What Is the Difference Between Divorce and Legal Separation in California?

September 14, 2015 Judy L. Burger Leave a comment

Often, our clients ask about the difference between divorce and legal separation. The essential difference is that divorce is a final action, but a legal separation is not. In a separation, the parties remain married.

This begs the question: Why obtain a separation if you are still married? There are several reasons that legal separation may be an attractive option, including more beneficial residency requirements, the possible retention of certain benefits, and its immediate effect.

One reason a person may wish to pursue a legal separation rather than a divorce is because of the restrictive residency requirements placed on divorce. California law requires that, before a divorce petition may be filed, at least one of the parties must have lived in the state for at least six months; in addition, the person filing the petition must have lived in the county of filing for at least three months.

There are no state or county residency prerequisites for a legal separation. Therefore, a person who wishes to take immediate action may file for a legal separation, then amend the petition to request a divorce after the residency requirements were met. This option would be particularly helpful for someone who wants to obtain quick court rulings on matters such as property division; child, spousal, or domestic partner support; or child visitation. These things may all be adjudicated in a legal separation proceeding, just as they may in an action for a divorce.

Legal separation may also be a valuable option because it sometimes allows the parties to retain benefits that they might lose in a divorce. Some examples of these of benefits are as follows:

Allowing the parties to stay within religious restrictions against divorce;
Allowing the parties to keep health care or other insurance coverage that would be lost due to a divorce;
Permitting one of the parties to retain immigration status; and
Enabling the parties to obtain the requisite 10 years of marriage to qualify for Social Security spousal survivor benefits.

Legal separation also has some common-sense advantage for those who are not sure they wish to pursue the finality of a judgment of divorce. That is because legal separations can allow the parties to separate on a trial basis, giving them both the ability to see how they will do financially and emotionally before pursuing a legal end to their marriage.

The financial and other matters involved in legal separations and divorces can be very complex. For example, whether insurance coverage may be lost due to divorce or separation must be determined in each individual case. For this reason, it is critical to consult with an experienced family lawyer who can explain the potential impact of each avenue before a decision is made.

Judy L. Burger pairs her extensive family law experience with compassion and respect. If you would like more information about how California law would impact your situation, please contact her online or call (415) 293-8314.

United States Supreme Court: Gay Marriage Legal in All 50 States

Marriage, Same Sex Marriage and Divorce

United States Supreme Court: Same-Sex Marriage Legal in All 50 States

September 7, 2015 Judy L. Burger Leave a comment

Until June 26, 2015, state laws governing same-sex marriage were as diverse as the states themselves. On one end of the spectrum were states that would recognize a right for same-sex couples to marry; on the other end were states that would neither issue a marriage license nor recognize valid same-sex marriage licenses issued by other states. The ability of states to treat same-sex couples differently than opposite-sex couples forever changed when the United States Supreme Court issued its decision in Obergefell v. Hodges.

The plaintiffs who filed lawsuits in the Obergefell case consisted of 14 same-sex couples and two homosexual men whose life partners had passed away. The plaintiffs were from Kentucky, Michigan, Ohio, and Tennessee. Initially, the cases were brought in separate actions in federal trial courts, called the district courts. All of the district courts ruled in favor of the plaintiffs. However, the cases were consolidated at the next stage of the judicial process, and the United States Court of Appeals for the Sixth Circuit reversed the judgments, ruling against the rights of same-sex couples.

The two issues in the case related to the ability of the states to (1) refuse to issue marriage licenses to same-sex couples; and (2) refuse to recognize as legal same-sex marriages that had been performed in other states.

The United States Supreme Court ruled in favor of the plaintiffs, holding that the state laws that “exclude[d] same-sex couples from civil marriage” were unlawful and that states could not ” refuse to recognize a lawful same-sex marriage performed in another State.”

This decision will affect many aspects of same-sex marriage nationwide, as marriage is a cornerstone of American society. Indeed, the Court specifically delineated many benefits of marital status, such as the following:

tax benefits;
inheritance rights;
medical decisionmaking rights;
vital statistics records, such as birth and death certificates;
survivor rights for the purposes of insurance and workers’ compensation; and
child custody and support.

California was the second state to recognize same-sex marriage, in 2008. However, it has had a rocky history due the passage of a state constitutional amendment, Proposition 8, which prohibited same-sex marriage. The constitutional amendment was challenged but ultimately invalidated.

The termination of a legal union can be financially and emotionally devastating. In such a circumstance, it is important to work with an experienced, compassionate lawyer who can help you navigate a very difficult time. Judy L. Burger has an extensive, successful background in family law matters in Northern California. Call her today: (415) 293-8314.

California Divorce, Debt

Do I Have a Claim Against a Spouse I Supported During Educational Endeavors?

August 31, 2015 Judy L. Burger

A common question when divorce or legal separation is being contemplated is whether a professional license or college degree can somehow be split among the parties. This question is particularly common when one spouse worked to enable the other spouse to go to college or to obtain an advanced degree. While neither a degree nor a license is property subject to division, under California law, the marital community may be entitled to reimbursements for payments made toward education or training. Of course, no reimbursement will be ordered if the parties agreed in writing, such as in a prenuptial agreement, that none would be made.

Several issues are presented when one of the parties to a marriage receives education or training during the marriage or when the couple pays back student loans during the marriage, including the following:

Whether the community should be reimbursed for the use of community funds;
How any outstanding loan should be allocated; and
What the impact of the education or training should be on spousal support.

The first issue is whether the community has a claim of reimbursement from the spouse or partner who received the training or education. If educational expenses were paid out of community funds, reimbursement, with interest, will be ordered if the education “substantially enhances the earning capacity of the party”. If circumstances would render reimbursement unjust, it may be reduced or modified. Those circumstances include the following:

When the marital community has substantially benefitted from the education;
When the other party also received education or training using community funds, which offsets the education in question; and
When the need for a spousal support award is substantially reduced because the education or training enhanced the party’s ability to “engage in gainful employment”.

The second issue is how any unpaid student loans will be allocated. Generally, the law provides that outstanding loans shall not be classified as community debt but shall be allocated to the party who received the education or training. Of course, to the extent this is done, it may offset a portion of the community’s right to reimbursement. See our separate blog here for a general discussion of community debt.

The final issue is the extent to which a spousal or partner support award should be impacted by the additional education or training. The California Family Code provides that several factors are considered in rendering such an award. These include each party’s earning capacity, as well as the extent to which one party contributed to the education or training of the other. An experienced family attorney will recognize these implications to the attainment of a degree or license and will position her client favorably in obtaining a support award.

As you might imagine, how these matters are presented to a court can make a significant difference in both the issue of reimbursements and in a spousal or partner support order. Judy L. Burger has the experience you need to identify and present issues in family court. Contact her today at (415) 259-6636 to learn more.

California Divorce

How Are Forensic Accountants Used in California Divorce Proceedings?

August 24, 2015 Judy L. Burger

What is a forensic accountant, and when should one be used in divorce or legal separation proceedings? A forensic accountant is a hybrid of an investigator and an accountant. The typical forensic accountant holds a traditional accounting degree, which provides core knowledge in the area of accounting, as well as investigations training, which enables the performance of effective, enhanced investigations. Forensic accounting can be critical in locating, classifying, and valuing assets and debts.

Divorce and separation proceedings provide for the winding up, so to speak, of a couple’s marriage. In these proceedings, all assets and debts are identified and divided, and provisions are often made for spousal or partner support, as well as child support. For the winding up to be fair and equitable, all assets and debts must be identified. This can be difficult in any case, as our economy becomes more diversified and global. A forensic accountant may be used in complex matters, such as helping to identify and value retirement plans, stock options, trusts, deferred compensation plans, and business interests.

Additional challenges will be present if one spouse is intentionally untruthful in an attempt to understate income or overstate debt, such as in the following examples:

Attempting to show less income or fewer assets;
Hiding income or cash streams;
Transferring or hiding assets;
Padding business payroll; and
Creating fictitious debts or overstating debts.

In cases such as these, the use of a forensic accountant is essential to ensure that you receive proper treatment with regard to support awards and property division. These specialized accountants are experts in tracing funds, and they exercise great discretion in determining where to look for hidden assets and overstated debt. After all, if a court doesn’t know about an asset, it can’t divide it. What’s more, a forensic accountant will present his findings in court, with the assistance of your experienced attorney.

Judy L. Burger’s experience as an aggressive family lawyer is paired with an extensive business background, an invaluable combination in contested divorce and separation proceedings. If you need the assistance of a lawyer who is not afraid to fight in court and who understands complicated financial issues, call her today at (415) 293-8314 or visit her online.

Annulment

What Is an Annulment and Am I Eligible to Get One?

August 17, 2015 Judy L. Burger

Have you ever wondered what the difference is between a divorce and an annulment? The term “annulment” is sometimes used to refer to a marriage being annulled by a church or religious authority. However, an annulment has a very specific meaning from a legal standpoint.

A judgment of nullity under California law is commonly called an “annulment”. Whereas a divorce represents the end of a valid, legal marriage, a judgment of nullity, once rendered, declares that no legal marriage ever existed.

There are two categories of annulments in California, marriages that are void and those that are voidable. Void marriages are illegal and void from the beginning. Only incestuous and bigamous marriages fall into this narrow category. Incestuous marriage is defined by law as those between close blood relatives, including parents with children, siblings with half siblings, and uncles or aunts with nieces and nephews. First cousins are not on this list. Bigamous marriages, on the other hand, occur when one of the spouses is currently married to someone else and that marriage has never been terminated, such as by divorce, death, or annulment.

The grounds for annulment based on voidable marriage are explicitly listed in California statutes:

Lack of capacity due to age (under 18) and no parental consent;
Lack of capacity due to unsound mind, such as extreme intoxication or mental impairment;
Consent to marriage obtained by fraud, such as misrepresenting the ability to have children;
Consent to marriage obtained by force;
Prior existing marriage, in which the party believed his or her spouse had been dead or missing for at least five years; and
Lack of physical capacity to be married, such as male impotence, that appears to be incurable.

Marriages based on these grounds are valid unless and until a court enters a judgment of nullity. There is a significant exception, however, for the first four of these grounds: The marriage is not voidable if, after the condition passes (age, unsound mind, fraud, or force), the affected party voluntarily lives with the would-be spouse. For example, if a person marries while 16 years of age but continues to live with the spouse once she is 18, her marriage will no longer be voidable.

There may be unintended consequences to annulments. For instance, there will generally be no right to spousal support because the marriage was never valid, and there will be no presumption of community property for assets acquired during the “marriage.” If children were born, their paternity will have to be adjudicated before custody, visitation, and child support can be determined by the court.

Specific time frames apply to each of these grounds for voidable marriages, and the facts of each situation can change the outcome. If you are interested in learning more about whether your marriage may be void or voidable, you should consult with an experienced family law attorney. Judy L. Burger has extensive experience in all family law matters in Northern California. Call her today or contact her online to learn about how California law applies to the facts of your case.

California Divorce

Watts and Jeffries Credits: What Are They and What Do They Mean for Me?

August 10, 2015 Judy L. Burger

Often, while divorce or legal separation proceedings are pending, one party stays in the family home. The parties sometimes choose to do this to ease the transition for their minor children or to keep their overall expenses down until their final order is entered. Other times, the court will order that one party may stay in the home. Either way, significant financial implications can result from one party staying in the residence, including the application of Watts and Jeffries credits. This blog will explain what these are and when they come into play.

Watts credits and Jeffries credits are named after the court cases that first recognized them explicitly. In the Watts case, the court held that when one party to a divorce has the exclusive use of a community asset, that party may be required to reimburse the other party for that use. For example, if a married couple owns their home as a community asset and the wife stays there after the date of separation, she may have to reimburse the husband for the fair rental value of the home. Watts makes sense because the spouse living in the home is benefitting from a community asset. She does not have to pay rent somewhere else. Likewise, the spouse not living in the home cannot make use of the property himself, nor can he rent or sell it. If you would like to read more about community property, please see our separate blog here.

The Jeffries case may come into play if the parties own the home as a community asset and still owe money on the mortgage. In Jeffries, the court held that mortgage payments made out of the separate funds of the spouse living in the family home may be applied by the court to offset Watts charges. Therefore, in the example above, if the wife, while living in the family home, paid the mortgage out of her current salary, she could ask the court to reduce any amount she owed under Watts with Jeffries credits.

Whether Watts and Jeffries apply is discretionary with the court. In other words, it is the judge’s decision whether or not to grant them, after considering all the circumstances in the case. They area called “charges” when assessed against a party; they are called “credits” or “reimbursements” when they are granted in a party’s favor.

You may also have heard of Epstein credits, which may be implicated when one of the parties uses separate funds to pay for community debts. If you are interested in this concept, please read our earlier blog here.

In all of these circumstances, accurate recordkeeping is essential. Charges and credits can be significant to the financial outcome of a divorce or legal separation. They require accurate documentation and an aggressive, knowledgeable lawyer. Judy L. Burger has extensive experience in high conflict divorces in Northern California. Contact her today at (415) 293-8314.

California Divorce

“Epstein” Credits and the Family Home

August 3, 2015 Judy L. Burger

As a couple moves toward a divorce or legal separation, one potentially hotly contested issue involves what is known as “Epstein” credits. “Epstein” credits were named after the case in which they were first recognized, In Re Marriage of Epstein, which was decided by the California Supreme Court in 1979. These credits may be given to a party who pays community debt with separate property funds before a divorce or legal separation is final. If you are unfamiliar with the nature of community and separate property, please see our blog here.

The issue of Epstein credits often comes up when one party stays in the family residence with the children after the couple is separated. These credits are based on the notion that the family residence is community property and that both parties have a right to receive the benefit of that property until community assets and debt have been allocated by the court. The parties could benefit from the property in different ways: by staying there themselves, by renting it out, or by selling it. Therefore, when one spouse stays in the home, he or she is receiving a benefit and also depriving the other spouse of beneficial use of the property.

Epstein is not limited, however, to the family home. These credits may be requested any time preexisting community debt is paid with the separate property of one spouse. For that reason, they may apply to credit card debt, vehicle loans, and tax payments. However, the party requesting these credits must be able to show that a community debt was paid with his or her separate funds, such as income earned after the date the parties separated. When Epstein credits are awarded, the spouse who paid the community debt is entitled to be reimbursed out of community property assets.

Additionally, the right to Epstein credits may be extinguished under certain circumstances. For example, no Epstein credits will be awarded if the debt payment was intended as a gift, if the parties agreed that no reimbursement would be made, or if the payments were made in place of spousal support.

As you might imagine, both the date of separation and the nature of the debt involved are critical to a court’s decision of whether to award Epstein credits.

Because the legal issues in determining how property and debt are owned are significant, the assistance of an experienced divorce attorney can materially change the outcome of a divorce or separation matter. For these issues, you need 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 Is Community Debt Divided in California Divorces?

July 27, 2015 Judy L. Burger

Have you ever wondered how community debt is divided in a California divorce or legal separation? State law mandates that a couple’s community estate be divided “equally”, taking into account both assets and debt. It also provides several specific rules for dealing with debt.

Debt may be allocated as separate debt, community debt, or a combination of both. This determination is similar to the way community assets, or property, are handled. If you are not familiar with the concept of community property, please see our separate blog here.

As you might expect, separate debt is allocated to the person who incurred it. For example, under most circumstances, debt incurred by one of the parties either before or after the marriage will be the responsibility of that party. An additional category of separate debt about which many are unaware is debt incurred during the marriage that was “not incurred for the benefit of the community”. This type of debt is treated as the separate debt of the person who incurred it.

Community debt is handled differently. Under ideal circumstances, the parties agree on how they would like to allocate community debt; however, even if they do agree, the division of debt is not official until a judge enters a final order approving their agreement. If the parties cannot come to an agreement, the judge will do it for them.

The law provides additional rules to distinguish community from separate debt. Debt incurred after marriage but before separation is usually community debt, even if it is only in one spouse’s name. An example of this would be a credit card acquired during the marriage in the name of one spouse. The separate or community nature of debt incurred after separation but before judgment is entered depends on whether it was incurred for the “common necessaries of life of either spouse . . . or the children”. If the debt was for common necessaries, the court will allocate it according to the parties’ need and ability to pay it. If the expense was not for common necessaries, it will be allocated to the party who incurred the debt.

In allocating debt, there are additional considerations, called “reimbursements” or “credits”, that the court may assign due to payments made on the family home after separation, the use of the family home after separation, and payments made for education or training. These topics are discussed in separate blogs on our website.

If a couple’s community debts exceed its assets, the judge will assign excess debt according to what is just and reasonable. The court may consider the parties’ ability to pay, relative to one another, in making this determination.

The manner in which debt is allocated in a divorce or legal separation can impact you for the rest of your life. In hotly contested matters involving debt division, you need an attorney to protect your interests. The attorneys at the Law Offices of Judy L. Burger have extensive experience in property and debt division. Call today: (415) 293-8314.

How Do California Courts Determine Spousal and Partner Support?

Spousal Support

How Do California Courts Determine Spousal Support and Partner Support?

July 20, 2015 Judy L. Burger

Under California law, when a couple divorces or legally separates, a court can order spousal or partner support. Spousal or partner support can be ordered on a temporary basis, while the court case is pending. It can also be ordered by the court on a permanent basis at the end of the case, such as when a final divorce order is entered. Either way, a case must be pending before a court can become involved.

A court may enter a temporary support order to provide for support of a spouse or partner while the court case is pending. The factors used by California courts in determining the amount of a temporary order are set locally by court rule. For example, in San Francisco County, the local court rules provide that the Santa Clara schedule will be used to calculate the default amount of spousal support. However, the judge may decide, for reasons that constitute “good cause”, that a different amount is appropriate.

A court may also enter a permanent or long-term support order at the end of a case. California law mandates that many factors be considered by the judge in setting this award, including but not limited to the following:

The length of the marriage or partnership;
Each party’s age and health;
The Marital Standard of Living;
Each party’s debts and assets;
Each party’s needs;
Each party’s earning capacity;
The ability of the paying party to pay support;
The ability of the receiving party to work without adversely affecting the parties’ minor children;
The tax consequences to each party;
Whether one party helped the other to receive an education, a license, or a similar achievement; and
The occurrence of domestic violence between the parties or against their children.

The court must also consider “the goal that the supported party shall be self-supporting within a reasonable period of time”, as well as hardships presented to each party. It may also consider other matters that it considers are just and equitable to make a proper order of support.

As you might imagine, how these matters are presented to a court can make a significant difference in the support order. 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 Support

What Factors Do California Courts Consider in Setting Child Support?

July 15, 2015 Judy L. Burger

Parents have a mutual duty to support their minor children. Ideally, parents come to an acceptable agreement about financial support, an agreement that the court will approve. However, if they cannot or will not do so, a court must decide whether child support will be paid from one parent to another.

The California State Legislature has found that the “state’s top priority” in setting child support is the “best interests of children”. For this reason, California law sets forth guiding principles that courts must use when determining child support. These principles allow for both parents’ standards of living to be considered. They also allow for child support to be used to reduce significant disparities in the parents’ living standards.

The factors considered in determining child support are set by law in California. A formula is used that takes several factors into account:

Both parents’ actual income;
The higher-earning parent’s net monthly disposable income;
The percentage of time that each parent will have “primary physical responsibility” for the children; and
The combined net monthly disposable income of each parent.

In addition, California courts must take into account the parties’ respective health insurance coverage. There is a proportional increase in the amount of support for each additional child.

Once the amount of child support is established using the formula, it may be affected by other issues, including but not limited to the following:

Extraordinarily high income of one parent;
Different time-sharing arrangements;
The amounts spent by each parent on housing; and
Special medical needs of the children.

In most cases, the income of the paying parent’s new spouse or partner is not taken into account as actual income. However, it may be considered if a parent quits his or her job to reduce income or if a parent attempts to hide income.

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.