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.
Emergency Issues, Ex Parte Solutions

Emergency Issues, Ex Parte Solutions

Some divorce cases require immediate action. California law allows this through the use of Ex Parte solutions.

What is an ex parte solution?

An Ex Parte solution is a Motion that is filed with the Court that does not require the usual waiting time. In some counties, a motion may be heard within 24 hours. Usually, notice to the opposing party or counsel must be given and must adhere to the particular County’s notice requirements.

The main reason for filing an ex parte divorce is to get your case in front of a judge as quickly as possible because of an emergency situation.

What kind of emergency situations require an ex parte action?

An ex parte action might be filed for any of the following reasons:

  • The person filing the ex parte divorce is in danger,
  • A child involved in the case is in danger, or
  • Property owned by the filing spouse may be destroyed or damaged.

What is the procedure for filing for ex parte divorce orders?

The procedure and documents required for an Ex-Parte Motion are complex and confusing. Each county has different requirements and procedures. If you fail to adhere to the county’s requirements or procedures, your motion may be denied.

Find out if your situation requires an ex parte hearing.

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.

What Certified Family Law Specialist Means for You

What Certified Family Law Specialist Means for You

You’ve decided to file for divorce. Your next step? Hiring an attorney. As you look online or through attorney directories, you notice that some attorneys are “specialists” in areas of law like taxation, criminal law, and family law. It’s only natural to wonder what a certified family law specialist can do for you.

All attorneys practicing law in California are licensed and regulated by the State Bar of California. The Bar also encourages continued training for lawyers and provides a way for some lawyers to become certified in their area of practice. Attorneys may become certified specialists in several fields, including family law.

 That all sounds great for attorneys, but what does it mean for you?

Training

A certified family law specialist completes training in excess of what is expected of other attorneys. In addition, an attorney specialist has to pass a written test in their legal specialty.

When you hire a specialist, you hire someone who has the broad knowledge of law and the specific knowledge needed for your family law matter.

Experience

A certified family law specialist must practice law in their specialty for at least five years. During that time, at least 25 percent of their time must involve their field of specialty.

This means that the attorney you hire has more experience in family law than an attorney with a general practice. An attorney who specializes in family law understands California divorce laws and how they relate to your individual case.

Continuing Education

All attorneys must go through a certain amount of training every year. A certified family law specialist is held to higher standards when it comes to continued training.

This means the specialist you hire is more likely to have a deep understanding of recent changes to California divorce law.

Respected by Peers and Judges

To become a certified family law specialist, an attorney must be viewed favorably by their peers and by judges with whom they have worked.

The specialist you hire has demonstrated a dedication to family law to people who know the law. What better recommendation can there be?

Cares About Family Law

The rigorous application process required by the State Bar is rigorous. A certified family law specialist who goes through that process has demonstrated great interest and concern in family law matters.

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, Gold River, Santa Barbara, Ventura/Oxnard, Beverly Hills, and surrounding communities.
Settlement vs. Litigation: Which Is Right for Your Divorce?

Settlement vs. Litigation: Which Is Right for Your Divorce?

There are many reasons to file a divorce. Take Henry and Martha. After raising four children during their 31-year marriage, they decided to join the “gray divorce” crowd. Jake and Lucy, married four years ago, had one child together before Jake’s infidelity and substance abuse drove them apart. Both of these couples had some heavy decisions ahead. As their cases progressed, they had to decide whether settlement or litigation was best for their divorce.

Two Pathways.

The parties in most divorce cases are able to reach a divorce settlement agreement. The couple and their attorneys may negotiate privately or go to mediation. Though it is similar to a trial in that both parties present their side, mediations proceed very differently. 

For one thing, agreements reached in a mediation are confidential. Court proceedings are not, although courts can restrict who can view divorce court records. In Jake and Lucy’s case, privacy was a big concern. Lucy did not want Jake’s infidelity and drug addiction publicly aired.

Unfortunately, trial became a necessity for Henry and Martha. A lifelong homemaker, Martha had never worked outside the home. She expected spousal support to continue for some time. Henry, however, felt she deserved nothing because he had been the family’s breadwinner for their entire marriage. Both stubbornly stuck to their positions and refused to compromise.

When Is Settlement Right?

Some couples are in a position to settle their differences quickly. For them, settlement through negotiations or mediation typically is faster than going through the court system. They don’t have to wait for space to clear on a court docket to schedule hearings.

Divorce strains family relationships. Mediation may be less destructive on those relationships because they are typically less combative than trials.

Couples going through a divorce may have financial problems. Mediations and settlement negotiations are usually less expensive than going to trial.

When a settlement agreement is presented to the court, the judge will make sure the document complies with California law. However, many of the agreements contained in the settlement agreement do not require a judge’s scrutiny. Couples may hammer out agreements that suit them, but that most judges would not arrive at.

 

If negotiations and mediation fail, divorce proceedings go to the next level.

When Is Litigation the Best Option?

Some parties may be unable to resolve their issues without court intervention. So, they settle in for the long haul. They may be expected to attend several hearings or even participate in a trial that lasts for days.

Going to trial sounds terrible! So why do some couples end up battling it out in a courtroom?

Divorces with more complex issues are more likely to go to trial. What makes a divorce more complex? Among other things, disputes over property division that can’t be overcome. Inability to agree on hot issues like child custody or spousal support could end up in a courtroom.

Trial may be necessary if domestic violence or child abuse is involved. A judge has the authority issue orders that protect the abused spouse or child, something neither an attorney nor a mediator can do.

Some spouses make unreasonable demands or have unreasonable expectations. In cases where this is an issue, unfortunately, a trial usually becomes necessary.

Final Thoughts.

The attorneys at the Law Offices of Judy L. Burger can help, whether your case is settled or goes to trial. 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.
Valuing Business Assets

Valuing Business Assets

Dana and Michael owned a successful dentist practice with three locations. When their marriage foundered, the practice was in jeopardy. Dana was the dentist, with Michael serving as office administrator. Dana wanted the entire practice and, since that was her expertise, it made sense. Michael wanted other community property that equaled his half of the value of the practice. As is true with many divorces, valuing business assets became a contentious part of their divorce proceeding.

In any divorce, community assets are determined and then split. The divorcing couple may be able to iron out a divorce settlement that suits them both. However, when agreement cannot be reached, the courts decide who gets what. The final divorce settlement or judgment will take into account the value of the business.

What Courts Consider

The parties need to know what kind of information the court will be reviewing to come up with that final valuation:

  • The fixed assets of the business,
  • The accounts receivable and intangible assets,
  • Goodwill customers and vendors have toward the business, and
  • Debts and liabilities.

In most cases, courts may want answers to questions like:

  • What type of business is involved?
  • How did the business start?
  • What is the current financial condition of the business?
  • What is the book value of the business?
  • How much can the business expect to earn?
  • Does the business pay dividends or not?
  • How much is the company’s goodwill worth?
  • Have any other ownership interests been sold?
  • If the company is publicly traded, what is the stock worth?

So, it’s a given that if the business is community property, some type of value must be assigned. Otherwise, how will the court know how to divide the community property estate?

Methods of Valuation

The ways used in business valuation may depend on the type of business being valued. A real estate agency may be valued differently than a convenience store or car dealership.

For example, some types of business may best be valued by looking at comparables. Looking at comparable businesses may be useful when coming up with an average value of that type of business. For Dana and Michael, an appraiser may look at the value of dental practices of a similar size in the same area.

The liquidation value tells you how much the company is worth if it is sold. If Dana and Michael are unable to reach an agreement, they may consider selling the practice and splitting the proceeds.

Determining capitalized earnings is a common way of evaluating businesses in California divorces. This method uses the current cash flow, annual rate of return, and expected value of the business to come up with a final figure.

It’s Complicated

The attorneys at the Law Offices of Judy L. Burger are experienced at all phases of divorce proceedings, including business valuation. 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 will open soon.
Dual Citizenship’s Effect on Divorce

Dual Citizenship’s Effect on Divorce

Nancy knew when she married Mark that he was both a United States Citizen and a citizen of Nigeria. He had been born in the U.S., but his parents raised him in their home country. She did not know how Mark’s dual citizenship would affect their divorce a few years later.

Does it matter where the divorce proceeding takes place?

Anyone who considers divorcing a spouse with dual citizenship owes it to themselves to do a little research. Choosing to file in the country with the most favorable divorce laws could make a huge difference, especially when spousal support and child custody are involved.

Nancy may be able to file for divorce in the United States if she meets applicable residency requirements. For example, California law requires the filing party to live in California for the 6 months prior to filing. The filing party is also required to live for at least 3 months in the county in which they plan to file.

What if one spouse moves their children to their home country without permission?

In this situation, a parent who is also a U.S. citizen could reach out to the United States Department of State. However, it may also be necessary to start working through the courts of the country to which the children have been moved.

How can court orders be enforced?

The court handling the divorce proceeding has the authority to hand down orders. The problem may be enforcing orders in another country. The U.S. State Department may be able to help. However, it’s likely that a person based in the U.S., for example, will have to retain counsel in their ex-spouse’s country.

Plan Ahead for Dual Citizenship Issues.

Dealing with this type of issue can take divorce to a whole new level. This is hard to say, but the best time to plan for this type of issue is before the marriage takes place. Actions that seem harmless with the Wedding March still ringing in your ears may have serious consequences if it becomes time to divorce.

Contact a California attorney to learn your options. 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.

Buried Treasure: How to Find and Handle Hidden Assets

In a perfect world, both parties would be completely honest and upfront about financial matters during a divorce proceeding. But sometimes one party will think it’s a good idea to lie about and hide assets from their soon-to-be-ex. This is never a good idea, especially if you are the spouse being left in the dark! Fortunately, there are ways to find and handle hidden assets, so you get the settlement you deserve.

Gather Information Early

Before you file your divorce petition, begin gathering financial documents like:

  • Financial statements for all accounts, including checking, savings, retirement, and so on;
  • Business records, if your spouse owns a business;
  • Loan and credit applications prepared by your spouse; and
  • Credit card statements.

Review Documents Carefully

Look for places where information on one statement is not in sync with a different document. Here are some things to look for:

  • Do income and expenses line up? Is your spouse suddenly spending less or more?
  • Is your spouse paying “fake” employees to hide business income? Is the company making less money for no discernible reasons?
  • Has your spouse been giving money, checks, or valuable items to family and friends?
  • Does it appear that expected bonuses or raises are being deferred until after the divorce is final?
  • Has your spouse been buying expensive items?
  • Do loan and credit applications list more income than expected? How does the information on the application compare to the financial information your spouse has offered? Are there any discrepancies?

Consequences for a Spouse Who Hides Assets

You may find that your spouse has hidden assets or lied about their assets on court documents. It’s best to turn this information over to your attorney, who will likely bring it to the court’s attention.

Penalties for hiding assets or lying on court forms include:

  • Being found in contempt of court,
  • Being charged with perjury if court documents or testimony was falsified, or
  • Ordered to pay the innocent spouse’s attorney’s fees.

In addition, the judge may decide to award more property to the wronged party.

You Don’t Have to Do This Alone 

Trying to locate hidden assets takes time and energy. We’re here to help. 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, Gold River, Santa Barbara, Ventura/Oxnard, and surrounding communities.

When a Special Needs Trust Is Needed

When a Special Needs Trust Is Needed

Divorce is stressful. Dealing with the special needs of a spouse or child only adds to the stress. When a divorce settlement is being negotiated, support for a disabled spouse or child needs to be handled carefully. In some cases, a special needs trust provides the right solution to the problem of supporting a disabled family member without affecting their eligibility for other benefits.

Support for a Disabled Spouse

Let’s say Martha decides to divorce George, her husband of 22 years. Since he is in the early stages of Alzheimer’s disease, George will need escalating amounts of nursing care for the rest of his life. Martha served as the couple’s primary source of income and will pay spousal support to George. As their attorneys negotiate, they realize that support given directly to George may reduce or eliminate his eligibility for public benefits like Supplemental Security Income (SSI) or Medicaid.

The attorneys set up a special needs trust for George. His spousal support payments will deposit directly into the trust. The trustee will pay George’s expenses directly. This type of arrangement should provide money for his care without affecting other benefits.

Support for a Special Needs Child

When children are involved in a divorce, child support is negotiated as part of a divorce settlement. Special care is needed to provide for children with special needs.

The special needs trust for a child is similar to the one for a disabled spouse: support goes to a trust instead of to the child, then the trust is used to pay for the child’s care. However, child support typically stops at age 18 or 19 if the child is in school. Depending on the disability, a disabled child may need high levels of care for decades to come.

California Family Code 3910 states that parents have an equal responsibility, when possible, to support disabled children “of whatever age” who cannot support themselves. So, support payments may continue beyond age 19 for disabled children. As with the disabled spouse, the money should go directly to a special needs trust instead of to the child.

Final Thoughts

For this all to work, the special needs trust must be properly set up. Typically, a court order is needed. And government regulations and eligibility rules for public benefits are complicated. When a special needs trust is needed, consult with an attorney before trying to set it up yourself.

To discuss how to handle divorce issues, including special needs trusts, 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. We are opening a new Beverly Hills office soon.