California Divorce, Legal Separation, Property Division, Property Division, Spousal Support

Why Preliminary Financial Disclosures Are Important

December 13, 2019 Judy Burger

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

What are preliminary financial disclosures?

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

Several documents make up the disclosure packet:

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

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

What happens if the preliminary financial disclosures are wrong?

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

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

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

Make Sure Your Property Is Disclosed and Divided Properly

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

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

Annulment

Should I Request an Annulment?

December 6, 2019 Judy Burger

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

What Is Annulment?

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

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

Am I Eligible to Request an Annulment?

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

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

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

Should You Request an Annulment?

It depends completely on your situation and your goals.

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

Child Custody

You Might Need an Emergency Child Custody Order

November 25, 2019 Judy Burger

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

Child Custody and the Divorce Process

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

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

Grounds for Requesting an Emergency Child Custody Order

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

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

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

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

Call Immediately if You Need an Emergency Child Custody Order

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

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

Domestic Violence, California Divorce

Domestic Violence Restraining Orders in a California Divorce

November 18, 2019 Judy Burger

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

What Constitutes Domestic Violence?

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

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

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

How Does a Domestic Violence Restraining Order Work?

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

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

Another person has abused you or threatened to abuse you;

AND

You have a close relationship with the alleged abuser.

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

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

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

But what can a domestic violence restraining order do?

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

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

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

Learn More About Domestic Violence Restraining Orders

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

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

California Divorce

Separate Bank Accounts Are Not Always Separate Property

November 11, 2019 Judy Burger

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

Understanding Separate Property

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

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

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

Where Taylor Went Wrong

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

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

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

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

Determining Separate Property in a Divorce Isn’t Always Easy

Child Custody

The Impact of Extracurricular Activities on Visitation

November 4, 2019 Judy Burger

Between Jiu-jitsu, football, and violin lessons, some parents may spend hours every week taking their children to extracurricular activities. The job is even more difficult for divorced parents who may struggle to meet the requirements of their parenting agreement. Parents may disagree on the scheduling of activities, the cost, or even just the type of activity. One parent may feel their child should be in a sports program, while the other leans toward robotics or coding. But how important are these activities? Will extracurricular activities affect visitation for children of divorced parents?

Extracurricular Activities Are Important

Little League, Girl Scouts, and chess club are fun activities that also provide some crucial benefits, including:

Better academic performance,
Higher self-esteem,
Improved social skills,
Goalsetting,
Teamwork,
Problem-solving and sharper analytical skills, and
More impressive college applications.

However, coordinating math club or gymnastics with an ex-spouse is sometimes not easy.

Time with Your Parents Is Important, Too

How will one parent feel when the other parent schedules an extracurricular activity during their visitation time? Typically, the parent who has custody of the child at the time takes the child to scheduled activities. Problems can arise, especially when ‘fun’ activities’ coincide with a parent’s work or activity schedule. Sometimes a parent feels the activity is not important in their child’s life.

Some of these difficulties can be ironed out in one important divorce document: the parenting plan.

Custody, Visitation, and Parenting Agreements

The type of custody arrangement reached in divorce affects school and extracurricular activities. In a California divorce, custody falls into several categories:

Physical Custody has to do with where the child lives. Joint physical custody means the child lives with both parents. However, sole or primary custody means that the child lives with one parent and visits the other parent.
Legal Custody relates to the important decisions that parents make for their children. Parents with joint legal custody share the right to make decisions about the children. However, a parent with sole legal custody handles decision-making on their own.

Does one parent have sole legal custody of the children? If so, that parent has the final say on extracurricular activities. However, the non-custodial parent can object or ask for changes to the parenting agreement or visitation schedule.

What Impact Extracurricular Activities Have on Visitation Depends

If parents amicably agree on the when and how of extracurriculars, they can avoid having a judge make decisions for them.

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

Same Sex Marriage and Divorce

3 Important Facts About Same-Sex Marriage

October 23, 2019 Judy Burger

Chris and Taylor lived together for ten years before they registered as a domestic partnership in California. Three years later, they married in a formal wedding ceremony surrounded by friends and family in Massachusetts. When their relationship fell apart two years later, they learned that they didn’t know as much about the legal aspects of same-sex marriage as they had thought.

You can be married and registered domestic partners.

Chris and Taylor registered as domestic partners before same-sex marriage became legal. Their status gave them some important benefits and rights.

In 2015, the Supreme Court handed down its landmark decision in Obergefell v. Hodges. States were now required to recognize same-sex marriages validly made in another state. This opened the door for many same-sex couples – including Chris and Taylor – to join the ranks of opposite-sex married couples. Being legally married can be especially helpful because not all states recognize registered domestic partnerships.

Years spent living together before marriage may not count.

In California, marriages over ten years are often given special treatment. For example, awards of spousal support may be more liberal.

In some states, a couple who live together for a certain number of years is considered a married couple. California does not recognize most common-law marriages. If a couple lives together long enough to be considered a common-law couple in another state, California may recognize their time together if the couple divorce in California.

For example, the ten years Chris and Taylor lived together before registering their domestic partnership may be ignored when they divorce. In the eyes of the law, the couple’s marriage only lasted for two years.

This type of situation is incredibly complicated. Discuss your situation with an experienced divorce attorney as soon as possible.

You may divorce in California if married in California

A couple that legally entered into a same-sex marriage in California can now file for divorce no matter where they live at the time of the divorce. Here’s where Obergefell v. Hodges affects same-sex marriage and same-sex divorce. Since states are now required to recognize lawful same-sex marriages made in another state, they must also allow same-sex partners to divorce.

Same-Sex Marriage Issues Are Complicated

The attorneys at the Law Offices of Judy L. Burger are experienced at all phases of divorce proceedings, including same-sex divorces and dissolution of domestic partnerships. 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.

California Divorce

Community Property or Separate Property: How Can I Tell the Difference?

October 16, 2019 Judy Burger

For some couples, property division is one of – if not the – most important issue to iron out in their divorce settlement. However, when assessing your assets to see who gets what, will you be able to tell whether something is community property or separate property?

Was the property acquired during the marriage?

Most assets acquired by a married couple are considered to be community property. This includes real estate, personal property, and income “wherever situated.” For example, if a married couple living in California buys a vacation home in Hawaii, the home probably will be part of the community property estate if the couple divorce. Separate property is any asset the party acquired: before the marriage, during the marriage, if a gift or inheritance; and after the parties legally separate. Sometimes an asset brought into the marriage may become community property, depending on how the asset is treated during the marriage.

Was the property inherited?

An inheritance received by one spouse is that spouse’s separate property. However, separate property may become community property if the inheritance is commingled with community property or transmuted by the spouse who received the inheritance. For example, Claudia G. inherits $50,000 from her grandmother. The $50,000 should be Claudia’s separate property. However, she deposits the money in a joint bank account and clearly intends that her husband use it. The inheritance might be considered community property.

Did the property increase in value during the marriage?

Sometimes separate property brought into the marriage by one spouse increases in value. If the other spouse helped with the increase, a portion of the property might be considered community property.

Will the asset potentially have future earnings?

Some property may earn royalties or other payments during the marriage. Determining the current value of the asset may be hard enough. Predicting how much income the property may generate in the future is even more difficult. The way the earnings are split may depend, in part, on whether the asset is community property or separate property. If separate property, the next question may be whether the non-owning spouse contributed to the property’s success. For example, an author starts drafting a book while single. The book is published after the author gets married. The author’s spouse assisted with research, editing, and marketing the book. If the couple divorce later, is the book community property or separate property? The author brought at least the first draft into the marriage, but the new spouse contributed to the book’s success. As with all divorce issues, however, the court will decide how to treat the property if the couple cannot reach an agreement.

Assets and Debts May Be Community Property or Separate Property

Disagreements about property division can complicate your divorce and hold up your final divorce settlement. Talk to an experienced California divorce attorney today. Please call us at (415) 293-8314 to schedule a confidential appointment with one of our attorneys. Ms. Burger is a California Certified Family Law Specialist and founder of the Law Offices of Judy L. Burger. We assist clients in California’s Northern to Central Coast, including San Francisco, Beverly Hills, Gold River, Santa Barbara, Ventura/Oxnard, and surrounding communities.

Child Custody, California Divorce

Settling School Issues with an Ex-Spouse

October 9, 2019 Judy Burger

Getting the ‘right’ education can make a big difference in a person’s life. However, who decides what is ‘right’ for the children of divorced parents? It’s great when both parents are active in a child’s life, but how do you handle school issues with an ex-spouse who disagrees with your educational choices?

Look to Your Custody Agreement to Settle School Issues

In California divorces, parents must agree on a custody and visitation agreement before finalizing their divorce. When parents cannot agree, a judge will make the decisions for them. Either way, somewhere there is a document that addresses school issues, even if only to state which parent makes educational decisions for the children. Review your parenting plan for clues. Ask yourself the following questions:

Who has physical custody of the children?
Who has legal custody of the children?
Is the custody sole or joint?

Once you have the answers to these questions, you’ll have a better idea of how to proceed.

Understand How Custody Works

Joint legal custody means that both parents have the right and responsibility to make certain important decisions for their children. This includes education. If you and your ex-spouse have joint legal custody, you’ll need to work out the school issues together. Sole legal custody means that one parent makes all the important decisions for the kids. If you have sole legal custody, you can handle educational matters by yourself. If your spouse has sole legal custody, he or she has the right to settle school issues. However, with either type of custody, one parent can ask for court intervention if necessary.

Get Help Communicating If Necessary

Your first inclination may be to ‘deny, deny, deny’ when your ex-spouse requests anything. But concerns about your children’s education should be considered carefully. In some cases, you may need help discussing school issues with your ex-spouse. Discuss the situation with your attorney. You may need to attend mediation or schedule a court hearing if you and your ex-spouse are unable to reach an agreement about your children’s education.

It IS Possible to Settle School Issues with an Ex-Spouse

It may be best for everyone if you and your ex-spouse work out any school issues that you have. Just keep the best interests of the children in mind. California courts certainly will. Please call us at 415-293-8314 to discuss your case. The attorneys at the Law Offices of Judy L. Burger assist clients with divorce matters in San Francisco, Beverly Hills, Marin County, Santa Barbara, Ventura/Oxnard, San Jose, Gold River (Sacramento), and surrounding communities.

California Divorce

How Pregnancy Affects Divorce

October 2, 2019 Judy Burger

When people learn that a baby is on the way, their reactions may range from euphoria to dismay. A new baby affects every aspect of the new parents’ lives, whether their marriage is strong or on the rocks. Any divorce can be complicated, but how pregnancy affects divorce depends on a number of factors.

Who’s Pregnant?

Pregnancy may affect a divorce if the following has happened:

The wife is pregnant with her husband or domestic partner’s child;
The wife is pregnant with someone else’s child; or
The husband has impregnated someone other than his spouse.

The last option may have caused the divorce. However, the baby may have little or no effect on the final divorce settlement, at least concerning child custody and visitation.

Paternity May Be an Issue

A baby born of married parents is presumed to be the child of both parents. For example, if a woman becomes pregnant during her marriage and is still married when she gives birth, parentage is automatically established. If paternity is a little uncertain, the couple may have to wait until the child is born to determine who fathered the child. A husband has the right to ask for a DNA test to confirm that he is the biological father of the child. As long as the husband is considered the legal parent of the child, he may be held responsible for child support. As you might expect, establishing parentage is complicated. Whether you are the father or mother, discuss your situation with an experienced divorce attorney as soon as possible.

Overall Effect on Divorce

California law does allow a couple to file for divorce when one spouse is pregnant. However, the divorce generally will not be finalized until the baby is born. For one thing, the divorce may be delayed if a paternity test is needed. Also, child support, child custody, and visitation issues usually cannot be resolved until the baby is born. In fact, California law requires that the child be born before custody arrangements can be made.

Pregnancy Affects Divorce in Different Ways

It may take a judge, but any issue that affects divorce, including pregnancy, can be worked out. You don’t have to go through this alone. The attorneys at the Law Offices of Judy L. Burger are experienced at all phases of legal separations and divorce proceedings. Call us at 415-293-8314 to schedule a private appointment or visit our website. We maintain offices in San Francisco, Beverly Hills, Marin County, Santa Barbara, Ventura/Oxnard, San Jose, Gold River (Sacramento), and surrounding communities.