As a Grandparent, What Rights Do I Have to Visitation?

November 30, 2015 Judy L. Burger Leave a comment

Grandparents can be a stabilizing force for children whose parents divorce or legally separate. Indeed, the California Legislature has recognized this, providing affirmatively for grandparent visitation.

Sections 3100-3105 of the California Family Code describe the circumstances under which grandparents may obtain visitation with their grandchildren.

When One Parent Is Deceased

It is easiest for a grandparent to obtain visitation when one of the parents is deceased. In such an unfortunate case, a court need only determine that grandparent visitation is in the best interest of the child.

However, a grandparent cannot use this provision of the law if the child has been adopted by someone other than a stepparent or another grandparent. Likewise, if a grandparent previously obtained visitation under this section of the law, the visitation automatically terminates if the child is adopted by someone other than a stepparent or another grandparent.

Other Cases of Grandparent Visitation

If both parents are alive but divorced, a grandparent who wants visitation with his or her grandchild must proceed under a different law. Under that law, before reasonable grandparent visitation may be granted, a court must do two things: (1) find that the two have had a relationship in the past that “engendered a bond” between them, rendering visitation in the child’s best interest; and (2) balance the child’s interest in grandparent visitation with the parents’ right to “exercise their parental authority.” Cal. Fam. Code § 3104.

However, a court may not order grandparent visitation when the parents are still married unless one of the following six circumstances exist:

The parents are either permanently or indefinitely separated;
The whereabouts of one of the parents have been unknown to the other parent for at least one month;
One of the parents joins the petition for grandparent visitation;
The child does not live with either parent;
A stepparent has adopted the child; or
One of the parents is either in jail or has been institutionalized.

In these limited circumstances, grandparent visitation may be granted; however, if the supporting circumstance ends, either parent may successfully move to have grandparent visitation terminated.

The attorneys at The Law Offices of Judy L. Burger have extensive legal experience in family law matters. We have handled all types of visitation requests, including those involving grandparents. Contact us today at (415) 259-6636 to learn how we can help you in this area.

California Divorce, Spousal Support

The Mechanics of Business Valuation in California Divorces

November 23, 2015 Judy L. Burger Leave a comment

In California, the assets of a married couple seeking divorce must be distributed on an equal basis to the extent they were accumulated during the period of marriage. These assets are known as community property. Sometimes, however, one party owns or has an interest in a business that preexists the marriage. That interest is considered separate property.

Even though a business interest may be considered separate property, part of any appreciation in value that occurred during the marriage may be allocated to community property. In order for that to occur, a value must be established for the business. This is a very complicated task that is performed by a variety of professionals such as business appraisers, certified public accountants, economists, and financial analysts.

Business valuations normally use one of two methods, depending on the nature of the business. These two approaches were established in case law in the beginning of the 20^th century and still stand today. Pereira v. Pereira, decided by the Supreme Court of California in 1909, and Van Camp v. Van Camp, decided by the Court in 1921, set the course for allocation of business value to community property.

The difference between the two approaches hinges on the participation of the owning spouse in the operation of the business. Under Pereira, if that spouse was an active operator or manager of the business, appreciation in its market value during the marriage is likely to be considered community property. This is often the case with professional services such as legal or dental practices, as well as with small contractors or retail businesses.

On the other hand, the Van Camp method usually applies if the business was of such a size and structure that the owning spouse did not expend personal effort affecting its income and growth. In that case, appreciation is less likely to be included in community property and subject to equal division. Any amount included would be based on an assessment of the owning spouse’s compensation from the business during the marriage, as well as whether that compensation sufficiently contributed to the accumulation of other community property. This approach would be appropriate for larger manufacturing, contracting, or technology businesses.

The methods of business valuation are complex, and they vary depending on the type of business involved. At a basic level, valuation involves establishing how much a business is worth at the time of marriage and at the time of divorce or separation. The difference in the two values is then considered in light of proper method noted above. Courts will generally accept a business valuation method as long as the evidence on the record legitimately supports the value.

As you might imagine, the value of a business and how it is allocated to marital assets can make a substantial difference in a what both spousal and support orders. If your marriage involves a business interest, you should hire an attorney with substantial experience in complicated divorce cases, especially those involving the valuation of business assets. Judy L. Burger and her team have considerable experience in contested family law matters, and Judy is well-versed in business matters. Submit our Contact form today or call (415) 259-6636 to arrange an appointment.

California Divorce

What is a Deposition and How Are They Used in California Divorce and Separation Proceedings?

November 16, 2015 Judy L. Burger Leave a comment

All civil lawsuits, regardless of their type, involve the exchange of information between the parties and the adjudication of rights by a court. Family law cases are no exception.

“Discovery” is the official term given to the exchange of information among the parties to a lawsuit. In discovery, much information is exchanged in writing. For example, one party may send written questions for the other to answer in writing or may request that copies of written documents be provided. Another form of discovery is an oral deposition.

A deposition is similar to trial testimony in many ways:

The witness is sworn in (swears or affirms to tell the truth);
The lawyers for the parties are present and may make ask questions and make objections;
A court reporter is there to transcribe and/or record the testimony;
The witness is asked, and must answer, questions; and
The witness’s answers are used as evidence in the case.

However, depositions are also different from trial testimony. The most significant differences are that depositions take place in advance of trial, no judge or jury is present, and depositions are held in less formal settings, such conference rooms.

Depositions may be taken of the parties to the lawsuit—in family law cases, the spouses. These are known as party depositions. Party depositions allow the lawyer asking the questions to lock in the other spouse’s version of the case.

However, depositions may also be taken to learn more about what other witnesses might know. These are known as witness depositions. Witness depositions may be taken of the parties’ employers, friends or neighbors, as well expert witnesses, such as economists.

California law sets forth specific requirements that parties and their lawyers must follow before and during depositions. For example, a notice of deposition must be provided in writing, and it must lay out the date, time, and location of the deposition. If the person being deposed is required to bring documents to the deposition, that must be stated in the notice, as well. In California, most depositions are limited to seven hours.

When conducted by experienced lawyers, oral depositions are a valuable tool used to collect information from the parties to a California family law case. In hotly contested divorce and support matters, you need an aggressive attorney with extensive experience in family law discovery and trials. Call the attorneys at the Law Offices of Judy L. Burger to learn how we can protect you and your children: (415) 293-8314.

Marriage

Name Changes after Marriage in California: What’s Legal?

November 9, 2015 Judy L. Burger Leave a comment

Did you ever wonder what name changes are legal after marriage in California? People planning to marry often want to change their names, but they aren’t sure what is legal. Fortunately, California law specifically addresses this issue.

Initially, it is important to know that California law allows both parties to a marriage to retain their names; no name change is required of either party. However, if one or both parties wish to do so, California Family Code § 306.5 allows them to change their middle names, last names, or both. The provisions for changing names vary slightly, depending on which name or names are being changed.

Either party to a marriage may choose from the following last names:

The current last name of the other spouse;
The last name of either spouse at birth;
A single last name that combines all or a portion of either spouse’s current last name or last name at birth; or
A hyphenated version of the parties’ last names.

The law also sets forth allowable middle name choices after marriage. As with last names, a person may choose to use his or her spouse’s last name as a middle name. Likewise, a person may adopt, as a middle name, the given last name of either spouse at birth. The remaining two options are as follows:

A hyphenated version of the middle and/or last names of either spouse; and
A hyphenated version of the middle and/or birth last names of either spouse.

In either case, the new name or names are listed on the marriage license application. By law, a certified copy of the marriage certificate serves as proof that the party either retained his or her original name or changed it legally. The same document may be used to show the person’s “true, full name” for licensure under the California Vehicle Code.

These provisions apply when the choice to change a name is made at the time the marriage certificate is issued. The only changes to the marriage license that are permitted thereafter are those to correct clerical errors. Changes due to clerical error may be made to ensure that the names on the marriage license comport with the names on the application for the license.

If a party wishes to change his or her name at a later date, these provisions do not apply. Instead, the person may apply to a superior court for a name change or may change his or her name under the provisions of California common law.

When marriage is contemplated, many legal issues arise, from name changes to prenuptial agreements. Experienced legal counsel can help you navigate these issues and structure your marital expectations commensurate with your wishes. The attorneys at The Law Offices of Judy L. Burger have extensive legal and business experience in family law matters. Contact us today at (415) 259-6636 to learn more.

Marriage

“Unsound Mind” and the Capacity to Marry in California

November 2, 2015 Judy L. Burger Leave a comment

Mental competence is a term often heard in the course of various legal proceedings. We have all heard of criminal defendants being evaluated for competence to stand trial, or of wills being challenged on the basis of the maker not being “of sound mind and body.”

Contracts are also subject to mental capacity requirements, and while marriage is considered a matter of the heart, it is a legal contract. The California Family Code says that for a marriage to be valid, the parties must first be consenting, and then must be capable of making the contract of marriage.

Under California law, there is a rebuttable presumption that people are mentally capable of making decisions such as whether to marry or enter into other kinds of contracts. The Due Process in Competency Determinations Act provides a framework for rebutting the presumption of competence in cases where a person may be of unsound mind. The Act gives examples of mental functions to be considered in assessing mental competence, such as information processing, thought processing, and general alertness. Any deficit in one of these areas may cause a finding of incompetence if it impairs the person’s ability to appreciate the consequences of his or her actions.

Capacity to make a marriage contract by persons with mental deficiencies, however, is treated a little more favorably under the law than capacity for other legal transactions. Specifically, a person with a mental deficit for whom a conservator has been appointed is not automatically considered incapable of marrying. Rather, he or she is free to marry unless his conservator, a relative, friend, or other interested party petitions a court to intervene.

In that case, the law allows a court to order a determination to be made as to competence. In the course of a hearing on the matter, testimony may be heard from any interested party who can provide relevant information regarding the conservatee’s mental state. In this way, the law provides special treatment for the rite of marriage in cases of persons with mental disabilities. Rather than discouraging marriage, it encourages and protects the rights of people to marry, while also protecting those who truly lack the capability to make a marriage contract.

The attorneys at The Law Offices of Judy L. Burger have extensive experience in family law, including cases involving the capacity to enter a marriage contract. Make the call today to learn how our attorneys can help protect your rights or those of a loved one: (415) 298-8314.

Child Support, Spousal Support

How Is the Goodwill of a Business Valued in a California Divorce or Legal Separation?

October 26, 2015 Judy L. Burger Leave a comment

The short answer to this question is that the goodwill of a business may be valued in any way the appraiser chooses. The longer answer is that the business appraiser may use any method that does not include impermissible values and that does include values that can be legitimately deduced from past results.

The goodwill value of a business is something that does not show up on the balance sheet. It is often an intangible aspect of the business that ultimately affects the bottom line. California Business & Professional Code defines goodwill in this way: “The ‘good will’ of a business is the expectation of continued public patronage”. It has also been described as a value that is different than capital stock or property of the business.

There are many different types of business that are valued in divorce cases, and, consequently, there are many different aspects to be considered by business appraisers when it comes to a goodwill value. Among the considerations are the following:

A regular and devoted customer base;
Reputation;
The length of time in business;
The likelihood that the business will continue in the future as in the past; and
The age of the spouse operating the business.

One of the prevalent methods of valuing goodwill is the Excess Earnings Method, which compares the business owner spouse to an employee of comparable experience in the same field. The method then factors in financial details from the performance of the business over a period of time to arrive at a value. The complexity of the method prevents discussion in this forum, but the salient point is that the method uses concrete financial information to arrive at a goodwill valuation.

Another method that has passed judicial muster is the Foster Method, which also uses a comparable salary coupled with financial data of the business. The common thread of these two methods that makes them acceptable to courts is that they are rooted in past performance of the business, and also take into account the likelihood of continued similar results.

The valuation of business goodwill also follows other basic tenets of divorce law. For example, business performance after the parties’ separation may not be used. Similarly, business profitability occurring prior to the marriage of the parties may not be included.

The valuation of a business, that is subject to community property distribution in a divorce, particularly the goodwill component, is a very complicated matter. Its complexity naturally gives rise to intense

California Divorce, Legal Separation

Legal Grounds for a California Divorce or Separation

October 19, 2015 Judy L. Burger Leave a comment

California is a “no fault” divorce state. In fact, it was the first state to enact a no fault basis for divorce in 1969. Prior to this change, California state law listed specific faults that, if committed by one of the parties, would be grounds for divorce. These included things such as adultery, extreme cruelty, habitual intemperance, and a number of others. Following enactment of California’s no fault basis, every other state eventually followed suit.

Under our no fault approach, there are only two grounds for divorce and legal separation in California: 1) irreconcilable differences, and 2) permanent legal incapacity to make decisions. Nearly every divorce is filed on grounds of irreconcilable differences. This allows a party to a marriage to pursue a divorce even if her spouse wants to stay married. According to Merriam Webster, irreconcilable means “so different that agreement is not possible.” In a marriage, then, at least one party must believe that agreement on the differences is not possible. Even if the other party states a willingness to agree on differences, they are still irreconcilable if the party of the first part maintains his position.

In the divorce proceeding, the party filing for divorce simply has to tell the court that the marriage needs to be dissolved because there are irreconcilable differences. While the differences are put into the record, no proof of their existence needs to be established. The court just needs to know that one of the parties considers there to be differences, and that they are irreconcilable. The court does have the authority to evaluate each case to reach a conclusion that reconciliation is not possible. In situations where a judge believes reconciliation is possible, he may continue the proceedings for 30 days to see if the parties will reconcile.

Before a divorce petition may be filed, there are residency requirements that must be fulfilled. At least one of the parties must have been a resident of California for six month, and a resident of the county of filing for the immediately preceding three months. If the requirements are not met, the court may refuse to accept the case or will dismiss it when the defect is discovered.

The breakup of a marriage is a difficult life event for both spouses. The attorneys at The Law Offices of Judy L. Burger have extensive experience in divorce matters. Call today to learn how our attorneys can help you and your family: (415) 298-8314.

California Divorce

Can I Kick My Spouse Out of the House?

October 12, 2015 Judy L. Burger Leave a comment

When marital problems reach the point where living under the same roof becomes unbearable, there are remedies to that problem under California law. In an ideal situation, the parties to the marriage recognize that it’s time for physical separation, and they work out an agreeable solution. Often, however, that does not happen. If a mutually acceptable solution cannot be found, one party or the other may request that the court decide which one may retain possession of the family home during divorce or separation proceedings. This is known as a residence exclusion order or a “kick-out” order.

In other situations, there may be a real threat or possibility of harm to one of the parties. Under those circumstances, a party may approach the court to have the other party excluded from the home. There are two bases for excluding a spouse from the home when a possibility of physical or emotional harm exists: (1) emergency, and (2) non-emergency.

Under emergency conditions, a court may issue an exclusion order based only on the request of the threatened party. This is also known as an ex parte order because it happens without the excluded party having an opportunity to give his side of the story. This approach is necessary when the excluded party might be expected to react violently to the knowledge that the request has been made. For a judge to issue an ex parte exclusion order, the court must find the following:

That the party remaining in the home has a right to possession of the premises;
That the party being excluded has assaulted or threatens to assault the other party or other persons under that party’s care, such as children; and
That physical or emotional harm would result to the requesting party or others under her care if the order is not granted.

Under non-emergency conditions, the party to be excluded from the home is given notice of the request and has the opportunity to appear at the hearing. The standard for an exclusion order to be issued in this situation is a little less than the emergency order. In this case, the court must find that physical or emotional harm would be suffered by the requesting party, or someone under her care, if the order is not granted. The difference from the emergency order is the absence of an imminent threat of physical assault.

The breakup of a marriage is most always a time of strong emotions for both parties. It is unfortunate that sometimes the emotion turns hostile and even violent. When faced with such a challenging time in one’s life, experienced legal counsel and representation is necessary. The attorneys at The Law Offices of Judy L. Burger have extensive experience in divorce matters, including emergency and non-emergency exclusion actions. Make the call today to learn how our attorneys can protect you and your family: (415) 298-8314.

California Divorce

What is a Certified Family Law Specialist?

October 5, 2015 Judy L. Burger Leave a comment

A Certified Family Law Specialist is, first and foremost, a licensed attorney. There are many attorneys who handle divorce and related family matters, but they may also handle other legal needs such as wills, estates, and personal injuries. A CFLS is an attorney who typically handles only family law cases. Why worry about whether the attorney you hire is certified? A good way to think about that question is to consider the experience she brings to the table. She has many years of extensive practice experience in Family Law.

The certification process is extensive and requires demonstration of education, knowledge, and skills that go far beyond that which would normally be self-possessed by a run of the mill divorce lawyer. Certification processes for various professions assemble the universe of knowledge for the profession and then test practitioners against that knowledge. After doing that, the governing body requires continuing education in order to maintain the certification.

I exceeded many of the minimal requirements in order to become a Certified Family Law Specialist. In addition to the requirements listed below, I was recommended to the Board of Certification by Family Law Judges and Leading Family Law Attorneys.

To be certified as a family law specialist in California, a lawyer must meet several requirements.

Passage of an examination that tests knowledge of the substantive law and procedures of a legal specialty;
Demonstrate that she has been substantially involved in the practice of family law for the preceding five years;
Been principal counsel in 20 contested family law hearings involving specific issues enumerated by the State Bar of California;
Been principal counsel in five family law hearings or trials that lasted for three hours or more;
Been principal counsel in a minimum of 30 negotiated family law judgments or settlements;
Been principal counsel in 30 stipulated temporary family law orders;
Been principal counsel and principal author of briefs in three California family law appeals in which an opinion was filed; and
Completion of 45 hours of education in various specific areas of family law.

The standards for certification are overseen and administered by the State Bar’s Board of Legal Specialization. The Board is supported by 11 advisory commissions, one for each area of specialist recognition. One of the important roles of the commissions is the recommendation of revisions to certification standards to reflect the current practice of law in each area. Another is the development and grading of the legal specialist examination.

Cumulatively, the requirements for certification ensure that a Certified Family Law Specialist is an expert in her field. Judy Burger is a Certified Family Law Specialist and an expert in that field. Please contact The Law Offices of Judy L. Burger at (415) 259-6636 or visit online to learn more about how she can help you.

California Divorce, Spousal Support

When Is a Receivership Used in California Divorce Proceedings?

September 28, 2015 Judy L. Burger Leave a comment

Have you ever wondered what can be done when one spouse threatens to hide or get rid of property during divorce or legal separation proceedings? California law gives judges the power to appoint what is called a “receiver.” A receiver’s job is to find, take control of, manage, and preserve assets.

Any party may ask for a receiver to be appointed. However, receivers serve as officers of the court and must be neutral where the parties are concerned, favoring neither.

There are several reasons that a court might appoint a receiver in a family law case:

hiding or moving assets;
diminishing assets;
depleting assets; or
threatening to do any of the above.

By law, a court may impose a receivership to tend to a couple’s assets for the following purposes:

carrying a judgment into effect;
disposing of property according to the terms of a judgment;
preserving assets until they are all identified and divided by a court;
preserving assets pending an appeal; and
preserving assets for use in setting child support.

At bottom, receiverships are intended to prevent a party from squandering community assets to the detriment of the other party or the couple’s children.

For example, one of the major California cases relating to receiverships in family law is Quaglino v. Quaglino, 88 Cal. App. 3d 543 (1979). In Quaglino, the husband killed the wife, leaving two minor children and landing him in jail. The children’s guardian ad litem bought a lawsuit against the husband, seeking child support. The trial court appointed a receiver, and the husband appealed.

The appellate court affirmed. It rejected the husband’s argument that receivership was improper because no judgment had yet been entered. In so doing, the court specifically held that the trial court had the power to appoint a receiver due to the “great probability that [it] would soon make an order of support and that the defendant’s property was in fact needed as a source to provide payment.

Receiverships are set up to protect the parties’ assets pending the outcome of legal proceedings. Although they can be costly, they are sometimes necessary to preserve the status quo and to protect the parties and their children. If you need an aggressive family lawyer who isn’t stymied by the more complicated aspects of family law, call me today. I have an extensive background both in family law and in business: (415) 259-6636.