Category Archives: California Divorce

Separate Bank Accounts Are Not Always Separate Property

November 11, 2019 Judy Burger

Before marrying Jaxson, Taylor was a successful professional with a healthy bank account, a new car, and a comfortable bungalow in a nice neighborhood. Jaxson’s career was not quite as successful, and he was unlikely to earn as much as Taylor. So, Taylor and Grayson decided to maintain separate bank accounts to protect her finances. Six years later, Taylor learned the hard way that separate bank accounts are not always separate property in a community property state like California.

Understanding Separate Property

The general rule of thumb is that property brought into a marriage is usually the separate property of the party who brought it. Property acquired and income earned during the marriage generally are considered marital property, which means both parties own it.

With Taylor and Jaxson, Taylor made roughly $250,000 annually while Jaxson’s yearly income hovered around $100,000 per year. The couple together earned about $350,000 every year. No matter where this money was deposited, it became part of their marital estate.

There are exceptions to these rules. That’s why we can’t stress enough that you need to consult an attorney who has experience with property division in California divorces.

Where Taylor Went Wrong

It was undisputed that Taylor brought more assets into the marriage than Jaxson. She tried to keep her financial assets separate from Jaxson’s.

However, most of the income she earned after their marriage is community property. The fact that the income went directly to her separate account may not matter. As noted above, income earned during a marriage is considered the property of both spouses.

A prenuptial agreement could have attempted to maintain a separate property status on income earned during the marriage. Taylor could also consult an experienced divorce attorney as soon as she thinks divorce is in their future.

Also, Taylor and Jaxson sparred over how much money she had accumulated before they were wed. The money Taylor earned prior to marrying Jaxson was in her separate bank account, but post-wedding income had been deposited to this account also. Taylor could produce copies of her bank statements to prove how much was in her bank account before she married.

Determining Separate Property in a Divorce Isn’t Always Easy

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

California Divorce

Community Property or Separate Property: How Can I Tell the Difference?

October 16, 2019 Judy Burger

For some couples, property division is one of – if not the – most important issue to iron out in their divorce settlement. However, when assessing your assets to see who gets what, will you be able to tell whether something is community property or separate property?

Was the property acquired during the marriage?

Most assets acquired by a married couple are considered to be community property. This includes real estate, personal property, and income “wherever situated.” For example, if a married couple living in California buys a vacation home in Hawaii, the home probably will be part of the community property estate if the couple divorce. Separate property is any asset the party acquired: before the marriage, during the marriage, if a gift or inheritance; and after the parties legally separate. Sometimes an asset brought into the marriage may become community property, depending on how the asset is treated during the marriage.

Was the property inherited?

An inheritance received by one spouse is that spouse’s separate property. However, separate property may become community property if the inheritance is commingled with community property or transmuted by the spouse who received the inheritance. For example, Claudia G. inherits $50,000 from her grandmother. The $50,000 should be Claudia’s separate property. However, she deposits the money in a joint bank account and clearly intends that her husband use it. The inheritance might be considered community property.

Did the property increase in value during the marriage?

Sometimes separate property brought into the marriage by one spouse increases in value. If the other spouse helped with the increase, a portion of the property might be considered community property.

Will the asset potentially have future earnings?

Some property may earn royalties or other payments during the marriage. Determining the current value of the asset may be hard enough. Predicting how much income the property may generate in the future is even more difficult. The way the earnings are split may depend, in part, on whether the asset is community property or separate property. If separate property, the next question may be whether the non-owning spouse contributed to the property’s success. For example, an author starts drafting a book while single. The book is published after the author gets married. The author’s spouse assisted with research, editing, and marketing the book. If the couple divorce later, is the book community property or separate property? The author brought at least the first draft into the marriage, but the new spouse contributed to the book’s success. As with all divorce issues, however, the court will decide how to treat the property if the couple cannot reach an agreement.

Assets and Debts May Be Community Property or Separate Property

Disagreements about property division can complicate your divorce and hold up your final divorce settlement. Talk to an experienced California divorce attorney today. Please call us at (415) 293-8314 to schedule a confidential appointment with one of our attorneys. Ms. Burger is a California Certified Family Law Specialist and founder of the Law Offices of Judy L. Burger. We assist clients in California’s Northern to Central Coast, including San Francisco, Beverly Hills, Gold River, Santa Barbara, Ventura/Oxnard, and surrounding communities.

California Divorce, Child Custody

Settling School Issues with an Ex-Spouse

October 9, 2019 Judy Burger

Getting the ‘right’ education can make a big difference in a person’s life. However, who decides what is ‘right’ for the children of divorced parents? It’s great when both parents are active in a child’s life, but how do you handle school issues with an ex-spouse who disagrees with your educational choices?

Look to Your Custody Agreement to Settle School Issues

In California divorces, parents must agree on a custody and visitation agreement before finalizing their divorce. When parents cannot agree, a judge will make the decisions for them. Either way, somewhere there is a document that addresses school issues, even if only to state which parent makes educational decisions for the children. Review your parenting plan for clues. Ask yourself the following questions:

Who has physical custody of the children?
Who has legal custody of the children?
Is the custody sole or joint?

Once you have the answers to these questions, you’ll have a better idea of how to proceed.

Understand How Custody Works

Joint legal custody means that both parents have the right and responsibility to make certain important decisions for their children. This includes education. If you and your ex-spouse have joint legal custody, you’ll need to work out the school issues together. Sole legal custody means that one parent makes all the important decisions for the kids. If you have sole legal custody, you can handle educational matters by yourself. If your spouse has sole legal custody, he or she has the right to settle school issues. However, with either type of custody, one parent can ask for court intervention if necessary.

Get Help Communicating If Necessary

Your first inclination may be to ‘deny, deny, deny’ when your ex-spouse requests anything. But concerns about your children’s education should be considered carefully. In some cases, you may need help discussing school issues with your ex-spouse. Discuss the situation with your attorney. You may need to attend mediation or schedule a court hearing if you and your ex-spouse are unable to reach an agreement about your children’s education.

It IS Possible to Settle School Issues with an Ex-Spouse

It may be best for everyone if you and your ex-spouse work out any school issues that you have. Just keep the best interests of the children in mind. California courts certainly will. Please call us at 415-293-8314 to discuss your case. The attorneys at the Law Offices of Judy L. Burger assist clients with divorce matters in San Francisco, Beverly Hills, Marin County, Santa Barbara, Ventura/Oxnard, San Jose, Gold River (Sacramento), and surrounding communities.

California Divorce

How Pregnancy Affects Divorce

October 2, 2019 Judy Burger

When people learn that a baby is on the way, their reactions may range from euphoria to dismay. A new baby affects every aspect of the new parents’ lives, whether their marriage is strong or on the rocks. Any divorce can be complicated, but how pregnancy affects divorce depends on a number of factors.

Who’s Pregnant?

Pregnancy may affect a divorce if the following has happened:

The wife is pregnant with her husband or domestic partner’s child;
The wife is pregnant with someone else’s child; or
The husband has impregnated someone other than his spouse.

The last option may have caused the divorce. However, the baby may have little or no effect on the final divorce settlement, at least concerning child custody and visitation.

Paternity May Be an Issue

A baby born of married parents is presumed to be the child of both parents. For example, if a woman becomes pregnant during her marriage and is still married when she gives birth, parentage is automatically established. If paternity is a little uncertain, the couple may have to wait until the child is born to determine who fathered the child. A husband has the right to ask for a DNA test to confirm that he is the biological father of the child. As long as the husband is considered the legal parent of the child, he may be held responsible for child support. As you might expect, establishing parentage is complicated. Whether you are the father or mother, discuss your situation with an experienced divorce attorney as soon as possible.

Overall Effect on Divorce

California law does allow a couple to file for divorce when one spouse is pregnant. However, the divorce generally will not be finalized until the baby is born. For one thing, the divorce may be delayed if a paternity test is needed. Also, child support, child custody, and visitation issues usually cannot be resolved until the baby is born. In fact, California law requires that the child be born before custody arrangements can be made.

Pregnancy Affects Divorce in Different Ways

It may take a judge, but any issue that affects divorce, including pregnancy, can be worked out. You don’t have to go through this alone. The attorneys at the Law Offices of Judy L. Burger are experienced at all phases of legal separations and divorce proceedings. Call us at 415-293-8314 to schedule a private appointment or visit our website. We maintain offices in San Francisco, Beverly Hills, Marin County, Santa Barbara, Ventura/Oxnard, San Jose, Gold River (Sacramento), and surrounding communities.

California Divorce, Child Custody, Child Support, Domestic Violence

How and When to Get an Ex Parte Order

September 25, 2019 Judy Burger

After you file your divorce petition, it may take months to iron out all the details. In some cases, though, the person filing for divorce faces serious issues that cannot wait that long. For example, Sandy’s husband had a violent temper that caused him to lash out at their home and at her. Ben knew he was safe from his wife, Lori, but feared for their children. Finally, Maria’s husband hid their car from her, although she needed it to get to work. Fortunately, courts may provide emergency assistance for situations like these through ex parte orders.

How to Get an Ex Parte Order

The simple answer is that you file a motion with the court asking for the relief that you need as soon as possible. However, each county in California may have its own rules and procedures for obtaining an ex parte order. Failing to follow the rules may cause your motion to be denied. You may file a Temporary Emergency Orders (Ex Parte) (Form FL-305) to request certain temporary emergency court orders. While this form may be used throughout the state, you will need to check the rules for the county in which you file for additional information. Hearings often are heard within 24 hours of filing the request for an ex parte order, at which time a judge will hand down a ruling on your request for Temporary Emergency Orders.

When an Ex Parte Order Is Appropriate

Sometimes the filing spouse may need to get an issue before a judge as quickly as possible because an emergency exists. In fact, the filing party may request an ex parte action for one or more of the following reasons:

The spouse who filed the divorce case may be in danger.
A child involved in the divorce case may be in danger.
The filing party needs temporary use of a marital asset.
The filing spouse feels that his or her property might be destroyed or damaged by the responding spouse.

Talk to an attorney immediately if you feel an issue related to your divorce is an emergency.

It’s Complicated.

The attorneys at the Law Offices of Judy L. Burger are experienced at all phases of divorce proceedings, including ex parte orders. 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

5 Things You Didn’t Know About Gray Divorce

September 18, 2019 Judy Burger

When couples divorce after age 50, it’s called a “gray divorce.” Since this term only recently came into use, there are things you may not know it. While it’s impossible to cover every detail in this article, we will look at five things you didn’t know about gray divorce.

The Gray Divorce Rate Has Increased

Divorce among U.S. adults has actually decreased for younger generations. However, the divorce rate for the 50 and older set has approximately doubled since the 1990s. The divorce rate for people over age 65 has almost tripled during the same time frame.

Longer Life Expectancy Is an Issue

This may be one of the most surprising facts about gray divorce. As some people reach their 50s, they take stock of their lives. If they are in reasonably good health, they may live for several decades. For some, longer life expectancy means more time with a spouse who makes them unhappy. Gray divorce can bring people the freedom they need to discover what will make them happy.

Gray Divorce Is More Common the Second Time Around

In general, people who have been divorced once may be more likely to divorce again. Baby boomers were more likely to divorce than preceding generations. As baby boomers reach age 50 and beyond, their prior marital history may catch up with them, leading to a gray divorce.

Retirement Plans May Be Affected

Whether the parties are retired already or still working, retirement plans often change due to the termination of their marriage. A qualified domestic relations order (QDRO) may give one spouse part of the other spouse’s retirement funds. Spousal support, if ordered, may cut into the amount of money the payer planned to save for their golden years. One or both parties may enter retirement with less money than they had planned on, including Social Security retirement benefits.

Adult Children May Be Upset

Few gray divorcees have to worry about child support and visitation. However, they still need to understand the effect divorce has on children. Even adult children may feel a sense of loss and a need for reassurance from their parents. Divorce can damage relationships between adults and their parents at any age.

Gray Divorce or Not, You’ll Need Help

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

California Divorce

I’ve Been Served with Divorce Papers. What Now?

September 4, 2019 Judy Burger

Maybe you were expecting it. Maybe it was a complete surprise. Either way, being served with divorce papers is a wakeup call for most people. This is not the time to sit and lament the end of your marriage, however. Once you have the divorce papers in your hands, the clock starts ticking.

You’ll Need to Read Carefully

The divorce papers you just received are important to your future. Take some time to review them, paying attention to the details. You may be able to figure out what your spouse wants to get from the divorce.

Reflect on Your Situation

Start thinking about your marriage and especially how you would like to proceed. Would you like to try to save your marriage, or is it time to move on? If you have children, how will you help them handle the new state of affairs? However, don’t take too much time. You need to respond within 30 days from the date you were served with divorce papers.

Then File a Response … or Not

Most people do something in response to being served with divorce papers. You have four basic options:

Don’t file any response. However, your spouse or domestic partner may get everything he or she wants. This is called a “true default.”
Prepare a written, notarized agreement signed by you and your spouse. When divorcing partners agree on everything, you may be able to submit this agreement in lieu of filing a formal response. Courts may call this a “default with agreement” case.
File a response and prepare a written agreement. This type of case is considered uncontested since you and your partner agree on all issues.
File a response that disagrees with some or all of your spouse’s assertions and requests. This is truly a “contested” case. The court may decide any issues that remain unresolved, including property division, child custody, and spousal support.

Divorce cases can be very complicated. You may need some help navigating the system and protecting your rights.

Served with Divorce Papers? Take Action

You don’t have to go through this alone. The attorneys at the Law Offices of Judy L. Burger are experienced at all phases of legal separations and divorce proceedings. Call us at 415-293-8314 to schedule a private appointment or visit our website. We maintain offices in San Francisco, Beverly Hills, Marin County, Santa Barbara, Ventura/Oxnard, San Jose, Gold River (Sacramento), and surrounding communities.

California Divorce

Dividing the Family Business: To Feud or Not to Feud

August 28, 2019 Judy L. Burger Leave a comment

Some consider family business to be the backbone of our economy. In fact, they comprise over 60% of our nation’s employment and 78% of new job creation. Studies have also shown that a business controlled by a family may exist longer than companies that are not owned and run by a family. The divorce of an owner may threaten that longevity. With the right processes and paperwork in place, dividing the family business doesn’t have to lead to a family feud.

Pre-Marriage Planning

This is the best place to start protecting a family business but is often overlooked. A strong prenuptial agreement may address the issue of business ownership, especially if the family business predates the relationship. A family business that starts during the marriage may be a little tougher to divide.

Valuing the Family Business

Usually, the parties need to know how much the business is worth before negotiating their settlement. The parties first may need to determine whether the business is community or separate property. If the business is separate property, did it increase in value during the marriage? The judge will need to know about the assets, accounts receivables, debts, and more. If the business itself or any increase in value during the marriage is counted as community property, courts and attorneys may calculate the value of the family business through:

Pereira accounting often used when the business increases in value due to the non-owner spouse’s efforts.
Van Camp accounting typically used when an increase is due to the economy or the business itself.

After the nature and value of the property are established, the parties may move toward settlement.

Negotiating the Divorce Settlement

The parties may decide to address the family business assets in several ways, including:

Buy-out. One spouse buys the other spouse’s interest in the business.
Sale. The parties sell their business interests and split the proceeds in a mutually agreeable way.
Working together. If the couple both worked at the family business, they might agree to continue working together.

The very nature of the family business may make negotiating even more emotional and stressful. Having a California divorce lawyer by your side can help.

It’s Complicated.

The attorneys at the Law Offices of Judy L. Burger are experienced at all phases of divorce proceedings, including business valuation. 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

Will Mediation Work for Your Divorce?

August 21, 2019 Judy L. Burger Leave a comment

Married couples often figure out their own ways to settle disagreements. However, sometimes those disagreements cause the end of the marriage and one partner files for divorce. When a divorcing couple cannot agree on the terms of their divorce, they may land in a courtroom where a judge will make decisions for them. There is another way to settle, however. A form of alternative dispute resolution called mediation is often used in family law cases. Will mediation work for your divorce? Maybe, maybe not. Learning more about mediation may help you review your options.

Why Mediation Might Work

An impartial person like a mediator can hear both sides of a disagreement objectively. Since the mediator has no interest in the case, he or she can facilitate an agreement between the parties. Some other important reasons to consider family law mediation:

Mediation tends to be much less expensive than a court trial.
A judge schedules hearings and trials around his or her schedule. A mediation usually can be scheduled for a mutually convenient time for all parties.
You may receive your divorce decree earlier if you and your spouse are able to settle issues at mediation.
Mediation is done privately.

No system is perfect. Mediation is not always the answer.

Drawbacks to Mediation

There are some reasons you may want to avoid mediation, including:

If only one spouse wants the divorce;
If you don’t know the extent of each party’s assets and debts.
You or your spouse have secrets you don’t want to reveal.
When spouses are unable to communicate or be flexible about terms.

Keep in mind that mediators cannot give legal advice, and attorney-client privilege generally does not exist. However, California law does offer some protection, requiring that what happens in the mediation generally stays in the mediation.

Find Out if Mediation Will Work for Your Divorce

California Divorce

Property Division in a Community Property State (Like California)

July 26, 2019 Judy L. Burger Leave a comment

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

State Laws on Property Division

Each state in the United States has its own divorce laws, including laws about dividing the divorcing couple’s assets and debts. There are two primary ways to split marital property:

Equitable Distribution. Most states follow this type of property division. Courts grant marital assets to the parties as a fair and equitable distribution.
Community Property. A few states use the community property system. It is assumed that the spouses have equal interests in the marital property. Assets – and debts – may be split equally between the parties.

States even differ in the way they hand equitable distribution and community property. That’s why it is important to understand the laws of your state.

How Community Property Works in California

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

Community Property Division Is Not Always Easy.

Finding assets and determining their value, as well as whether the asset is separate property or community property, requires deep knowledge of California divorce laws. Judy Burger is a California Certified Family Law Specialist, and founder of the Law Offices of Judy L. Burger. Please call our offices at 415-293-8314 to set up an appointment with one of our attorneys. We assist clients along the Northern to Central California Coast.