.
  5. Seeking to levy the delinquent payer’s bank accounts.
These are just a few of the options for collecting money owed on a family law judgment. If you are having difficulty getting your former spouse or partner to pay, contact our office today. Judy L. Burger is known for her tenacious representation of clients in highly contested family law cases in and around the San Francisco Bay and Sacramento areas.  If you need help enforcing a family law judgment, call us today to learn more about how we can help.  Call (415)293-8314 in the San Francisco Bay area or (916)631-1935 in the Sacramento area, or contact us online via our confidential inquiry form.

Common Defenses Against Collection of Family Law Judgments

BrokeIf you are the debtor in a family law judgment case who needs to defend against a collection action, your attorney may choose from a variety of options in your defense. One of the tools used to defend collection by way of garnishment is a Claim of Exemption. Your attorney will prepare a document explaining why your wages should be excluded. Certain types of income and property are exempted from garnishment by law. After your attorney files your claim of exemption, the other party has ten days to oppose your claim. Similarly, you can claim an exemption on certain types of property if a judgment creditor is seeking to impose a levy on your real or personal property. The claim of exemption should be prepared by your attorney, who knows which types of income and property are excluded from being subject to a levy. If the other party submits a timely response to your claim of exemption, then the court will schedule a hearing and a judge will make the final decision regarding the exemptions. If you are facing garnishment or levy, or if you are seeking to collect money from a family law judgment, call our office today. Judy L. Burger is known for her aggressive representation of clients in and around the San Francisco Bay and Sacramento areas.  If you are dealing with either side of a family law judgment, call us today to learn more about how we can help.  Call (415)293-8314 in the San Francisco Bay area or (916)631-1935 in the Sacramento area, or contact us online via our confidential inquiry form.