All posts by Judy Burger

Ask a California Divorce Attorney: What Is a Legal Separation?

June 14, 2021 Judy Burger

Sheila found herself facing a difficult decision – should she end her marriage or not? Things hadn’t been going well, but Sheila had always been an optimist. But this time, she needed more than platitudes and motivational messages. She needed a course of action that might help her move forward. Sheila could ask a California divorce attorney whether legal separation was the answer.

Three Ways to End a Marriage

Generally, there are three ways to end a marriage in California:

Annulment,
Divorce, and
Legal Separation.

But each of these options is different. Annulment is not for everyone because it involves particular situations, like someone who is forced or coerced into a fraudulent marriage. Divorces completely end a marital relationship and might include dealing with issues like property division, child custody, and spousal support.

Legal separation might be the most mysterious of the three options. In fact, some states do not even recognize the concept of legally separating from a spouse. California, however, does allow couples to get a legal separation. Before taking this step, it’s crucial that you talk to a California divorce attorney to make sure this is the right step to make. Legal separation is not for everyone.

What Legal Separation Can and Cannot Do

It’s crucial to understand how this legal process can help you. It’s also crucial to understand situations it will not resolve.

Marital status is the first issue. A legal separation does not end your marriage but just sort of puts it on hold. You will still be married to your spouse. This means that you cannot marry anyone else. Your marital status might affect other legal situations, so make sure you discuss this with your divorce attorney before proceeding. For example, you might still want to file federal taxes as a married couple without having to live with each other.

Some people want to divorce but cannot meet California’s residency requirements. Before filing, you must have lived in California for at least the past six months. You also must live in the county where you want to file for at least three months before filing. If you cannot qualify for divorce, a legal separation can help until you are eligible.

In California, your spouse does not have to agree to the divorce. However, the same is not true for legal separations. If your spouse will not agree to separate, you might have to move forward with a divorce.

Finally, the decision to file for divorce is difficult. Becoming legally separated gives people time to decide whether they should file for divorce. It may also give you time to try out being on your own, away from your spouse. Some people may discover their marital problems were temporary and reunite with their spouse. Others may find that divorce provides the fresh start that they need.

Find Out if Legal Separation Is the Answer for You

The attorneys at The Law Offices of Judy L. Burger are well-versed in divorce and the dissolution of registered domestic partnerships. 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 Southern California Coast.

Property Division, Property Division

Dividing Business Interests in a Divorce

June 7, 2021 Judy Burger

Many couples own business interests. These can take the form of a business they own, operate, or hold a significant share. When couples decide to divorce, dividing business interests usually becomes a huge issue. After all, property division, which is itself very complicated, becomes even more complex when business assets are involved.

The Preliminaries of Dividing Business Interests

First, it’s essential to know what you are dealing with. Trying to divide property between spouses is impossible without certain information, including:

Are the business interests separate or community property? In a community property state like California, most marital property and debts split roughly 50-50. However, is your business separate property – owned by one spouse – or community property – owned by both spouses? In most cases, separate business interests remain with the spouse who owns them. Community business interests are dealt with differently.
Are there any agreements that affect property division? For example, did the couple sign pre-nuptial or post-nuptial agreements? If so, those agreements may address any business assets. Likewise, a buy-sell agreement may address how to handle business assets in the event of a divorce.
How much is the business worth? Valuation of business assets is challenging and should not be attempted on your own. You and your divorce lawyer will discuss how to handle valuation, but you will probably need to hire an expert. Undervaluing your business is literally leaving money on the table.

After working through the issues mentioned above, along with any others that apply, you and your spouse can begin dividing business interests.

The Final Decision

Often, couples will use one of the following methods of dividing their business assets:

The Buy-Out. One party can buy the other party’s interests rather than dividing them. In some cases, one spouse might be more vested in the business. The problem here is that the purchasing spouse must be liquid enough to complete the purchase.
Dividing. The parties could divide the business equally. For example, if the couple owns 80% of the company’s shares, each spouse could take 40%. Alternatively, the couple could split the equipment, accounts receivable, and real property. This might work especially well for parties who own a professional services business.
Selling to a Third-Party. In this scenario, the couple receives the cash instead of dividing their actual ownership interests. It’s still necessary to properly value the business.
Continuing as Co-Owners. Some ex-spouses may remain so amicable that they simply continue owning and operating their business. This is rare and could be very risky. If the spouse’s relationship becomes rockier after the divorce, they may have to return to court to split the business for good.

Learn More About Dividing Business Interests

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 Southern Coast, including San Francisco, Beverly Hills, Marin, San Jose, Gold River, San Diego, Santa Barbara, Ventura/Oxnard, and surrounding communities.

Debt, Property Division, Property Division

Am I Still Financially Responsible for My Ex-Spouse’s Debts?

May 31, 2021 Judy Burger

Getting his final divorce order was one of the best days in Jason’s life. Finally, he could move on without his ex-wife and all her baggage. He was unpleasantly surprised to start receiving late notices from creditors and angry phone calls from collection companies. They were about his ex-spouse’s debts, not his. Can Jason be held responsible for these debts?

Community Property – and Debt

During divorce proceedings, a couple’s property and debts are split into two categories:

Community, which both spouses own;
Separate, which one spouse owns;
Mixed Community and Separate, which means the property or debt could be partially owned by the couple.

Property division is complex. It’s not always easy to determine whether something is community, separate, or mixed. In a community property state like California, community property and debts are usually split between the couple. As Jason unfortunately learned, there’s more to dividing debts than meets the eye.

The Nature of Debts

A community debt is generally one that the couple:

acquired together during the marriage,
one party acquired during the marriage.

Sometimes one spouse will sign for a loan or get a credit card while married but in his or her own name. Then the other spouse uses the debt or helps pay for it. This can complicate the matter further because the debt may now become part of the marital estate.

Couples may simply split their debts in their settlement agreement. In Jason’s case, he took one credit card while his ex took the other. However, when she stopped paying on the card, Jason found he might still be responsible for his ex-spouse’s debt. That’s because the divorce decree generally does not affect the agreement that caused the debt. So, if both parties sign for a loan that one party gets in the divorce settlement, the other party’s name is still on the loan as far as the lender is concerned. Basically, they just want to get paid. That’s understandable but frustrating for the party left paying for an ex-spouse’s debts.

Talk to a California Divorce Attorney About Your Ex-Spouse’s Debts

Make sure you know where you stand financially when the ink dries on your divorce order. Suddenly learning that you have to pay your ex-spouse’s debts when you are just starting your new life is not ideal, to say the least.

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.

Please call us at 415-293-8314 to discuss your case. The attorneys at the Law Offices of Judy L. Burger 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, Visitation

My Parenting Plan Isn’t Working. Can I Change It?

May 26, 2021 Judy Burger

Divorced parents still have a strong connection – through their children. In the midst of making decisions about schooling, vacations, and health care, moms and dads have to stick to their parenting plan. But what if that parenting plan isn’t working anymore?

Why Plans Come Unstuck

People’s lives change over time. Your divorce is living proof of this.

Adults may change jobs, buy or sell homes, and learn more about their likes and dislikes. Friends and family members may move or even pass away. Many people face these changes and just adjust their lives accordingly.

As children grow, they also experience changes in activities, friends, and more. Parents might find that a visitation schedule no longer fits their children’s current list of activities – which, frankly, may change again in a year or so, depending on the kids’ ages.

Sometimes sticking to the parenting plan you negotiated during your divorce seems like trying to stuff a square peg into a round hole. If that’s the case, it may be time to make some adjustments. And there are ways to do just that.

And How to Fix a Parenting Plan That Isn’t Working

Before your divorce could be finalized, you and your co-parent had to negotiate and finalize your parenting plan. Thinking back on what your parenting plan includes can help you figure out if it’s time to alter it. That’s because parenting plans can be very specific or just have general guidelines.

First, review your plan to refresh your memory. If you and your ex-spouse are amicable, at least when it comes to your children, you may have inadvertently done things that are not spelled out in your plan. For example, you may have changed your spouse’s mid-week visitation day from Wednesday to Tuesday because little Johnny has soccer practice on Wednesday.

While it’s great to agree on alterations amicably, you must get the modifications in writing and file with the Court in order for it to become a Court order. It’s important to be clear about both parent’s obligations and responsibilities.

If changes are needed, talk to your divorce lawyer first. Your options for fixing your parenting plan include:

Negotiating a new agreement,
Meeting with a family mediator if you and your co-parent can’t agree on modifications, and
Asking a court to approve or order changes to the plan.

There’s no need to stick with a parenting plan that doesn’t fit anymore. Parenting plans are intended to help you help your kids, so consider fixing issues as they arise.

You Have Options When a Parenting Plan Isn’t Working.

Instead of increasing your stress levels—and, more importantly, your children’s – talk to an experienced California divorce attorney about making your plan work again.

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.

California Divorce, Legal Separation

Revisiting California’s Date of Separation

May 11, 2021 Judy Burger

Certain dates are memorable in a person’s life. Many dates, like birthdays and anniversaries, are celebrated. But when a marriage is over, and it’s time to file for divorce, another date becomes critical – the date of separation. California law has evolved on this subject, but people thinking of filing for divorce need to understand the effect that date can have on their divorce settlement.

A Simple Term, Right?

“Date of separation” seems straightforward and easy to understand. In a divorce case, however, the date is much more than a square on your calendar.

Courts will use the date of separation as defined by California law when deciding property division issues in your divorce. Here’s what California Family Code Section 70 says:

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.

This means that certain aspects of your divorce depend on getting the date of separation right.

Property Division and the Date of Separation

Married couples usually acquire assets and debts during their marriage. Most of those assets and debts are considered to be community property owned by the couple. However, couples often have separate property and debts that only one spouse owns.

During your divorce, it’s necessary to decide what’s community and what’s separate. In a community property state like California, community property is usually split roughly 50-50 between the spouses. There are some exceptions, however.

The “complete and final break in the marital relationship” can be hard to determine. Some couples decide to split but continue to live together and commingle funds. Couples can continue to live together during the divorce, but at least one spouse must exhibit conduct that “is consistent with his or her intent to end the marriage.” Calculating the date can be difficult but is necessary.

For example, one spouse might get a large bonus from work while the divorce is pending. Did this happen before or after the date of separation? If before, then the bonus could be community property. But if it’s paid after the couple is officially separated, it might qualify as separate property.

In fact, division of financial payments, property acquisitions, and so on that occur while the divorce is pending could become complicated if the date of separation is unclear.

We Can Help Sort Out Your Date of Separation and Other Divorce Issues

Visitation

Can Grandparents Get Visitation Rights?

May 4, 2021 Judy Burger

Danny was confused by so many things going on in his life right now. His mom and dad were splitting up, which meant they would not all be living together as a family anymore. Danny and his mom had to move away from his school and friends. But one of the worst things was not being able to see his grandpa and grandma. His parents had some pretty loud arguments about something called visitation. Danny wondered if grandparents get visitation rights, too. Let’s look at what the law says about visitation rights, specifically for grandparents.

Children and Parenting Plans

Judges usually will not finalize a divorce where the couple has children until a parenting plan is complete. If the parents are unable to agree on a plan, the judge will do it for them.

Parenting plans cover:

What type of custody each parent will have (joint physical custody, for example),
When the children will spend time with each parent (visitation), and
How the parents will make decisions about their children.

For example, Danny’s parents both want full custody of him. But he has always spent more time with his mother than his father, and his father travels a lot for his business. The judge might consider giving Danny’s mom sole physical custody, with a generous visitation schedule for his dad. An alternative might be sole legal custody of Danny with joint physical custody. If his parents cannot agree on custody, the judge will do what’s best for Danny.

Parenting plans spell out visitation in detail, including where the child will spend holidays. For example, Danny might spend Christmas with dad one year and mom the next. Summer holidays might be split between the parents, or he might get to spend several months with his dad exclusively. Parenting plans should conform to what is best for the child’s individual needs as much as possible.

But what about grandparents? Are they included in the plan?

Grandparent Visitation Rights

Parents could let their child’s grandparents get visitation rights and add them to the visitation schedule. Sometimes one or both parents are not okay with granting access for some reason. There are ways for grandparents to see their grandkids if they are not in the parenting plan.

In California, grandparents can petition the court for reasonable visitation rights. However, the family court judge will need to see:

That there’s a pre-existing bond between the child and his or her grandparents.

AND

That allowing grandparent visitation can be balanced with the parent’s rights to make decisions for their children.

The law states that courts may use their discretion to award reasonable visitation rights to “any other person having an interest in the welfare of the child.” So, courts could order that grandparents get visitation rights. However, either or both parents could ask the court to deny visitation.

The Final Word on Whether Grandparents Get Visitation Rights or Not

A family court judge will make the final decision on visitation, including allowing grandparent visitation. Doing what is right for the child will always be the default position for family court judges. Judges can and do deny access if visitation is not in the child’s best interests.

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

California Divorce

How Long Does It Take to Get a Divorce?

April 27, 2021 Judy Burger

It’s almost impossible to give a one-size-fits-all answer to this question. Just as some marriages last 30 years while others last 30 days, some divorces are fast and others – not so much. However, we can look at the minimum time it takes to get a divorce, as well as any factors that could delay your divorce proceeding.

A ‘Typical’ Timeline

After someone decides to get divorced, the next step is usually to get started on the paperwork. An experienced California divorce attorney can advise on the best course of action and do all the paperwork for you.

So, once the divorce petition is filed, how long does it take to get a divorce?

California has a six-month waiting period, so the earliest you could get a final order is six months after filing your divorce petition. However, you may encounter roadblocks along the way.

Issues That Could Prolong Your Case

You must serve your divorce petition on your spouse. When your spouse is on board with your decision to terminate the marriage, he or she might agree to accept service. However, a reluctant spouse could refuse service or dodge a process server. In some cases, your spouse may live out of state or out of the country, potentially making it difficult to serve the petition.

Your spouse has 30 days from the date served to respond to your divorce petition. If your spouse refuses to answer, you might ask the judge to consider your case a default or uncontested divorce. The judge will review your paperwork before deciding to grant the declaration of disclosure and terminate your marriage.

It can take longer to get a divorce if you and/or your spouse have a high net worth. Property division can become a contentious issue when there is a lot of money or property involved. More negotiation might be involved, and forensic accountants and investigators may be hired. A lawyer with property division experience can help wade through a high-net-worth divorce.

Spousal support can also be a hot issue. Deciding whether one spouse deserves support from the other can be difficult. Calculating the amount of support and length of time it will be paid is often challenging.

Finally, divorces can take longer when children are involved. Both parents must negotiate a parenting plan. If they cannot reach an agreement, they might participate in mediation or attend a court hearing. Any additional meetings or hearings could delay your final decree.

You Need Experienced Legal Advice If You Decide to Get a Divorce

We can’t tell you that your divorce will be final 6 months, 3 days, and 2 hours after filing your petition. We can tell you that we understand the urgency behind many divorce petitions and that we understand all the issues that you will be facing.

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.

Please call us at 415-293-8314 to discuss your case. The attorneys at the Law Offices of Judy L. Burger assist clients along California’s Northern to Southern Coast, including San Francisco, Beverly Hills, Gold River, San Diego, Santa Barbara, Ventura/Oxnard, and surrounding communities.

Same Sex Marriage and Divorce

Establishing Parental Rights in a Same-Sex Marriage

April 20, 2021 Judy Burger

Children need their parents, even after a divorce. That’s why California courts focus so much on doing what is in the child’s best interest when deciding on child support and visitation issues. Another important and basic issue that pops up in many divorces involving children – parental rights. It’s not always an easy situation for the parents or their children. With the rise of legal same-sex marriages, establishing parental rights became a little more challenging for some couples.

Opposite-Sex Couples and Parenthood

Before same-sex marriage became legal, establishing parental rights usually meant proving the father’s identity. This step is usually easy for married couples because the law generally assumes that the mother’s husband is the baby’s father. When there is uncertainty, however, an opposite-sex couple can establish fatherhood through:

Testing,
Signing a Voluntary Acknowledgment of Paternity,
Obtaining a court order.

In the past, same-sex parents sometimes found it difficult for both partners to be accepted as a child’s legal parent.

California Law and Presumed Parents

Generally, one spouse is presumably the parent of the other spouse’s child under the following conditions:

He or she was married to the child’s mother when the child was conceived or born.
The presumed parent attempted to marry the child’s mother or was engaged in a marriage later deemed invalid when the child was conceived or born.
They married the mom after the child was born and agreed to be added to the birth certificate or to support the mom’s child.
One spouse treats the other spouse’s child as his or her child.

These legal presumptions apply to all married couples and people who registered a domestic partnership after January 2005. Couples in same-sex marriages have the same right to be a presumed parent under the conditions mentioned above.

Potential Roadblocks to Establishing Parental Rights

In marriages where the spouses are of the same sex, they might become parents through:

In vitro fertilization,
Using a surrogate mother, or

In the past, the spouse that gave birth to a child was considered the child’s parent. The same-sex partner did not automatically get parental rights. Instead, they would have to adopt the child their partner gave birth to, even though they acted as the child’s parent. Without the right legal framework, partners could be denied access, visitation, or custody to the child they had raised from birth.

Using the assumptions that California law allows, it would appear that same-sex couples would both have parental rights, regardless of the biological origin of their children or whether one gives birth. However, other states and countries may not recognize parenthood given the same set of circumstances. It may be best to err on the side of caution. After all, you want to make sure your parent-child bond stands up in court if necessary.

Call to Learn More About Establishing Parental Rights in a Same-Sex Marriage.

Establishing parental rights is best done well before a breakup. Most people can save time, money, and some serious angst by ensuring both halves of a same-sex marriage are considered parents of any children born during the marriage.

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, Gold River, San Diego, Santa Barbara, Ventura/Oxnard, and surrounding communities.

California Divorce, Debt, Property Division

Do These 5 Things Immediately After Divorce

April 13, 2021 Judy Burger

Divorce seems to come in several stages: First, you try to decide whether to end your marriage or not. That’s sometimes a huge decision. Then you contact an attorney and start the paperwork. After negotiating a settlement, and a parenting plan if you have children, you get your final divorce order. Instead of breathing a sigh of relief, and planning your next party, take some time to do these things immediately after your divorce is final.

#1. Make Sure You Understand the Terms of Your Settlement or Decree.

Even if you actively participated in the entire divorce process, give your divorce settlement a final, thorough review. Take note of anything you are required to do or not do. It’s also important to know your ex-spouse’s obligations, particularly those related to your children. Contact your California divorce attorney if you have any questions.

#2. Change Beneficiaries on Financial Accounts.

Naming beneficiaries for your financial, insurance and investment accounts is always a best practice. But it’s easy to forget that your beneficiary designations probably include your ex and maybe even some of your former in-laws.

Contact each institution to learn how to change your beneficiary designations. It’s usually a relatively easy step that people often overlook.

#3. Change All Usernames and Passwords.

Most people have several online accounts that require usernames and passwords. If you have not already done so, change all your logins immediately after your divorce. Make sure that you don’t use passwords that your ex-spouse could easily guess.

#4. Let Your Employer Know About Your New Status.

It’s important that you tell your boss that your marital status has changed. However, you do not have to tell your employer every detail of your divorce. Only share what is necessary and what you feel comfortable revealing.

#5. Change Your Estate Planning.

Estate plans typically include a Will, a durable power of attorney for finances, and an advance health care directive. Other common documents are the living will and the revocable living trust.

These documents reflect your last wishes and how you want your financial and medical decisions to be handled if you become incapacitated. Not many people would want their ex-spouse to be in charge of their bank accounts or deciding when to pull the plug.

It’s usually best to contact your estate planning attorney during your divorce. Immediately after your divorce, though, make sure you change these important documents.

Help with Your Divorce Is Available

California Divorce

Should I Avoid Social Media During My Divorce?

April 6, 2021 Judy Burger

Social media is fun – until it isn’t. The news is filled every day with people who have been harmed because someone shared too much online. If you plan to file for divorce or have already done so, this is not the time to air your dirty laundry on social media platforms. In fact, we encourage you to consider the following as you decide whether to avoid social media altogether.

Is Just Needing to Vent a Reason to Avoid Social Media?

Possibly. ‘Think before you post’ is a good practice during your divorce. If you are angry or upset, you might post something that could backfire on you. Also, what you say about your spouse could get back to them.

Another reason to avoid social media if you feel like venting is because of how the courts might view your post. This is especially true if you have children. Courts generally take a dim view of disparagement because it could hurt your children’s relationship with their other parent.

Maybe just meet a close friend or family member for coffee or lunch if you need to vent about your spouse’s latest escapade.

How Friendly Are Your Friends?

If you have been married a while, you and your soon-to-be-ex probably have mutual friends. At some point, you might have added your spouse’s friends and family members to your friends list. Their loyalty might be divided after you announce your pending divorce. At the very least, an angry social media post could make them uncomfortable. However, the worst-case scenario is that they might forward your post to others and tell your spouse what you are saying.

And angry words are not the only thing you should avoid posting on social media. Talking about a new love interest or an expensive vacation could spell trouble during settlement negotiations.

Will Your Posts Negatively Affect Your Divorce?

We’ve already mentioned a few. For example, disparagement could influence how a family court judge views you. So, avoid social media posts that harm your spouse’s reputation. They could actually hurt your reputation more.

Child custody, visitation, and support could be affected if your social media accounts are full of inappropriate pictures and stories. This could be especially hurtful if your children are in any of the pictures.

Also, most if not all of your online activities are discoverable. This means that you might have to give information from your accounts to your spouse’s attorney. If you avoid social media posts that are too revealing, your spouse won’t have anything to work with.

Will Social Media Posts Upset Anyone?

You and your spouse might be at each other’s throats, figuratively, but remember that more than two people are involved in most divorces. If you have children, they could definitely be embarrassed and upset by your social media. Your parents, extended family, and family friends might be exposed to information that would be deeply upsetting. It’s probably just safer to avoid social media use as much as possible from the time you decide to file for divorce until you receive your final order.

Avoid Social Media and Contact Us if You Want to File for Divorce

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