All posts by Judy L. Burger

Can I Recover Attorney Fees in My California Divorce?

January 18, 2016 Judy L. Burger Leave a comment

The payment of attorney’s fees in a divorce proceeding is not always a simple matter. You might think that each party hires a lawyer and dives into the process. California Family Code § 2030, however, requires the family court to ensure that each party has access to legal representation.

In that regard, the court may award attorney’s fees to be paid by one party to the other or her attorney. This happens when an income and needs assessment indicates a disparity in the parties’ access to funds.

An award may be in any amount deemed reasonably necessary to defend or maintain the proceeding during its pendency. The court’s authority to make an award is tempered by the ability of one party to pay the fees of the other. If a party is unrepresented or attempting self-representation, the court may order the other party to pay a reasonable amount to permit the unrepresented party to hire a lawyer before proceedings start.

At all times, the court is required by California Family Code § 2032 to ensure that awards of attorney’s fees are just and reasonable given the relative circumstances of the respective parties. To make such a determination, the court must take into account the need for the award, to the extent that it will allow the parties to adequately present their cases. Awards may be made from any asset of the parties, whether community or separate.

Pursuant to California Family Code § 271, attorney’s fees may also be awarded when one party or her attorney acts in a way that inhibits the progression of the case. The Code states as the policy of the law “to promote settlement of litigation and, where possible, to reduce the cost of litigation by encouraging cooperation between the parties and attorneys.” Such actions may include the refusal to communicate as necessary to advance the case, the filing of frivolous motions, or similar behavior. Awards under this section of the Code are restricted by a party’s ability to pay, and they may only be awarded after notice and opportunity to be heard. Awards of this nature may be paid only from the separate property of the sanctioned party, including her share of community assets.

As you might imagine, the financial positions of the parties to a divorce can be complex and must be accurately portrayed to a court. Judy L. Burger has substantial experience in California family courts, and she also has a business background that allows her to effectively analyze and present financial information. Please contact her at (415) 259-6636 or visit her website to learn more.

Child Custody, Visitation

Child Preferences Regarding Custody and Visitation

January 11, 2016 Judy L. Burger Leave a comment

Child custody in divorce cases can sometimes be hotly contested. Traditionally, courts have made decisions based on the information presented by the parties and their lawyers. The wishes of the children were either not expressed or expressed only through the parents. Since 2012, however, children are permitted to testify regarding custody and visitation arrangements if they so wish.

California Family Code § 3042 provides that if a child is of “sufficient age and capacity to reason,” her wishes will be given due weight. The law makes a distinction between children less than 14 years of age and those 14 or over. If 14 or older, the court is required to permit testimony if the child wishes unless it determines that it is not in the best interest of the child to allow the testimony. Children under 14 are not prevented from testifying, but the court must find both that the child has the capacity to reason and that the opportunity to testify is in her best interest.

Some parents may be concerned about the opportunity for their children to weigh in on the custody and visitation arrangements of their divorce. The court, however, has both guidelines for hearing from a child and discretion in applying those guidelines.

California Rules of Court 5.250 provides instruction for the court for: 1) determining whether the child wishes to address the court, 2) determining whether addressing the court is in the child’s best interest, and 3) receiving the child’s testimony and other input.

The parties to a divorce or their counsel may inform the court of a child’s desire to address the court. In addition, the following persons have a duty to inform the court of a child’s desire to testify:

Counsel appointed to represent the child;
A child custody evaluator;
A child custody investigator; and
A child custody recommending counselor.

To determine whether it is in the child’s best interest to testify, the court must consider the following factors:

Whether the child is of sufficient age and capacity to reason;
Whether the child is of sufficient age and capacity to understand the nature of the testimony;
Whether the child is at risk emotionally if permitted or denied the opportunity to address the court;
Whether the child may benefit from addressing the court;
Whether the child’s anticipated testimony will be relevant to the court’s decisionmaking; and
Whether there are any other factors weighing for or against the child addressing the court.

The court has wide discretion in facilitating the child’s testimony. It can occur in open court as a regular witness, or the courtroom may be closed to the public. It might also be conducted in the judge’s chambers with or without the parties and counsel present. The judge is also empowered to reserve to himself the posing of questions on behalf of the parties. The purpose of these guidelines and the wide discretion granted is to ensure the comfort of the child and, thus, the value of the testimony proffered.

The health and well-being of your children are important not only to you, but to the State of California. In hotly contested child support matters, you need an attorney to fight for you and your child. The attorneys at The Law Offices of Judy L. Burger have extensive experience in divorce, child custody, and child support matters. Make the call today to learn how our attorneys can protect you and your children: (415) 293-8314.

Legal Separation

California Supreme Court: Can a Couple Living in the Same Home Be Considered “Living Separate and Apart”?

January 4, 2016 Judy L. Burger Leave a comment

Couples who are separated and making their way toward divorce sometimes continue to live in the same home. It is not too hard to imagine reasons why this would happen. Finances are a key consideration.

Many couples struggle to make ends meet keeping just one household. A sudden need to maintain two (on the same amount of money) can be pretty daunting. Children are a second reason that separating couples often continue to live in the same home. Divorce is hard on children, and sometimes a more gradual approach to the physical separation of the parents can be in their best interest.

The problem with continuing to live in the same house after deciding to “separate” is that the separation date plays a huge role in the division of marital assets when a divorce actually occurs. Once a legally recognized separation takes place, the parties begin accumulating separate assets to which the other party has no legal right. This is true whether there is a legal separation granted by the court or whether the parties simply separate on their own.

Continuing to live in the same home confounds the question of whether the couple is separated. A recent case decided by the California Supreme Court answered this question, at least for the particular circumstances of that case. In Marriage of Davis, the Court concluded that the couple were not living separate and apart until the wife moved out of the house. Initially, both parties stated that they were living separate and apart even while still in the house together, but later the husband claimed the separation did not occur until his wife moved out.

Some may view the Court’s decision as establishing a bright line rule that continuing to live in the same house defeats the notion of living separate and apart. This is not the case. The Court determined that in this set of circumstances, the couple was not considered as living separate and apart while under the same roof. It left open the door for a subsequent determination that a couple could show that they “had established separate residences . . . even though they continued to literally share one roof.”

If you are contemplating divorce, you will need advice early in the process, especially on the issue of living separate and apart. Judy L. Burger is an aggressive, knowledgeable lawyer who has extensive experience in high conflict divorces in California. Contact her today at (415) 293-8314 to discuss your case.

California Divorce

Why Is There a Mandatory Waiting Period to Get a Divorce in California?

December 28, 2015 Judy L. Burger Leave a comment

Many states have waiting periods for a divorce to become final after the process begins. In California, it is six months after the petitioner serves notice on the respondent. The petitioner is the person initiating the divorce, and the respondent is the spouse or domestic partner.

The primary purpose of the waiting period is to give the parties time to consider their course of action and to reconcile if that is possible. Secondarily, the time also allows for the parties to prepare for a hearing or settlement negotiation. There is substantial documentation necessary to effect a divorce, and it can take a lot of time for it to be assembled. Even after that is done, mediation or settlement discussions are common and can take a long time.

Other issues can also make the waiting period seem inconsequential. For example, when children are involved, other time-consuming activities can be required, especially if issues are being contested. At a minimum, the court will require custody mediation, which forces the parties to meet and consider child custody arrangements. If the issue is being contested by either or both parties, then motions asking the court to make decisions will also take time to resolve.

California has one of the shorter waiting periods. Some states have one-year periods, and others are contemplating even longer periods. The main argument against waiting periods at all, and especially long ones, is the possibility of domestic violence during that time.

Many divorcing couples do not have the means to maintain separate households during the pendency of a divorce. In addition, the very nature of divorce is that some level of acrimony exists between the parties. Consequently, many divorcing couples are living in an increasingly uncomfortable situation under the same roof awaiting the dissolution of their marriage. With children in the mix, it can only be worse. Therefore, the waiting period can be a serious problem in certain situations rather than acting as the savior of a marriage.

The attorneys at The Law Offices of Judy L. Burger have extensive experience in family law, including the dissolution of marriages and domestic partnerships. Make the call today to learn how our attorneys can help you proceed through the divorce process while protecting your rights or those of loved ones: (415) 298-8314.

Child Custody

How Do California Courts Evaluate Requests to Move Out of the Area?

December 21, 2015 Judy L. Burger Leave a comment

Divorced parents often worry about whether they are allowed to move out of the area if they have custody of their children. Fortunately, the California Legislature has a consistent focus on the “best interests of the child,” which permeates all aspects of family law in our state.

Section 7501 of the California Family Code very clearly states that a custodial parent “has the right to change the residence of the child.” The only counterbalance to this, by law, is that a court may “restrain a removal that would prejudice the rights or welfare of the child.”

The right of the custodial parent was not always this clear. In 1996, the California Supreme Court considered whether a custodial parent had to prove that her relocation was “necessary” in order to move away from the area.

In that case, Burgess v. Burgess, the parents agreed at a mediation that the mother would have sole physical custody of the child and that they would share joint legal custody, both on a temporary basis. Their agreement specifically provided for visitation if the mother left the county.

At a hearing several months later, the mother revealed that she was planning to move to a city 40 miles away as the result of a job transfer. Later that year, the court entered an order approving the mother’s move and granting the father enhanced visitation rights.

The first appellate court reversed this order, finding that the mother had failed to show that her move was necessary, instead only showing that it was more convenient for her to move out of the area.

The mother appealed to the California Supreme Court, which ruled in her favor. The state’s high court found that the custodial parent, the mother, was not legally required to prove that her move was necessary. Rather, under the applicable law, Section 7501, she had a presumptive right to move her children. No showing had been made that the move was not in the best interests of the children. Rather, the move would benefit the time she was able to spend with them as their primary caretaker, and their father would still be able to visit with them regularly.

After the Burgess case, the California Legislature specifically added to the law on residence changes that its intention was to declare the ruling in Burgess “to be the public policy and law of this state.”

The attorneys at The Law Offices of Judy L. Burger have extensive experience in family law, including requests of the custodial parent to move out of the area. Make the call today to learn how our attorneys can help you protect the best interests of your child: (415) 298-8314.

Spousal Support

Modification of Spousal Support

December 14, 2015 Judy L. Burger Leave a comment

One of the most difficult aspects of divorce is spousal or domestic partner support. When matters of the heart are involved, financial matters because even more hotly contested. Modification of support orders is no exception, as they involve the ability of the payer to pay and the need of the payee for financial support. If you are unfamiliar with spousal support in California, please see my prior blog here.

The threshold issue is whether the parties have agreed or a judge has ordered that spousal support may not be modified. If the parties agreed that it could not be changed, they will be bound by that agreement. Likewise, if a judge’s support order does not allow for change, no request to modify it will be granted.

If neither an agreement nor an order bar modification, the parties may agree to change the amount of spousal support themselves. If they do, before it is legally enforceable, they must ask a judge to approve it and enter it as an order of the court.

If the parties cannot agree, one of them may file a request with the court to modify the amount. The party making the request will have to show that there has been a change in circumstances that warrants a change in the amount paid. Following are the reasons in California that might support a change:

Reduced ability of the paying party’s ability to pay;
Reduced need of the party receiving the support;
The failure of the party receiving support to attempt to become self-supporting;
The remarriage, cohabitation, or death of the party receiving support; and
The inability of your employer or the child support agency to deliver the spousal support for at least six months due to a change in the payee’s address.

As you might imagine, how the facts are presented in a spousal support modification request can make a substantial difference in the outcome. If you’re faced with requesting modification or defending against it, you should hire an aggressive attorney with substantial experience in support matters. Judy L. Burger and her team have considerable experience in contested family law matters. Submit our Contact form today or call (415) 259-6636 to arrange an appointment to begin discussing your case.

Uncategorized

How Can a California Minor Become Emancipated?

December 7, 2015 Judy L. Burger Leave a comment

Most people associate the term “emancipation” with the Emancipation Proclamation, issued by President Lincoln to free the slaves in 1863. However, more broadly construed, the term actually means “to free from restraint, control, or the power of another.” A minor automatically reaches this stage of life at age 18, but a minor may also become emancipated before that age. When that happens, the minor is free from her parents and gains almost complete control over the decisions in her life; likewise, she gains the responsibility to take care of and provide for herself.

California law provides three methods through which a minor may become emancipated: getting married, joining the Armed Forces, and obtaining a declaration of emancipation from a judge.

Marriage

The first way a California minor may become emancipated is by getting married. To use this option, the minor must have permission of her parents as well as a judge.

Armed Forces

A minor may also become emancipated by joining the United States Armed Forces. However, parental consent is again required, and the minor must be accepted into the Armed Forces.

Declaration of Emancipation

If a minor does not have parental consent for either of the first options, she may ask the court to grant her a declaration of emancipation. To be successful in this method, the minor must show the court the following things:

she is at least 14 years of age;
she can support herself financially;
she does not want to live with her parents;
her parents do not mind if she lives on her own, and
emancipation would be good for her.

Result of Emancipation

An emancipated minor is treated as an adult for almost all purposes, such as the following:

Consent to medical care;
Enter into contracts, including contracts for insurance;
Buy and convey property and stocks;
Sue or be sued;
Make a will, trust, or gift;
Enroll in school or college.

The minor is also financially independent from her parents, so she has full responsibility for supporting herself.

The only thing an emancipated minor cannot do, assuming she was not emancipated as a result of marriage, is get married. An emancipated minor can only get married with the permission of her parents or a judge.

The decision to seek or to contest emancipation brings up many emotions for everyone involved. When you need an attorney who has extensive experience in family law matters, including emancipation, call the attorneys at the Law Offices of Judy L. Burger. We understand the law underlying emancipation requests, and we’ll help you make the best decision possible. Call today to arrange an appointment: (415) 293-8314.

California Divorce, Visitation

As a Grandparent, What Rights Do I Have to Visitation?

November 30, 2015 Judy L. Burger Leave a comment

Grandparents can be a stabilizing force for children whose parents divorce or legally separate. Indeed, the California Legislature has recognized this, providing affirmatively for grandparent visitation.

Sections 3100-3105 of the California Family Code describe the circumstances under which grandparents may obtain visitation with their grandchildren.

When One Parent Is Deceased

It is easiest for a grandparent to obtain visitation when one of the parents is deceased. In such an unfortunate case, a court need only determine that grandparent visitation is in the best interest of the child.

However, a grandparent cannot use this provision of the law if the child has been adopted by someone other than a stepparent or another grandparent. Likewise, if a grandparent previously obtained visitation under this section of the law, the visitation automatically terminates if the child is adopted by someone other than a stepparent or another grandparent.

Other Cases of Grandparent Visitation

If both parents are alive but divorced, a grandparent who wants visitation with his or her grandchild must proceed under a different law. Under that law, before reasonable grandparent visitation may be granted, a court must do two things: (1) find that the two have had a relationship in the past that “engendered a bond” between them, rendering visitation in the child’s best interest; and (2) balance the child’s interest in grandparent visitation with the parents’ right to “exercise their parental authority.” Cal. Fam. Code § 3104.

However, a court may not order grandparent visitation when the parents are still married unless one of the following six circumstances exist:

The parents are either permanently or indefinitely separated;
The whereabouts of one of the parents have been unknown to the other parent for at least one month;
One of the parents joins the petition for grandparent visitation;
The child does not live with either parent;
A stepparent has adopted the child; or
One of the parents is either in jail or has been institutionalized.

In these limited circumstances, grandparent visitation may be granted; however, if the supporting circumstance ends, either parent may successfully move to have grandparent visitation terminated.

The attorneys at The Law Offices of Judy L. Burger have extensive legal experience in family law matters. We have handled all types of visitation requests, including those involving grandparents. Contact us today at (415) 259-6636 to learn how we can help you in this area.

California Divorce, Spousal Support

The Mechanics of Business Valuation in California Divorces

November 23, 2015 Judy L. Burger Leave a comment

In California, the assets of a married couple seeking divorce must be distributed on an equal basis to the extent they were accumulated during the period of marriage. These assets are known as community property. Sometimes, however, one party owns or has an interest in a business that preexists the marriage. That interest is considered separate property.

Even though a business interest may be considered separate property, part of any appreciation in value that occurred during the marriage may be allocated to community property. In order for that to occur, a value must be established for the business. This is a very complicated task that is performed by a variety of professionals such as business appraisers, certified public accountants, economists, and financial analysts.

Business valuations normally use one of two methods, depending on the nature of the business. These two approaches were established in case law in the beginning of the 20^th century and still stand today. Pereira v. Pereira, decided by the Supreme Court of California in 1909, and Van Camp v. Van Camp, decided by the Court in 1921, set the course for allocation of business value to community property.

The difference between the two approaches hinges on the participation of the owning spouse in the operation of the business. Under Pereira, if that spouse was an active operator or manager of the business, appreciation in its market value during the marriage is likely to be considered community property. This is often the case with professional services such as legal or dental practices, as well as with small contractors or retail businesses.

On the other hand, the Van Camp method usually applies if the business was of such a size and structure that the owning spouse did not expend personal effort affecting its income and growth. In that case, appreciation is less likely to be included in community property and subject to equal division. Any amount included would be based on an assessment of the owning spouse’s compensation from the business during the marriage, as well as whether that compensation sufficiently contributed to the accumulation of other community property. This approach would be appropriate for larger manufacturing, contracting, or technology businesses.

The methods of business valuation are complex, and they vary depending on the type of business involved. At a basic level, valuation involves establishing how much a business is worth at the time of marriage and at the time of divorce or separation. The difference in the two values is then considered in light of proper method noted above. Courts will generally accept a business valuation method as long as the evidence on the record legitimately supports the value.

As you might imagine, the value of a business and how it is allocated to marital assets can make a substantial difference in a what both spousal and support orders. If your marriage involves a business interest, you should hire an attorney with substantial experience in complicated divorce cases, especially those involving the valuation of business assets. Judy L. Burger and her team have considerable experience in contested family law matters, and Judy is well-versed in business matters. Submit our Contact form today or call (415) 259-6636 to arrange an appointment.

California Divorce

What is a Deposition and How Are They Used in California Divorce and Separation Proceedings?

November 16, 2015 Judy L. Burger Leave a comment

All civil lawsuits, regardless of their type, involve the exchange of information between the parties and the adjudication of rights by a court. Family law cases are no exception.

“Discovery” is the official term given to the exchange of information among the parties to a lawsuit. In discovery, much information is exchanged in writing. For example, one party may send written questions for the other to answer in writing or may request that copies of written documents be provided. Another form of discovery is an oral deposition.

A deposition is similar to trial testimony in many ways:

The witness is sworn in (swears or affirms to tell the truth);
The lawyers for the parties are present and may make ask questions and make objections;
A court reporter is there to transcribe and/or record the testimony;
The witness is asked, and must answer, questions; and
The witness’s answers are used as evidence in the case.

However, depositions are also different from trial testimony. The most significant differences are that depositions take place in advance of trial, no judge or jury is present, and depositions are held in less formal settings, such conference rooms.

Depositions may be taken of the parties to the lawsuit—in family law cases, the spouses. These are known as party depositions. Party depositions allow the lawyer asking the questions to lock in the other spouse’s version of the case.

However, depositions may also be taken to learn more about what other witnesses might know. These are known as witness depositions. Witness depositions may be taken of the parties’ employers, friends or neighbors, as well expert witnesses, such as economists.

California law sets forth specific requirements that parties and their lawyers must follow before and during depositions. For example, a notice of deposition must be provided in writing, and it must lay out the date, time, and location of the deposition. If the person being deposed is required to bring documents to the deposition, that must be stated in the notice, as well. In California, most depositions are limited to seven hours.

When conducted by experienced lawyers, oral depositions are a valuable tool used to collect information from the parties to a California family law case. In hotly contested divorce and support matters, you need an aggressive attorney with extensive experience in family law discovery and trials. Call the attorneys at the Law Offices of Judy L. Burger to learn how we can protect you and your children: (415) 293-8314.

415-293-8314