Category Archives: California Divorce

Does How Property Is Titled Matter When You Get a Divorce?
California Divorce

Does How Property Is Titled Matter When You Get a Divorce?

Married couples may not always think about how their property is titled until the time comes to divorce. Then, questions inevitably arise about who owns what. This is a critical question because each person will want to ensure he or she is able to live comfortably after the proceedings have concluded.

Property division is one of the core functions of divorce proceedings. It is important to learn about how the law will affect your property, debt, and income so that you can meet your needs, and those of your children, after your divorce is final.

California is a community property state. To read more about the basics of property division in California, please see our earlier blog here.

California law has many provisions designed to protect spousal property rights. Two of the most important are (1) the presumption of community property during marriage and (2) requirements for spousal consent for certain ownership and transfer rights of property.

First, there is a presumption in California that property acquired by either spouse during the marriage is community property subject to equitable division in the event of a divorce. This is a powerful presumption. It acts to bring an asset into the marital estate even when one spouse attempts to title it in his or her name alone.

Second, California law often requires the consent of one spouse for the other spouse to own property in certain ways or to transfer certain property interests. California offers many different ways that people can own property, each with different requirements for ownership or transfer of rights. However, married couples are limited in how they may own property acquired during their marriage. For example, a husband may buy a house as his sole and separate property, but only if the wife consents for him to do so. This consent often takes the form of a quitclaim deed.

If you want to learn more about property ownership in California and how state law affects your marital assets, contact the attorneys at the Law Offices of Judy L. Burger can help. Call us today to make an appointment: (415) 293-8314.

Study: Working Together as Parents Can Prevent Mental Health Issues in Kids of Divorce
California Divorce

Study: Working Together as Parents Can Prevent Mental Health Issues in Kids of Divorce

A recent paper brings positive news for kids of parents whose marriage is on the fritz: Parents can play a meaningful role in preventing their kids from suffering from mental health issues post-divorce. Research has long shown that kids suffer mentally from a divorce, however, the new research review shows that this result may be preventable.

A pair of authors from Portugal reviewed 11 studies published over a 14-year period before drawing their conclusions. They considered only peer-reviewed empirical papers “that aimed to assess the association between coparenting and psychological development or function in children with divorced parents.”

Their findings are not surprising. The authors report that the fact of divorce is not what tends to lead to negative consequences, such as anxiety and depression. Rather, the way joint parenting is approached after a divorce “has a significant impact on children’s mental health.”

Three findings were particularly telling:

  • When children were exposed to conflict in co-parenting, they “were more likely to have issues with problems such as attention deficit.”
  • “Children’s perception of their parents’ coparenting predicted anxiety and depression” in those children.
  • Lower levels of child self-esteem were associated with “coparental hostility and conflict.”

This review suggests that parents can positively impact their children’s mental health reactions to divorce by presenting a positive coparent relationship. In the study review, a positive relationship was associated with better “academic performance and psychosocial wellbeing of children.”

If you want to minimize the effects of your divorce or separation on your kids, it is important to separate the problems in your personal relationship with the other parent from your respective roles as coparents moving forward. From this standpoint, the recent study confirms what many people likely suspected.

The attorneys at the Law Offices of Judy L. Burger have extensive experience in family law matters and can advise you about many of the consequences of divorce. Contact us today to learn how our attorneys can help you in your case: (415) 293-8314.

When Are You Considered by California Courts to Be “Separated”?
California Divorce, Legal Separation

When Are You Considered by California Courts to Be “Separated”?

One of the most hotly contested issues in many divorce proceedings—the date of separation— drives when the partners to marriage can claim their respective incomes as separate property. This is a vitally important question that can substantially change each person’s financial standing well into the future.

California Family Code § 760 provides that property acquired during a marriage is considered community property that is subject to equitable distribution in a divorce unless another law provides otherwise. One major exception to this conglomeration of community property applies after the spouses are separated. This exception is located in California Family Code § 771.

Last year, the California Supreme Court considered whether a couple could be considered separate even though they were living in the same house. In the case, the couple was married in 1993 and had two kids during the 1990s. They stayed together but at some point started sleeping in separate bedrooms. There were also several other indicators of their separateness, such as the following:

  • driving separately to their children’s activities;
  • the husband washing his own laundry; and
  • the separation of their financial affairs.

Despite these indicators, the two continued to live together. The wife received her mail and telephone calls at the couple’s home, and she did not change the address on her driver’s license.

The wife argued that the two had been functioning as roommates and were separated as of 2006 despite continuing to live together. The husband argued that they did not truly separate until much later, in 2011. The trial court agreed with the wife and found the date of separation to be 2006. The court of appeals affirmed, and the husband filed an appeal.

The California Supreme Court first considered the language of the law regarding the date of separation as it related to a claim of separate property: “[t]he earnings and accumulations of a spouse . . ., while living separate and apart from the other spouse, are the separate property of the spouse.” The court determined that the plain meaning of this language seemed to require the “occupation of separate residences.”

The court also considered the legislative history of the law and later legislative developments. The court ultimately held that a couple was not considered to be living separate and apart unless two conditions were met: (1) they were living in separate residences; and (2) at least one of the partners had a “subjective intent to end the marital relationship” that was “objectively evidenced by words or conduct.”

If you need an experienced California family lawyer to discuss the particulars of your situation, contact the Law Offices of Judy L. Burger. We have decades of experience in family law matters, and we will put our experience to work for you. Call (415) 259-6636 to get started today.
Is There a Season for Divorce?
California Divorce

Is There a Season for Divorce?

If you suspect that divorce filings might be more likely at certain times of the year, you are right. A recent University of Washington analysis showed that filings spiked not once, but twice, each year, leading some in the media to proclaim that there is a “season” for divorce.

The researchers reviewed 15 years of divorce filings in nearly all counties in Washington state, then compared what they found with filings in four other U.S. states.

The results were consistent across all locations examined: filings jumped in March and August.

The researchers noted that those filing for divorce seemed to avoid three times of year:

  • Valentine’s Day;
  • summer vacations; and
  • the winter holidays.

They speculated a few potential reasons for the timing of the filings:

  • a concern that”[w]inter and summer holidays are culturally sacred times for families,” when it might be “taboo” to announce intentions to divorce;
  • the stress created by winter and summer holidays, which might lead people to “decide their differences are irreconcilable right after a big trip”; and
  • dashed expectations for family time or positive expectations during the holidays.

The authors also thought that the beginning of the school year might press unhappy spouses into action.

Interestingly, the biannual pattern held true even when the researchers controlled for “other seasonal factors such as unemployment and the housing market.”

If you need help in a California family law matter, contact the attorneys at the Law Offices of Judy L. Burger. We will provide the compassionate, competent legal support you need. Make the call today to learn how our attorneys can help: (415) 293-8314.

Family Dispute Resolution: How It Is Used in Custody Disputes?
California Divorce, Child Custody

Family Dispute Resolution: How It Is Used in Custody Disputes?

Our children are near and dear to our hearts. When marriages break up, many of the most difficult issues pertain to a couple’s children. Most of the time, both parents want what is best for the kids. However, it can be difficult to come to an agreement about how to handle custody and visitation issues because parental judgment may differ. That’s where family dispute resolution comes into play.

In an ideal circumstance, parents have similar ideas about what is best for their kids in terms of where the kids should live, go to school, and so on. Sometimes, however, they do not. In an even worse circumstance, one or both parents does not have the child’s best interest at heart or is not healthy enough to have a proper perspective on what is best for the child.

It is in circumstances like these that family dispute resolution is used by the court system. When the parents cannot come to an agreement, the family dispute resolution program helps by conducting services such as child custody evaluations and mediations.

The goal is to help families craft their own agreement about child custody and visitation issues. Dispute resolution allows parents to play a critical part in creating their own agreement for the approval of a judge. When it is successful, dispute resolution can often help the parties avoid a hearing in front of a judge about controverted issues.

The law sets forth three goals when family dispute resolution is used for custody or visitation matters:

  • mitigating negative relationships between the parents;
  • developing an agreement that serves the child’s best interests in a way that, ideally, continues contact with both parents; and
  • resolving custody and visitation issues in the best interest of the child.

At the end of family dispute resolution, the mediator helps to draft the parties’ agreement.

If you have questions about custody or visitation issues, 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.

Get Ready for Next Tax Year: How Does the IRS Treat Spousal Support?
California Divorce, Spousal Support

Get Ready for Next Tax Year: How Does the IRS Treat Spousal Support?

If you are newly divorced or going through a divorce, you may be unsure how the Internal Revenue Service treats spousal support for tax purposes. Many people do not think about taxes until tax time rolls around. Of course, it is wise to be prepared on this issue, as receiving (or paying) spousal support will affect your tax bill and potentially lead to an underpayment that you will need to make up by April 15.

The Internal Revenue Service (IRS) treat spousal support, also called “alimony,” as income for federal tax purposes. The most important issue is what qualifies as alimony under federal tax law.

Alimony payments must meet all of the following qualifications:

  • The parties do not file a joint return.
  • The payments are made in cash, by check, or by money order.
  • The payment is received either by the ex-spouse or on that person’s behalf.
  • Neither the parties’ separation agreement nor a court decree says that the payment is not spousal support.
  • The responsibility to make the payments stops when the ex-spouse dies or remarries.
  • The payment is neither child support nor part of the parties’ property settlement.

The IRS specifically provides that the following do not qualify as alimony:

  • child support;
  • property settlements that are not made in cash;
  • payments that are intended to be a spouse’s share of community property income; and
  • payments made either to keep up or for the use of the paying spouse’s property.

The former spouse who receives the payments is required to report alimony as income for federal tax purposes. Likewise, the former spouse who makes alimony payments is entitled to a deduction for payments made.

Those who receive payments are required by law to cooperate by providing their Social Security number to the paying party. If receiving spouses do not do this, they may receive a $50 penalty. A party making the payments could not only receive a $50 penalty for failing to include the recipient’s Social Security number but also could see his or her income tax deduction disallowed.

Here are a few trickier situations that require competent financial or legal advice:

  • payments made to a third-party under a separation agreement, a divorce decree, or at the written request of the receiving party;
  • payments for life insurance premiums for the benefit of the receiving spouse, if they are required by court order or a written separation agreement; and
  • certain mortgage, real estate tax, or house insurance payments.
If you are not sure whether to claim alimony as income or a deduction, 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.
California Divorce

Protect Yourself: Update These Documents after a Divorce

If you are recently divorced, you need to make sure you update key documents. Many people remember to change the name on their driver’s license, credit cards, and so on. While that is important, there are other documents that are arguably more so; the failure to change certain documents could result in a different distribution of your property than you might intend.

Whether or not you initiated the divorce proceedings, you probably have strong feelings about whether you want your ex to have your property or insurance benefits if something happens to you. Unfortunately, too often, people overlook or postpone dealing with this issue, with potentially disastrous results.

Here is a list of some of the types of documents you will want to update:

  • employment documents, such as payroll data and withholdings;
  • financial documents, such as bank and brokerage accounts, as well as credit cards;
  • government and identification documents, such as your Social Security card and driver’s license; and
  • documents that relate to the ownership of property, such as car titles.

Beneficiary designations should be at the top of your list. You will need to identify all of these, which typically include insurance policies, retirement plans, financial brokerage accounts, and bank accounts that are payable on death (POD).

Other critical documents that need immediate attention are your will, any trusts, and any powers of attorney or advance directives. California Probate Code § 6122 provides that a divorce automatically revokes certain aspects of a will. However, that automatic revocation may cause other unintended consequences where property is concerned.

Even if you are relatively healthy, life is unpredictable. To ensure that your wishes are carried out, it is best to update your key documents and to consult with an experienced California lawyer who can help you identify important issues that may result from your divorce.

The attorneys at the Law Offices of Judy L. Burger have extensive experience in family law matters and can advise you about many of the consequences of divorce. Contact us today to learn how our attorneys can help you in your case: (415) 293-8314.

California Divorce

Parental Access to Child Non-Medical Records

Parental Access to Child Non-Medical Records
One of the rights a parent has with respect to his or her children is the right to receive or review the child’s important records. Access to child records allows a parent to advocate for his or her child and to parent more effectively. This blog will discuss parental access to dental and school records.

California Family Code § 3025 specifically provides that parents have access to their minor child’s medical, dental, and school records. Under this law, it does not matter whether a parent is the custodial parent or not. You can read more about parental access to child medical records at my earlier blog here.

Parents also have the right to access their minor child’s dental records unless one of the following applies:

  • The child is emancipated.
  • The child is on active duty.
  • The record relates to certain restricted topics, such as sexual assault, communicable or sexually transmitted diseases, or alcohol abuse.
  • The dentist determines that releasing the record may harm the patient.

The California Education Code provides parents with wide-ranging rights relating to their children. Many of these rights relate directly to child education records:

  • notification of child absenteeism;
  • standardized and statewide test performance of the child;
  • class curriculum materials;
  • child progress; and
  • “academic performance standards, proficiencies, or skills their child is expected to accomplish.”

Leaving no room for doubt, the law also specifically provides that parents “have access to the school records of their child” and that they have the right to question inaccurate or misleading information in their child’s records. When a parent does this, the school is legally required to provide a response to the parent.

An experienced California family lawyer can be an invaluable advocate for you and your children. If you are involved in a difficult divorce or separation and have questions about your rights, contact the Law Offices of Judy L. Burger. We have decades of experience in contested divorce and custody issues, and we will put our experience to work for you. Call (415) 259-6636 to get started today.

California Divorce

Get Ready for Next Tax Year: Who Can Claim a Child as a Dependent?

Get Ready for Next Tax Year: Who Can Claim a Child as a Dependent?
If you anticipate that your divorce will be final during the 2016 calendar year, you need to start thinking about changes in your federal tax status. Of course, one of the most obvious changes is that you will no longer be eligible to file as “married,” either jointly or separately. Your filing status can significantly impact your tax liabilities. However, child dependency exemptions also affect your taxable bottom line.

The Internal Revenue Service (IRS) only allows one parent to claim an exemption for each child during each tax year. Most of the time, the custodial parent has the right to claim the child dependency exemption. That is because one of the requirements for the exemption, known as the “residency requirement,” mandates that the child live with the taxpayer for more than half of the year.

Here are the other requirements:     

  • The child must meet a relationship test. Sons, daughters, and stepchildren all meet this requirement.
  • The child must meet an age test. This generally means that the child must be either under the age of 19 and younger than you are, under the age of 24 and a student, or permanently and totally disabled.
  • The child cannot have provided more than half of his or her annual needs for support.
  • The child must not be filing a joint return.

Special rules apply that may allow a noncustodial parent to claim a child dependency exemption. From a very basic standpoint, this exception applies when the parents are divorced or legally separated and formally agree to the change. However, there are other requirements before this shift may be made, and it is wise to consult with your accountant or tax lawyer to protect yourself if you decide to do this.

If you anticipate losing the dependency exemption for the 2016 tax year, you can be proactive by electing to have more money withheld from your paycheck. This can reduce shocking surprises when filing time rolls around.

With a divorce come many changes, including tax options that can affect you and your children financially. If you need legal assistance in a California divorce, the attorneys at the Law Offices of Judy L. Burger can help. Make the call today to learn how our attorneys can work for you and your children: (415) 293-8314.

California Divorce

What Happens to Real Property Owned Outside the State in a California Divorce?

What Happens to Real Property Owned Outside the State in a California Divorce?

Have you ever wondered whether California judges have the right to make rulings that relate to out-of-state property? In divorces and legal separations, one of the most important aspects of the case is the division of the couple’s property. Often, in addition to owning property in the state of California, one or both of the partners own real property—generally known as land—out-of-state.

California family law judges do not have jurisdiction over real property that is located outside the state. Therefore, they cannot make orders that directly affect the property itself. However, they do have jurisdiction over the parties to the proceeding and can therefore require the parties to take certain actions or risk being held in contempt of court.

Under California law, property acquired by either party during the marriage is generally considered to be community property. You may read more about the nature of community and separate property here. Community property is subject to equitable distribution in a divorce or legal separation proceeding.

Out-of-state real property is known as quasi-community property if it is acquired in one of two ways:

  • By a spouse “while domiciled elsewhere which would have been community property if the spouse . . . had been domiciled” in California at the time; or
  • By a spouse “in exchange for” such property.

Quasi-community property is treated as community property for the purpose of equitable distribution.

If an asset is deemed to be quasi-community property, California law provides that a judge must first try to award the property to one spouse and offset its value by awarding property of equal value to the other spouse. If this cannot be done, the judge may decide to take one of the following two routes:

  • “Require the parties to execute conveyances . . . as are necessary”; or
  • Award the party who is not obtaining an interest in the property “the money value of the interest in the property” she would have received.

The value of out-of-state real property can be a significant issue in a California divorce or dissolution proceeding. If you are involved in such a proceeding and disputed property rights are involved, you want an attorney with substantial experience in Northern California who will represent you aggressively. Please contact the Law Offices of Judy L. Burger at (415) 259-6636 to learn more.