Category Archives: California Divorce

California Divorce, Child Support

How Are Future Bonuses Handled in California Child Support Cases?

The end of a marriage is often more than just two adults deciding that their relationship is at an end. Often, instead, the end of a marriage is also the beginning of a new relationship between two adults as they learn to navigate the world tied to an ex-partner and as co-parents to their children. When a marriage ends and there are children involved, the question is no longer about how the relationship ends, but instead how the children are taken care of.

In a divorce with children, one of the court’s main concerns becomes the best interest of those children. The court is interested in ensuring that the children are properly supported, a responsibility that falls equally to both parents. The court has the ability to ensure this occurs by ordering payments in any amount necessary for the support, maintenance, and education of the children.

The support that the court orders will be based upon maintaining the same standard of living for the children, regardless of which of the parents are being assessed. In determining this standard, the appropriate amount will take into consideration all income of both of the parents, and it includes any bonuses that either spouse receives regularly.

One parent’s income may be irregular as it comes, in part, from bonuses or commissions. A parent cannot shield or hide a portion of his or her income from being used by claiming it is a bonus, especially if that bonus is a regular part of his or her annual income.

In fact, California Family Code § 4064 specifically states that the “court may adjust the child support order as appropriate to accommodate the seasonal or fluctuating income of either parent.” Often the court will make a percentage determination—ordering the parent to provide the child with a percentage of all future bonuses. This allows the court to take into account the inconsistent and prospective nature of such income. The courts will not allow a child to be disadvantaged simply because a parent’s income does not come on a regular schedule or amount.

If you or someone you know is facing divorce and have minor children in need of support, the help of an experienced family law attorney can make a hard and potentially confusing experience easier to navigate. If you’re in this position, it is in your best interest to consult with a knowledgeable California divorce attorney. The attorneys at the Law Offices of Judy L. Burger  will make sure you successfully navigate California child support law. Make the call today to learn how our attorneys can help: (415) 293-8314.

California Divorce

How is Contempt of Court Used in California Divorce Cases?

All courts have an undeniable interest in ensuring that their orders and procedures are respected and followed. This holds true in California’s family courts, as well. Violations of a court’s order to do—or not to do—something, is known as contempt of court. In California divorce cases, contempt of court has special consequences. It may be enforced by the court on its own motion or can be brought to the court’s attention by the parties to an action.

The punishment for contempt of court in a California divorce case is specific. When an individual is found guilty of contempt of court, he or she may be fined up to $1,000, imprisoned for up to 5 days, or both, per charge. If found guilty of contempt, the contemnor may additionally be ordered to pay the reasonable attorney’s fees and costs of the individual who initiated the contempt proceedings.

Some special provisions that apply to contempt of court in divorce proceedings include California Code of Civil Procedure § 1218.5(a), which reads as follows:

If the contempt alleged is for failure to pay child, family, or spousal support, each month for which payment has not been made in full may be alleged as a separate count of contempt and punishment imposed for each count proven.

Thus, pursuant to California law, there can be multiple counts of contempt charged for a repeated failure to pay child or spousal support in the Golden State. The statute of limitations for bringing such proceedings is three years from the date the payment is due. For the enforcement of any other order relating to family law matters, the statute of limitations is two years.

For each count of contempt, the punishment depends upon whether it is for the failure to pay an ordered support or for a violation of a provision of the divorce order. If there is a finding of contempt for failure to comply with a divorce order, the person who is found to be in contempt cannot then enforce the divorce decree against the other party, except as to the child, family, or spousal support.

In the case of contempt for a failure to pay court-ordered support, the punishment depends on whether it is a repeat occurrence. For the first finding of contempt, the court will order the violator to perform 120 hours of community service or spend up to 120 imprisoned. For the second offense, the penalty is community service and imprisonment for 120 hours each. For the third offense, the penalty is 240 hours of community service, 240 hours of imprisonment, and an administrative fee for the administration and supervision of punishment. These penalties, as noted above, can be cumulative, and added for each offence.

Contempt of court in California divorce cases is specific to the type of offense and whether it has occurred previously. If you or someone you know is involved in a divorce proceeding and there is a failure to follow the orders of the court, a contempt order is your next step for addressing this failure. The attorneys at the Law Offices of Judy L. Burger are experienced in contempt issues in family court cases. Call today to see how we can help you: (415) 293-8314.

California Divorce

How Can Facebook Affect Your Divorce Case?

Facebook is used by billions of people worldwide, with over 1.94 billion active monthly Facebook users. Its use is ubiquitous. People enjoy Facebook with their morning coffee, to get past the mid-week hump, and to pass the time and share the fun on their Friday nights. And many people using Facebook forget that they are not always aware of who their audience might be.

Facebook can be a great source of information regarding a lawyer’s own client, as well as his or her opposing client. Many people post activities on Facebook that they want to show as fun—but that can be a serious pitfall in a divorce proceeding.

In addition, by checking a person’s Facebook page, a lawyer is sometimes able to determine the user’s location, which can be helpful if the person has been evading service of process.

Other potential uses include important information about a person’s leisure activities. If child custody or visitation is an issue—since the standard a court uses to make decisions about children is what is in the “best interest” of the child—pictures and posts that demonstrate a propensity for drugs, alcohol, or promiscuity can paint a picture that allows the court to protect the child, despite contradictory testimony. Likewise, if a person is claiming financial hardship, pictures showing a lavish vacation or shopping activity could be presented to contravene that person’s in-court statements.

Divorce cases can be challenging for everyone involved. This is especially true when one party (or the other) forgets about the often public nature of Facebook and other social media posts. Remember that Facebook absolutely can affect your divorce case, allowing a judge potential insight into issues you may wish to avoid in court.

If you need assistance in a family law proceeding, you should consult with an experienced California lawyer. The attorneys at the Law Offices of Judy L. Burger will provide authoritative legal support tailored to your specific situation. Make the call today to learn how our attorneys can help: (415) 293-8314.
Different Types of Restraining Orders in California Family Law Cases
California Divorce, Domestic Violence

Different Types of Restraining Orders in California Family Law Cases

An important tool to help a victim of threatened or actual domestic violence is an order of protection from the court. This civil court order, called a restraining or protective order, commands the abuser to stop the abuse or suffer punishment by the court. The type of restraining order entered depends on the process used to get the restraining order.

The restraining order entered in emergency situations is called an emergency protective order. A situation is considered to be an emergency when a police officer responds to a domestic violence call or when someone has made a report of abuse to the police. In such cases, the police can request an emergency protective order under California Family Code § 6250. The court can enter an emergency protective order without first holding a hearing, but this type of protective order is only good for seven days.

If a victim needs a protective order for a longer period of time, or if the victim wants to apply for the restraining order without police involvement, he or she may apply to the court for a domestic violence restraining order. Abuse is considered to be domestic violence if the abuser is related to the victim as a spouse or former spouse; a person the victim is dating or has dated; a lover; the other parent of the victim’s child; anyone related to the victim by blood, marriage, or adoption; or a person who regularly lives in the victim’s home.

However, before entering a permanent domestic violence restraining order, the court must hold a hearing, and the abuser must have notice of the hearing. If, after a hearing, the court enters a domestic violence restraining order, that order may specify what the abuser can and cannot do to the victim or how near to the victim the abuser can be. Such an order may also include orders regarding child support, visitation, and custody orders if the victim and the abuser have children together; orders regarding possession of a shared residence or pet; orders for spousal support; or an order prohibiting the abuser from possessing a firearm. A domestic restraining order may be entered regardless of whether the court has previously issued an emergency protective order regarding the parties. A domestic violence restraining order can last up to five years.

If you are in immediate danger, the court may issue a temporary restraining order after processing the application but before a hearing.

If you or a family member has been a victim of domestic violence, seek help from a qualified family law attorney. The Law Offices of Judy L. Burger are experienced in helping victims of domestic violence get the protection they need. Call today to see how we can help you: (415) 293-8314.

California Divorce

What Is Discovery and How Is It Used in Divorce Proceedings?

What Is Discovery and How Is It Used in Divorce Proceedings
In a divorce case, the end of your legal relationship includes the division of assets and debts and determination of issues on custody and support. Sometimes, only a spouse may have access to information on property you believe to be subject to division in the divorce, or you and your spouse may disagree on an issue regarding custody or support. To prepare an argument in support of your position, you can request information on relevant issues from your spouse or from a third party. This process of requesting and exchanging such evidence is called “discovery.”

“Discovery” is the legal term that describes a pre-trial procedure for collecting evidence and information in order to prepare a case for negotiation or trial. By obtaining and exchanging information in discovery, you can both build your own case and evaluate your spouse’s case.

There are two main types of discovery. Informal discovery is the collection of information by methods such as interviewing witnesses or asking your spouse for information or documentation without a court order. It often is less expensive and takes less time to complete than formal discovery.

Formal discovery is a legal process governed by the Code of Civil Procedure in which one party requests information from the other party, or even from a third party, and the responses are given under oath. Following are the most common types of formal discovery in a divorce:

  • interrogatories;
  • request for production of documents;
  • request for admissions; and
  • depositions.

Interrogatories are questions to be answered in writing under oath. The questions in interrogatories have a bearing on issues in your divorce. For example, you may send interrogatories asking your spouse to identify all items of property claimed to be community and separate property, to identify property owned by your spouse by held by another, or to state whether you and your spouse have agreements on any issues in the divorce. Interrogatories can be used to identify areas of agreement in a case as well as serve as a starting point for collecting information on the marital estate. Judicial Council Form FL-145 is a form of interrogatories designed and commonly used in family law cases.

Requests for production of documents are just that: a request to produce documents under oath. As with interrogatories, the documents requested to be produced should have a bearing on issues in the divorce, such as the identification or value of property owned by either spouse or financial account records. In some cases, such as where one spouse requests spousal support or maintenance, even a spouse’s medical records may be relevant and requested by the other spouse.

Requests for admissions are statements sent to the other spouse in order to ask him or her to admit or deny the truth of those statements. This discovery tool can be useful in establishing areas of agreement in the divorce. For example, where divorcing spouses agree on the identification and division of property but disagree on child custody and support, one spouse may send the other spouse a request for admissions on the property issues. Once those issues are admitted under oath in a written response by the other spouse, they do not need to litigate that issue at trial.

Finally, a deposition is an oral statement given under oath. The party who scheduled the deposition asks questions relevant to the issues in the divorce. The witness, called a deponent, responds, and the responses are recorded by a court reporter. The court reporter then creates a transcript of the question-and-answer session. A deposition is similar to trial testimony, in which one attorney examines a witness and the other attorney then cross-examines the witness. Depositions can be used to memorialize testimony as well as to gauge the demeanor of the witness while answering the questions.

You may use court forms and other resources to conduct discovery yourself, but the discovery and family law rules are complicated. If you are contemplating separation or divorce and you have children, you should consult with a knowledgeable California divorce attorney. The attorneys at the Law Offices of Judy L. Burger  will make sure you successfully navigate the discovery rules. Make the call today to learn how our attorneys can help: (415) 293-8314.
California Divorce

What Is Included in a Petition for Divorce?

What Is Included in a Petition for Divorce?

In California, the process of ending a marriage or a domestic partnership begins when you file a petition for divorce in your local superior court. The petition, Form FL-100, is a three-page document completed by checking boxes and writing in short answers to questions.

Whether you are ending a marriage or a domestic partnership, the petition for divorce requests the same information. To prepare for completing Form FL-100, gather or have ready the following information:

  • The name and contact information of you and your partner in the marriage or domestic relationship.
  • Your county of residence for the last three months and your state of residence for the last six months.
  • The names and ages of any minor children of the relationship, including the paternity of the children.

Your county and state of residence determine which court has jurisdiction to grant your divorce. For marriages, you must file the petition for divorce in the superior court of the county where you have lived for the last three months.

In addition to the information above, the form petition for divorce also asks the following questions:

  • whether you are seeking a divorce due to irreconcilable differences or, instead, due to the permanent legal incapacity of your spouse or domestic partner to make decisions;
  • whether you are seeking spousal or domestic partner support;
  • whether you or your spouse or domestic partner has separate property, community property, or quasi-community property;
  • whether you are ending a marriage, a domestic partnership established in California, or a domestic partnership established outside of California;
  • whether you want your former name restored; and
  • whether you are asking the court to order your spouse or domestic partner to pay your attorney’s fees.

You should consult with and have an attorney complete the petition for divorce. Form FL-100 may look simple enough to fill out, consisting only of boxes to check and short answers to fill in, but how it is completed impacts you divorce. Along with the petition for divorce, you must file a summons, which is Form FL-110. Yet another form is required if there are minor children. You must also pay a filing fee.

Additionally, the form does not tell whether other law may affect your particular circumstances. For example, if you or your spouse or domestic partner is in the military, your divorce may be subject to the provisions of the Servicemembers Civil Relief Act as well. The filing of a petition for divorce may also affect your immigration status. There are some differences in the divorce process depending on other factors such as whether there are children of the relationship or whether the relationship is a marriage or a domestic partnership.

If you have questions about how to complete the petition for divorce, about divorce in general, or about how your circumstances may affect the divorce process, contact an experienced California divorce attorney. The attorneys at the Law Offices of Judy L. Burger will provide authoritative legal support tailored to your specific situation. Make the call today to learn how our attorneys can help: (415) 293-8314.

Can I Get Child Support While My Divorce Proceedings Are Pending?
California Divorce, Child Support

Can I Get Child Support While My Divorce Proceedings Are Pending?

One of the golden rules in California divorces that involve children is called “the best interest of the child.” It is therefore no surprise that child support may be awarded during the pendency of a divorce proceeding.

Perhaps the toughest period of time for couples who are divorcing is between separation and the entry of a final divorce decree. Typically, one spouse informs the other of an intent to end the marriage, and then thing start to fall apart. There are many details to address, such as living arrangements and finances. And when children are involved, these issues can be even more difficult.

California Family Code § 3600 authorizes a presiding court to order “either or both parents to pay any amount necessary for the support of the child . . ..” Such an order may be made during the pendency of a divorce or legal separation proceeding. The order continues in force until terminated by the court or until another provision of state law renders the child ineligible for support (e.g. emancipation). In addition, the award would not be enforceable if the couple began living together again.

The decision of whether temporary child support should be ordered depends on the same issues as when a permanent child support award is made. Custody and the incomes of the parties are the primary areas of focus while keeping the best interest of the child in mind.

Many times, the couple mutually agrees to where the child will live during separation and how their finances will be handled. In those cases, no intervention by a court is needed, or the mutually agreed to terms may be submitted for approval by the court. Family Code § 3604 provides, however, that any order for support during the pendency of proceedings does not “prejudice the rights of the parties or the child with respect to any subsequent order which may be made.”

If you are contemplating separation or divorce and you have children, you should consult with a knowledgeable California divorce attorney. The attorneys at the Law Offices of Judy L. Burger  will help you make sure your children receive their necessary support. Make the call today to learn how our attorneys can help: (415) 293-8314.

Who Controls Marital Property During the Marriage?
California Divorce, Marriage

Who Controls Marital Property During the Marriage?

The assets a couple accumulates during marriage, for the most part, are marital property. This includes money and things of value such as automobiles, furnishings, and real property like the marital home. Each spouse is a 50 percent owner of the assets. There are circumstances under which property owned by one of the parties before marriage may become marital property, but that is beyond the scope of this article.

Marital property may be controlled by either or both parties to a marriage. Both own half of the property, and both have the authority to manage or dispose of the property but with this limitation: the controlling spouse cannot act in a way that diminishes the other spouse’s 50 percent share of the asset’s value.

The underlying concept of control of marital property is that marriage is a contract that imposes a “fiduciary duty” on each party. In the context of this discussion, the duty requires the spouse who exercises control over a particular asset to do so without damaging the other’s 50 percent interest in the property.

A good example of both the power to control an asset and the fiduciary duty is a car owned by a couple. Most married people officially title a car as belonging to John or Jane Doe. This means that in the eyes of the State of California, either John or Jane can assign the title of the car to a third person.

According to California Family Code § 1100, however, the party disposing of the car may not do so for less than “fair and reasonable” value without getting the consent of the other spouse. In the case of the car, the spouse could legally sell it according to state motor vehicle law, but if he did so for $10,000 less than its value without his spouse’s consent, the non-consenting spouse would have a claim against him.

In this example, the spouse selling the car has a fiduciary duty to the other spouse to maintain the value of her 50 percent interest in the fair and reasonable value of the car at the time of its disposition. A failure to do so results in the selling spouse being liable for that loss.

In the case of real property, it is little different. California Family Code § 1102 requires that any sale or encumbrance of real property, or its lease for more than one year, requires execution by both spouses. There is much less room for a spouse to take unilateral action without the other spouse’s agreement. A spouse is, however, authorized to encumber her half of real property for the purpose of engaging counsel once a proceeding for dissolution of the marriage has been commenced.

If you have concerns about your spouse’s management of marital assets, you should consult with an experienced California divorce lawyer. The attorneys at the Law Offices of Judy L. Burger will provide authoritative legal support tailored to your specific situation. Make the call today to learn how our attorneys can help: (415) 293-8314.


 

How is Child Custody Handled During Divorce Proceedings?
California Divorce, Child Custody

How is Child Custody Handled During Divorce Proceedings?

One of the first things that happens when a couple decides to split up is that they start living in separate places. That seems like the normal course of events. And one of the common issues you hear about when a divorce is finalized is child custody arrangements. But what about child custody during the period of separation? Sometimes, that period can last for a long time.

The number one consideration in child custody under California law is the “best interest of the child.” This is true whether a court must make a determination while a divorce is pending or when it is actually granted.

A separating couple has the right to decide how to manage child custody and rearing. Similarly, they have the right to come to terms on child custody that will endure even after a divorce is granted. The difference is that a court must order the arrangements when the divorce is finalized. Prior to that point, a court will not be involved in child custody arrangements unless asked to do so by either or both parties.

According to California law, when a petition for divorce is filed, it may be accompanied by a petition for a temporary custody order. A petition for custody may also be filed any time after the filing of the divorce petition. If both parties are in agreement as to the custody of the children, the court will usually enter an order granting the temporary custody—so long as their agreement is in the best interest of the child. If the parents do not agree, the court is empowered to grant a temporary custody order based only on the requesting party’s petition. Within 20 days, however, the court will hold a hearing to allow both parents to argue about the appropriateness of the order.

Granting an order of custody based only one party’s request (known as an ex parte order) may only be made when it has been shown that immediate harm to the child may occur or that the child will be removed from the state. In that regard, when granting an ex parte custody order, the court is also required to enter an order to restrain the parent gaining temporary custody from removing the child from the state during pendency of the custody issue.

The attorneys at the Law Offices of Judy L. Burger have extensive experience in family law matters, including temporary and permanent child custody orders. We can help you put your best foot forward in advocating for the best interest of your children. Contact us today to learn how our attorneys can help you in your case: (415) 293-8314.

New Law in California Addresses Date of Separation
California Divorce, Legal Separation

New Law in California Addresses Date of Separation

When a marriage or domestic partnership fails, the parties are immediately confronted with a number of issues, not the least of which is how to separate physically. Typically, there is an initial intimate separation that then morphs into a physical separation.

Separating physically, however, is not that easy for many couples because of issues like finances and children. Couples advancing toward divorce sometimes choose to continue living under the same roof while they get their affairs in order before finally divorcing. Until recently, separated couples in California had to actually live in separate residences to have their post-separation finances considered as separate.

The rule had been handed down in 2015 by the California Supreme Court in a case called In re Marriage of Davis. In that case, the couple had been living in the marital home pending their divorce, although they were functioning as individuals. For example, their finances were handled separately, they travelled to children’s events separately, and they each did their own laundry. Notwithstanding their living separate lives, the Court ruled that an indispensible component of a married couple being separated under the eyes of the law was living in separate residences.

The legislature took umbrage with this ruling and passed Senate Bill 1255, which took effect January 1, 2017. This bill amended the California Family Code, specifying two grounds on which the date of marital separation could be established: 1) One spouse has expressed to the other spouse his or her intent to end the marriage; and 2) the conduct of that spouse is consistent with his or her intent to end the marriage. The bill also provided that courts “shall take into consideration all relevant evidence” to establish the date of separation.

The new law provides more flexibility to couples who decide to end their marriages. It is a much more sensible way of respecting the decisions that those couples make as they navigate such a significant upheaval in their lives.