Date of Separation: Changes to the California Family Code

Date of Separation: Changes to the California Family Code

A couple’s wedding day is an important date to remember. If the marriage ends in divorce, then the date the couple actually split is also significant. In fact, the California Family Code contains provisions about the date of separation. However, that code changed significantly in 2017.

What is the date of separation?

This might seem like a simple term, but the legal meaning can be complicated. The new California Family Code Section 70 states:

70.(a)  “Date of separation” means the date that a complete and final break in the marital relationship has occurred, as evidenced by both of the following:

(1) The spouse has expressed to the other spouse his or her intent to end the marriage.

(2) The conduct of the spouse is consistent with his or her intent to end the marriage.

For example, Ted tells Mary he wants a divorce on December 12, 2018. However, they continue living together, share bank accounts, and even plan their annual vacation to Hawaii. A court will consider all relevant evidence when determining the legal date of separation. A judge may decide Ted and Mary had not satisfied both (1) and (2) noted above on December 12, 2018.

Why is the date of separation important?

It is the date beyond which a married couple’s income, debts, and so become separate property.

For example, still considering Ted and Mary, Ted gets a huge windfall on December 13, 2018. During the divorce proceedings, he claims it is his separate property because the date of separation was December 12. Prior to the change in 2017, a court may not agree with Ted, since Ted and Mary did not meet the “living separate and part” requirement.

How and why did the law change?

In 2015, the California Supreme Court handed down a decision in a divorce matter titled In re Marriage of Davis. The decision stated that spouses must be living in separate homes for the date of separation to apply.

However, on July 25, 2016, a bill was signed into law that countered that decision. Section 70 was added to the California Family Code, clarifying that date of separation was to be decided using the tests mentioned earlier in this article.

Let’s consider a different scenario for Ted and Mary. Ted does tell Mary he wants a divorce on December 12, 2018. He remains in the home but separates his financial and personal matters from Mary. From that point on, they behaved more like roommates than husband and wife. A court may consider December 12 to be their legal date of separation.

Simple terms may have unwanted consequences

The legal date of separation can make a huge difference in how your divorce plays out. Talk to an attorney about your divorce as soon as possible.

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.

Are Domestic Partnerships Registered in California?

Are Domestic Partnerships Registered in California?

Sam and Chris have a committed relationship that does not include a formal same-sex marriage. Jon and Julia have lived together for several years. Both aged 65, they don’t want to get married, but they do want some of the tax and financial benefits a marriage offers. Each couple may consider forming a domestic partnership but wonder whether California has a registration process for this type of bond.

What is a domestic partnership?

According to California Family Code Section 297:

Domestic partners are two adults who have chosen to share one another’s lives in an intimate and committed relationship of mutual caring.

A domestic partnership is a legally-recognized relationship between two individuals. California Family Code states that a domestic partnership is formed when both people file a Declaration of Domestic Partnership with the California Secretary of State. At the time of filing, the couple have to meet certain criteria.

Who can form a domestic partnership?

The domestic partners must:

  • Not be married or partners with another person.
  • Be at least 18 years of age, unless parents or guardians agree to the partnership.
  • Either members of the same sex or same sex if at least one of the partners is over 62 years old.

Does California require domestic partnerships to register?

No. The law says that partners may register their domestic partnership with the state.

However, registering gives the domestic partners the same benefits, rights, and protections that other California married couples enjoy.

What’s the process for registering a California domestic partnership?

The California Secretary of State’s Office accepts and processes Declarations of Domestic Partnership and related documents.

Couples that meet the legal requirements may register by filing a Declaration of Domestic Partnership (Form NP/SF DP-1). California also allows to keep their relationship private by completing a Confidential Declaration of Domestic Partnership (Form NP/SF DP-1A).

Have more questions about domestic partnership registration in California?

Talk to a California family law attorney to learn more about your options.

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, Beverly Hills, Gold River, Santa Barbara, Ventura/Oxnard, and surrounding communities.
Divorce Litigation: When Spouses Can’t Settle

Divorce Litigation: When Spouses Can’t Settle

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

Starting the Process

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

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

Exits on the Road to Court

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

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

Sometimes issues are insurmountable, and settlement is impossible.

When Divorce Litigation Lands in Front of the Judge

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

Divorce Litigation Isn’t Easy

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

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

Legal Separation Under California Law

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

Procedure

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

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

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

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

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

Not Sure Whether to File for Legal Separation or Dissolution?

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

2018 Tax Reform’s Effect on Spousal Support

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

Income Tax Treatment of Spousal Support

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

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

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

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

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

The Tax Reform Effect

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

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

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

Will Your Spousal Support Be Affected by 2018 Tax Reform?

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

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

Social Media and Your Divorce

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

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

Hidden Gold

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

Not All “Friends” Are Friends

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

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

Posts = Evidence

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

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

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

Ms. Burger is a California Certified Family Law Specialist and founder of the Law Offices of Judy L. Burger. We assist clients in California’s Northern to Central Coast, including Beverly Hills, San Francisco, Gold River, Santa Barbara, Ventura/Oxnard, and surrounding communities.
How to Modify Child Custody Arrangements

How to Modify Child Custody Arrangements

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

Making the Decision

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

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

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

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

Filing the Paperwork

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

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

Attending a Hearing

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

It’s Possible to Modify Child Custody Arrangements

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

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

Negotiating Your Marital Settlement Agreement

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

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

Be Open and Honest with Your Attorney

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

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

Look at the Big Picture

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

The next tip may help:

Check Your Emotions at the Door (if possible)

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

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

Be Realistic

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

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

You Need a Lawyer Who Knows How to Negotiate.

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

5 Reasons to Seek an Annulment

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

Marriages are always considered invalid if:

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

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

Underage

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

Lack of Capacity

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

Fraud

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

Force

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

Inability to Consummate

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

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

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

Judy Burger is a California Certified Family Law Specialist, and founder of the Law Offices of Judy L. Burger. Please call our offices at 415-293-8314 to set up an appointment with one of our attorneys. We assist clients along the Northern to Central California Coast.
Should I File a Joint Tax Return During My Divorce?

Should I File a Joint Tax Return During My Divorce?

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

Married Status and Tax Returns

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

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

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

Filing Taxes Mid-Divorce

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

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

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

Talk to An Advisor Before Filing Your Taxes

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

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