What Happens to Real Property Owned Outside the State in a California Divorce?

August 1, 2016 Judy L. Burger Leave a comment

Have you ever wondered whether California judges have the right to make rulings that relate to out-of-state property? In divorces and legal separations, one of the most important aspects of the case is the division of the couple’s property. Often, in addition to owning property in the state of California, one or both of the partners own real property—generally known as land—out-of-state.

California family law judges do not have jurisdiction over real property that is located outside the state. Therefore, they cannot make orders that directly affect the property itself. However, they do have jurisdiction over the parties to the proceeding and can therefore require the parties to take certain actions or risk being held in contempt of court.

Under California law, property acquired by either party during the marriage is generally considered to be community property. You may read more about the nature of community and separate property here. Community property is subject to equitable distribution in a divorce or legal separation proceeding.

Out-of-state real property is known as quasi-community property if it is acquired in one of two ways:

By a spouse “while domiciled elsewhere which would have been community property if the spouse . . . had been domiciled” in California at the time; or
By a spouse “in exchange for” such property.

Quasi-community property is treated as community property for the purpose of equitable distribution.

If an asset is deemed to be quasi-community property, California law provides that a judge must first try to award the property to one spouse and offset its value by awarding property of equal value to the other spouse. If this cannot be done, the judge may decide to take one of the following two routes:

“Require the parties to execute conveyances . . . as are necessary”; or
Award the party who is not obtaining an interest in the property “the money value of the interest in the property” she would have received.

The value of out-of-state real property can be a significant issue in a California divorce or dissolution proceeding. If you are involved in such a proceeding and disputed property rights are involved, you want an attorney with substantial experience in Northern California who will represent you aggressively. Please contact the Law Offices of Judy L. Burger at (415) 259-6636 to learn more.

California Divorce

How to Protect Yourself against Insurance Revenge during Your California Divorce

July 25, 2016 Judy L. Burger Leave a comment

Ending important personal relationships is hard for everyone involved. Unfortunately, some people take out their frustration and anger on their spouse, attempting to hurt them in various ways. Negative emotions sometimes even lead one spouse to change or cancel health or life insurance, often covertly. Fortunately, the California State Legislature has enacted laws to help prevent insurance revenge.

Imagine that while your divorce proceedings are pending, you become ill and go to the doctor. A workup is in order, so you go immediately to have blood work done, as well as a radiology test. Your health insurance denies coverage, sticking you with all the bills, because your vindictive, soon-to-be-ex removed you from his health insurance. The same thing could happen with a life insurance policy: you could be removed as a beneficiary from the policy. The California laws are intended to prevent these things from happening.

First, when a petition for divorce is filed, on the back of the summons is an automatic temporary restraining order that disallows a party from altering “life, health, automobile, or disability insurance.”

Second, California Family Code §§ 2050-2053 provide a mechanism that judges or parties to divorce proceedings may use to get insurance companies involved. The statute applies to health, life, and disability insurance coverage for spouses and children.

In essence, this second law allows a party to a proceeding or a judge to send a notice to an insurance company letting the company know that the ownership or benefits of a policy it has issued may be affected by a pending divorce proceeding. The notice advises the company that it must maintain the policy of ownership, beneficiaries, and covered dependents as they currently are until it receives an official document notifying it otherwise.

These laws provide important protections to prevent a spouse from changing or canceling insurance to the other spouse’s detriment. However, even with these laws in place, people are sometimes still successful in altering insurance. When this happens, it is critical to work with an experienced family lawyer who can schedule a quick hearing to protect or reinstate your insurance rights. The attorneys at the Law Offices of Judy L. Burger have extensive experience in divorce matters, including property and insurance issues. Make the call today to learn how our attorneys can help: (415) 293-8314.

California Divorce

Transmutation: What It Is and Why You Should Care about It

July 18, 2016 Judy L. Burger Leave a comment

In every divorce, both parties are concerned about the property they will get and the debt they will be assigned. The threshold issue in the division of property is how it is characterized: community or separate. To read more about community and separate property, please see our earlier blog here.

The importance of property characterization cannot be overstated. If property is truly held separately by one spouse, the other spouse has no right to part of the property. And if property is owned by both partners as community property, each has a right to his or her interest. Transmutation of property allows spouses to change the characterization of property ownership; it can therefore be a critical issue in every divorce.

Merriam-Webster defines “transmute” as “to completely change the form, appearance, or nature of . . . something.” When property is transmuted, its character is completely changed in one of the following three ways:

From community property to separate property;
From separate property to community property; or
From one spouse’s separate property to the other spouse’s separate property.

By law, California spouses have the authority to transmute both real and personal property in these three ways, provided the following requirements are met:

The agreement must be in writing; and
The “spouse whose interest in the property is adversely affected” must expressly declare that she makes, joins in, consents to, or accepts the transmutation.

Exceptions are narrow. The first is that third parties are not bound by spousal transmutation of real property unless the third party either has notice or the transmutation is recorded at the courthouse. The second exception is that transmutation is not required for gifts between spouses of personal items as long as the gifts are “not substantial in value taking into account the circumstances of the marriage.” To illustrate, most clothing and costume jewelry would qualify as gifts and therefore the separate property of the recipient. Conversely, expensive jewelry may or may not be considered “substantial,” depending on the circumstances of the marriage.

Transmutation can be a powerful force in California divorces. If you are involved in or are contemplating a California divorce and transmutation of property is a concern, you should work with an experienced family lawyer to protect your interests. The attorneys at the Law Offices of Judy L. Burger have extensive experience in divorce, including property division issues such as transmutation. Make the call today to learn how our attorneys can fight for you: (415) 293-8314.

Annulment

By When Must You Request an Annulment in California?

July 11, 2016 Judy L. Burger Leave a comment

When many people hear of an “annulment” of marriage, their thoughts turn to religious annulments, such as those given by the Catholic Church. In family law, the term “annulment” refers to a judicial order declaring a marriage invalid; this type of annulment can only be granted by a judge in a civil court proceeding. Although an annulment makes it as if a marriage never occurred, in most cases, there are deadlines by which a request for annulment must be made. The legal term for the time period by which a lawsuit must be filed is “statute of limitations.”

In California, there are two types of marriages that may be annulled: void and voidable. A void marriage is invalid from the very start. Only two types of marriages fall into this category, those that are incestuous and those that are bigamous. The other six grounds for an annulment are known as “voidable” because it requires some action to invalidate the marriage. Those grounds are age, a prior existing marriage or domestic partnership, unsound mind, fraud, force, or physical incapacity. You can read more about the grounds for annulment at our earlier blog here.

The statute of limitations for requesting a civil annulment depends on the reason for annulment.

Age

The parent of a person who marries under the age of 18 years may request an annulment any time before the child’s 18^th birthday. In addition, the minor who married while under age 18 may request an annulment before his or her 22^nd birthday.

Earlier Marriage or Domestic Partnership

Either party to a marriage may request an annulment if one of them has a prior existing marriage or domestic partnership. Additionally, the earlier spouse or domestic partner may request that the marriage be annulled.

Unsound Mind

An annulment on the ground that one of the parties was of unsound mind must be requested before either party to the voidable marriage dies. Either the spouse who claims the other spouse was of unsound mind or a person who is legally responsible for the person of unsound mind may request the annulment.

Fraud

If one of the parties to a marriage entered into the marriage because of fraud, he or she may request an annulment within four years after discovering the fraud.

Force

A person who was forced to give his or her consent to marry may request an annulment within four years after the date of marriage.

Physical Incapacity

A spouse may have a marriage annulled on the ground that the other spouse was physically incapable of consummating their relationship. This type of annulment must be requested within four years of the date of marriage.

California laws include specific requirements that must be met for an annulment, and the person requesting the annulment must prove that one of the grounds exists. The attorneys at the Law Offices of Judy L. Burger have extensive experience in family law matters, including annulments. Contact us today to learn how our attorneys can protect you and your children: (415) 293-8314.

Child Custody, Child Support, Visitation

What Does It Mean to Establish Paternity?

July 5, 2016 Judy L. Burger Leave a comment

Most people know that establishing paternity relates to naming someone as a child’s legal parent. However, many people are less clear about why it is important to establish paternity, also known as parentage.

When a child’s mother is married at the time the child is conceived or born, the person to whom she is married is automatically presumed to be the other parent, unless the court finds otherwise based on evidence before it. This presumption also applies to certain couples in registered domestic partnerships, as well as to situations in which the second parent openly treated the child as his or her own.

However, if the mother is not married at the time the child is born, the child does not have a second legal parent. In these cases, California provides two simple ways to establish parentage: a formal declaration of paternity or a court order.

In either case, once someone is established as a child’s legal parent, he or she gains both rights and responsibilities relating to the child. Only after parentage is established may that parent exercise parental rights, such pursuing custody and visitation. Additionally, until parentage is established, a person cannot be held legally responsible to pay child support.

While custody, visitation, and child support are all important reasons to establish parentage, there are many others:

The child’s right to inherit from the parent;
The child’s right to certain benefits related to the parent, such as Social Security and veteran’s benefits;
The child’s ability to access family medical records and history;
The right to recover certain government-provided benefits on behalf of the child;
The presence of the person’s name as a parent on the child’s birth certificate; and
The child’s ability to recover as a health or life insurance beneficiary from the person.

In addition to these concrete benefits, California law recognizes that “knowing one’s father is important to a child’s development.”

Declaration of Paternity

The simplest way to establish parentage is through a declaration of paternity signed voluntarily by both parents. This is a state-created a form that has the same effect as a court order when it is filed with the California Department of Child Support Services. By law, birthing hospitals and prenatal clinics must provide a voluntary declaration of paternity to an unmarried mother. The declarations are also available for free “at all local child support agency offices, offices of local registrars of births and deaths, courts, and county welfare departments.”

A parent who signs a declaration of paternity waives several legal rights, such as the right to have a court decide the issue of paternity and the right to legal representation in paternity proceedings.

Court Order

A court order is the second way parentage may be established when a mother is unwed at conception or birth. Either parent may petition a court to establish parentage. For example, a mother may ask a court to enter an order establishing a biological father as her child’s legal father. After this is done, the mother can pursue child support from the father. Similarly, a biological father may ask a court to establish him as the father, after which he may pursue custody or visitation with the child.

Parentage is the basis for many rights and responsibilities under California law. If you are involved in a parentage dispute, you want an attorney with substantial experience in Northern California who will represent you aggressively. Please contact the Law Offices of Judy L. Burger at (415) 259-6636 to learn more.

Child Custody

What Is a Child Custody Investigation?

June 27, 2016 Judy L. Burger Leave a comment

A child custody investigation is designed to help the family court determine the custody arrangement that is in the “best interest of the child.” In acrimonious divorce or legal separation proceedings, the parties may be vying for custody of their children. It can be difficult for a judge, sitting in a courtroom, to balance the evidence and determine what is best for the children. Child custody investigations can help identify and frame the issues the judge needs to resolve.

Child custody investigations are required by law any time there is a “serious” allegation of child abuse. This includes situations in which any of the following people allege child abuse:

The child, made to a law enforcement officer;
A child welfare services agency investigator; or
Any person who is required by law to report suspected child abuse.

A child custody investigation may also be ordered any time an allegation of serious child abuse “is supported by substantial independent corroboration.” This means that an evaluation may be ordered any time an allegation of serious child abuse is backed up by substantial independent evidence that the abuse occurred.

A child custody evaluation may also be ordered whenever a judge needs information that bears on what may be in the best interest of the children, such as alleged parental substance abuse, extreme parenting practices, or major mental health issues. Sometimes, one party to a divorce or legal separation may make allegations against the other of these types of conduct. Other times, the judge may become concerned based on other evidence or testimony presented to him or her.

Child custody investigations generally conclude with a report from the investigator to the court. The law sets forth minimum requirements for investigations; however, family court judges have great discretion to order additional evaluation “when necessary to determine the safety needs of the child.”

To read more about what happens during a child custody investigation, please see our earlier blog here.

Child custody evaluations are often necessary to protect California children. In hotly contested child support matters, you need an attorney to fight for you and your child. The attorneys at the Law Offices of Judy L. Burger have extensive experience in divorce, child custody, and child support matters. Make the call today to learn how our attorneys can protect you and your children: (415) 293-8314.

Child Custody, Visitation

How Does a Temporary Move Out of the Family Home Affect Custody and Visitation Decisions?

June 20, 2016 Judy L. Burger Leave a comment

After a decision to divorce or separate is made, one parent sometimes moves out while the other parent stays in the family home with the children. We are often asked about the effect of this move on court decisions relating to custody and visitation.

Divorce and legal separation are difficult events for everyone involved, especially children. Children, particularly younger ones, often do not understand what is happening. Even older children may not understand the full implications of the end of an adult couple’s relationship. For these reasons, the guiding principle for California custody and visitation decisions is the “best interest” of the parties’ children.

California law does not allow a court to consider short absences of a parent from the family home in its custody and visitation decisions as long as the following three criteria are met:

The party showed an interest in maintaining custody or visitation;
The party either maintains or makes reasonable efforts to maintain regular contact with the child; and
The party shows no intention to abandon the child.

Even if these criteria are not met, a California judge will not consider a temporary absence or relocation from the family home if it is due to actual or threatened domestic violence. For example, if a husband has been physically abusive toward his wife and she moves out of the family home as a result, the court will not hold her absence from the home against her in its custody and visitation decisions.

These laws do not apply to a parent who has abandoned a child or to a parent who is excluded from the home by a court-issued protective or restraining order.

The health and well-being of your children are important not only to you, but to the State of California. In hotly contested child support matters, you need an attorney to fight for you and your child. The attorneys at the Law Offices of Judy L. Burger have extensive experience in divorce, child custody, and child support matters. Make the call today to learn how our attorneys can protect you and your children: (415) 293-8314.

Uncategorized

When Does a California Court Appoint a Child Guardian?

June 13, 2016 Judy L. Burger Leave a comment

Child guardianships are established in California in both probate and juvenile dependency court proceedings. Guardianships are used to give someone the legal authority to tend to a child or to his or her property. The nature of the authority depends on the reason the guardianship is established and the court order.

Probate Guardianship

The first type of guardianship is a probate guardianship. A probate guardianship is set up when a child’s parents are not able to care for him or her. Here are some examples of reasons parents may not be able to take care of their child:

Serious physical or mental illness;
Military duty;
Substance addiction or inpatient rehabilitation;
Incarceration;
A history of child abuse; and
Death.

Probate guardianships may be over the child, the child’s property, or both.

Guardianships over the child that are established through the probate process do not terminate parental rights; in fact, the child’s parents may even receive visitation rights in a probate guardianship. However, the guardian receives all of the rights and responsibilities of a parent, including full legal and physical custody. Please see my earlier blog here for a detailed description of legal and physical custody.

A probate guardianship may give the guardian rights and responsibilities relating to a child’s property, also known as the child’s “estate.” This type of guardianship is usually set up when a child owns or inherits significant assets before he or she is 18 years old. The guardian’s role is to manage the child’s estate responsibly, with a very high degree of care. If the child has a responsible, living parent, the parent is usually appointed in this role.

Guardians established through the probate court must submit annual status reports to the court, and court volunteers visit the guardian and child periodically. In addition, a probate guardian over a child’s estate is required to submit regular accountings to the court regarding the child’s property.

Juvenile Dependency Guardianship

Guardianship may also be established through the juvenile dependency court when a child has been removed from his or her home due to child abuse or neglect or other dangerous conditions. This type of guardianship is only used as a last resort, when a damaged parent-child relationship cannot be repaired. Guardianships established through juvenile dependency court terminate parental rights and usually last until the child turns 18.

California laws direct judges to make rulings consistent with the best interest of children. The attorneys at the Law Offices of Judy L. Burger have extensive experience in family law matters, including guardianships. Contact us today to learn how our attorneys can protect you and your children: (415) 293-8314.

Child Custody, Domestic Violence

How Does a Finding of Domestic Violence of a Parent Affect Child Custody Orders?

June 6, 2016 Judy L. Burger Leave a comment

Nothing affects children like domestic violence. Recognizing this, California courts are empowered to deal harshly with the custody and visitation rights of those found to have committed domestic violence. Before a parent’s rights may be impacted, however, certain requirements must be met.

Domestic violence is defined to include causing or attempting to cause bodily injury or sexual assault, placing someone “in reasonable apprehension of imminent serious bodily injury to that person or another,” as well as “threatening, striking, harassing, destroying personal property or disturbing the peace of another.” Domestic violence is not limited to physical conduct but includes oral or written conduct that otherwise fits the definition of the law.

The first requirement of the law is that there must be a court finding of domestic violence in the last five years. This requirement can be met in two ways:

The person has been convicted of domestic violence or abuse, as defined in specific California laws; or
Any court has made a finding that the person committed domestic violence.

The requisite finding cannot be based solely on either a child custody evaluator’s conclusions or a Family Court Services staff member’s recommendation. Rather, the court must consider “any relevant, admissible evidence submitted by the parties” in making its finding.

After the first requirement is met, “there is a rebuttable presumption that an award of . . . custody [to that person] . . . is detrimental to the best interest of the child.” This means that the parent who committed domestic violence has an extra heavy burden before custody of any type may be awarded to him. The law directs that the court must consider several factors in determining whether this burden is met:

Whether the parent against whom the finding was met has showed that it is in the child’s best interest for him to receive some form of custody;

Whether the perpetrator completed any court-ordered batterer’s treatment program, alcohol or drug abuse counseling, or parenting class;
Whether the perpetrator has complied with the terms of his probation or parole, if applicable;
Whether the perpetrator’s conduct is governed by a protective or restraining order and, if so, whether he has complied with its terms; and
Whether the perpetrator has committed further acts of domestic violence.

The health and well-being of your children are of paramount importance to the State of California. If domestic violence is an issue in your family, you need an attorney to fight for you and your children. The attorneys at the Law Offices of Judy L. Burger have extensive experience in divorce, child custody, and child support matters. Make the call today to learn how our attorneys can protect you and your children: (415) 293-8314.

Child Custody

How Does a Parent’s Military Service Affect Child Custody Orders?

May 30, 2016 Judy L. Burger Leave a comment

Recognizing the unmatchable contributions of our nation’s military, the California Legislature enacted a law designed to protect military members’ custody and visitation rights. California Family Code § 3047 provides that most absences and failures to comply with custody and visitation orders due to active military service shall not, by themselves, serve as a basis to modify custody or visitation rights.

The law imposes the following two requirements for a service member to take advantage of its provisions:

At issue must be the service members’ “absence, relocation, or failure to comply with custody and visitation orders”; and
“[T]he reason for the absence, relocation, or failure to comply [wa]s the party’s activation to military duty or temporary duty, mobilization in support of combat or other military operation, or military deployment out of state.”

In addition, if a military parent receives temporary duty, deployment, or mobilization orders that will have a “material effect” on his custodial or visitation abilities, any resulting modification of the custody order is deemed temporary and may not interfere with the military parent’s later custody or visitation rights. When the temporary order is reviewed after the military parent returns, the court must apply a special rule: Unless it is in the best interest of the child, the temporary custody order must revert back to the original order.

The law also provides special accommodations for deployed military parents, under defined conditions:

Reasonable visitation rights to a child’s “stepparent, grandparent, or other family member”;
Expedited hearings;
The acceptance, from deployed military parents, of electronic evidence; and
The use of measures to avoid delay in custody and visitation cases.

As you might imagine, military parent cases are a top priority for California courts. If you are involved in a divorce and facing active duty, deployment, and mobilization orders, your experienced family lawyer can help position you as favorably as possible in custody and visitation matters. The attorneys at the Law Offices of Judy L. Burger have extensive experience in divorce, child custody, and child support matters. Make the call today to learn how our attorneys can protect you and your children: (415) 293-8314.