In re Marriage of McHugh When Spousal Unemployment in a Divorce Is Not Accidental

In re Marriage of McHugh: When Spousal Unemployment in a Divorce Is Not Accidental

Under California family law, both parents are expected to be financially responsible for their children. One parent often pays child support to the parent with a more significant custodial role. Courts base child support awards partially on the paying parent’s income. But what happens when that parent no longer has a job or other source of income? Even worse, what if spousal unemployment was not an accident?

What Happened in In re: Marriage of McHugh?

Charles and Connie McHugh were married in 1992. Before their separation in September 2009, they had one child. Charles filed for divorce, then Connie immediately asked the court to grant temporary child and spousal support. The court based the award amount on Charles’s monthly income of $24,149. He was a salesman for Amcor Packaging Distribution (Amcor), while Connie was a stay-at-home mom.

A few short months later, Charles asked the court to reduce his spousal and child support payments. He claimed “drastic income reduction” because he had lost his largest client at Amcor. The judge lowered his support payment.

In August 2011, Connie asked the court to set aside the order. Charles simultaneously asked the court for relief. Specifically, he wanted a further reduction of support payments. This time, Charles claimed he has been fired from Amcor and was earning less from his new job.

After various hearings and appeals, the court learned that Amcor fired Charles for various serious misdeeds. However, Amcor would have retained him if he had admitted his wrongdoing and paid restitution. Charles refused. This refusal made spousal unemployment deliberate, not accidental.

The case eventually landed in the California Court of Appeal, Fourth District, Division 3. The court ruled on several issues, including the trial court’s imputing income to Charles when establishing support payments.

The Consequences of Intentional Spousal Unemployment

One or both spouses sometimes try to hide income and assets from the other spouse during a pending divorce action. Some even quit their jobs, leaving their children and spouse without financial support.

As in the McHugh’s case, courts can base support payments on the paying party’s past income. This often is the result of deliberate spousal unemployment. Charles McHugh had made several statements to Amcor that he was trying to hide money and reduce his income because of an impending divorce. He then did not make all efforts to keep the job that he had while married to Connie.

In cases of intentional spousal unemployment, one party chooses not to work to their full potential. But they may find themselves on the losing end of the argument before an unsympathetic judge.

Deliberate Spousal Unemployment to Reduce Support Payments Is Wrong

Courts do not award child support and spousal support on a whim. But support calculations are thrown off when one person decides not to pay their fair share. If you feel that your soon-to-be-ex-spouse is choosing spousal unemployment over support, please call a divorce attorney as soon as possible.

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 assist clients along California’s Northern to Southern Coast, including San Francisco, Beverly Hills, Marin, San Jose, Gold River, San Diego, Santa Barbara, Ventura/Oxnard, and surrounding communities.
What’s the Easiest Way to Dissolve my Domestic Partnership

What’s the Easiest Way to Dissolve my Domestic Partnership

On the eve of their third anniversary, Dwight and Angelo decided their domestic partnership just wasn’t working anymore. They both worried that terminating their relationship could be expensive and stressful. But they also felt it was the right thing to do and hoped to move quickly. They began to explore their options. It looked like the easiest way to dissolve their domestic partnership might be through something called summary dissolution.

Ending a Domestic Partnership

Domestic partnerships and marriages end through ‘dissolution.’ It’s just usually called a ‘divorce,’ especially with married couples.

Summary dissolution offers couples an easier, shorter way to terminate their relationship. The catch is that the couple must qualify by meeting all of a long list of requirements. For purposes of this article, we are splitting that list into requirements related to the relationship and those related to the couple’s property.

Relationship-Related Requirements for Summary Dissolution of a Domestic Partnership

Couples seeking summary dissolution must meet the following requirements:

  • Both partners must agree to the dissolution. In fact, the parties must complete a Notice of Termination of Domestic Partnership form, sign it before a notary public, and file it with the court.
  • The domestic partnership must have been registered for 5 years or less.
  • No children were born or adopted by the couple before or during the domestic partnership.
  • Neither partner is pregnant.

People who do not meet these criteria will have to seek a more traditional divorce.

Property-Related Requirements to Meet Before Trying for Summary Dissolution

Whether filing for divorce or applying for a summary dissolution, we strongly encourage you to discuss property division with an attorney. That’s because this part of a summary dissolution or divorce can be very complicated.

However, couples that want to terminate their partnership must meet the following criteria:

  • They can’t own any land or buildings.
  • The couple also cannot be renting any land or buildings except for their home. But you also cannot have a one-year lease or option to buy a particular property.
  • For summary dissolution, couples cannot have acquired more than $6,000 in debts since the date of their domestic partnership. This does not include auto loans.
  • The couple cannot have acquired more than $45,000 in property during the domestic partnership, excluding cars.
  • Neither party wants support from the other.

Finally, the couple must have signed an agreement that:

  • Divides property and debts, or
  • States that they do not have community property or debts.

Although summary dissolution of a domestic partnership is easier than divorce, not everyone qualifies. To discuss your options, please call today.

We Can Help Dissolve Your Domestic Partnership

Talk to an experienced California divorce attorney. Please call us at (415) 293-8314 to schedule a confidential appointment with one of our attorneys.

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 assist clients along California’s Northern to Southern Coast, including San Francisco, Beverly Hills, Marin, San Jose, Gold River, San Diego, Santa Barbara, Ventura/Oxnard, and surrounding communities.

What Acclaimed TV Show Frasier Got Right About Child Custody

What Acclaimed TV Show Frasier Got Right About Child Custody

Frasier delighted its fans during its 1993 to 2004 run. This Seattle-based show followed the antics of a radio psychiatrist and his friends and family. In addition to his father and brother, Frasier had to forge and maintain relationships with his ex-wife, Lilith, and his young son, Frederick. But Lilith and Frederick lived across the country in Boston. Their living arrangements presented some problems with child custody and visitation. While the show presented these issues in a humane yet humorous way, there are some significant lessons to take away.

On with the show.

Long-Distance Parenting Done Right

As mentioned above, Frasier and Lilith put an entire continent between them after their divorce, which was probably a good idea. However, this child custody arrangement would have made parenting difficult for Frasier. Trying to build bonds with your child when you’re not near them is hard.

However, Frasier tried. Several episodes mention his trips back to Boston to visit Frederick, and he brings Frederick to Seattle as often as possible. None of this would have happened if Frasier and Lilith had been unable to put aside their differences to communicate about their son. Despite the continuing tension between Frasier and Lilith, they seemed always to try to put Frederick’s best interests first.

Frasier and Lilith seem to talk frequently about Frederick. In fact, it seems to be two-way communication initiated by both parents. Frasier checks in with Lilith, while Lilith often shares Frederick’s triumphs and problems with Frasier. 

Making Educational Decisions Together

During one Thanksgiving episode, Frasier upends his holiday plans to further Frederick’s education. Frasier and family move their holiday celebration to Boston because Lilith has scheduled an interview with an exclusive private school. Frasier and Lilith gripe at each other several times but manage to pull it together for their son.

Many parents disagree about their children’s education. Such issues definitely can complicate parent-child relationships, as well as child custody and visitation. Despite their apparent differences and lingering tension, Frasier and Lilith managed to get it right.

Thoughtful and Flexible Visitation, Despite Child Custody Arrangements

Visitation schedules are a big part of the parenting plan that divorced couples work out. It’s common for parents to alternate holidays and also schedule visits during the week. Child custody plays a part since one parent might have sole physical custody. Even with a parenting plan, divorced parents sometimes find holidays difficult to navigate.

Because Frasier lives across the country, weekly visits were not typical. However, several episodes revolve around Frederick visiting Frasier on special occasions.

One example is the Christmas episode “Miracle on 3rd or 4th Street.” Frederick is expected to visit Frasier in Seattle for the first time. However, Lilith decides to take Frederick to Austria with family friends. Despite Frasier’s intense disappointment, he gives up his right to have Christmas with Frederick and agrees to let him go. Some parents might have insisted on their visitation rights, whatever the cost to their child.

Other episodes show Frasier and Lilith negotiating and compromising on visitation plans. While it appears that child custody decisions might be solely Lilith’s, she also attempts to accommodate Frasier’s needs.

Putting the Child’s Best Interests First in Child Custody Decisions

There is one aspect of Frasier and Lilith’s parenting that, while funny, is not advisable. The show hints that Lilith makes negative comments about Frasier to Frederick. Sometimes, they openly make derogatory remarks in front of or to their son. This type of behavior is never a good idea, and two highly-educated psychiatrists should have known better.

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 assist clients along California’s Northern to Southern Coast, including San Francisco, Beverly Hills, Marin, San Jose, Gold River, San Diego, Santa Barbara, Ventura/Oxnard, and surrounding communities.
7 Factors Judges Consider When Deciding Who Gets the Kids

7 Factors Judges Consider When Deciding Who Gets the Kids

Deciding who gets the kids in a child custody battle is no easy feat. Judges don’t simply toss a coin or render arbitrary decisions. In fact, California law requires judges to make decisions that are in the child’s best interests based on certain factors. Let’s look at some of the things family court judges consider before finalizing custody arrangements.

But, first, let’s look at the types of custody available:

  • Legal custody – A parent with legal custody of a child makes important decisions about their “health, education, and welfare.”
  • Physical custody – Children live with or spend more time with a parent who has physical custody.

Either type of custody can be joint (shared by both parents) or sole (held by one parent). For example, a couple could have joint legal custody while only one parent has physical custody. This means that the child might live with one parent most of the time, but both parents share in decision-making.

#1.  The Kid’s Age and Maturity Matter

Judges will note a child’s age before granting custody. Staying with one parent over another might make more sense at certain stages of a child’s growth.

In the past, something called the “tender years doctrine” applied, which meant that mothers were almost always awarded custody of very young children. Under California law, judges are not to consider gender when deciding who gets the kids, no matter how old they are.

#2.  Judges Consider the Children’s Health

Some children might have special needs or serious medical conditions. Judges generally consider which parent is best able to care for the child in situations like this. For example, a father might have physical custody because the mom travels extensively for her job.

#3.  Bonds with Each Parent Play a Part in Who Gets the Kids

Ideally, both parents will bond well with their children. Realistically, children might form a stronger relationship with one parent. If so, breaking that bond could be detrimental to the child or not in the child’s best interests. Judges might consider evidence that a child is closer to one parent before awarding custody.

#4.  Judges Consider Each Person’s Parenting Abilities

Parents often vary significantly in their ability to handle raising children. After all, it can be one of the most stressful (and also joyful) life experiences. Family court judges tasked with deciding custody might look for evidence that one parent is more suitable than the other.

#5.  Acts of Domestic Violence Necessarily Sway a Judge’s Decision

As mentioned above, California family court judges make decisions based on what is in the child’s best interests. When domestic violence is present, children are at risk even if they are not physically injured. In these situations, judges consider their options very seriously before deciding who gets the kids.

#6.  Alcohol and Substance Abuse Matter Also When Deciding Who Gets the Kids

Domestic violence often goes hand-in-hand with alcohol and substance abuse. Here, again, children are at risk when parents suffer from addictions. Getting help is essential, but judges have to consider the risk when assigning custody.

#7. Finally, Judges Consider the Child’s Ties to Home, School, and Community

Divorce is hard enough on children. But the risks of emotional damage become even more harmful when kids are forced to leave their friends, schools, extracurricular activities, and religious institutions. Family court judges consider these issues carefully, along with the others mentioned above, before making custody decisions.

About the Author

Judy Burger is a California Certified Family Law Specialist and founder of the Law Offices of Judy L. Burger. She is a passionate advocate for her clients and is known for her aggressive, “outside of the box” representation.

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 assist clients along California’s Northern to Southern Coast, including San Francisco, Beverly Hills, Marin, San Jose, Gold River, San Diego, Santa Barbara, Ventura/Oxnard, and surrounding communities.

QDRO Dividing Retirement Plans During a Divorce

QDRO: Dividing Retirement Plans During a Divorce

Property division is one of the most critical and contentious parts of a divorce. The parties and their attorneys must first identify all assets and debts, then categorize them as marital property or separate property. Some assets might even be a little bit marital and a little bit separate. Investment and retirement accounts can be particularly difficult for people to split up. However, a QDRO takes care of the actual process of dividing retirement plans.

What is a QDRO?

QDRO (pronounced “qua-dro” or “cue-dro”) stands for qualified domestic relations order. A judge will issue this type of court order or decree during a divorce when the married couple needs to split up one or more retirement accounts. Without a valid QDRO, administrators of retirement plans generally cannot release funds to the non-accountholder.

Here’s an example of how a QDRO might work. Joe has $100,000 in a retirement fund. His ex-wife Maggie is entitled to half of the money. During his divorce, the judge issued a QDRO requiring the administrator to release $50,000 to Maggie. She might roll over the funds to another account or take a lump sum payment.

What happens when each spouse has retirement plans?

There are other important considerations with a QDRO. For example, both couples might have retirement plans. Each spouse might be entitled to half of the other party’s plan in a basic property division barring any exceptions. However, instead of each party handing half to the other party, they might total the accounts then disburse money to the party with the smaller retirement account.

So, in our example above, Joe has $100,000 in an account. But now we see that Maggie also has an account that is worth $25,000. Together, they have $125,000, and each should receive $62,500. Since Maggie’s account is smaller than Joe’s, she might get a QDRO giving her the difference between the accounts, which is $37,500.

Tax issues can be another concern. The party receiving the funds might be taxed and potentially penalized if the amount received is not rolled over into another qualifying retirement plan.

How do you get a QDRO in a California divorce?

California Family Courts offer a form that can be used to request a QDRO. However, the form is long and contains legal jargon, most of it in fine print. Unless you fully understand the California Family Code and federal laws like the Employment Retirement Income Security Act of 1974 (ERISA), it’s best to hire an attorney to handle dividing retirement plans.

It would be best if you had the advice of an experienced California divorce attorney because QDROs are more complicated than they appear. Using the wrong form or omitting important information can lead to delays in receiving the funds you deserve. In fact, people often overlook retirement benefits when dividing property during a divorce. Your lawyer can help you locate retirement plans and submit a QDRO if appropriate.

Talk with Us About Using a QDRO to Divide Retirement Plans

It’s absolutely critical to understand this about a QDRO – it’s not given to you automatically. You and your attorney will have to request it.

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 assist clients along California’s Northern to Southern Coast, including San Francisco, Beverly Hills, Marin, San Jose, Gold River, San Diego, Santa Barbara, Ventura/Oxnard, and surrounding communities.
Why Is a Divorce with Children Usually More Expensive

Why Is a Divorce with Children Usually More Expensive?

Divorce can be an expensive but necessary process. But the average divorce with children invariably costs more than the average divorce of a childless couple. In this article, we will take a closer look at why the costs increase when kids are involved.

Some Issues in a Divorce with Children Can Be Challenging to Resolve

Decisions surrounding child custody and child support are often hotly contested. Demands might be made based on emotions and not reality, as parents use children as pawns against each other. Unfortunately, fighting over children is not likely to end well for anyone.

Divorce typically involves negotiation. A divorce with children usually requires more negotiation than one without. Compromising might be necessary, as long as the compromise is safe for the kids. Refusing to yield even a little prevents the parties from finalizing their divorce. It also usually increases legal fees.

In some cases, the parties will use a family law mediator to help negotiate resolutions. This step also increases the cost of a divorce with children but could remove roadblocks that prevent the parents from moving on.

When Couples Can’t Agree, Trials Often Follow

And trials are expensive. Both parties will incur additional legal fees because their case now could include additional discovery, hearings, and depositions. They might need to hire expert witnesses to provide testimony at trials. Inevitably, legal fees generally increase as attorneys spend days and weeks preparing for trial.

To avoid trial, couples can work closely with their attorneys to prepare a parenting plan. In fact, family court judges will not finalize a divorce with children without one. The parenting plan is also called a custody and visitation agreement or “time-share plan.” In a divorce with children, it’s critical for parents to work out this agreement as amicably as possible to avoid collateral damage to themselves and their children.

You Need Good Legal Representation

As mentioned above, a contested divorce with children requires a great deal more work from your attorney. This is especially true if your case proceeds to trial. Adding an experienced California divorce attorney to your team might be expensive. However, it’s crucial to work with an attorney who can protect your rights and your children’s.

Trust Us to Handle Your Divorce with Children

Contested divorces will always be more expensive to resolve than uncontested ones. Talk to an experienced California divorce attorney today about your divorce with children. Please call us at (415) 293-8314 to schedule a confidential appointment with one of our attorneys.

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 assist clients along California’s Northern to Southern Coast, including San Francisco, Beverly Hills, Marin, San Jose, Gold River, San Diego, Santa Barbara, Ventura/Oxnard, and surrounding communities.
Does California Family Law Favor Women

Does California Family Law Favor Women?

Sometimes our fears are unfounded, based solely on gossip or a story told by a friend-of-a-friend. For example, men often fear divorce because they feel that California family law and courts favor women on important issues like child custody, child support, spousal support, and property division. Feeling nervous about an impending divorce is normal and justified. It is a huge, life-altering step. However, it’s critical to understand that California family laws are not biased in favor of either gender.

Straight from California Family Law

Laws relating to divorce are contained in the California Family Code. Courts are bound by these laws, as well as the parties and their attorneys.

Gender is mentioned in the Family Code. In a chapter relating to custody, the law states:

“The court shall not consider the sex, gender identity, gender expression, or sexual orientation of a parent, legal guardian, or relative in determining the best interest of the child under subdivision (a).” (emphasis added)

Judges are strictly prohibited from using gender to determine custody for children. And this law just relates to one aspect of divorce. Gender also should not be considered in other issues like child support, spousal support, and property division.

So, if California family law does not favor women, why do so many people feel it does?

Custody, Visitation, and Parental Roles

The prevailing myth is that courts always give custody and support to the wife. In fact, most parents can work out custody and visitation in their parenting plan. The parties and their attorneys do use California family law to prepare their plan. However, some of the decisions might be based on how parenting roles played out during the marriage, but not solely on gender.

Let’s consider two hypothetical examples. 

Sophie and Jon have two children. During their marriage, Sophie worked full-time while Jon was a stay-at-home dad. During custody and visitation discussions, the couple might decide to retain these roles. If they cannot agree on custody, a family court judge will consider their roles and decide what’s best for the children.

In the second example, Max has a stressful job that requires almost constant travel. His wife, Emma, works full time also but handles all of the childrearing. If Max tries to get custody of his children, a judge might rule against him because of his job. But the decision will be based on what’s best for the kids, not on Max’s gender.

California Family Law and Support

The same ideas generally apply to child support and spousal support. Courts will consider many factors before ordering one party to pay the other. However, gender is not one of those factors.

If we look at our couples from the previous examples, Sophie might be ordered to pay both child support and spousal support to Jon, in part because he has been out of the workforce caring for the children. Even though Max and Emma both work, the courts might order Max to pay Emma’s child support and spousal support based on his income and childcare arrangements.

Property Division in a Community Property State

Under California family law, marital property and debts are split 50-50 between the spouses. Both parties are equal, except in certain circumstances. Gender certainly should not be a deciding factor here.

Talk to a California Family Law Attorney About Your Divorcee

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 assist clients along California’s Northern to Southern Coast, including San Francisco, Beverly Hills, Marin, San Jose, Gold River, San Diego, Santa Barbara, Ventura/Oxnard, and surrounding communities.

Do Movies About Divorce Get It Rightt

Do Movies About Divorce Get It Right?

Be aware that there are spoilers ahead if you have never seen the movies about divorce discussed in this article.

Mrs. Doubtfire – Stability Trumps Whimsy When It Comes to Child Custody and Visitation

This 1993 film starring the late Robin Williams focused on divorce, child custody, and visitation in a poignant yet comical way. As Daniel and Miranda Hillard’s marriage ended, Daniel’s whimsical behavior made him look like an unfit parent. He and his children had a great relationship, but the court granted custody to Miranda. After all, she had a good job and a stable home environment. The court also insisted Daniel clean up his act and limited his access to the kids.

Daniel’s response was to transform himself into an older female character – Mrs. Doubtfire – and get hired to be his own children’s nanny. He and the children became closer until his scheme fell apart, making him look even more unstable. Unlike many movies about divorce, this film ends on a high note. But did the movie makers get it right?

Child custody and visitation are significant points. It seemed the court tried to make decisions that were in the children’s best interests at all times. A stable home life is essential, and Daniel, at first, did not offer this. It made sense to give Miranda full custody and to limit Daniel’s visits. So, it appears that the court did get it right

However, the court may not have considered the children’s feelings on this matter. Although children are not always the best judge of character, Daniel’s kids were close to him and needed to see him. Daniel and Miranda worked out a compromise on visitation that the judge probably would have been approved if included in a California parenting plan.

Kramer vs. Kramer – When Home Away from Home Isn’t Home

This 1979 legal drama is about Ted and Joanna Kramer and their son, Billy. Joanna deserts Billy, leaving him Ted. Unfortunately, she had been Billy’s primary caregiver because of Ted’s high-stress, time-consumer job.

After being gone for more than a year, Joanna returns to divorce Ted and claim custody of Billy., despite Joanna’s abandonment, she won custody of her son.

Joanna prepares an apartment for Billy and then tearfully confesses to Ted that Billy’s true home is with Ted. We don’t see any courtroom scenes as the movie ends soon after, so it’s unsure whether Joanna officially yielded custody or not.

Courts in the 1970s still tended to favor mothers over fathers when it came to custody battles. Movies about divorce did, too. The court here seemed to ignore Joanna’s abandonment and Ted’s stepping up to be a good father to Billy. This may be partly due to something called the “tender years doctrine” that presumed moms should have custody of very young children.

In a California divorce, the courts make custody decisions based on many factors, including what is in the child’s best interests. Abandonment is a serious concern, especially when the child’s other parent is not unfit. A California judge faced with this situation today might have granted sole physical and legal custody to Ted. However, both parents may negotiate a parenting plan and present it to the court for approval.

The War of the Roses – Property Division Can Be a Thorny Issue

This dark comedy shares the story of Oliver and Barbara Rose. During their marriage, they had two children and became very wealthy due to Oliver’s legal career. Finally, though, Barbara confesses she no longer loves Oliver, and they decide to divorce.

The real problems begin when they start splitting up their property. The mansion that Barbara had found and filled with expensive possession became the main point of contention. Barbara kicks Oliver out of the house. Despite his attorney’s advice to compromise, Oliver returns to the home. As their conflict spirals out of control, the couple begins destroying their home, its contents, and eventually each other.

As movies about divorce go, this one captures how personal property division can become to divorcing couples. Sometimes it’s not about the actual property. Instead, personal feelings can get in the way, preventing much-needed compromise.

The best way Oliver and Barbara could have prevented the loss of property and life here would have been to heed the advice of their divorce attorney. Since California is a community property estate, shared assets and debts are split 50-50 with a few exceptions. Attorneys with property division experience could have used California law to help the Roses categorize their property and then amicably divide it.

Movies About Divorce Don’t Always Get It Right. Talk to a California Divorce Attorney About Your Divorce.

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 assist clients along California’s Northern to Southern Coast, including San Francisco, Beverly Hills, Marin, San Jose, Gold River, San Diego, Santa Barbara, Ventura/Oxnard, and surrounding communities.

Is Parental Kidnapping Really a Crime

Is Parental Kidnapping Really a Crime?

After eight years of marriage and the birth of one child, Tina and Derek decided to call it quits. Their divorce became contentious as both parents wanted custody of their child, Alex. Unable to agree on custody and visitation, they presented their cases to a judge, who granted Derek sole legal and physical custody and approved a visitation plan. After a weekend visit, Tina refused to return Alex to Derek. Has Tina committed a crime? Since Alex is her child, is she committing parental kidnapping by refusing to return him to his legal custodian?

Child Custody Arrangements

Parental kidnapping cases usually occur because of custody disputes. Maybe one spouse objects to the judge’s decision to grant custody to the other parent. Often, parental abduction cases stem more from power struggles than keeping children safe from an unfit parent. In our example above, the custody order left Tina feeling powerless. Tina indeed loves her son, but she is also trying to use him as leverage to get more spousal support and joint custody.

There are legal ways to resolve custody disputes without having to resort to kidnapping. Your divorce attorney can explain your options. For example, you may have evidence that your co-parent is unfit that the court never heard. Your attorney might present that evidence to the court and ask that your custody agreement be modified.

But parental kidnapping is the wrong way to handle a disagreement over custody.

What Qualifies as Parental Kidnapping

According to California Penal Code, someone who does not have the right to custody commits a crime by maliciously taking, enticing, keeping, withholding, or concealing a child from his or her lawful custodian.

This is precisely what Tina did –withheld her son from his legal guardian. The judge’s custody order was clear and unambiguous. By ignoring the order, she is committing a crime that is punishable by:

  • Up to one year in a county jail, a fine of up to $1,000, or both; or
  • Imprisonment for two to four years, a fine up to $10,000.00, or both.

Unless your child is in clear and immediate danger, it is better to work through the legal system to resolve custody disagreements.

What Isn’t Parental Abduction?

Unusual situations can arise when parents and children are involved. For example, the mother automatically has custody (at least initially) if the parents of a child are not married. Generally, this is true even if the parents were living together with the child.

So, if Tina and Derek were not married at the time of their breakup, Tina would have immediate custody of Alex. If Derek removed Alex from home without her permission or refused to return him, then Derek would have committed child abduction. Derek could get an attorney to help him exercise custody and visitation rights instead of just taking Alex.

Also, if a married couple is still together, and a judge has not signed a custody order, then both parents have custody. If Derek takes Alex on a fishing trip against Tina’s wishes, it is not parental abduction because Derek has the same parental rights to Alex as Tina does.

What Can You Do About Parental Kidnapping?

Maybe you are still married but worry about your spouse taking your children away. Talk to an attorney immediately. But if you or your children are in immediate danger, call 911 first.

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 assist clients along California’s Northern to Southern Coast, including San Francisco, Beverly Hills, Marin, San Jose, Gold River, San Diego, Santa Barbara, Ventura/Oxnard, and surrounding communities.

Yours, Mine, and Ours Property Division in a California Divorce

Yours, Mine, and Ours: Property Division in a California Divorce

Both versions of the movie Yours, Mine & Ours tell the heartwarming story of two large families combining into one. But couples getting divorced face the exact opposite situation. Instead of combining, they are dividing everything from assets, debts, and sometimes even friends. Since California is a community property state, it almost seems like splitting everything 50-50 should be simple. But property division in a California divorce can be extremely complicated and is best handled by an attorney with deep experience and knowledge.

This article looks at property division fundamentals to give you a basic understanding of how it works.

Separate vs. Community

Some states handle property division in a divorce through equitable distribution. A divorce settlement or final order, then, might consider all the couple’s assets and debts, along with a myriad of other factors, then split everything as equal as possible.

Nine states, including California, are community property states. This method of property division, at its most basic levels, splits a couple’s property and debt into one of the following categories:

  • Separate. Assets each person brings into the marriage usually start out as their separate property. Certain assets acquired during the marriage could be considered separate, including inheritances.
  • Community. Most property acquired by a couple during their marriage is considered community property that is split roughly 50-50.
  • Quasi-Community Property. The couple acquired property in another state, but it would have been community property had they bought it in California.
  • Mixed Community and Separate Property. Sometimes property is “part separate property and part community property.” This type of asset can be especially challenging.

Your California divorce attorney can provide knowledgeable assistance when it comes to categorizing your property.

A Few Potential Examples of Property Division in a California Divorce

The following examples give you an idea of how things might go but are not intended to imply that is the way your property will be divided.

  • Separate Property. Helene purchased her house several years before she and Max were married. During their seven-year marriage, Helene paid the taxes, insurance, and maintenance from her separate income. If they divorce, the house will probably be considered Helene’s separate property.
  • Community Property. Max and Helene buy a house together as a married couple. They both sign the mortgage and contribute to the down payment from community funds. Max and Helene made monthly mortgage payments from a joint account. Also, the couple shares maintenance and insurance costs. During the property division part of their divorce, the home probably will be considered community property.
  • Quasi-Community Property. Since both Helene and Max enjoy skiing and other winter sports, they decide to buy a ski lodge in Colorado. They file for divorce in a community property state, but Colorado is an equitable distribution state. The ski lodge probably will be split according to California divorce laws.
  • Mixed Community and Separate Property. Let’s look back at the home that Helene bought before she married Max. At the beginning of the marriage, the house would be Helene’s separate property. However, in this scenario, Max pays for home improvements that improve the value of the home. Property division now gets very tricky. Is Max entitled to half of the home’s improved value – or more?

This article can only cover the basics of property division. Your results could vary depending on your unique variables. Therefore, the best way to handle property division is to hire an experienced attorney.

Help with Property Division Is Available

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 assist clients along California’s Northern to Southern Coast, including San Francisco, Beverly Hills, Marin, San Jose, Gold River, San Diego, Santa Barbara, Ventura/Oxnard, and surrounding communities.