Sophia thought divorce would be easy. You just file a few papers in some government office, and then, voilà, your marriage is over. She was surprised to learn that filing for divorce in California can get pretty complicated.
Continue reading
Category Archives: California Divorce
Property Division: How Does it Work in a Community Property State
State divorce laws govern divorce settlements. Generally, state laws allow either community property or equitable distribution schemes when dividing a couple’s assets. However, only nine states use community property law: Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington, and Wisconsin. If you live in a community property state, it’s important to understand how property division will work if you or your spouse files for divorce.
Separate vs. Community Property
The basic rule of thumb is that a couple’s community property and debts are split 50-50 during a divorce. However, not all of a married couple’s assets are divided. Property can be either separate or community.
- Most assets and debts accumulated by either spouse during the marriage are considered community property.
- However, assets and debts brought into the marriage by one person usually remain the separate property of that person.
Separate property usually does not enter into the divorce property division equation.
Although this sounds simple, determining whether something is separate or community property can be complicated. Separate assets brought into the marriage may be used in a way that make them community property. An inheritance received during a marriage is separate property but mixing the inherited property with community property could change it for the purposes of property division.
Marital Settlement Agreement or Court Decision?
During the property division phase of a divorce, the couple can negotiate how property is split. Their agreement does not have to be 50-50, but the division should be fairly equal. Otherwise, a judge may not sign off on the couples’ marital settlement agreement.
When calculating property division, a couple will:
- review financial disclosures, including the Schedule of Assets and Debts;
- make sure both parties agree on community property and debts;
- compare property valuations and debt to make sure they agree;
- propose a roughly equal net share of property and debts for each spouse.
Special consideration may be given to retirement plans, debts with complicated terms or high interest rates,
If a couple cannot agree on the split, a judge may make the tough decisions for them. Also, remember that property remains separate or community until the judge signs your final divorce order.
Make Sure Your Property Division Goes Smoothly
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.
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, San Diego, Gold River (Sacramento), and surrounding communities.
How Long Will I Have to Pay Spousal Support?
Jennifer knew she might have to pay spousal support to her husband, Blake. After all, her income had been much higher than his for most of their 12-year marriage. However, as they negotiated their marital settlement, she couldn’t help but ask her attorney, “How long will I have to pay spousal support to Blake?” The answer to her question depended on a number of factors.
General Reasons the Court May End Spousal Support
In some cases, the court may not order spousal support in the dissolution of a marriage or domestic partnership. Based on the couple’s standard of living or earning capacity, neither spouse may be economically disadvantaged after the divorce.
If spousal support is ordered, the person who is paying (the “payor”) may want to know how long they will be required to pay. Spousal support, also known as domestic support or alimony, may end under the following circumstances:
- A court order or judgment;
- One of the parties dies; or
- The person receiving spousal supporting remarries or registers a domestic partnership.
Many factors play into the question of whether spousal support will be ordered and for how long.
The Length of the Marriage Matters
The California Family Code (the “Code”) contains laws regarding divorce, including spousal support. Section 4320 states that the supported party (the person receiving alimony) is expected to be self-supporting within a reasonable time frame. “Except in the case of a marriage of long duration as described in Section 4336, a “reasonable period of time” for purposes of this section generally shall be one-half the length of the marriage…”
For example, if Jennifer and Blake had been married eight years, Jennifer might be ordered to pay spousal support to Blake for four years. This assumes that the request for spousal support meets all other requirements.
However, a “marriage of long duration” is generally considered to be any marriage over ten years. Unless the parties agree otherwise or a court order terminates support, the court continues to oversee, or retain jurisdiction, indefinitely for marriages of long duration. Because Jennifer and Blake have been married 12 years, their marriage fits the definition of a marriage of long duration.
How Long Will You Pay Spousal Support?
There’s no easy answer here. Whether a party pays spousal support, how much support will be paid, and how long payments last depends on the particular facts of your case. In addition, some decisions are up to the judge’s discretion.
The attorneys at the Law Offices of Judy L. Burger are experienced at all phases of divorce, legal separation, and annulment. 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 Diego, San Jose, Gold River (Sacramento), and surrounding communities.
When the Honeymoon’s Over, Can You Contest a Prenup?
Two and a half years after their lavish wedding ceremony and reception, Mark and Cindy were ready to call it quits. Their marriage seemed headed for a quick dissolution, in part because they had signed a prenup. They had signed their premarital agreement because Cindy brought more separate assets into the marriage, along with a higher salary than Mark’s. Over the course of even a couple of years, a couple’s financial situation and feelings about property may change. However, can you contest a prenup with a marriage ends? That’s what we’re going to explore in this article.
What’s a Prenup?
It’s a legal contract that is signed before a couple weds. The terms of a prenuptial agreement, which is also called a premarital agreement, relate to how each person’s property will be treated during a divorce or if one party dies. The agreement becomes effective only when the couple is married.
In California, the Uniform Premarital Agreement Act (UPAA) states that the parties to a prenup may agree to any of the following:
- Rights and obligations regarding property;
- The right to manage and control property;
- How to dispose of the property under certain circumstances, including divorce;
- Estate planning that carries out the terms of the prenup;
- Disposition of life insurance proceeds; and
- Any matter that does not violate public policy or statutes imposing criminal penalties.
Some provisions should not appear in a premarital agreement. In fact, they could give you the opening you need to contest your prenup agreement.
To Contest a Prenup …
The UPAA includes specific reasons a premarital agreement, or certain parts of it, might be unenforceable:
- Child support cannot be adversely affected by your prenup. Any language absolving your soon-to-be-ex-spouse of his or her child support obligations may be contested.
- Spousal support provisions may spell trouble also. One party might contest the prenuptial agreement if the party waiving spousal support was not represented by an attorney. Also, the spousal support provisions may be unenforceable at the time you attempt to enforce the premarital agreement.
Other reasons your prenup may be unenforceable under UPAA include:
- You were coerced or forced to sign the agreement.
- The other party did not provide complete financial disclosures before you signed.
- You lacked the capacity to understand the consequences of the agreement.
- Less than seven calendar days elapsed between the time you were given the agreement to review and the date the agreement was signed.
- You were not represented by separate legal counsel.
Discuss your options with a California divorce attorney between doing anything. In some cases, the marriage itself may be void or annulled. If so, the prenuptial agreement may be unenforceable.
It Can Be Difficult to Contest a Prenup, but Not Impossible
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.
How to Handle Holidays in Your Parenting Plan
Every year, Jessie’s parents fought over where she would spend Thanksgiving. Ethan had the opposite problem – both his parents preferred to spend holidays on exotic (and childless) vacations. Sheila hated talking to her ex-husband about the kids’ holidays, so she unhappily capitulated year after year. If you are in the process of getting divorced, know that it’s best to handle holidays in your parenting plan and not on a holiday-to-holiday basis.
Two Major Topics, Many Choices
Parents must complete a parenting plan before finalizing their divorce. In a California divorce, parenting plans cover two major areas:
- Time-Share – how the children’s time will be split between parents; and
- Decision making – how decisions about the children’s health, education, and welfare will be handled by the parents.
That sounds fairly easy – until you think of how many topics fall under each major area. For example, Time-Share involves a child’s regular schedule as well as how their time will be spent during holidays.
Scheduling Holiday Time
Trying to decide where your kids will spend Christmas and their birthdays can be stressful. Both parents may want the same days and times. Flexibility and spontaneity work sometimes, but the best time to plan your holidays is when you’re preparing your parenting plan.
In fact, parents prepare and attach a form titled “Children’s Holiday Schedule Attachment” to their parenting plan before submitting it for court approval. The form includes major holidays, as well as:
- Lincoln’s Birthday (February 12),
- President’s Day,
- Spring Break (first and second halves),
- Columbus Day,
- Halloween,
- Veterans Day (November 11),
- Thanksgiving weekend,
- December/January School Break, and
- Birthdays, including child, mom, and dad.
Other options include:
- Times. For example, the child may be with the mom from 8 pm Christmas Eve until noon Christmas Day.
- Every Year. For instance, the child may spend Thanksgiving with Dad every year instead of alternating with Mom.
- Even-Numbered/Odd-Numbered Years. Mom may have the kids on Christmas on even-numbered years, with Dad taking them on odd-numbered years. So, Dad would have them in 2019 and Mom in 2020.
According to the form, the child’s holiday schedule takes priority over the normal parenting schedule. For example, Dad may have the kids every weekend. However, if Christmas falls on Sunday, and it is Mom’s year according to the holiday schedule, then the kids go with Mom.
Scheduling Holidays in Your Parenting Plan Doesn’t Have to Be A Hassle
Do your homework when preparing your plans. If disagreements arise later, know that help is available from the courts if necessary.
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.
Why Preliminary Financial Disclosures Are Important
The typical divorce case involves many issues, including child custody, spousal support, and property division. Transparency is key to fairly resolving these issues, especially when it comes to dividing a couple’s marital assets and debts. In a community property state like California, debts and assets acquired after marriage usually belong to both parties. That’s why the preliminary financial disclosures are important – it’s hard to divide property when you don’t know it exists.
What are preliminary financial disclosures?
The divorce action starts when one person files a petition to dissolve the marriage. At the same time, or within 60 days, the petitioner serves the preliminary financial disclosures on the other party. If the other party responds to the petition, he or she must also serve preliminary financial disclosures on the petitioner.
Several documents make up the disclosure packet:
- Declaration of Disclosure,
- Income and Expense Declaration,
- Schedule or Assets and Debts OR a Property Declaration, and
- Declaration Regarding Service of Declaration of Disclosure.
Courts generally do not grant divorces if the parties have not submitted their financial disclosure forms.
What happens if the preliminary financial disclosures are wrong?
It’s entirely possible one party could omit assets from the disclosures accidentally. It’s also possible that the assets are being hidden to avoid sharing them with the other party.
If disclosures are incomplete or wrong, the simple answer is that the property will not be divided evenly. One party may not receive everything they deserve. The court may approve the property settlement without learning of the hidden property.
Accidental omissions on the preliminary financial disclosures may be easy to fix. However, deliberately concealing assets can lead to penalties. For example, a court may award 100% of a community property asset to the innocent party instead of only 50%.
Make Sure Your Property Is Disclosed and Divided Properly
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.
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.
Domestic Violence Restraining Orders in a California Divorce
It takes at least six months from the date the divorce petition is filed on your spouse to finalize a California divorce. Sometimes people need help immediately. For instance, a husband or wife suffering at the hands of their spouse may ask the police and the courts for protection. It may help to know more about domestic violence restraining orders and the California divorce.
What Constitutes Domestic Violence?
The actual definition of domestic violence might surprise you. It’s not just about physical violence. In fact, domestic violence includes:
- Any kind of physical attack, including pulling hair, kicking, hitting, shoving, or throwing objects at another person;
- Sexual assault;
- Comments or behavior that cause someone to be reasonably afraid someone may be seriously hurt; and
- Harassment, stalking, threats, disturbing the peace, or destruction of someone else’s personal property.
If you fear another person, you may need protection sooner rather than later.
How Does a Domestic Violence Restraining Order Work?
If someone you have a close relationship with has abused or threatened to abuse you, a domestic violence restraining order may help. This document is a court order that helps protect people in abusive situations.
You have to meet the following two criteria to ask for a domestic violence restraining order:
Another person has abused you or threatened to abuse you;
AND
You have a close relationship with the alleged abuser.
In addition to your current spouse, the following relationships might be considered close. Someone who you:
- date or used to date,
- have divorced or separated from,
- has lived with you or used to live with you,
- parents a child with you, or
- is a close relative, even grandparents or in-laws.
You may also request a domestic violence restraining order if another person is abusing your child.
But what can a domestic violence restraining order do?
The order may tell the abuse to avoid certain behaviors, like:
- Contacting you and your children,
- Going to your home, work, and schools,
- Owning a gun,
- Approaching your pets.
What may be surprising is that a restraining order can order the abuser to move out of the home, pay child and spousal support, and pay some other bills. The subject of the restraining order may also be told not to change insurance policies, phone plans, or do anything to affect your property. Finally, the restrained person is often told to complete a 52-week batterer intervention program.
Learn More About Domestic Violence Restraining Orders
If you or someone you love are in immediate danger, call 911, a local domestic violence shelter, or the National Domestic Violence Hotline.
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.
Separate Bank Accounts Are Not Always Separate Property
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
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.
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.
Community Property or Separate Property: How Can I Tell the Difference?
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.
Settling School Issues with an Ex-Spouse
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?