Category Archives: California Divorce

Your Partner Won’t Agree to a Divorce? That’s Okay.
California Divorce

Your Partner Won’t Agree to a Divorce? That’s Okay.

Sometimes love dies, but only for one person in a relationship. Maybe one spouse wants to stay married for the kids or for financial reasons, while the other spouse is ready to move on. If you are in a situation where your partner won’t agree to a divorce, it doesn’t mean the divorce won’t move forward. In this blog, we will explore how an individual can finalize a contested divorce without the cooperation of their spouse.

After the Petition Is Filed

Let’s say you have already filed your Petition for Dissolution of Marriage and served copies of all documents on your spouse. Now, it’s your spouse’s turn to act:

The spouse must file a response to the petition, along with other documents and financial disclosures. There’s typically a period of discovery, where you produce documents to each other. The parties may attempt to negotiate a marital settlement agreement. If your spouse refuses to participate, this does not mean the divorce goes away.

If your spouse responds to your petition, but you are unable to negotiate a marital settlement agreement, your case likely will be set for trial. You and your attorney will present evidence, your spouse will present his or her case, and the judge will issue an order finalizing  your divorce.

Divorce by Default

The California Courts webpage about responding to a divorce or separation says this:

“In California, as long as 1 person wants to end the marriage or domestic partnership, the court can end it, even if the other spouse or domestic partner does not agree or want to get divorced or legally separated.”

If your spouse fails to respond to the divorce petition within 30 days of being service, your divorce may be finalized as a “true default.” To get a final order from the Judge, though, you will still need to complete a number of documents, including:

  • Request to Enter Default;
  • Declaration for Default or Uncontested Dissolution or Legal Separation;
  • Judgment; and
  • Notice of Entry of Judgment.

Other paperwork may be submitted if you are requesting a child custody order, child support, spousal support, and division of community property and debt.

It Is Possible to Move on Without Your Partner’s Consent

An experienced California divorce attorney can help you finalize your contested divorce. Having someone on your side may make the whole process a little easier.

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.
Pets in a Divorce: Property or Part of the Family?
California Divorce

Pets in a Divorce: Property or Part of the Family?

About 68% of U.S. households contain at least one furry, scaled, winged, or gilled member of the family. That’s almost 85 million homes with something in common – they “own” at least one pet. In California, pets with squabbling ‘parents’ were considered to be just another asset to split up along with the furniture and the 401(k)s. Since many people consider their pets to be part of the family, this was problematic. A recent California law appears to be changing the legal status of pets. In 2019, will pets be property or part of the family?

Pets and Divorce Pre-2019

Since California is a community property state, everything a couple has accumulated generally is split 50-50. However, there are some exceptions. Pets were an unusual “asset” that was difficult to divide between the divorcing parties. In addition, animals often received spotty care while the divorce was pending.

A new California law that goes into effect in 2019 addresses the problem of pets in a divorce.

Pets as Part of the Family?

As of January 1, 2019, Section 2605 will become part of the California Family Code. It reads, in part:

“…the court, at the request of a party to proceedings for dissolution of marriage or for legal separation of the parties, may assign sole or joint ownership of a pet animal taking into consideration the care of the pet animal.”

The law also states the court may enter a temporary order requiring one party to care for the animal until the divorce is final.

So, what does this mean to a couple who both deeply care for their pet iguana?

Judges now may treat pets differently than other community property. Instead of just assigning a value and dividing it like many other community assets, the court may take other factors into consideration before assigning joint or sole custody. For example, judges may consider which party has the best relationship with the pet and who provides the majority of the pet’s care.

Talk to an Attorney About Your Rights – and Theirs.

Although this law may lead to a better life for pets, it also add another layer of stress to the divorcing couple. Fighting over Fido may prolong the process. However, we’re here to help. 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.

My Spouse Lives in Another State. Where Should I File for Divorce?
California Divorce

My Spouse Lives in Another State. Where Should I File for Divorce?

There are times when a divorce crosses state lines. For example, Cynthia and George married in California, then moved to Iowa. After two years, Cynthia abruptly returns to California, leaving George, their condo, most of their furniture, and an automobile back in Iowa. She intends to file for divorce immediately. However, since her spouse lives in another state, she’s left wondering where she should file for divorce – California or Iowa?

Residency Matters

Each state has its own laws and rules about filing for divorce. For example, Iowa requires the person filing for divorce to live in state for 365 days to become eligible to file for divorce. There’s no in-county minimum residency. Had Cynthia stayed in Iowa, she could have filed for divorce since she had lived there more than 365 days.

However, in California, the rules are quite different. The person filing the divorce petition must meet the following residency requirements:

  • Must have been a resident of the state of California for at least six months prior to filing the petition.
  • Must have lived in the county where the divorce petition is filed for at least three months.

The rules are a bit looser for same-sex marriages. In some cases, neither partner has to be a California resident. A dissolution may be allowed if the parties live in a jurisdiction that will not recognize or dissolve their union.

Cynthia has not resided in California for six months, so she does not meet the residency requirement. However, she desperately needs to find a way to separate from George.

Other Options

In California, marriages may be terminated in one of three ways: divorce, annulment, or legal separation.

Unlike divorce, there is no residency requirement for filing for a legal separation. In addition, a legal separation may take place as soon as one party files the paperwork with the court. This option may provide some protection for the parties until they have lived in California for at least six months.

Cynthia decided to obtain a legal separation, then convert it to a divorce proceeding once she had lived in California for six months.

Long Distance Divorce Can Be Difficult

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, Beverly Hills, Marin County, Santa Barbara, Ventura/Oxnard, San Jose, Gold River (Sacramento), and surrounding communities.
Date of Separation: Changes to the California Family Code
California Divorce, Legal Separation

Date of Separation: Changes to the California Family Code

A couple’s wedding day is an important date to remember. If the marriage ends in divorce, then the date the couple actually split is also significant. In fact, the California Family Code contains provisions about the date of separation. However, that code changed significantly in 2017.

What is the date of separation?

This might seem like a simple term, but the legal meaning can be complicated. The new California Family Code Section 70 states:

70.(a)  “Date of separation” means the date that a complete and final break in the marital relationship has occurred, as evidenced by both of the following:

(1) The spouse has expressed to the other spouse his or her intent to end the marriage.

(2) The conduct of the spouse is consistent with his or her intent to end the marriage.

For example, Ted tells Mary he wants a divorce on December 12, 2018. However, they continue living together, share bank accounts, and even plan their annual vacation to Hawaii. A court will consider all relevant evidence when determining the legal date of separation. A judge may decide Ted and Mary had not satisfied both (1) and (2) noted above on December 12, 2018.

Why is the date of separation important?

It is the date beyond which a married couple’s income, debts, and so become separate property.

For example, still considering Ted and Mary, Ted gets a huge windfall on December 13, 2018. During the divorce proceedings, he claims it is his separate property because the date of separation was December 12. Prior to the change in 2017, a court may not agree with Ted, since Ted and Mary did not meet the “living separate and part” requirement.

How and why did the law change?

In 2015, the California Supreme Court handed down a decision in a divorce matter titled In re Marriage of Davis. The decision stated that spouses must be living in separate homes for the date of separation to apply.

However, on July 25, 2016, a bill was signed into law that countered that decision. Section 70 was added to the California Family Code, clarifying that date of separation was to be decided using the tests mentioned earlier in this article.

Let’s consider a different scenario for Ted and Mary. Ted does tell Mary he wants a divorce on December 12, 2018. He remains in the home but separates his financial and personal matters from Mary. From that point on, they behaved more like roommates than husband and wife. A court may consider December 12 to be their legal date of separation.

Simple terms may have unwanted consequences

The legal date of separation can make a huge difference in how your divorce plays out. Talk to an attorney about your divorce as soon as possible.

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.

Divorce Litigation: When Spouses Can’t Settle
California Divorce

Divorce Litigation: When Spouses Can’t Settle

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.
2018 Tax Reform’s Effect on Spousal Support
California Divorce

2018 Tax Reform’s Effect on Spousal Support

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.
Social Media and Your Divorce
California Divorce

Social Media and Your Divorce

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.
How to Modify Child Custody Arrangements
California Divorce, Child Custody

How to Modify Child Custody Arrangements

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.
Negotiating Your Marital Settlement Agreement
California Divorce

Negotiating Your Marital Settlement Agreement

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.
Should I File a Joint Tax Return During My Divorce?
California Divorce

Should I File a Joint Tax Return During My Divorce?

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.