All posts by Judy L. Burger

Divorce Litigation: When Spouses Can’t Settle

Divorce Litigation: When Spouses Can’t Settle

Some divorces sail through divorce court with few if any problems. Everyone agrees on everything. For many people, though, that speedy divorce just doesn’t happen. The separating spouses just can’t agree on a settlement, even after several negotiation sessions and mediation. At that point, the case may be headed to trial. That’s what may happen during divorce litigation when spouses can’t settle their differences any other way.

Starting the Process

In California, a marriage may end in annulment, legal separation, or divorce. One person in the marriage or domestic partnership will file documents with the court clerk to get the divorce started, then file them on the other party. Both parties then file a Schedule of Assets & Debts, Income and Expense Declaration, and Declaration Regarding Service of Declaration of Disclosure.

If temporary orders for child support, custody, or spousal support are needed, one of the parties can request them at this time. In some circumstances, the parties will engage in discovery, which may involve answering questions, providing documentation, and giving depositions.

Exits on the Road to Court

Not all divorce cases make it to trial. For some, they find ways to settle their difference as their divorce proceeds. Often, the parties and their attorneys will meet with a mediator. The parties may negotiate a marital settlement agreement and a parenting plan, if one is needed.

Informal settlement negotiations are another option. Attorneys for the divorcing couple communicate demands and concessions until agreements are reached.

Sometimes issues are insurmountable, and settlement is impossible.

When Divorce Litigation Lands in Front of the Judge

Some marriages are complicated, the parties are unwilling to settle, or one of the parties is unable to participate in negotiations. A trial judge will review evidence and listen to testimony given in the courtroom. The judge then hands down appropriate orders that divide the couple’s property and debts, and settles the parties’ child custody, child support, and spousal support issues.

Divorce Litigation Isn’t Easy

But sometimes it is necessary. Make sure your legal representatives know how to guide your divorce case all the way to a judge if that is what it takes.

To discuss how to handle divorce litigation issues, please call us at 415-293-8314. The attorneys at the Law Offices of Judy L. Burger assist clients in San Francisco, Beverly Hills, Marin County, Santa Barbara, Ventura/Oxnard, San Jose, Gold River (Sacramento), and surrounding communities.
Legal Separation Under California Law

Legal Separation Under California Law

Daria met with her attorney, fully intending to file divorce as soon as possible. She and her estranged husband were both confused about whether to end their marriage or try to patch things up. They were also deeply concerned about their two children. As Daria spoke with her attorney, she learned more about divorce and legal separation under California law. She decided to weigh her options carefully to see which fit her situation better.

Procedure

Some states do not recognize legal separation. California is one of the states that does allow legal separation of a married couple. In fact, filing a divorce petition and a legal separation are essentially the same process. A couple going through a legal separation, as with a divorce, may negotiate separation of community assets and debts, a parenting plan if they have children, spousal support, and child support arrangements. 

One reason for Daria to choose a legal separation involves the California residency requirement. To file a divorce, either spouse must have lived in California for the past six months AND have lived in the county where the divorce will be file for the past three months. An individual who wants to file for legal separation is not bound by the residency requirement.

If Daria chooses to file a legal separation under California law, she will need to take these steps:

  • File a petition with the appropriate court asking for a legal separation.
  • Serve a copy of the petition on her spouse and file a proof of service with the clerk.
  • Since she and her spouse have children, she will file a copy of the petition with the local child support agency.
  • Daria’s spouse has 30 days to answer the petition for legal separation. What happens next depends on how the spouse responded. The couple may engage in discovery or meet with a mediator if necessary.
  • If they reach an agreement, they may each be required to prepare and serve a final Declaration of Disclosure.
  • The Judge will issue an order finalizing the separation.

Note that a legally-separated couple are still married to each other and cannot marry anyone else. Also, under California law, the parties involved in a legal separation proceeding may convert the separation to a divorce at any time.

Not Sure Whether to File for Legal Separation or Dissolution?

The attorneys at the Law Offices of Judy L. Burger are experienced at all phases of divorce proceedings. Call us at 415-293-8314 to schedule a private appointment or visit our website. We maintain offices in San Francisco, Marin County, Santa Barbara, Ventura/Oxnard, San Jose, Gold River (Sacramento), and surrounding communities. Our new Beverly Hills office is opening soon.
2018 Tax Reform’s Effect on Spousal Support

2018 Tax Reform’s Effect on Spousal Support

Often one party to a divorce will pay spousal support to the other party. Methods of calculating spousal support can be complicated. For example, tax treatment of spousal support payments differ for the party paying the support as opposed to the party receiving the support. For people currently divorcing, it’s important to consider the 2018 tax reform’s effect on spousal support.

Income Tax Treatment of Spousal Support

Income taxes for spousal support orders signed prior to 2019 were handled as follows:

  • The spouse who pays the spousal support may use those payments as a tax deduction.
  • The party that receive the spousal support reports the support as taxable income.

In the post-2018 tax reform world, though, things have changed:

  • Payers of spousal support can no longer count those payments as a tax deduction on their federal income tax returns.
  • Recipients do not have to report their spousal support as taxable income.

This seems like an easy change, but it does affect how much tax each party may be expected to pay.

The Tax Reform Effect

One issue is that the payment or receipt of spousal support may move either party into another tax bracket:

  • Recipients may move to lower income tax brackets since they no longer have to report spousal support as income. This could mean they get to keep a greater percentage of their spousal support than people divorced before December 31, 2018.
  • Payers of spousal support, however, will now lose the deduction that some call a divorce subsidy. Their income taxes likely will rise due to the loss of that deduction.

In addition, payers of spousal support may offer lower support payments since those payments are no longer tax deductible. This could adversely affect women, who are more likely to be the recipient of spousal support instead of the payer.

Will Your Spousal Support Be Affected by 2018 Tax Reform?

That depends on when your spousal support order was signed. Most orders signed before 2019 will not change, at least related to income taxes. However, support judgments that go into effect in 2019 will adhere to the new tax laws.

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.
Social Media and Your Divorce

Social Media and Your Divorce

Chris loved posting to all her social media accounts – Facebook, Twitter, Instagram – she had them all. It seemed like innocent fun and a great way to stay connected. The day she posted about her trip to Las Vegas, however, she learned the perils of social media. Her estranged husband learned she was on vacation and not helping her grandmother recover from hip surgery as she stated when she dropped the kids off at his house. At least a few of her 2,372 Facebook friends wondered how she could afford to stay at the Bellagio Las Vegas while claiming she needed more spousal support and child support. Chris found out the hard way that social media and your divorce are not good partners.

Let’s look at several reasons that people in the middle of a divorce should avoid social media.

Hidden Gold

Boasting about buying a new boat while claiming you’re too poor to pay child support is not a smart thing to do – but people do it. Social media posts may be a veritable treasure trove of financial information. Be aware that the parties to a California divorce are required to submit accurate financial disclosures or face penalties. Lying on divorce disclosures violates California law.

Not All “Friends” Are Friends

This may not be the best time to post a picture of you with your new boyfriend or write nasty things about your ex. If your estranged spouse is on the same social media sites, there’s a strong possibility you may have friends in common. Even if you have unfollowed or unfriended your spouse, he or she may still be able to see your posts.

And, of course, there’s always deliberate sabotage. Some friends may be friendlier with your spouse than with you. In addition, people may carelessly share your posts and photos so your ex-spouse will see them.

Posts = Evidence

Most of the messages and photos you posted on social media accounts may be used as evidence in your divorce case. If you are concerned about social media and your divorce, you may be tempted to delete everything. Talk to your attorney before doing anything with your social media accounts. Deactivating your accounts during your divorce may be the best course of action.

Social Media and Your Divorce? Maybe Not a Match Made in Heaven.

If you’re feeling nervous about past posts, you might consider deactivating your account. However, do not delete pics, posts, snaps, tweets, and another other social media stuff without talking to your divorce lawyer first.

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 Beverly Hills, San Francisco, Gold River, Santa Barbara, Ventura/Oxnard, and surrounding communities.
How to Modify Child Custody Arrangements

How to Modify Child Custody Arrangements

Parents may be able to mutually agree upon a parenting plan for their children. Sometimes, though, a judge has to decide how child custody will be handled before a divorce is finalized. No matter how or when the decisions were made, there may come a time that parents have to modify child custody arrangements.

Making the Decision

Parenting Plans and child custody arrangements typically are made keeping the best interests of the child in mind. But people and circumstances change. Some of the common reasons for altering a child custody arrangement include:

  • Refusing to allow the non-custodial parent to contact or visit the children;
  • Putting the children in an unsafe or dangerous environment;
  • Relocation of the non-custodial parent.

In addition, children may ask for a change in custody. Children over the age of 12 may be permitted to tell the judge who they want to live with.

Once one or both parents decide that changes should be made, the court becomes involved.

Filing the Paperwork

The parent requesting the change will file a Request for Order with the court. An additional form – the child Custody and Visitation (Parenting Time) Application Attachment is optional but may be helpful. Remember that you need to show a significant change in circumstances or some compelling reason to modify child custody arrangements.

After filing the Request for Order, you will be given a date to appear in court or to meet with a mediator. Court proceedings can be complicated, especially if the parents are unable to reach their own agreement.

Attending a Hearing

If parents are unable to arrive at a revised custody plan through mediation, they may have to appear in court. The judge may take limited testimony but may rely heavily on the documents filed with the clerk. After making a decision, the judge signs an order altering the terms of the custody arrangement.

It’s Possible to Modify Child Custody Arrangements

However, the court must see significant reasons to change custody before doing so. As always, California courts consider the best interests of the child in making any decisions.

To discuss how to modify child custody arrangements, please call us at 415-293-8314. The attorneys at the Law Offices of Judy L. Burger assist clients in Beverly Hills, San Francisco, Marin County, Santa Barbara, Ventura/Oxnard, San Jose, Gold River (Sacramento), and surrounding communities.
Negotiating Your Marital Settlement Agreement

Negotiating Your Marital Settlement Agreement

A divorcing couple may end their divorce by going to trial or by negotiating a marital settlement agreement. California courts tend to prefer the latter. If the decisions are left up to a judge, assets and debt will be split as close to 50-50 as possible. Parties who negotiate a settlement have a little more freedom, as long as they can reach an agreement.

It may be in your best interests to negotiate rather than going to trial. Here are a few tips that may give you a better chance of negotiating your marital settlement agreement.

Be Open and Honest with Your Attorney

Your lawyer represents your interests in the negotiation process. It may be easier for your attorney to reach agreements that work for you if he or she knows all the facts.

For example, Lila and Jake began discussing their settlement agreement. During the negotiations, Lila’s attorney learned that she had misrepresented her income, her education, and her employment status. These surprises put Lila’s attorney in an awkward position, one that hindered the negotiation process.

Look at the Big Picture

The term “choose your battles” comes to mind. Only push for the things that really matter – arguing over small, relatively insignificant details wastes everyone’s time and energy.

The next tip may help:

Check Your Emotions at the Door (if possible)

Acknowledge that divorce is usually an emotional time, even if you want the divorce. Life is changing in a big way, and you still have to get through the final steps of negotiating  your marital settlement agreement and getting the final divorce decree.

However, negotiating is difficult when emotions are high. Try to stay calm and focused.

Be Realistic

This not the time to exact revenge on your spouse. This is a time to review disclosures and discovery materials, determine community property and debt, then come up with an agreement that fits.

Our divorcing couple, Lila and Jack, had a difficult time in negotiations. Lila would not decrease her spousal support and child support demands, although she knew Jack was on disability. Jack insisted on full custody, although he was living in a one bedroom apartment. Lila and Jack need to review their circumstances and come up with reasonable, workable solutions.

You Need a Lawyer Who Knows How to Negotiate.

The attorneys at the Law Offices of Judy L. Burger are experienced at all phases of divorce proceedings. Call us at 415-293-8314 to schedule a private appointment or visit our website. We maintain offices in San Francisco, Marin County, Santa Barbara, Ventura/Oxnard, San Jose, Gold River (Sacramento), and surrounding communities. Our new Beverly Hills office opens soon.
5 Reasons to Seek an Annulment

5 Reasons to Seek an Annulment

In California, couples who wish to end their marriages may get a divorce. Another option – annulment – may not be as well-known but can be the right choice for some. Though an annulment and divorce both dissolve a marriage, they have different meanings. A divorce terminates a valid marriage while an annulment states that the marriage was never valid. In fact, the invalid marriage is treated as if it never happened.

Marriages are always considered invalid if:

  • The couple are close blood relatives; or
  • One of the spouses was already married or in a registered domestic partnership with another person.

Read on to learn about five more reasons a couple may seek an annulment.

Underage

If one or both parties to the marriage were under age 18 at the time of marriage, then the court can declare that the marriage is invalid.

Lack of Capacity

If one or both parties were of unsound mind, the marriage can be annulled. Someone who is of unsound mind may not understand the consequences of the wedding ceremony or even understand that a marriage has taken place.

Fraud

Sometimes one spouse will coerce someone into marriage by misrepresenting certain issues related to their partnership. For example, lying about issues like the ability to have children or the fact that the couple are marrying to affect citizenship status can lead to an annulment.

Force

A marriage can be annulled when one party compels the other to be married against their Will. One example would be a girl that is forced to marry for religious reasons.

Inability to Consummate

One party to a marriage may be unable to consummate a marriage due to an incapacity that seems incurable and likely to continue. In that case, the marriage can be dissolved through an annulment.

Do You Need to File for an Annulment or a Divorce?

There may be some advantages to filing for an annulment, since the marriage is retroactively dissolved. If you need to terminate your marriage or registered domestic partnership, contact an attorney immediately.

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.
Should I File a Joint Tax Return During My Divorce?

Should I File a Joint Tax Return During My Divorce?

Just because it is necessary to separate two people’s lives does not mean it will be easy. Divorcing spouses usually must find new living arrangements, divide up household goods and friends, and even face the daunting prospect of filing many legal documents to get the divorce over and done. Let’s not forget tax returns. Couples in the middle of a divorce still have to face the tax man and may be left wondering if they should file a joint tax return or separate.

Married Status and Tax Returns

You may file your federal tax returns choosing one of the following options:

  • Single,
  • Married Filing Jointly,
  • Married Filing Separately,
  • Head of Household, and
  • Qualifying Widow/Widower with Dependent Child.

The first and last status obviously do not apply, since your marriage has not been terminated yet and you aren’t a widow/widower. However, the other available options can be confusing.

Filing Taxes Mid-Divorce

You and your spouse may file married filing jointly as long as you were still legally married on December 31. Even if you live in different houses, you are still considered to be married until the court dissolves your marriage

If you and your spouse lived apart for at least half of the tax year and you cared for at least one child for half the year, you may file as head of household. This usually results in a lower tax rate.

If you’re still married and your spouse will not agree to file jointly, you will have to file as married filing separately. Usually, the tax rate is higher for someone filing like this. Even worse, you may have to claim at least part of your spouse’s income since California is a community property state.

Talk to An Advisor Before Filing Your Taxes

To file jointly, your spouse must agree to do so. However, you may choose to file separately because you are concerned that your spouse is trying to cheat on their taxes. Also, sometimes one spouse may receive a refund if filing separately but face a tax bill if filing jointly.

Ms. Burger is a California Certified Family Law Specialist and founder of the Law Offices of Judy L. Burger. Please call us at (415) 293-8314 to schedule a confidential appointment with one of our attorneys. We assist clients in California’s Northern to Central Coast, including San Francisco, Gold River, Santa Barbara, Ventura/Oxnard, and surrounding communities.
Preparing for Your Court Hearing

Preparing for Your Court Hearing

Many people fear the unknown. Since some of us go our entire lives without entering a courtroom other than for jury duty, attending a hearing can be incredibly stressful. It doesn’t have to be so bad. Just talk to your attorney while preparing for your court hearing. You may learn some tips for understanding the unknown that will make your experience easier.

First, the Basics

California family courts typically are less formal than other courts. However, the judge in a family court does expect certain behavior from people taking part in the court proceedings.

  • Dress appropriately. Most courts have a dress code. For example, your judge’s dress code may require that your clothes are clean and prohibit baggy clothing, hoodies, tank tops, shorts and short dresses and inappropriate footwear like flip flops.
  • Get some sleep the night before. Sleep deprivation may make the entire process more difficult.
  • Make sure you’re on time. This is so important. Being late may give the court the wrong impression. Plan your route and where you will park beforehand, then leave the house a little early.

Courtroom etiquette is a set of rules that says how the court wants you to behave in the courtroom. Here are some dos and don’ts for courtroom attendees:

  • Don’t bring gum, food, and drinks into the courtroom.
  • Don’t bring cameras, tape recorders, or devices that play music.
  • Do turn off your cell phones and pagers.
  • Don’t text message.
  • Do take off your hat and sunglasses.
  • Do be courteous and respectful to everyone you meet. It never pays to be rude to a court clerk, bailiff, or judge.

Additionally, there are some things you can do in the weeks leading up to your hearing.

A Few In-Depth Tips

Once you have the basic information in hand, start thinking about the big picture by:

  • Reviewing the documents you have filed in your case.
  • Reviewing the documents your spouse filed.

Anything your attorney gives you to read gets top priority, of course.

And Some Final Thoughts

It really comes down to listening to your attorney. Ask questions, then follow your attorney’s advice.

To discuss your divorce, please call us at 415-293-8314. The attorneys at the Law Offices of Judy L. Burger assist clients in San Francisco, Marin County, Santa Barbara, Ventura/Oxnard, San Jose, Gold River (Sacramento), and surrounding communities.
Passports and Two-Parent Consent Law

Passports and Two-Parent Consent Law

Travelling with a child can be difficult. Plans may have to be arranged around the child’s schedule and, of course, your luggage may be stuffed with kid-friendly items. Taking a trip outside the United States requires even more planning, especially if the child needs a passport. Divorced parents may find it difficult to get passports for their children due to the Two-Parent Consent Law.

The Two-Parent Consent Law

This law, found in 22 U.S.C. 213n and 22 C.F.R. 51.28, applies to a parent seeking a passport for minors who are age 16 or younger. Under the Two-Parent Consent Law, both parents or guardians must apply for the passport and provide evidence of parentage or legal guardianship.

If only one parent applies, that parent must provide at least one legal document showing the parent has sole custody of the child such as:

  • A birth certificate, Consular Report of Birth Abroad of a Citizen of the United States, or Certification of Report of Birth giving the name of only the parent applying for the passport.
  • A death certificate for the non-applying parent.
  • An adoption decree naming only one parent for the child.
  • An order granting sole custody to the applying parent.
  • An order terminating legal custody of the other parent.

When parents are granted joint custody, both parents generally must apply for the passport. For humanitarian or emergency reasons, sometimes the circumstances need a different approach.

Exceptions to the Two Parent Consent Rule

When a parent cannot supply the documentation listed above, a passport may still be issued if the parent can submit:

  • A court order that allows the parent to travel with the child;
  • A written statement or notarized written consent from the other parent stating that the other parent cannot give consent for the child’s passport.

The applying parent also may submit a statement explaining any exigent or special circumstances that would allow a passport to be issued with the consent of only one parent.

Will the Two-Party Consent Law Derail Your Travel Plans?

The attorneys at the Law Offices of Judy L. Burger are experienced at all phases of divorce proceedings. Call us at 415-293-8314 to schedule a private appointment or visit our website. We maintain offices in San Francisco, Marin County, Santa Barbara, Ventura/Oxnard, San Jose, Gold River (Sacramento), and surrounding communities. Our new Beverly Hills office is opening soon.