All posts by Judy Burger

The Intentional Breach of a Spouse's Fiduciary Duty
California Divorce, Marriage

The Intentional Breach of a Spouse’s Fiduciary Duty

A fiduciary duty is one in which one party owes another the highest duty of care. For example, someone serving as an executor of an estate has a duty to handle its property and finances with the utmost care. An executor cannot misappropriate money or steal property belonging to the estate, or he may be liable for damages.

Similarly, California law places a fiduciary duty on each spouse to act in the best interest of the other spouse. California Family Code § 721 explains that spouses have “a duty of the highest good faith and fair dealing” with each other and that “neither shall take any unfair advantage of the other.” This fiduciary duty includes three core components: (1) allowing access to records of financial transactions; (2) providing accurate and complete information about community property transactions; and (3) treating benefits and profits from certain community property transactions fairly and accounting to the other spouse for them.

 In addition, California law provides a duty of full disclosure regarding all community assets. The duty applies during the period of marriage and after the parties separate, until the item is divided by the court or the parties. Indeed, the California laws regarding divorce provide a formal method by which the assets and liabilities of each party are disclosed to the other.

What happens if one spouse does not perform his or her fiduciary duties? The failure to perform these duties is a called a “breach,” and the law sets forth what happens when there is a breach. The consequence that is imposed depends upon the seriousness of the breach and the view of the family court.

Examples of ways that parties may breach their fiduciary duties include hiding assets or transferring assets to try to deprive the other spouse of any interest in them. The law provides several remedies, or consequences, for a breach of spousal fiduciary duties, including the following:

  • A court-ordered accounting and determination of rights of ownership;
  • The placement of the name of a party on the title of an asset;
  • An award of either 50% of an undisclosed or transferred asset or of an amount of money to compensate the injured party for the loss of interest in that asset; and
  • Attorney’s fees and court costs.
In particularly egregious cases, the family court can order the breaching party to give the injured party the whole asset or to pay the injured party its full value . When fraud, oppression, or malice have been adequately proven, the court may award punitive damages, designed to punish the breaching party . It is sometimes necessary to hire a forensic accountant to show that a spouse intentionally breached his or her fiduciary duty. A forensic accountant is trained to trace funds and assets, which can help demonstrate that a spouse intended to hide or misappropriate community assets.

Breach of the spousal fiduciary duty is serious wrongdoing. If you are concerned that your spouse may be attempting to hide or minimize assets, you need an aggressive lawyer who will fight on your behalf. The attorneys at the Law Offices of Judy L. Burger have extensive experience in contested divorce and property proceedings. Call today to learn how our attorneys can protect your property interests as you go through this difficult time: (415) 293-8314.
Who Gets the Family Home in a California Divorce?
California Divorce

Who Gets the Family Home in a California Divorce?

In a divorce, one of the most significant concerns is what will happen with the family home. This is particularly true when minor children are involved.

The family residence is often the largest asset owned by the parties to a divorce, so the financial interest is often significant. In addition, there can be a sentimental attachment to the home. For these reasons, dividing the parties’ interest in the family home can be easier said than done. The first task is to decide who actually owns the house. You can learn more about determining basic ownership interests here.

 It is not always easy to apply property law when dividing the family residence. For instance, what happens if the down payment was made with separate property funds? What if both parties contributed to pay down the mortgage while they were married, but the home is titled in just one name?

When there is a community property interest in the residence, there are three basic ways it can be divided: (1) sell the property outright and apply the profits toward the couple’s community property estate, to be divided; (2) one spouse buys out the other’s interest, assuming the purchasing spouse has adequate funds or credit to do so; and (3) deferred sale.

The first two of these options are fairly straightforward. However, a “deferred sale of home order”, also known as a “Duke” order (named after a significant case on the issue), requires some explanation. Deferred sales are usually considered when the parties have minor children and want the children to be able to stay in the family home until a later date. A custodial parent, in these situations, is given exclusive use and possession of the home on a temporary basis so that the kids can stay there.

 In determining whether to allow a deferred sale, the family court must first consider whether it is economically feasible to do so. The court must balance the relative hardship of the parent and children staying in the home with the hardship placed upon the parent no longer living there. The law requires that certain factors be considered in making these determinations. It also requires that the deferred sale of home order contain an end date, such as the date the youngest minor child attains the age of majority or graduates from high school.

In addition to the disposition of the home, the family court will have to determine whether one party must reimburse the other for “contributions for the acquisition of property”. These reimbursements may be required if one party made the down payment on the family residence out of separate funds. They may also be required if separate funds are used to pay down the principal on the home.

As you can see, many factors impact how the family residence is handled in a divorce. How these issues are presented can significantly affect your outcome. Judy Burger is experienced in complex property division matters and how to present those in family court. Please contact her today at (415) 259-6636.
How Are Stock Options Divided in a California Divorce Proceeding?
California Divorce

How Are Stock Options Divided in a California Divorce Proceeding?

When a couple divorces, it is easy to divide physical items. One of the parties simply takes possession of items such as home furnishings, tools, jewelry, and even cars. Other property is more difficult to evaluate and divide. This is the case with employee stock options.

Stock options are granted by a company to an employee, usually managers and executives. Stock options represent the right of the employee, at some point in the future, to purchase company stock if he or she chooses to do so. Sometimes, a company gives an employee stock options to attract the employee to come to work for it; other times, a company offers stock options to try to keep an employee or to compensate him or her for future work. If and when a stock option “vests”, the employee has the right to buy the company’s stock.

A basic understanding of property rights in California is essential to understanding how family courts deal with stock options. You can learn more about these rights here.

In addition to understanding basic property law, it is important to understand what the term “vest” means in relation to stock options. The date a stock option “vests” is the date upon which an employee has the right to buy the stock. This is known as “exercising” the option right.

The first step in determining how to handle stock options in a divorce is deciding who owns the option. Courts have broad discretion on how this is done. However, two different approaches are typically used, both of which are named after the cases that established them. They are known as the Hug formula and the Nelson formula; they are also known as time rules. In essence, the sooner after the date of separation an option vests, the larger the community interest in them.

Which formula is applied, usually depends on the reason the company offered the stock option in the first place. The Hug formula typically applies to options that were given to the employee to attract him to work. The Nelson formula is usually used when the options were offered to keep an employee or to compensate him for future work. While many people assume that options that vest after the date of separation are separate property, this is simply not true when the Nelson time rule is applied.

Valuing stock options properly requires an attorney who understands all the law and who is experienced in making the strongest arguments for her client. To obtain the counsel of just such an attorney, please contact the Law Offices of Judy L. Burger. We have extensive experience in divorce, child custody, and child support matters. Call today to learn more: (415) 293-8314.
How Is Available Income Determined for Child Support Orders if a Party Is Self-Employed?
Child Support

How Is Available Income Determined for Child Support Orders if a Party Is Self-Employed

California law mandates that one of the predominant factors in setting the amount of child support is the actual income of the parents. As you might imagine, this can be very difficult if one or both of the parents are self-employed.

Because parents have a mutual duty to support their children, the parties to a divorce proceeding must disclose all aspects of their finances. All assets, liabilities, obligations, earnings, accumulations, and expenses must be disclosed. Assets must be disclosed even if they are owned as separate property. By law, self-employment benefits may be considered by a court in determining a parent’s gross annual income.

Full disclosure is critical to allow the family court to make a proper order of support for the children’s needs. A statutory process is in place to ensure that proper disclosures are made through the submission of certain forms. These forms include a Schedule of Assets and Debts, as well as an Income and Expense Declaration.

When a party is self-employed, however, he or she has control over documents that would be used to establish his or her actual income. These documents might include profit and loss statements, loan applications, credit card statements, and reports showing monthly expenses. The danger of nondisclosure is enhanced in these situations because the business owner has power over the creation and retention of these documents.

Forensic accountants may be used when self-employment is an issue in a family law matter. These specialized accountants are trained in both sound accounting practices and investigative skills. They specialize in reviewing financial documents with an eye toward tracing funds and locating missing funds or documents. They also testify in court about their findings, to ensure the proper amount of income is attributed to a self-employed parent.

When the actual income of a self-employed parent is an issue, it is critical to hire an aggressive family lawyer who has significant experience in business matters. Judy Burger comes from a business background and has worked extensively in highly contested divorce cases involving forensic accountants. Call her today at (415) 259-6636 to learn more about how she can help you.
How Is My Child Support Award Affected by My Spouse's Refusal or Inability to Work?
Child Support

How Is My Child Support Award Affected by My Spouse’s Refusal or Inability to Work?

If you are going through a divorce and your spouse does not work or refuses to work, you may be concerned about the adequacy of your child support award. Child support is designed to ensure that the needs of California children are kept front and center, despite the separation or divorce of their parents. The law recognizes that both parents have a duty to contribute to their children’s support. This includes, in some circumstances, charging unemployed or underemployed parents with income earning capacity even though they may not be working at all. This is called imputing income. Section 4058(b) of the California Family Code states that “the Court may, in its discretion, consider the earning capacity of a parent in lieu of the parent’s income, consistent with the best interests of the children”. In making this determination, courts will consider three factors:
  • A parent’s ability to work;
  • The opportunity of a parent to work; and
  • Whether a parent working is consistent with the best interest of the children.
The first factor is whether a parent is able to work. This may be restricted to differing degrees. For example, a parent disabled from working in any job will be considered differently than a parent disabled only from working in his or her chosen field. If the ability to work is only partially restricted, a family court may impute earning capacity to the disabled parent. Similarly, if a parent refuses to work or hasn’t worked for a long time, he or she may be perfectly capable of working, given the motivation to do so. The second factor in determining whether earning capacity will be imputed to a parent is opportunity. In other words, are there available jobs that the unemployed parent is capable of performing? If a parent is able to work and has the opportunity to do so, the final factor is whether it is “consistent with the best interests of the children” for that parent to work. Examples of issues that might make a parent working inconsistent with the children’s best interest include a parent taking care of an infant or special needs child. Ideally, there is no dispute about a party’s true ability to work. However, when this issue is contested, there are a few tools that may be used to obtain an objective determination of a party’s true limitations. The first tool is called an independent medical examination (“IME”). This is a medical examination performed by an independent health care provider to determine the ability of a person to work. A second tool that may be available is the use of a vocational expert to assess the ability of a party to work, as well as the opportunities he or she may have for gainful employment. If you are concerned about your spouse’s refusal or inability to work, or if you believe your spouse is underemployed for the purpose of depressing his or her income, you need an aggressive attorney to evaluate the facts of your case and determine your options. At the Law Offices of Judy L. Burger, we recognize the importance of a proper child support order to the well-being of your children. We specialize in difficult custody and support issues, and we’ll put our experience to work for you. Call us today at (415) 293-8314.
California Divorce

Basic Property Rights Law in California Divorces

Understanding the basic rules of property ownership in California is critical for anyone going through or contemplating a divorce or legal separation. Property may be owned by a spouse separately, meaning that it is his or hers alone, or it may be held as community property, which means that both spouses share it equally. It is important to understand the difference because, generally, a spouse has no right to any portion of the separate property of the other. On the other hand, California law provides for equitable division of community property.

Property acquired before a marriage or after a married couple separates is considered to be separate. In addition, property given to or inherited by a party during a marriage is considered to be separate. In most cases, a person has no right to the separate property of his or her spouse.

California law assumes that property acquired during a marriage is community property, which means that each spouse holds a one-half interest. Both spouses have an ownership right to one-half of community property, regardless of who actually acquired the property. In determining whether property is separate or community, the date of separation is critical. In fact, the date of separation is sometimes hotly contested for this reason. The date of separation is established, by law, as the date on which two things occurred: (1) one spouse subjectively made the decision that the marriage was over; and (2) that spouse took an objective step to implement his or her decision.

With titled assets, such as homes, cars, and boats, a second property law presumption may come into play. The California State Legislature has passed a law that the“owner of the legal title to property is presumed to be the owner of the full beneficial title”. This means that a court will assume that the name of the person on title to property is the full owner of that property. It takes strong evidence to overcome this presumption.

As you might imagine, the community property presumption and the legal title presumption can often be in tension with one another.

There are many nuances in California statutory and case law that impact property division, and the proper presentation of property issues can significantly affect your outcome. Judy Burger is experienced in complex property division matters and how to present those in family court most favorably to her clients. Please contact her today at (415) 259-6636.
Child Custody

What Are Some Factors To Consider When Making a Parenting Plan?

post1 California requires parents to develop a parenting plan, also known as a “custody and visitation agreement” or a “time-share plan.” A parenting plan is essentially a written agreement between parents detailing how much time the children will spend with each parent and a plan for making important decisions in the future about the child’s welfare and education. A comprehensive parenting plan includes many factors. Its purpose is to ensure stability in the present, as well as to eliminate uncertainty in the future. Some of the most important factors to include in your parenting plan are: 1. Who will the children live with? 2. When will the children visit with the other parent? 3. Which holidays are observed by each parent, and which holidays will the children observe with each? 4. How will parents split time with the children during mutually observed holidays? 5. How will parents split time with the children on the children’s birthdays? 6. How will parents split time with the children on the parents’ birthdays? 7. Where will the children be exchanged from one parent to the other for various periods, e.g. regular visitation periods, holidays, birthdays? 8. Who will be responsible for transporting the children between parents’ homes or an alternate exchange location, and when? 9. How will car seat requirements be met, if any? 10. How will visitation schedule changes be addressed, e.g., parents’ work schedule conflicts, or when the children’s extra-curricular activities conflict with visitation,etc.? 11. How will the parents share school vacations, and who will be responsible for the costs of child care during school vacations, if necessary? 12. How will the parents choose and share the cost of regular child care, if needed? 13. Will the other parent will have ‘first right of refusal’ if a babysitter is needed? 14. How will the parents handle the children having contact with extended family? 15. How will the parents handle the children having contact with a parent’s friends or romantic partners? 16. What if a parent needs to relocate for work or other reasons? These factors are generally considered essential to every parenting plan in California. There are additional factors that you may want to consider as well, and we plan to address those in an upcoming article. Check back soon to learn more about constructing the ideal parenting plan. The Law Offices of Judy L. Burger can assist you in fighting for your rights and those of your children in a visitation or custody dispute in California. Judy L. Burger is known for her aggressive representation of clients in high conflict cases in and around the Sacramento and San Francisco Bay areas. If you are a parent with a visitation or custody issue, call us today to learn more about how we can help. Call (916)631-1935 in the Sacramento area, or (415)293-8314 in the San Francisco Bay area, or contact us online.
Child Custody

What Is a Parenting Plan and Why Do We Need One?

Every divorcing couple in California, or their attorneys on their behalf, must develop a parenting plan, also known as a “custody and visitation agreement” or a “time-share plan.” The parenting plan is essentially a written agreement between parents detailing how much time the children will spend with each parent and a plan for making important decisions in the future about the child’s welfare and education. The purpose of a parenting plan is multifold. Developing the plan allows both parents to have input, and in the process allows parents to better understand which factors are more or less important to the other parent. Having a good lawyer on your side allows you to negotiate according to the information derived in the process, without your emotions betraying your good judgment. A comprehensive parenting plan will include many factors, including a method for making important decisions about the child and a plan for breaking a tie. For instance, parents can agree that if a tie-breaker is needed, they will consult a qualified mediator to help them reach a joint decision. Divorcing parents who do not agree on an initial parenting plan may be ordered to engage in mediation. If mediation is unsuccessful, an independent counselor may be appointed to meet individually with both parents. If the parties still cannot agree on a parenting plan, the judge may create a plan considering factors recommended by the mediator and counselor, along with the individual requests of the parties. We strive in every case to make sure our clients’ voices are heard in developing a parenting plan, and to gain the other parent’s agreement to the plan. The reason is simple — it is better for parents to craft an agreement based on their knowledge of their children’s specific needs, rather than being forced to comply with a parenting plan constructed by a judge who does not know the children or all of the family dynamics at issue. In cases where it is impossible to reach a reasonable agreement with the other parent, we will aggressively pursue a parenting plan that meets our client’s needs and promotes the best interests of the children. The Law Offices of Judy L. Burger can assist you in fighting for your rights and those of your children in a visitation or custody dispute in California. Judy L. Burger is known for her aggressive representation of clients in high conflict cases in and around the Sacramento and San Francisco Bay areas. If you are a parent with a visitation or custody issue, call us today to learn more about how we can help you. Call (916)631-1935 in the Sacramento area, or (415)293-8314 in the San Francisco Bay area, or contact us online via our confidential inquiry form.
Child Custody

How Do I Change Visitation in California?

Your children have just come home from visitation with their other parent and related some disturbing details about the weekend. Or perhaps you learned through other channels that your children have been exposed to situations you believe to be inappropriate for children of their ages, or worse, dangerous to their health and well-being. Is there anything you can do without violating the visitation order? Most parents have an instinctive drive to protect their children from harm. The problem arises when one parent believes a situation or activity is harmful to the children, while the other parent does not. The difference of opinion may lead one parent to withhold visitation, which in turn can lead the other parent to ask the court for a finding of contempt. While every parent should protect their children from actual, imminent danger, the underlying question in a case where visitation has been withheld is what led the custodial parent to withhold visitation in the first place. In other words, would a judge agree that continued visitation under the circumstance is likely to be harmful to the children? Will you be able to adequately defend your actions if you withhold visitation? A better course of action, if you believe visitation with the other parent is harmful to your children, is to be proactive: Take your case to court before violating the visitation order if possible. The general rule is that a California court will allow visitation in every case unless it would be physically or emotionally harmful to the children. Thus, if you want visitation suspended, you must be prepared to show evidence that the children have and will suffer physical or emotional harm if visitation continues. If your situation is urgent, we may be able to help you get an ex parte order, which is in the nature of an emergency order, and is the quickest way to get temporary court approval to withhold visitation. At the Law Offices of Judy L. Burger, we receive calls regularly from parents on both sides of this issue. If you believe continued visitation is harmful to your children, or if you believe visitation has been wrongfully withheld from you, contact us to discuss your rights and a recommended course of action. The Law Offices of Judy L. Burger can assist you in fighting for your rights and those of your children in a visitation or custody dispute in California. Judy L. Burger is known for her aggressive representation of clients in high conflict cases in and around the Sacramento and San Francisco Bay areas. If you are a parent with a visitation or custody issue, call us today to learn more about how we can help. Call (916)631-1935 in the Sacramento area, or (415)293-8314 in the San Francisco Bay area, or contact us online via our confidential inquiry form.
Child Custody

Child Custody Basics in California

Whether you face a hotly contested custody battle or are contemplating an agreement with your soon-to-be-ex, it is vital that you understand the legal terminology of custody orders in California, such as sole custody, joint custody, legal custody and physical custody. There are two main facets of child custody. Physical custody refers to who the children will live with. On the other hand, legal custody refers to who has authority to make key decisions about the children, such as health choices, education, and religious training. Sometimes, children of divorced parents in California will live primarily with one parent or the other. That parent will be known as the sole physical custodian. Another possible outcome of a custody dispute is that both parents are granted shared physical custody, or joint physical custody. Joint physical custody means that the children will spend as much time with both parents as possible, but it does not mean parents will necessarily get equal time with the children. Separate from the physical custody arrangement, parents commonly share joint legal custody, meaning they share joint authority to make major decisions for the children. Sometimes, one parent is awarded sole legal custody, which means that parent has the sole right and responsibility to make major decisions for the children. Under California law, judges must decide custody based on what is in the best interests of the children. To make that decision, judges consider many factors, including:
  • The ages of the children,
  • The emotional ties between the parents and the children,
  • The ability of the parents to care for the children,
  • The health of the children,
  • Any history of family violence or substance abuse, and
  • The children’s ties to school, home, and community.
Custody is not automatically awarded to the mother or the father. Rather, a parent seeking sole custody must show that it is in the children’s best interest for that parent to have sole legal and physical custody, and must be prepared to refute the other parent’s evidence to the contrary. The Law Offices of Judy L. Burger can assist you in fighting for your rights and those of your children in a custody dispute in California. Judy L. Burger is known for her aggressive representation of clients in high conflict cases in and around the Sacramento and San Francisco Bay areas. If you are a parent facing a custody battle, and would like to learn more about how we can help you, contact us today at (916)631-1935 in the Sacramento area, or (415)293-8314 in the San Francisco Bay area, or online via our confidential inquiry form.