Category Archives: California Divorce

Divorce Litigation: When Spouses Can’t Settle

February 14, 2019 Judy L. Burger Leave a comment

Some divorces sail through divorce court with few if any problems. Everyone agrees on everything. For many people, though, that speedy divorce just doesn’t happen. The separating spouses just can’t agree on a settlement, even after several negotiation sessions and mediation. At that point, the case may be headed to trial. That’s what may happen during divorce litigation when spouses can’t settle their differences any other way.

Starting the Process

In California, a marriage may end in annulment, legal separation, or divorce. One person in the marriage or domestic partnership will file documents with the court clerk to get the divorce started, then file them on the other party. Both parties then file a Schedule of Assets & Debts, Income and Expense Declaration, and Declaration Regarding Service of Declaration of Disclosure.

If temporary orders for child support, custody, or spousal support are needed, one of the parties can request them at this time. In some circumstances, the parties will engage in discovery, which may involve answering questions, providing documentation, and giving depositions.

Exits on the Road to Court

Not all divorce cases make it to trial. For some, they find ways to settle their difference as their divorce proceeds. Often, the parties and their attorneys will meet with a mediator. The parties may negotiate a marital settlement agreement and a parenting plan, if one is needed.

Informal settlement negotiations are another option. Attorneys for the divorcing couple communicate demands and concessions until agreements are reached.

Sometimes issues are insurmountable, and settlement is impossible.

When Divorce Litigation Lands in Front of the Judge

Some marriages are complicated, the parties are unwilling to settle, or one of the parties is unable to participate in negotiations. A trial judge will review evidence and listen to testimony given in the courtroom. The judge then hands down appropriate orders that divide the couple’s property and debts, and settles the parties’ child custody, child support, and spousal support issues.

Divorce Litigation Isn’t Easy

But sometimes it is necessary. Make sure your legal representatives know how to guide your divorce case all the way to a judge if that is what it takes.

To discuss how to handle divorce litigation 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.

California Divorce

2018 Tax Reform’s Effect on Spousal Support

February 7, 2019 Judy L. Burger Leave a comment

Often one party to a divorce will pay spousal support to the other party. Methods of calculating spousal support can be complicated. For example, tax treatment of spousal support payments differ for the party paying the support as opposed to the party receiving the support. For people currently divorcing, it’s important to consider the 2018 tax reform’s effect on spousal support.

Income Tax Treatment of Spousal Support

Income taxes for spousal support orders signed prior to 2019 were handled as follows:

The spouse who pays the spousal support may use those payments as a tax deduction.
The party that receive the spousal support reports the support as taxable income.

In the post-2018 tax reform world, though, things have changed:

Payers of spousal support can no longer count those payments as a tax deduction on their federal income tax returns.
Recipients do not have to report their spousal support as taxable income.

This seems like an easy change, but it does affect how much tax each party may be expected to pay.

The Tax Reform Effect

One issue is that the payment or receipt of spousal support may move either party into another tax bracket:

Recipients may move to lower income tax brackets since they no longer have to report spousal support as income. This could mean they get to keep a greater percentage of their spousal support than people divorced before December 31, 2018.
Payers of spousal support, however, will now lose the deduction that some call a divorce subsidy. Their income taxes likely will rise due to the loss of that deduction.

In addition, payers of spousal support may offer lower support payments since those payments are no longer tax deductible. This could adversely affect women, who are more likely to be the recipient of spousal support instead of the payer.

Will Your Spousal Support Be Affected by 2018 Tax Reform?

That depends on when your spousal support order was signed. Most orders signed before 2019 will not change, at least related to income taxes. However, support judgments that go into effect in 2019 will adhere to the new tax 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.

California Divorce

Social Media and Your Divorce

February 5, 2019 Judy L. Burger Leave a comment

Chris loved posting to all her social media accounts – Facebook, Twitter, Instagram – she had them all. It seemed like innocent fun and a great way to stay connected. The day she posted about her trip to Las Vegas, however, she learned the perils of social media. Her estranged husband learned she was on vacation and not helping her grandmother recover from hip surgery as she stated when she dropped the kids off at his house. At least a few of her 2,372 Facebook friends wondered how she could afford to stay at the Bellagio Las Vegas while claiming she needed more spousal support and child support. Chris found out the hard way that social media and your divorce are not good partners.

Let’s look at several reasons that people in the middle of a divorce should avoid social media.

Hidden Gold

Boasting about buying a new boat while claiming you’re too poor to pay child support is not a smart thing to do – but people do it. Social media posts may be a veritable treasure trove of financial information. Be aware that the parties to a California divorce are required to submit accurate financial disclosures or face penalties. Lying on divorce disclosures violates California law.

Not All “Friends” Are Friends

This may not be the best time to post a picture of you with your new boyfriend or write nasty things about your ex. If your estranged spouse is on the same social media sites, there’s a strong possibility you may have friends in common. Even if you have unfollowed or unfriended your spouse, he or she may still be able to see your posts.

And, of course, there’s always deliberate sabotage. Some friends may be friendlier with your spouse than with you. In addition, people may carelessly share your posts and photos so your ex-spouse will see them.

Posts = Evidence

Most of the messages and photos you posted on social media accounts may be used as evidence in your divorce case. If you are concerned about social media and your divorce, you may be tempted to delete everything. Talk to your attorney before doing anything with your social media accounts. Deactivating your accounts during your divorce may be the best course of action.

Social Media and Your Divorce? Maybe Not a Match Made in Heaven.

If you’re feeling nervous about past posts, you might consider deactivating your account. However, do not delete pics, posts, snaps, tweets, and another other social media stuff without talking to your divorce lawyer first.

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 Beverly Hills, San Francisco, Gold River, Santa Barbara, Ventura/Oxnard, and surrounding communities.

California Divorce, Child Custody

How to Modify Child Custody Arrangements

January 31, 2019 Judy L. Burger Leave a comment

Parents may be able to mutually agree upon a parenting plan for their children. Sometimes, though, a judge has to decide how child custody will be handled before a divorce is finalized. No matter how or when the decisions were made, there may come a time that parents have to modify child custody arrangements.

Making the Decision

Parenting Plans and child custody arrangements typically are made keeping the best interests of the child in mind. But people and circumstances change. Some of the common reasons for altering a child custody arrangement include:

Refusing to allow the non-custodial parent to contact or visit the children;
Putting the children in an unsafe or dangerous environment;
Relocation of the non-custodial parent.

In addition, children may ask for a change in custody. Children over the age of 12 may be permitted to tell the judge who they want to live with.

Once one or both parents decide that changes should be made, the court becomes involved.

Filing the Paperwork

The parent requesting the change will file a Request for Order with the court. An additional form – the child Custody and Visitation (Parenting Time) Application Attachment is optional but may be helpful. Remember that you need to show a significant change in circumstances or some compelling reason to modify child custody arrangements.

After filing the Request for Order, you will be given a date to appear in court or to meet with a mediator. Court proceedings can be complicated, especially if the parents are unable to reach their own agreement.

Attending a Hearing

If parents are unable to arrive at a revised custody plan through mediation, they may have to appear in court. The judge may take limited testimony but may rely heavily on the documents filed with the clerk. After making a decision, the judge signs an order altering the terms of the custody arrangement.

It’s Possible to Modify Child Custody Arrangements

However, the court must see significant reasons to change custody before doing so. As always, California courts consider the best interests of the child in making any decisions.

To discuss how to modify child custody arrangements, please call us at 415-293-8314. The attorneys at the Law Offices of Judy L. Burger assist clients in Beverly Hills, San Francisco, Marin County, Santa Barbara, Ventura/Oxnard, San Jose, Gold River (Sacramento), and surrounding communities.

California Divorce

Negotiating Your Marital Settlement Agreement

January 29, 2019 Judy L. Burger Leave a comment

A divorcing couple may end their divorce by going to trial or by negotiating a marital settlement agreement. California courts tend to prefer the latter. If the decisions are left up to a judge, assets and debt will be split as close to 50-50 as possible. Parties who negotiate a settlement have a little more freedom, as long as they can reach an agreement.

It may be in your best interests to negotiate rather than going to trial. Here are a few tips that may give you a better chance of negotiating your marital settlement agreement.

Be Open and Honest with Your Attorney

Your lawyer represents your interests in the negotiation process. It may be easier for your attorney to reach agreements that work for you if he or she knows all the facts.

For example, Lila and Jake began discussing their settlement agreement. During the negotiations, Lila’s attorney learned that she had misrepresented her income, her education, and her employment status. These surprises put Lila’s attorney in an awkward position, one that hindered the negotiation process.

Look at the Big Picture

The term “choose your battles” comes to mind. Only push for the things that really matter – arguing over small, relatively insignificant details wastes everyone’s time and energy.

The next tip may help:

Check Your Emotions at the Door (if possible)

Acknowledge that divorce is usually an emotional time, even if you want the divorce. Life is changing in a big way, and you still have to get through the final steps of negotiating your marital settlement agreement and getting the final divorce decree.

However, negotiating is difficult when emotions are high. Try to stay calm and focused.

Be Realistic

This not the time to exact revenge on your spouse. This is a time to review disclosures and discovery materials, determine community property and debt, then come up with an agreement that fits.

Our divorcing couple, Lila and Jack, had a difficult time in negotiations. Lila would not decrease her spousal support and child support demands, although she knew Jack was on disability. Jack insisted on full custody, although he was living in a one bedroom apartment. Lila and Jack need to review their circumstances and come up with reasonable, workable solutions.

You Need a Lawyer Who Knows How to Negotiate.

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, Marin County, Santa Barbara, Ventura/Oxnard, San Jose, Gold River (Sacramento), and surrounding communities. Our new Beverly Hills office opens soon.

California Divorce

Should I File a Joint Tax Return During My Divorce?

January 22, 2019 Judy L. Burger Leave a comment

Just because it is necessary to separate two people’s lives does not mean it will be easy. Divorcing spouses usually must find new living arrangements, divide up household goods and friends, and even face the daunting prospect of filing many legal documents to get the divorce over and done. Let’s not forget tax returns. Couples in the middle of a divorce still have to face the tax man and may be left wondering if they should file a joint tax return or separate.

Married Status and Tax Returns

You may file your federal tax returns choosing one of the following options:

Single,
Married Filing Jointly,
Married Filing Separately,
Head of Household, and
Qualifying Widow/Widower with Dependent Child.

The first and last status obviously do not apply, since your marriage has not been terminated yet and you aren’t a widow/widower. However, the other available options can be confusing.

Filing Taxes Mid-Divorce

You and your spouse may file married filing jointly as long as you were still legally married on December 31. Even if you live in different houses, you are still considered to be married until the court dissolves your marriage

If you and your spouse lived apart for at least half of the tax year and you cared for at least one child for half the year, you may file as head of household. This usually results in a lower tax rate.

If you’re still married and your spouse will not agree to file jointly, you will have to file as married filing separately. Usually, the tax rate is higher for someone filing like this. Even worse, you may have to claim at least part of your spouse’s income since California is a community property state.

Talk to An Advisor Before Filing Your Taxes

To file jointly, your spouse must agree to do so. However, you may choose to file separately because you are concerned that your spouse is trying to cheat on their taxes. Also, sometimes one spouse may receive a refund if filing separately but face a tax bill if filing jointly.

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

California Divorce

Preparing for Your Court Hearing

January 17, 2019 Judy L. Burger Leave a comment

Many people fear the unknown. Since some of us go our entire lives without entering a courtroom other than for jury duty, attending a hearing can be incredibly stressful. It doesn’t have to be so bad. Just talk to your attorney while preparing for your court hearing. You may learn some tips for understanding the unknown that will make your experience easier.

First, the Basics

California family courts typically are less formal than other courts. However, the judge in a family court does expect certain behavior from people taking part in the court proceedings.

Dress appropriately. Most courts have a dress code. For example, your judge’s dress code may require that your clothes are clean and prohibit baggy clothing, hoodies, tank tops, shorts and short dresses and inappropriate footwear like flip flops.
Get some sleep the night before. Sleep deprivation may make the entire process more difficult.
Make sure you’re on time. This is so important. Being late may give the court the wrong impression. Plan your route and where you will park beforehand, then leave the house a little early.

Courtroom etiquette is a set of rules that says how the court wants you to behave in the courtroom. Here are some dos and don’ts for courtroom attendees:

Don’t bring gum, food, and drinks into the courtroom.
Don’t bring cameras, tape recorders, or devices that play music.
Do turn off your cell phones and pagers.
Don’t text message.
Do take off your hat and sunglasses.
Do be courteous and respectful to everyone you meet. It never pays to be rude to a court clerk, bailiff, or judge.

Additionally, there are some things you can do in the weeks leading up to your hearing.

A Few In-Depth Tips

Once you have the basic information in hand, start thinking about the big picture by:

Reviewing the documents you have filed in your case.
Reviewing the documents your spouse filed.

Anything your attorney gives you to read gets top priority, of course.

And Some Final Thoughts

It really comes down to listening to your attorney. Ask questions, then follow your attorney’s advice.

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

California Divorce, Child Custody

Passports and Two-Parent Consent Law

January 15, 2019 Judy L. Burger Leave a comment

Travelling with a child can be difficult. Plans may have to be arranged around the child’s schedule and, of course, your luggage may be stuffed with kid-friendly items. Taking a trip outside the United States requires even more planning, especially if the child needs a passport. Divorced parents may find it difficult to get passports for their children due to the Two-Parent Consent Law.

The Two-Parent Consent Law

This law, found in 22 U.S.C. 213n and 22 C.F.R. 51.28, applies to a parent seeking a passport for minors who are age 16 or younger. Under the Two-Parent Consent Law, both parents or guardians must apply for the passport and provide evidence of parentage or legal guardianship.

If only one parent applies, that parent must provide at least one legal document showing the parent has sole custody of the child such as:

A birth certificate, Consular Report of Birth Abroad of a Citizen of the United States, or Certification of Report of Birth giving the name of only the parent applying for the passport.
A death certificate for the non-applying parent.
An adoption decree naming only one parent for the child.
An order granting sole custody to the applying parent.
An order terminating legal custody of the other parent.

When parents are granted joint custody, both parents generally must apply for the passport. For humanitarian or emergency reasons, sometimes the circumstances need a different approach.

Exceptions to the Two Parent Consent Rule

When a parent cannot supply the documentation listed above, a passport may still be issued if the parent can submit:

A court order that allows the parent to travel with the child;
A written statement or notarized written consent from the other parent stating that the other parent cannot give consent for the child’s passport.

The applying parent also may submit a statement explaining any exigent or special circumstances that would allow a passport to be issued with the consent of only one parent.

Will the Two-Party Consent Law Derail Your Travel Plans?

California Divorce

Emergency Issues, Ex Parte Solutions

January 10, 2019 Judy L. Burger Leave a comment

Some divorce cases require immediate action. California law allows this through the use of Ex Parte solutions.

What is an ex parte solution?

An Ex Parte solution is a Motion that is filed with the Court that does not require the usual waiting time. In some counties, a motion may be heard within 24 hours. Usually, notice to the opposing party or counsel must be given and must adhere to the particular County’s notice requirements.

The main reason for filing an ex parte divorce is to get your case in front of a judge as quickly as possible because of an emergency situation.

What kind of emergency situations require an ex parte action?

An ex parte action might be filed for any of the following reasons:

The person filing the ex parte divorce is in danger,
A child involved in the case is in danger, or
Property owned by the filing spouse may be destroyed or damaged.

What is the procedure for filing for ex parte divorce orders?

The procedure and documents required for an Ex-Parte Motion are complex and confusing. Each county has different requirements and procedures. If you fail to adhere to the county’s requirements or procedures, your motion may be denied.

Find out if your situation requires an ex parte hearing.

California Divorce

What Certified Family Law Specialist Means for You

January 8, 2019 Judy L. Burger Leave a comment

You’ve decided to file for divorce. Your next step? Hiring an attorney. As you look online or through attorney directories, you notice that some attorneys are “specialists” in areas of law like taxation, criminal law, and family law. It’s only natural to wonder what a certified family law specialist can do for you.

All attorneys practicing law in California are licensed and regulated by the State Bar of California. The Bar also encourages continued training for lawyers and provides a way for some lawyers to become certified in their area of practice. Attorneys may become certified specialists in several fields, including family law.

That all sounds great for attorneys, but what does it mean for you?

Training

A certified family law specialist completes training in excess of what is expected of other attorneys. In addition, an attorney specialist has to pass a written test in their legal specialty.

When you hire a specialist, you hire someone who has the broad knowledge of law and the specific knowledge needed for your family law matter.

Experience

A certified family law specialist must practice law in their specialty for at least five years. During that time, at least 25 percent of their time must involve their field of specialty.

This means that the attorney you hire has more experience in family law than an attorney with a general practice. An attorney who specializes in family law understands California divorce laws and how they relate to your individual case.

Continuing Education

All attorneys must go through a certain amount of training every year. A certified family law specialist is held to higher standards when it comes to continued training.

This means the specialist you hire is more likely to have a deep understanding of recent changes to California divorce law.

Respected by Peers and Judges

To become a certified family law specialist, an attorney must be viewed favorably by their peers and by judges with whom they have worked.

The specialist you hire has demonstrated a dedication to family law to people who know the law. What better recommendation can there be?

Cares About Family Law

The rigorous application process required by the State Bar is rigorous. A certified family law specialist who goes through that process has demonstrated great interest and concern in family law matters.

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, Gold River, Santa Barbara, Ventura/Oxnard, Beverly Hills, and surrounding communities.