Filing for Divorce in California

Filing for Divorce in California

Sophia thought divorce would be easy. You just file a few papers in some government office, and then, voilà, your marriage is over. She was surprised to learn that filing for divorce in California can get pretty complicated.

Before You File

It’s a good idea for people to make sure they really want to get a divorce before filing any paperwork. Sometimes, legal separation may be a better option than divorce. After assessing your marriage, talk to a California divorce attorney. You can learn more about your options and how to proceed in a way that is most beneficial for you.

After careful thought, Sophia decided divorce was in her best interests. However, she had not lived in California long enough to file. Also, she might need to take action to protect her financial interests before actually filing a divorce petition.

Filing Divorce Papers

Of course, your attorney will take care of preparing and filing all the paperwork. This part of the process may include some of the following documents:

  • Petition for Dissolution, Legal Separation, or Nullity of Marriage;
  • Summons;
  • Property Declaration;
  • Declaration Under Uniform Child Custody Jurisdiction and Enforcement Act; and
  • Child Custody and Visitation (Parenting Time) Application.

You will need to serve the documents on your spouse and give them a chance to respond.

After Filing for Divorce in California, But Before Finalizing

Your circumstances dictate how your divorce case proceeds. Having children, a high net worth, or real property ownership means you may need to take a few extra steps before your divorce is granted.

You and your spouse will need to prepare financial disclosures. If your spouse responds to the divorce petition, you may have additional legal issues to address. Also, courts require a parenting plan if you have children. You may have to attend depositions or mediation before arriving at an agreement with your spouse. When spouses are unable to agree, the court reviews the case and makes the decisions for you.

Sophia and her spouse owned real property. Each had brought separate property into the marriage, and accumulated community property during the marriage. Additionally, they had two children together. Fortunately, with the help of their attorneys and a mediator, they were able to reach an amicable end to their marriage.

We Can Help with Filing for Divorce in California.

Some of the issues that arise during a divorce proceeding can be emotionally and legally difficult to resolve. When you face child support, spousal support, and property division issues, you’ll need experienced and knowledgeable advice.

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 throughout  California, including San Francisco, Beverly Hills, Gold River, Santa Barbara, Ventura/Oxnard, San Diego, and surrounding communities.
Property Division How Does it Work in a Community Property State

Property Division: How Does it Work in a Community Property State

State divorce laws govern divorce settlements. Generally, state laws allow either community property or equitable distribution schemes when dividing a couple’s assets. However, only nine states use community property law: Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington, and Wisconsin. If you live in a community property state, it’s important to understand how property division will work if you or your spouse files for divorce.

Separate vs. Community Property

The basic rule of thumb is that a couple’s community property and debts are split 50-50 during a divorce. However, not all of a married couple’s assets are divided. Property can be either separate or community.

  • Most assets and debts accumulated by either spouse during the marriage are considered community property.
  • However, assets and debts brought into the marriage by one person usually remain the separate property of that person.

Separate property usually does not enter into the divorce property division equation.

Although this sounds simple, determining whether something is separate or community property can be complicated.  Separate assets brought into the marriage may be used in a way that make them community property. An inheritance received during a marriage is separate property but mixing the inherited property with community property could change it for the purposes of property division.

Marital Settlement Agreement or Court Decision?

During the property division phase of a divorce, the couple can negotiate how property is split. Their agreement does not have to be 50-50, but the division should be fairly equal. Otherwise, a judge may not sign off on the couples’ marital settlement agreement.

When calculating property division, a couple will:

  • review financial disclosures, including the Schedule of Assets and Debts;
  • make sure both parties agree on community property and debts;
  • compare property valuations and debt to make sure they agree;
  • propose a roughly equal net share of property and debts for each spouse.

Special consideration may be given to retirement plans, debts with complicated terms or high interest rates,

If a couple cannot agree on the split, a judge may make the tough decisions for them. Also, remember that property remains separate or community until the judge signs your final divorce order.

Make Sure Your Property Division Goes Smoothly

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 with divorce matters in San Francisco, Beverly Hills, Marin County, Santa Barbara, Ventura/Oxnard, San Jose, San Diego, Gold River (Sacramento), and surrounding communities.
How Long Will I Have to Pay Spousal Support

How Long Will I Have to Pay Spousal Support?

Jennifer knew she might have to pay spousal support to her husband, Blake. After all, her income had been much higher than his for most of their 12-year marriage. However, as they negotiated their marital settlement, she couldn’t help but ask her attorney, “How long will I have to pay spousal support to Blake?” The answer to her question depended on a number of factors.

General Reasons the Court May End Spousal Support

In some cases, the court may not order spousal support in the dissolution of a marriage or domestic partnership. Based on the couple’s standard of living or earning capacity, neither spouse may be economically disadvantaged after the divorce.

If spousal support is ordered, the person who is paying (the “payor”) may want to know how long they will be required to pay. Spousal support, also known as domestic support or alimony, may end under the following circumstances:

  • A court order or judgment;
  • One of the parties dies; or
  • The person receiving spousal supporting remarries or registers a domestic partnership.

Many factors play into the question of whether spousal support will be ordered and for how long.

The Length of the Marriage Matters

The California Family Code (the “Code”) contains laws regarding divorce, including spousal support. Section 4320 states that the supported party (the person receiving alimony) is expected to be self-supporting within a reasonable time frame. “Except in the case of a marriage of long duration as described in Section 4336, a “reasonable period of time” for purposes of this section generally shall be one-half the length of the marriage…”

For example, if Jennifer and Blake had been married eight years, Jennifer might be ordered to pay spousal support to Blake for four years. This assumes that the request for spousal support meets all other requirements.

However, a “marriage of long duration” is generally considered to be any marriage over ten years. Unless the parties agree otherwise or a court order terminates support, the court continues to oversee, or retain jurisdiction, indefinitely for marriages of long duration. Because Jennifer and Blake have been married 12 years, their marriage fits the definition of a marriage of long duration.

How Long Will You Pay Spousal Support?

There’s no easy answer here. Whether a party pays spousal support, how much support will be paid, and how long payments last depends on the particular facts of your case. In addition, some decisions are up to the judge’s discretion.

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 maintain offices in San Francisco, Beverly Hills, Marin County, Santa Barbara, Ventura/Oxnard, San Diego, San Jose, Gold River (Sacramento), and surrounding communities.
When the Honeymoon’s Over, Can You Contest a Prenup

When the Honeymoon’s Over, Can You Contest a Prenup?

Two and a half years after their lavish wedding ceremony and reception, Mark and Cindy were ready to call it quits. Their marriage seemed headed for a quick dissolution, in part because they had signed a prenup. They had signed their premarital agreement because Cindy brought more separate assets into the marriage, along with a higher salary than Mark’s. Over the course of even a couple of years, a couple’s financial situation and feelings about property may change. However, can you contest a prenup with a marriage ends? That’s what we’re going to explore in this article.

What’s a Prenup?

It’s a legal contract that is signed before a couple weds. The terms of a prenuptial agreement, which is also called a premarital agreement, relate to how each person’s property will be treated during a divorce or if one party dies. The agreement becomes effective only when the couple is married.

In California, the Uniform Premarital Agreement Act (UPAA) states that the parties to a prenup may agree to any of the following:

  • Rights and obligations regarding property;
  • The right to manage and control property;
  • How to dispose of the property under certain circumstances, including divorce;
  • Estate planning that carries out the terms of the prenup;
  • Disposition of life insurance proceeds; and
  • Any matter that does not violate public policy or statutes imposing criminal penalties.

Some provisions should not appear in a premarital agreement. In fact, they could give you the opening you need to contest your prenup agreement.

To Contest a Prenup …

The UPAA includes specific reasons a premarital agreement, or certain parts of it, might be unenforceable:

  • Child support cannot be adversely affected by your prenup. Any language absolving your soon-to-be-ex-spouse of his or her child support obligations may be contested.
  • Spousal support provisions may spell trouble also. One party might contest the prenuptial agreement if the party waiving spousal support was not represented by an attorney. Also, the spousal support provisions may be unenforceable at the time you attempt to enforce the premarital agreement.

Other reasons your prenup may be unenforceable under UPAA include:

  • You were coerced or forced to sign the agreement.
  • The other party did not provide complete financial disclosures before you signed.
  • You lacked the capacity to understand the consequences of the agreement.
  • Less than seven calendar days elapsed between the time you were given the agreement to review and the date the agreement was signed.
  • You were not represented by separate legal counsel.

Discuss your options with a California divorce attorney between doing anything. In some cases, the marriage itself may be void or annulled. If so, the prenuptial agreement may be unenforceable.

It Can Be Difficult to Contest a Prenup, but Not Impossible

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.

How to Handle Holidays in Your Parenting Plan

How to Handle Holidays in Your Parenting Plan

Every year, Jessie’s parents fought over where she would spend Thanksgiving. Ethan had the opposite problem – both his parents preferred to spend holidays on exotic (and childless) vacations. Sheila hated talking to her ex-husband about the kids’ holidays, so she unhappily capitulated year after year. If you are in the process of getting divorced, know that it’s best to handle holidays in your parenting plan and not on a holiday-to-holiday basis.

Two Major Topics, Many Choices

Parents must complete a parenting plan before finalizing their divorce. In a California divorce, parenting plans cover two major areas:

  • Time-Share – how the children’s time will be split between parents; and
  • Decision making – how decisions about the children’s health, education, and welfare will be handled by the parents.

That sounds fairly easy – until you think of how many topics fall under each major area. For example, Time-Share involves a child’s regular schedule as well as how their time will be spent during holidays.

Scheduling Holiday Time

Trying to decide where your kids will spend Christmas and their birthdays can be stressful. Both parents may want the same days and times. Flexibility and spontaneity work sometimes, but the best time to plan your holidays is when you’re preparing your parenting plan.

In fact, parents prepare and attach a form titled “Children’s Holiday Schedule Attachment” to their parenting plan before submitting it for court approval. The form includes major holidays, as well as:

  • Lincoln’s Birthday (February 12),
  • President’s Day,
  • Spring Break (first and second halves),
  • Columbus Day,
  • Halloween,
  • Veterans Day (November 11),
  • Thanksgiving weekend,
  • December/January School Break, and
  • Birthdays, including child, mom, and dad.

Other options include:

  • Times. For example, the child may be with the mom from 8 pm Christmas Eve until noon Christmas Day.
  • Every Year. For instance, the child may spend Thanksgiving with Dad every year instead of alternating with Mom.
  • Even-Numbered/Odd-Numbered Years. Mom may have the kids on Christmas on even-numbered years, with Dad taking them on odd-numbered years. So, Dad would have them in 2019 and Mom in 2020.

According to the form, the child’s holiday schedule takes priority over the normal parenting schedule. For example, Dad may have the kids every weekend. However, if Christmas falls on Sunday, and it is Mom’s year according to the holiday schedule, then the kids go with Mom.

Scheduling Holidays in Your Parenting Plan Doesn’t Have to Be A Hassle

Do your homework when preparing your plans. If disagreements arise later, know that help is available from the courts if necessary.

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

Why Preliminary Financial Disclosures Are Important

Why Preliminary Financial Disclosures Are Important

The typical divorce case involves many issues, including child custody, spousal support, and property division. Transparency is key to fairly resolving these issues, especially when it comes to dividing a couple’s marital assets and debts. In a community property state like California, debts and assets acquired after marriage usually belong to both parties. That’s why the preliminary financial disclosures are important – it’s hard to divide property when you don’t know it exists.

What are preliminary financial disclosures?

The divorce action starts when one person files a petition to dissolve the marriage. At the same time, or within 60 days, the petitioner serves the preliminary financial disclosures on the other party. If the other party responds to the petition, he or she must also serve preliminary financial disclosures on the petitioner.

Several documents make up the disclosure packet:

  • Declaration of Disclosure,
  • Income and Expense Declaration,
  • Schedule or Assets and Debts OR a Property Declaration, and
  • Declaration Regarding Service of Declaration of Disclosure.

Courts generally do not grant divorces if the parties have not submitted their financial disclosure forms.

What happens if the preliminary financial disclosures are wrong?

It’s entirely possible one party could omit assets from the disclosures accidentally. It’s also possible that the assets are being hidden to avoid sharing them with the other party.

If disclosures are incomplete or wrong, the simple answer is that the property will not be divided evenly. One party may not receive everything they deserve. The court may approve the property settlement without learning of the hidden property.

Accidental omissions on the preliminary financial disclosures may be easy to fix. However, deliberately concealing assets can lead to penalties. For example, a court may award 100% of a community property asset to the innocent party instead of only 50%.

Make Sure Your Property Is Disclosed and Divided Properly

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 with divorce matters in San Francisco, Beverly Hills, Marin County, Santa Barbara, Ventura/Oxnard, San Jose, Gold River (Sacramento), and surrounding communities.
Should I Request an Annulment

Should I Request an Annulment?

We all know that marriages just don’t work out sometimes. But sometimes it’s obvious to observers or to one or both parties to a marriage that the marriage should not have taken place at all. When ending a marriage, you have some options: divorce, legal separation, and annulment. However, annulment may be the choice most shrouded in mystery. How many people have you known who actually annulled a marriage? It’s best to understand the process before answering the question, “Should I request an annulment?”

What Is Annulment?

When the legality of a marriage is at question, one party may ask a court for an annulment. If the court grants the annulment, then it’s as if the marriage never existed.

Always talk to an attorney for seeking an annulment. If you have children or own property, you may need to address legal obligations and assert legal rights.

Am I Eligible to Request an Annulment?

You must have a legal reason for having a marriage annulled. Can you answer “yes” to any of the following questions:

  • Did you marry a close relative or someone who is already married? Then your marriage was never valid. Talk to an attorney about severing any ties between you and the other party to your marriage.
  • Were you or your spouse under age 18? Young people can be impulsive. Under California law, you can annul a marriage when one or both parties are underage.
  • Were you and your spouse of sound mind when you married? Both parties must understand the consequences of a wedding ceremony. A party of unsound mind lacks the ability – or the capacity – to be married. A court may grant an annulment in these situations.
  • Did your current spouse lie to get you to marry? An unscrupulous person may lie about important issues in the lead up to the ceremony. The innocent spouse can request an annulment when fraud is present.
  • Was the marriage voluntary on your part? It’s possible to be forced into a marriage against your will. If this is the case, you may be able to request that the marriage be annulled.
  • Is your partner unable to consummate the marriage? No matter the reason, a court may consider this grounds for an annulment.

If you have found yourself in one of the situations mentioned above, then having your marriage annulled may be an option.

Should You Request an Annulment?

It depends completely on your situation and your goals.

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 maintain offices in San Francisco, Beverly Hills, Marin County, Santa Barbara, Ventura/Oxnard, San Jose, Gold River (Sacramento), and surrounding communities.
You Might Need an Emergency Child Custody Order

You Might Need an Emergency Child Custody Order

Ava loved the fact that her husband, Henri, was from France. She felt their son could benefit from being involved in more than one culture. However, her enthusiasm faded when Henri filed for divorce. She feared he would take their son to France where he might live beyond the control of California courts. Liam faced a problem a little closer to home. He learned that his wife was partying in clubs all night while their two-year-old daughter slept in the car. Liam has also noticed unexplained bruises on his little girl. Fearing for his daughter’s safety, he looked to the court system. Both Ava and Liam may need the same protection: an emergency child custody order.

Child Custody and the Divorce Process

Who gets the children is often a hot topic during a divorce. The hope is that parents will do what is best for their children, but this is not always the case.

During a divorce, parents work out a parenting plan, and custody is decided. If parents can’t agree, a judge will assign custody. Of course, negotiating a plan takes times. Sometimes one parent may have to move quickly to protect his or her children.

Grounds for Requesting an Emergency Child Custody Order

It can be difficult to get this kind of order. While California judges always focus on the best interests of the child, they also cannot hand out emergency orders for no reason.

The primary reason for requesting an emergency child custody order is:

“A situation has occurred, or may occur, where it is in the best interest of the child that the court make immediate orders.”

In Ava’s case, she needs to stop her husband from spiriting their son out of the country. Liam needs to stop his wife from neglecting or abusing their child. Neither situation can wait, so they ask for emergency child custody orders. The court may grant each a temporary order that takes effect immediately. However, the court will schedule a hearing before granting a more permanent order.

Call Immediately if You Need an Emergency Child Custody Order

The attorneys at the Law Offices of Judy L. Burger are experienced at all phases of divorce proceedings, including ex parte hearings and emergency child custody orders.

Judy Burger is a California Certified Family Law Specialist, and founder of the Law Offices of Judy L. Burger. Please call our offices at 415-293-8314 to set up an appointment with one of our attorneys. We assist clients along the Northern to Central California Coast.
Domestic Violence Restraining Orders in a California Divorce

Domestic Violence Restraining Orders in a California Divorce

It takes at least six months from the date the divorce petition is filed on your spouse to finalize a California divorce. Sometimes people need help immediately. For instance, a husband or wife suffering at the hands of their spouse may ask the police and the courts for protection. It may help to know more about domestic violence restraining orders and the California divorce.

What Constitutes Domestic Violence?

The actual definition of domestic violence might surprise you. It’s not just about physical violence. In fact, domestic violence includes:

  • Any kind of physical attack, including pulling hair, kicking, hitting, shoving, or throwing objects at another person;
  • Sexual assault;
  • Comments or behavior that cause someone to be reasonably afraid someone may be seriously hurt; and
  • Harassment, stalking, threats, disturbing the peace, or destruction of someone else’s personal property.

If you fear another person, you may need protection sooner rather than later.

How Does a Domestic Violence Restraining Order Work?

If someone you have a close relationship with has abused or threatened to abuse you, a domestic violence restraining order may help. This document is a court order that helps protect people in abusive situations.

You have to meet the following two criteria to ask for a domestic violence restraining order:

Another person has abused you or threatened to abuse you;

AND

You have a close relationship with the alleged abuser.

In addition to your current spouse, the following relationships might be considered close. Someone who you:

  • date or used to date,
  • have divorced or separated from,
  • has lived with you or used to live with you,
  • parents a child with you, or
  • is a close relative, even grandparents or in-laws.

You may also request a domestic violence restraining order if another person is abusing your child.

But what can a domestic violence restraining order do?

The order may tell the abuse to avoid certain behaviors, like:

  • Contacting you and your children,
  • Going to your home, work, and schools,
  • Owning a gun,
  • Approaching your pets.

What may be surprising is that a restraining order can order the abuser to move out of the home, pay child and spousal support, and pay some other bills. The subject of the restraining order may also be told not to change insurance policies, phone plans, or do anything to affect your property. Finally, the restrained person is often told to complete a 52-week batterer intervention program.

Learn More About Domestic Violence Restraining Orders

If you or someone you love are in immediate danger, call 911, a local domestic violence shelter, or the National Domestic Violence Hotline.

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

Separate Bank Accounts Are Not Always Separate Property

Separate Bank Accounts Are Not Always Separate Property

Before marrying Jaxson, Taylor was a successful professional with a healthy bank account, a new car, and a comfortable bungalow in a nice neighborhood. Jaxson’s career was not quite as successful, and he was unlikely to earn as much as Taylor. So, Taylor and Grayson decided to maintain separate bank accounts to protect her finances. Six years later, Taylor learned the hard way that separate bank accounts are not always separate property in a community property state like California.

Understanding Separate Property

The general rule of thumb is that property brought into a marriage is usually the separate property of the party who brought it. Property acquired and income earned during the marriage generally are considered marital property, which means both parties own it.

With Taylor and Jaxson, Taylor made roughly $250,000 annually while Jaxson’s yearly income hovered around $100,000 per year. The couple together earned about $350,000 every year. No matter where this money was deposited, it became part of their marital estate.

There are exceptions to these rules. That’s why we can’t stress enough that you need to consult an attorney who has experience with property division in California divorces.

Where Taylor Went Wrong

It was undisputed that Taylor brought more assets into the marriage than Jaxson. She tried to keep her financial assets separate from Jaxson’s.

However, most of the income she earned after their marriage is community property. The fact that the income went directly to her separate account may not matter. As noted above, income earned during a marriage is considered the property of both spouses.

A prenuptial agreement could have attempted to maintain a separate property status on income earned during the marriage. Taylor could also consult an experienced divorce attorney as soon as she thinks divorce is in their future.

Also, Taylor and Jaxson sparred over how much money she had accumulated before they were wed. The money Taylor earned prior to marrying Jaxson was in her separate bank account, but post-wedding income had been deposited to this account also. Taylor could produce copies of her bank statements to prove how much was in her bank account before she married.

Determining Separate Property in a Divorce Isn’t Always Easy

Disagreements about property division can complicate your divorce and hold up your final divorce settlement. Talk to an experienced California divorce attorney today. Please call us at (415) 293-8314 to schedule a confidential appointment with one of our attorneys.

Please call us at 415-293-8314 to discuss your case. The attorneys at the Law Offices of Judy L. Burger assist clients with divorce matters in San Francisco, Beverly Hills, Marin County, Santa Barbara, Ventura/Oxnard, San Jose, Gold River (Sacramento), and surrounding communities.