Legal Separation When You’re Not Sure About the Split
Legal Separation, Uncategorized

Legal Separation: When You’re Not Sure About the Split

Brad and Sheila’s marriage had been rocky almost from the start. Still, they always seemed to be able to patch things up. This time, though, Brad did more than just move out for a few weeks before returning home. He filed for a legal separation from Sheila. Both Brad and Sheila felt that a legal separation might be best since they still were not sure about their split. Before reaching a final decision, they should understand a little more about how legal separation works in California.

California Laws

Every state has its own family laws. While some states do not recognize legal separation, California law does allow legal separation of both marriages and registered domestic partnerships. However, the parties will go through a formal court proceeding. To start the process, one spouse files a petition with an appropriate court asking for a legal separation. The other spouse has 30 days to answer the petition for legal separation. After considering issues like child support, custody, property, and spousal support, the court decides whether to allow a legal separation. You may be wondering why a couple would go to the trouble of obtaining a legal separation rather than just getting a divorce.

Marital Status

During a legal separation, the parties are still married and so cannot marry anyone else. For some people, this is an advantage.

Property

After a judge approves the legal separation, the “earnings and accumulations of each party are the separate property of the party acquiring the earnings or accumulations.” Separation of earnings may be a compelling reason for some couples to legally separate.

Religion

Some may prefer legal separation to divorce because some religions do not condone divorce. The couple can live apart without breaking religious laws.

Residency

To obtain a divorce, either party has to meet California residency requirements:
  • At least one spouse must have lived in California for the past six months, AND
  • That spouse must have lived in the county where the divorce will be filed for the past three months.
People who want a legal separation are not bound by such residency requirement. In fact, some parties file a legal separation, then convert it to a divorce as soon as they have met the residency rules.

Legal Separation May Be a Solution

Our couple, Brad and Sheila, preferred the legal separation because it gave them time to adjust to the reality of divorce before actually divorcing. At some point, they may choose to convert their legal separation to a divorce or end the separation by reconciling. 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.
Property Division in a Community Property State (Like California)
California Divorce

Property Division in a Community Property State (Like California)

When Julie and Jackson married, they were both in their early 30s. Both were successional professionals who had lived on their own for years. After an 8-year marriage, they decided to divorce. Then the fun began – each had brought assets and debt into the marriage. Together, they had continued buying real estate, art, books, automobiles, and household goods. Their attorneys advised them of how property division works in community property state like California. Of course, they had never given it much thought until their divorce. Julie and Jackson were not sure whether their belongings were community property or not.

State Laws on Property Division

Each state in the United States has its own divorce laws, including laws about dividing the divorcing couple’s assets and debts. There are two primary ways to split marital property:
  • Equitable Distribution. Most states follow this type of property division. Courts grant marital assets to the parties as a fair and equitable distribution.
  • Community Property. A few states use the community property system. It is assumed that the spouses have equal interests in the marital property. Assets – and debts – may be split equally between the parties.
States even differ in the way they hand equitable distribution and community property. That’s why it is important to understand the laws of your state.

How Community Property Works in California

Deciding what is ‘property’ may be the first step in a divorce. Generally, property is anything that can be bought or sold or anything that has value. For example, Julie and Jackson own a house and each has a 401(k) plan. The house can be bought or sold, and the 401(k) plans have value. Therefore, the house and 401(k) plans are property that will be divided as part of the divorce settlement. A couple may negotiate a marital settlement agreement that splits their property to their satisfaction. Even so, it’s a good idea to have an experienced divorce attorney help. It’s not always easy to figure out what is property, community, or otherwise. If the parties are unable to reach an agreement, a court will divide their property based on California community property laws. According to California Family Code, courts generally start with the presumption that the couple’s community property will be divided equally. However, courts may weigh in on whether an asset is separate or community property. Also, the court may award more than 50% of the assets to one spouse based on “economic circumstances.” When one party commits domestic violence or misappropriates funds, courts also have the discretion to award more assets to the innocent spouse.

Community Property Division Is Not Always Easy.

Finding assets and determining their value, as well as whether the asset is separate property or community property, requires deep knowledge of California divorce 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.
Who Gets the Intellectual Property During a Divorce
California Divorce

Who Gets the Intellectual Property During a Divorce?

Some property is easy to split during a divorce. One spouse may get the kitchen equipment, while the other gets the books. Maybe each spouse gets a car, and so on. With some intangible property, however, the division can be less clear cut. For example, intellectual property can be a bit of a mystery, which makes it difficult to divide during a divorce. Who gets the intellectual property? That depends on several factors.

Property Division, Generally

It’s been said a million times, but that’s because it is true: California is a community property state. This means that couples generally have equal ownership of property and debt acquired during their marriage. There are some exceptions. For example, gifts and inheritance usually remain the separate property of the spouse recipient.

Types of “Intellectual Property”

By definition, intellectual property typically is a work of human intellect. In practice, intellectual property rights may attach to:
  • Patents,
  • Copyrights,
  • Industrial design rights,
  • Plant varieties,
  • Trademarks, and
  • Trade secrets.
An inventor may have exclusive rights to an invention that is patented. Someone involved in an artistic or creative field may own the copyright to their works, which also gives them exclusive rights. If the inventor or artist owns the sole right to use or benefit from their intellectual property, is it their separate property? Should it be considered community property?

Dividing Intellectual Property During a Divorce

Generally, a spouse’s effort, time, and skill are considered community assets. During a divorce, each party must disclose all assets and debts to the other party, including patents, trademarks, copyrights, and other intellectual property. As with other property, intellectual property may be divided among the spouses, regardless of who actually created it. When it comes time to divide intellectual property, however, that property’s value can be a problem. A work of art or invention may not be profitable at the time of divorce but could generate future income. Determining whether an ex-spouse receives any future profits from intellectual property is a complicated issue. In re Marriage of Worth is one important California divorce case that involved intellectual property rights. The husband, Frederick L. Worth, had written and published several trivia books during his marriage to Susan Worth. When the couple divorced, they agreed to split the book royalties evenly. However, the husband later filed a lawsuit against the makers of the board game “Trivial Pursuit” claiming they had plagiarized his books. Though their divorce was final, Susan Worth claimed one-half of any proceeds from her husband’s lawsuit. Because the books were considered community property in the divorce, “such copyrights and related tangible benefits must be considered community property.” (See 1 Nimmer on Copyright (1987) §6.13[B], p. 6-37).

Intellectual Property – Divorce or Not – Is Complicated

If you or your spouse own interest in intellectual property, 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.
4 Factors Considered During Child Custody Discussions
California Divorce, Child Custody

4 Factors Considered During Child Custody Discussions

When parents divorce, some of the most important decisions they face relate to their children. For example, Max and Becca didn’t disagree about much during the early stages of their divorce. However, both were a bit stymied when it came to the kids. They weren’t sure how to prepare a parenting plan that the judge would approve. Let’s look at four of the most important factors considered during child custody discussions.

Health & Safety of Child

Each parent generally is expected to play a role in the health and safety of the child. In fact, the judge may consider this a primary concern when reviewing a parenting plan or making custody decisions. One way to promote the health and safety of a child is to remember that children generally are more likely to thrive when parents:
  • Avoid physical violence toward each other or the child;
  • Agree on living arrangements and rules;
  • Provide a safe and appropriate environment for visiting with family and friends.
A parenting plan usually includes agreements on how to handle medical issues, including doctor visits, vaccinations, health insurance, and emergency medical treatments.

Relationship with Family

Another area of critical importance is the child’s relationship with his or her parents and extended family. A judge may scrutinize a parent’s interactions with the child before assigning joint legal custody, sole legal custody, joint physical custody, or sole physical custody. Judges generally like both parents to be involved in caring for a child. Signs of abuse, neglect, or domestic violence taint a child’s relationship with the abusing parent. California divorce courts put the child’s best interests before the parent’s need to be with their child.

Stability of Living Environments

While it’s important to consider how well a child and parent get along together, the living environment plays a big role in deciding custody:
  • A parent who allows unsafe or illegal activities in the home may receive limited custody and visitation.
  • Parents who move frequently and erratically may not be providing the best home environment.

Overall Best Interests of Child

California law requires a divorce court judge to make custody arrangements that are in the best interests of the child. During child custody discussions, courts may look at the big picture. For example, a child may love both parents, but the court grants sole custody to one parent or requires supervised visits with the other parent. This may occur because one parent has put the child at risk or ignored the child’s basic needs of health, safety, home, and family.

Make Your Child Custody Discussions Count

Start with retaining an attorney who understands complex child custody arrangements., as does Judy Burger who is a California Certified Family Law Specialist and founder of the Law Offices of Judy L. Burger. To discuss how to handle property and divorce 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.
Recognizing the Signs of an Abusive Spouse
California Divorce, Domestic Violence

Recognizing the Signs of an Abusive Spouse

We often have trouble recognizing the signs of an abusive spouse. Some people tolerate mild behavior from a spouse without realizing it has worsened over the years. Others accept threatening behavior because they are afraid or feel they have no place to go. Maybe you feel you are in a bad relationship but don’t feel it has risen to the level of abuse. Let’s look at some of the signs that may open your eyes.

Some Signs of Abuse Are Obvious

Physical violence may be the biggest red flag. If you have experienced any of the following from your spouse, you have been abused:
  • Hair pulling, slapping, biting, kicking, scratching, and choking;
  • Putting you in dangerous situations;
  • Forcing you to use drugs or alcohol;
  • Using weapons or other devices to hurt you; and
  • Forcing you to perform sexual acts.
Actions related to physical violence also signal trouble. For example, your spouse or partner may be abusive if he or she prevents you from calling for help, getting medical attention, sleeping, eating, or calling the police.

More Subtle Actions May Be Abusive, Too

Some signs of an abusive spouse may not be so obvious. However, the following behaviors may be considered mistreatment:
  • Insulting remarks;
  • Undermining your self-confidence;
  • Demanding that you change your appearance or get plastic surgery;
  • Isolating you from your family and friends;
  • Destroying your personal property;
  • Ignoring your wishes and boundaries;
  • Harassing you with phone calls, emails, and texts;
  • Monitoring your every move;
  • Showing no compassion or empathy.
Remember that abuse doesn’t have to be physical and that either spouse or partner can be abusive.

What Can You Do if You Recognize the Signs of an Abusive Spouse?

Your course of action may depend on the level of abuse you face. If your spouse will not address abusive behavior, it may be time to consider divorce or at least a domestic violence restraining order. However, leave or call for help if you feel unsafe for any reason. 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, Beverly Hills, Marin County, Santa Barbara, Ventura/Oxnard, San Jose, Gold River (Sacramento), and surrounding communities.
When Your Spouse Has Multiple Residences
California Divorce

When Your Spouse Has Multiple Residences

Larry and Gina married in Texas but lived in several states during their 28-year marriage. In fact, they still jointly owned houses in Texas, Pennsylvania, and Illinois. The couple enjoyed the extra income from renting the properties and hoped to retire to one of the properties one day. When Larry decided to file for divorce, he was living in California while Gina still lived in Illinois. He wasn’t sure how to handle a divorce when he and his spouse have multiple residences, in multiple states. This sticky situation arises more frequently than you might imagine.

Residents of California

To file for divorce in California, you must meet the following residency requirements:
  • You must have lived in California for the last 6 months; AND
  • You also must have lived in the county where you plan to file for at least the last 3 months.
Notice that only the person filing the divorce is held to these residency requirements. Problems occur when one spouse lives out of state or the couple own property in more than one state. However, filing the divorce petition is only the first step in the process. At some point, the parties will have to consider how to divide property that is not located in California.

Property Outside of California

California courts typically do not have the power to control property located in other jurisdictions. While the judge can make decisions about a divorce case filed in California, it may not have the power to divide out-of-state property. This situation is called a divisible divorce. It may be necessary to hire attorneys practicing in states where the other property is located to handle property division.

Divorce When Your Spouse Has Multiple Residences Can Get Complicated

You may have to give careful consideration about the best jurisdiction in which to file your divorce. Discuss your options with an experienced divorce attorney 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.
Can You Keep a High-Profile Divorce Out of the Tabloids
California Divorce

Can You Keep a High-Profile Divorce Out of the Tabloids?

To many people, the most interesting news articles contain juicy bits about the marital woes of the rich and famous. But most divorces are highly personal and emotionally charged. Whether you are well-known in your local community or the international scene, you probably want to keep your high-profile divorce out of the tabloids. It may be possible, although difficult, to do so in California.

Accessing Typical Public Records

Often, legal documents that affect our lives become part of the public record. For example, when you pass away, your Will becomes a public document when it is filed for probate. In California, most court documents are available for viewing by the general public. This typically is true even for family law cases. However, there might be a way for you to keep your divorce out of the tabloids and away from the prying eyes of your neighbors, family, and friends.

Court-Approved Privacy

Records can be sealed by court order. A judge may order the entire file to be kept private or just portions of it. For example, the entire record in Blake Shelton and Miranda Lambert’s 2015 high-profile divorce case was sealed. However, courts generally do not seal records just because that’s what the divorcing couple want. In California, the couple must file an application for an order sealing the divorce record. In addition, a memorandum and declaration stating why the records should be sealed is filed with the application. The parties may file redacted documents, with all sensitive information covered so it cannot be read. However, the parties may be required to send certain parties unredacted records. If the judge approves the application, records will be kept separate and marked to ensure limited access. In addition to sealing the records, court orders typically prohibit people associated with the divorce from disclosing information contained in the records.

You May Be Able to Keep a High-Profile Divorce Private

In limited cases, a couple may be able to file their divorce papers without putting their names on the public records. If privacy is a real issue in your impending divorce, 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.
What Is “Property” in a Divorce?
California Divorce, Debt, Spousal Support

What Is “Property” in a Divorce?

We all own ‘stuff.’ Sometimes we get quite attached to that stuff, which makes it that much more difficult to divide it up during a divorce. Both parties may want an item and have trouble deciding whether it is considered property in a divorce. Basically, property is anything that can be bought or sold or has a value. However, the question may become more complex during the property division stage of a divorce.

Community Property vs. Separate Property

Generally, courts consider most property (and debts) accumulated during a marriage to belong to both parties. However, this is not as cut and dried as it may seem. For example, an inheritance one spouse receives during the marriage may remain the separate property of that party. Sometimes separate property may become mixed with community property during the course of the marriage. Hard decisions have to be made, then approved by the court.

But Is it Really “Property”

Generally, we think of personal property and real property. Some possessions may not be thought of as property, though, especially when it comes to splitting them between spouses. That said, you might expect the following items to be personal property:
  • Furniture,
  • décor,
  • collections, like wine or art,
  • appliances,
  • clothes,
  • jewelry,
  • books, and
  • other personal effects.
However, personal property also may include:
  • bank accounts,
  • retirement accounts,
  • investment accounts,
  • vehicles, including boats, cars, and airplanes.
Real estate, or real property, may include:
  • Your home,
  • Commercial property, and
  • investment property.
We sometimes don’t think of our belongings as “property” in a divorce, property that needs to be split. For example, Margie never considered her husband’s tool collection as property  — until she filed for divorce. And Liam never thought his wife’s art collection was a big deal, but then it became property to be appraised during their property division negotiations. Whether you consider items to be property or not, be aware that they may figure into your divorce settlement.

Final Thoughts on Property in a Divorce

Determining whether a possession is community property or separate property makes a difference in property division. It’s also important to know the value of your property before dividing it up. You need an attorney who understands simple to complex property situations. To discuss how to handle property and divorce 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.
How to Coordinate Summer Vacations with Your Ex
California Divorce, Child Custody, Visitation

How to Coordinate Summer Vacations with Your Ex

Sophia had planned a great June vacation with her son, Noah. Afterwards, he was heading off to a two-week summer camp in the Rockies. However, Noah’s father, Jack, invited him on a trip to Europe for the exact same time period. Sophia was exasperated because the invitation conflicted with her plans and, more importantly, did not comply with their parenting plan. Jack was supposed to take Noah in July and August, not June. Sophia and Jack had to find a way to coordinate summer vacations. First, they could look back over the arrangements they made during their divorce.

The Parenting Plan

A divorcing couple with kids negotiates a parenting plan as part of their settlement.  It’s sometimes called a custody and visitation agreement because a big part of the plan involves custody and visitation. In fact, parenting plans typically spell out who will have the children at certain times and for how long. Holidays and summer vacations usually are an important part of the negotiations that go into the parenting plan. After parents reach an agreement, a judge signs a custody order binding the parents to the agreement. Does this mean the custody and visitation agreements will never change?

Modifications to the Plan?

It is possible to negotiate changes to a visitation schedule. This may require the court’s approval in certain circumstances. However, the parents may agree on a new way of handling visitation without court intervention. Sophia and Jack share legal custody of Noah, but Sophia has primary physical custody. Most of the time, they have no trouble adjusting their visitation schedule. This time is different, though. Jack’s work schedule has changed, and he would like to have more time with Noah over the summer. They may want to negotiate a modification of their parenting plan and have it approved by the court. But Sophia and Jack’s most important consideration should be what is right for Noah.

What Should You Focus on When You Coordinate Summer Vacations with Your Ex?

What course of action serves the best interests of your child? Maybe there’s no compelling reason to deny your ex’s summer vacation plans. However, if you feel your children may be in danger or harmed in some way by those plans, discuss your options with a divorce attorney immediately. The attorneys at the Law Offices of Judy L. Burger are experienced at all phases of divorce proceedings, including child visitation plans and modifications. 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.
Tips for Helping Kids Survive Divorce
California Divorce, Child Custody, Child Support

Tips for Helping Kids Survive Divorce

If you are getting divorced and have children, you may question how to tell your kids about the divorce. They may need help learning to cope with all the changes in their lives. Parents, and other adults who love the children, may need tips on helping kids survive divorce. We will look at few tips in this article.

Recognize Stages Kids Go Through

After telling your children about the divorce, watch for the following emotions and behavior:

  • Denial – refusing to believe their parents are separating.
  • Anger – misbehaving and acting out because of the disruption to their lives.
  • Depression – feeling overwhelmed or helpless.
  • Bargaining – trying to get parents to reconcile.
  • Acceptance – beginning to heal and get back to normal.

At every stage, parents may have the opportunity to help their children cope.

Parents Can Make Transitions Easier – Or Far More Difficult

The parents’ behavior goes a long way toward helping kids learn to survive and thrive during a divorce. With that in mind:

  • Don’t use your children as pawns or messengers.
  • Do talk positively as much as possible.
  • Don’t talk bad about your children’s other parent.
  • Do encourage your children to talk about how they feel.
  • Don’t fight with each other in front of the kids.
  • Do communicate cordially and coordinate visitation.
  • Don’t forget to pick up and return the kids at the scheduled dates and times.
  • Do show your children that you love them.

In addition, negotiate your marital settlement and parenting plan in good faith. Try to come up with a plan that helps your kids survive divorce.

Courts Pay Attention to Children’s Needs

Laws, statutes, and regulations cannot eliminate feelings of rage, revenge, unworthiness, and grief. It may be difficult to control your emotions and actions. However, judges will assess how parents relate to their children when deciding child custody arrangements. Courts are required to keep the children’s best interests in mind, even when the parents struggle with addressing their kids’ feelings along with their own.

Helping Kids Survive Divorce Is a Top Priority

It’s not always easy, though. Having an attorney help with a divorce may ease some of your tension.

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.