Category Archives: Mediation

Explaining “Fair Market Value” In a Property Division Settlement
California Divorce, Mediation, Property Division

Explaining “Fair Market Value” In a Property Division Settlement

When it comes to property division, particularly in the context of divorce or the dissolution of a partnership, “Fair Market Value” (FMV) is an essential concept. Understanding FMV is crucial for ensuring equitable distribution of assets and can significantly impact the outcome of property settlements. CA Certified Family Law Specialist Judy L. Burger breaks down what Fair Market Value is, how it is determined, and its relevance in property division settlements.

What is Fair Market Value (FMV)?

Fair Market Value is defined as the price that a property would sell for on the open market, under typical conditions, and between a willing seller and a willing buyer, both of whom are informed and not under any compulsion to buy or sell. In simpler terms, it represents what a property is worth in the current market, reflecting its true value based on comparable sales and market conditions.

In property division settlements, particularly during divorce proceedings, assets need to be evaluated and valued to ensure that both parties receive a fair share of the marital property. Considering FMV helps in:

  • Equitable Distribution: California requires the division of property to be “equitable,” meaning fair but not necessarily equal. FMV helps determine a realistic value for assets and guides how they should be divided.
  • Negotiations: Having an accurate FMV makes negotiations more straightforward. Both parties can enter discussions with a mutual understanding of what properties are worth, making it easier to agree on asset distribution.
  • Legal Proceedings: If a dispute arises and the case goes to court, the determination of FMV is often critical. Courts tend to rely on expert appraisals to establish FMV for assets involved in property division.

CA Property Division Attorney Judy Burger has a wealth of experience in dividing and valuing community assets and liabilities. With a keen eye for detail, she skillfully identifies separate property assets, ensuring that her clients’ individual assets are clearly acknowledged and legally confirmed. Judy has successfully navigated a variety of cases, specializing in the division of medium to large estates, where her expertise translates into effective and fair settlements for her clients.

How is FMV Determined?

Determining the Fair Market Value of a property may involve several methods:

  1. Comparative Market Analysis (CMA): This method involves comparing the property in question to similar properties that have recently sold in the same area. Real estate agents often conduct CMAs to estimate property values.
  2. Professional Appraisal: A qualified appraiser can provide an unbiased FMV assessment. To arrive at a value, they will consider factors such as property location, size, condition, and recent sales of comparable properties.
  3. Income Approach: The FMV of investment properties may be determined based on their income. This approach estimates the property’s worth based on its potential to produce income.
  4. Cost Approach: This method considers the cost to replace or reproduce the property minus depreciation. It’s often used for unique properties or those with few comparable sales.

Challenges in Determining FMV

While the concept of Fair Market Value may sound straightforward, various challenges can arise during its determination:

  • Market Fluctuations: Real estate markets are dynamic. Economic conditions, interest rates, and other factors can affect property values over time, leading to potential disputes over FMV.
  • Emotional Attachments: Parties involved in property division may have emotional attachments to certain properties, which can cloud their judgment regarding its FMV.
  • Disagreements on Valuation Methods: Different methods of determining FMV may lead to varying results, and parties may disagree on which approach is most suitable.

Understanding Fair Market Value is essential for anyone navigating property division settlements in divorce or partnership dissolutions. It serves as a cornerstone for equitable distribution and ensures that both parties are treated fairly based on the actual value of their assets.

Learn More About Fair Market Value in a CA Divorce Property Division

Engaging an experienced and qualified Family Law Specialist like Judy Burger can help clarify the value of properties in question, making the settlement process smoother and more just. Whether you’re planning to negotiate a settlement or are preparing for potential litigation, a solid grasp of FMV will empower you to advocate for your interests effectively.

Ms. Burger has extensive relationships with Forensic Accountants and Actuaries, Litigation Real Estate Appraisers, Real Estate Attorneys, Business and Corporate Attorneys, Title Companies, and Real Estate Professionals who assist her in determining the FMV of properties during divorce proceedings. Contact The Law Offices of Judy L. Burger nearest you for more information and assistance. 

Spousal Support and Taxes
Spousal Support, California Divorce, Marriage, Mediation, Property Division

Spousal Support and Taxes

Filing for a divorce can complicate your tax situation, especially regarding spousal support. Is alimony (spousal support) taxable? Yes and no. Certified Family Law Specialist Judy L. Burger explains more about how spousal support affects your federal income taxes.

What Is Alimony?

The Internal Revenue Service defines alimony, or spousal support, (also called separate maintenance) as, “Amounts paid to a spouse or a former spouse under a divorce or separation instrument (including a divorce decree, a separate maintenance decree, or a written separation agreement) …”

It further specifies what qualifies as spousal support:

“A payment is alimony or separate maintenance if all the following requirements are met:

  • The spouses don’t file a joint return with each other;
  • The payment is in cash (including checks or money orders);
  • The payment is to or for a spouse or a former spouse made under a divorce or separation instrument;
  • The spouses aren’t members of the same household when the payment is made (This requirement applies only if the spouses are legally separated under a decree of divorce or of separate maintenance.);
  • There’s no liability to make the payment (in cash or property) after the death of the recipient spouse;
  • The payment isn’t treated as child support or a property settlement; and
  • The divorce or separation agreement does not designate the payment as not includable in gross income of the payee spouse and not allowable as a deduction to the payer spouse.”

Alimony and child support are not the same. Child support is never deductible and isn’t considered income.

Is Spousal Support Taxable?

The Tax Cuts and Jobs Act of 2017 changed alimony taxation rules. Here is the law as it stands now (June 4, 2024):

  1. Spousal support or separate maintenance payments made under a divorce or separation agreement executed before 2019 are deductible by the payer spouse and included in the recipient spouse’s income.
  2. Spousal support or separate maintenance payments made under a divorce or separation agreement dated on or after January 1, 2019, are NOT deductible by the payer spouse and NOT included in the recipient spouse’s income.

Some support included in a divorce or separation agreement is not considered spousal support under federal tax guidelines. Family Law Attorney Judy Burger can examine your divorce or separation agreement and determine what is and is not taxable/tax deductible for the current tax year. Many aspects of the TCJA expire in 2025 unless re-enacted by Congress.

Legal Help with Child & Spousal Support

California takes child and spousal support agreements seriously. Child support is never deductible and isn’t considered income. If a divorce or separation instrument provides alimony and child support, and the payer spouse pays less than what is required, the payments apply to child support first. Only the remaining amount is considered alimony. However, Failure to meet court-ordered support agreements is considered contempt of court and can bring serious punishments.

Penalties for contempt of family court can include imprisonment, community service, fines, and/or payment of outstanding debt for financial obligations. California law dictates that sentencing may result in fines of up to $1,000 per act of contempt and/or as many as five days in jail. In cases such as child support or spousal support order violations, fines and jail time will accumulate after months of failure to pay.

Support violations carry a three-year statute of limitations. Any action alleging violations of support orders must be made within three years after the first missed payment.

If you have questions about child or spousal support or need help getting what you deserve, contact The Law Offices of Judy L. Burger. We have eight conveniently located offices across California to serve you.

How Are Trusts Handled in a Divorce Property Division?
Property Division, California Divorce, Mediation, Property Division

How Are Trusts Handled in a Divorce Property Division?

Divorces routinely involve property division questions. Some may be simple and straightforward, but determining marital and separate assets is often complicated. One common question is how trusts are handled in a divorce property division. Certified Family Law Specialist Judy L. Burger explains more about trusts and property divisions in California.

What Is a Trust?

“A trust is a legal entity with separate and distinct rights, similar to a person or corporation. In a trust, a party known as a trustor gives another party, the trustee, the right to hold title to and manage property or assets for the benefit of a third party, the beneficiary.”

A trust is a useful tool for managing and distributing a person’s finances both while they are alive and after their passing. It can help an estate avoid taxes and the probate process, protect assets from creditors and specify how inheritance should be handled for beneficiaries.

Married couples may establish one or more trusts for various reasons:

  • Tax planning
  • Medicaid planning
  • Retirement or inheritance planning
  • Providing for a special needs child or family member
  • Charitable giving
  • Securing business assets

Different types of trust have varying rules that govern how they are used, protected, and divided in a divorce property division.

Trusts and Property Division

Under California law, trusts are separate property of the named beneficiary spouse. Trust assets are then not considered “community property” and, therefore, are not subject to equitable distribution. Moreover, any income and principal paid from a separate property trust to a beneficiary spouse remains their separate property as long as it is not comingled with marital funds.

For example, a trust that is funded by a third party or source (not the beneficiary) through a gift or bequest and is governed by a separate trustee is the sole property of the beneficiary and not considered community property.

  • A trust created with assets before the marriage
  • A trust given to one spouse by a gift or inheritance

Irrevocable trusts are also better protected during a divorce property division. The beneficiary spouse is not in control of the assets, and they are not considered community property.

Depending on the type of trust, other special circumstances may apply. It is best to discuss your situation with a seasoned California Property Division Attorney like Judy Burger to ensure you fully understand your rights and options.

When Is a Trust Considered Community Property?

When trust funds are placed into a joint account, used to purchase a marital asset, or used for regular marital expenses, these funds are no longer considered separate property and become community property.

An exception exists if separate property contributions are used for a down payment on or for improvements to an asset; they will retain their separate property status as long as documents trace that contribution. Any funds remaining in the trust or a separate account will continue to be considered the separate property of the beneficiary spouse.

California Property Division Attorney

The rules governing California property divisions and trusts are complex, so you need an experienced CA Property Division Attorney to help you understand them and how they apply to you. Certified CA Family Law Specialist Judy Burger can examine the assets in trusts and determine how they fit into a divorce property division. Her role is critical to ensure an equitable legal division and protect your assets and rights.

If you are considering a divorce in California and have assets in a trust, contact The Law Office of Judy L. Burger as soon as possible. We have eight convenient offices throughout the Golden State to give you the personal attention you deserve. 

Can a California Restraining Order Keep Me Safe?
Restraining Order, California Divorce, Child Custody, Domestic Violence, Legal Separation, Marriage, Mediation, Property Division, Restraining Order, Termination of Parental Rights

Can a California Restraining Order Keep Me Safe?

A California restraining order “(also called a ‘protective order’) is a court order that can protect someone from being physically or sexually abused, threatened, stalked, or harassed.” But can a restraining order keep you safe? Certified Family Law Specialist Judy L. Burger explains the basic provisions of California restraining orders and how they work.

Types of Restraining Orders

Restraining orders in California can include prohibitions or guidelines for:

  1. Personal Conduct
  2. Distance Exclusions (Stay-Away Orders)
  3. Moving Out (Residence Exclusion Orders)

These orders come in various types:

The subject of the restraining order has restrictions that govern their:

  • Movements
  • Freedoms
  • Living arrangements
  • Custody and visitation rights
  • Immigration and naturalization status or privileges

Restraining orders are designed to keep parties separate and govern the actions of one party to minimize or eliminate the risk of harassment, intimidation, and violence.

When Should I File for a Restraining Order?

Many California residents struggle with the question of when it is appropriate or necessary to file for a restraining order with the court. They ask, “How far is too far?” or “How much should I endure?” before a restraining order is warranted. However, if you are asking that question, it may already be time to seek legal protections.

If you ask, “How far is too far?” or “How much should I endure?” before a restraining order is warranted, it is likely time to seek legal protection.

Contact The Law Offices of Judy L. Burger for assistance with obtaining a California restraining order or call the National Domestic Violence Hotline at 1-800-799-7233 for immediate help.

If the restrained person violates the restraining order, they may be subject to imprisonment, a fine, or both.

Be Proactive About Your Safety

A legal protection order is a strong defense, but it is only one aspect of protection. You should be proactive about your own safety and the safety of your child(ren). Family Law Attorney Judy Burger can discuss specific provisions with you, but we recommend taking the following actions:

  • Being aware of your surroundings at all times
  • Keeping doors and windows locked at all times
  • Avoiding places or areas where the risk of confrontation is high
  • Do not share your residence information, plans, or whereabouts on social media or with anyone
  • Create an emergency plan in case you need to leave your home or another location
  • Use a third party for any necessary communications with the restraining order subject
  • Immediately report all violations of the restraining order’s provisions

Certified CA Family Law Specialist Judy Burger can walk with you through the difficult circumstances that prompt filing for a domestic violence restraining order in California and help you keep yourself and your children safe. Contact one of our eight offices across the state for more information.

Get Help Filing for a Domestic Violence Restraining Order

The Law Offices of Judy L. Burger can help you file a petition to the court for various restraining orders. The petition outlines the details of the threats or abuse prompting the order request and includes dates, locations, and all relevant facts. We will also help you collect evidence like videos, images, social media posts, damaged property, physical evidence on your body, medical reports, witness statements, and more. Our team will also help you determine the type of restraining order you need and what you need it to do. 

Domestic Violence and Parenting Plan Modifications
Domestic Violence, California Divorce, Child Custody, Mediation, Restraining Order, Termination of Parental Rights

Domestic Violence and Parenting Plan Modifications

Parenting plans are created to meet the unique needs of a divorced or separated family. When domestic violence has been present, your parenting plan needs to provide safety for you and your children. California Certified Family Law Specialist Judy L. Burger helps families when domestic violence makes parenting plan modifications necessary.

What Is a Parenting Plan?

A parenting plan is a comprehensive set of agreements for how separated or divorced parents will care for their children. It includes many factors, including:

  • Custody agreements
  • Visitation schedules
  • Sharing costs for the child’s care
  • Arrangements for holidays and school breaks
  • Exchange arrangements
  • Phone and video contact with the children
  • Communication between parents
  • Authority for making decisions for the child
  • Religious matters
  • More…

No two parenting plans are the same due to differing schedules, needs, locations, and many other factors. The factors above and many more should contain elements that keep you and your child safe when there has been domestic violence.

Creating a Parenting Plan

Often, parents work together to create a workable parenting plan to care for their children. The court will review this plan, determine if it needs legal requirements, serve the child’s best interests, and approve it. However, in cases of domestic violence, this may not be possible or safe. You may need a legal representative to act on your behalf to create or modify an existing parenting plan to help you and your child stay safe.

Your attorney will need to provide credible evidence of domestic violence and prove beyond a reasonable doubt that it is likely to continue. Then, a judge will be far more likely to agree to a parenting plan or modifications to an existing plan that contains elements to prevent future harassment or abuse.

Family Law Attorney Judy Burger is an effective negotiator if you feel threatened or fear mistakes in an agreement could place you or your child in jeopardy. She has a wealth of experience in working out parenting plans and custody agreements in difficult situations. In some cases, the judge will ultimately decide the best agreement. This is particularly true in cases of substance abuse, domestic violence, mental illness, or incarceration.

Domestic Violence and Parenting Plan Modifications

Sadly, domestic violence does not cease after separation or a divorce. In fact, the separation may only antagonize the other party and cause conflict to escalate. Your parenting plan needs to include specific provisions to prevent contact wherever possible. Vague or unclear parenting plans open the door for more abuse or harassment.

A CA Domestic Violence Attorney like Judy Burger has the knowledge and experience to include certain specific elements in a modified parenting plan to prevent contact, communication, and unsafe situations. Some measures she may recommend can include:

  • Keeping your living arrangements private and secure
  • Having a neutral third party exchange the child between parents
  • Exchanging the children in a public place in full view of security cameras or guards
  • Restricting communication between parents and children (prohibiting video calls so the other parent cannot see into your home)
  • Using an app for all communications so there is documentation
  • Keeping travel plans and daily activities private
  • Sole legal custody

The Law Offices of Judy L. Burger knows how to gather evidence to help convince the court that your proposed parenting plan modification is in your and your child’s best interests. She can represent you before the court, handle communications and negotiations, and otherwise help you remain safe during the proceedings. Our office can also help you when domestic violence or gun violence restraining orders are necessary.

Keep Your Family Safe from Domestic Violence

Domestic violence survivors may fear discussing custody and parenting plan modifications with the other parent. Relationships can be difficult, and meeting in person may not be safe. Reaching a safe agreement with the other parent may not be possible, especially without help. Keep yourself and your family safe from domestic violence. Contact The Law Offices of Judy L. Burger in California for experienced help with parenting plan modifications.

What Makes a CA Certified Family Law Specialist Different?
California Divorce, Child Custody, Child Support, Domestic Violence, Mediation, Property Division, Property Division, Restraining Order, Spousal Support

What Makes a CA Certified Family Law Specialist Different?

Family law matters are often intensely personal and highly emotional. Dealing with families and relationships is always complex and much is at stake for everyone involved. You want more than an attorney when family law issues arise – you want a specialist. California Family Law Attorney Judy L. Burger is a Certified Family Law Specialist who is able to handle complex personal cases through court petitions, negotiation, and litigation.

What makes a CA Certified Family Law Specialist different from run-of-the-mill family law and divorce lawyers?

A High Level of Specialization

Obtaining a law degree and passing the California State Bar exam to practice law is only the beginning. Certified specialists in any area of law must pass a rigorous set or requirements to demonstrate their exceptional knowledge, experience, and proficiency. Only after completing this extensive process does the state bar award the attorney a specialist certificate.

To become a Certified Family Law Specialist in CA, attorneys must satisfy the following prerequisites: 

  1. Pass a written examination
  2. Continuously practice law in their specialty area for at least five years
  3. Complete continuing education in their specialty area
  4. Receive favorable evaluations by other attorneys and judges
  5. Demonstrate experience in a variety of family law matters, including divorce, child custody, child and spousal support, domestic violence restraining orders, property division, and more.

Becoming a certified family law specialist takes time, experience, and extensive knowledge.

Superior Experience in Family Law Cases

Certified Family Law Specialists must continue to demonstrate their expertise by handling complex family law cases to further broaden their knowledge and experience. Recertification every five years requires more continuing education while putting this extensive knowledge into action helping California families.

A CFLS will have considerable experience with:

  • Messy divorces
  • Complex business valuations
  • Sophisticated property divisions
  • Tense negotiations
  • Filing petitions with the court
  • Advising clients
  • Litigating difficult child custody and support cases
  • Ex parte hearings
  • Domestic violence
  • More…

Seasoned representation by a Certified Family Law Specialist like Judy Burger means the putting encyclopedic knowledge, extensive education, years of real-world experience, and measured expertise in your corner. She is vastly more qualified to help you get the results you need and want than other non-certified family law attorneys.

Why Should I Choose a Certified Family Law Specialist Instead of a Family Law Attorney?

Family law matters can be rough on you mentally and emotionally. The possible complexities and problems are legion and specific to every case. However, a CFLS has likely encountered similar cases before and has experience helping families find solutions. If you anticipate a difficult road ahead in your divorce, child custody, support, or related matters, choose a CFLS like Judy L. Burger.

Here are some examples of cases where we recommend a Certified Family Law Specialist:

  • Both parties have agreed to a divorce, but that’s all you agree on.
  • You have differences of opinion about matters like college debt, large real estate holdings, retirement funds, and other asset divisions.
  • You have small children still at home and cannot agree on a custody and support arrangement.
  • Both parties grew up in different cultures, so family rights and extended family concerns are involved.
  • Both parties jointly own a business.
  • One or both divorcing parties are active duty military.
  • You or your child’s safety is threatened.
  • You or your child are victims of abuse.

CFLS Judy Burger has trained for just these and many other situations so she knows how to help you. In fact, she’s been there with other families before. She can guide you through negotiations, difficult conversations, far-reaching decisions, and even embattled litigation with compassion and fortitude.

When you need stable counsel and steady legal representation through one of the most difficult times of your life, you need the services of a Certified Family Law Specialist. Contact The Law Offices of Judy L. Burger as soon as possible to discuss your case and next steps. We have offices throughout California for your convenience.

What Happens If One Party Wants to Keep the Family Residence?
Property Division, California Divorce, Mediation, Property Division

What Happens If One Party Wants to Keep the Family Residence?

Separation and divorce present numerous challenges to both parties. One of the most complex and emotional issues is dividing property. When both spouses have an attachment to the family home, this debate can become heated and fractional. What if one party wants to keep the family residence after a divorce? Or what if both parties wish to keep it and live in it?

California Family Law Specialist Judy L. Burger is well-experienced in Property Division matters relating to divorce. She can work with various specialists to determine the best course of action and your legal rights. Her team can also represent you in property division hearings and other divorce proceedings in the Family Courts when a family residence is in question.

California Property Division Law

California law follows the doctrine of community property in that any debts or assets owned by a married couple are jointly owned (community property). Therefore, each spouse has an equal interest. In a divorce, community property should then be divided 50/50 between the spouses. However, the family home may or may not be considered community property under state law.

The home may be considered community property if:

  • The home was purchased with earnings from both spouses.
  • Both spouses obtained a mortgage for the home while married.
  • Both spouses contributed earnings to pay the mortgage and/or upkeep of the home.

The family residence may be considered separate property if:

  • One spouse already owned the home before marriage.
  • The home was gifted to one spouse before or during the marriage.
  • Only one spouse provided for the mortgage or upkeep of the home.

However, separate and community property can easily become commingled in a marriage. Over time, a married couple can acquire a community interest in the home through numerous actions and investments.

Conversely, other parties can acquire an interest in the home as well. Any mortgage lender you owe will hold an interest. If you jointly own the home with a third party, such as a family home passed down to one spouse but in another person’s name, this person has an interest and legal rights. You may have also used your home as collateral for a business loan. If so, the business in question may have an interest and rights as well.

So, Who Gets the House?

The question of who gets the family residence in a divorce is never simple. As you see above, numerous factors and scenarios can come into play. Separated or divorcing spouses have some options for settling the question:

  • Agreeing on Separate Property: The couple agrees that the home is the separate property of one spouse. This must be verified by a court order to become official.
  • Negotiating a Living Agreement: The couple can agree on who maintains ownership and lives in the house. However, any joint agreement you reach must be ordered by the court to make it official.
  • Spousal Buyout: One spouse agrees to buy out the community property interest of the other spouse. An independent appraisal is necessary and the court must agree to this arrangement.

If the couple cannot agree, the Family Court will turn to California’s property division laws to make orders. In the case of separate property, the home belongs to the spouse who owns it. When the home is declared community property, the court may order the following solutions:

  • Sell the Home: The family home is sold and the proceeds are divided equally among the parties holding an interest or according to the courts division (if any separate property interest is determined).
  • Buyout: One spouse is allowed to purchase the other’s community property interest and becomes the sole owner of the home.
  • Deferred Sale: If a couple has minor children at home, the couple may remain joint owners but allow the custodial parent to live in the home with the children. This can often make a divorce easier on younger children. After a specified time, the home is sold and the proceeds are divided.

Get Seasoned Representation for CA Property Division

Numerous factors can arise in any property division during a divorce, so you need seasoned legal representation and counsel to protect your interests. Family Law Attorney Judy L. Burger is a skilled negotiator and vigorous defender of your rights. She has the knowledge and experience in family law to handle difficult or complex property settlements on your behalf.

Contact one of our offices throughout California today to get help with difficult property division questions in a divorce.