Category Archives: California Divorce

California Divorce

How to Protect Yourself against Insurance Revenge during Your California Divorce

How to Protect Yourself against Insurance Revenge during Your California Divorce
Ending important personal relationships is hard for everyone involved. Unfortunately, some people take out their frustration and anger on their spouse, attempting to hurt them in various ways. Negative emotions sometimes even lead one spouse to change or cancel health or life insurance, often covertly. Fortunately, the California State Legislature has enacted laws to help prevent insurance revenge.

Imagine that while your divorce proceedings are pending, you become ill and go to the doctor. A workup is in order, so you go immediately to have blood work done, as well as a radiology test. Your health insurance denies coverage, sticking you with all the bills, because your vindictive, soon-to-be-ex removed you from his health insurance. The same thing could happen with a life insurance policy: you could be removed as a beneficiary from the policy. The California laws are intended to prevent these things from happening.

First, when a petition for divorce is filed, on the back of the summons is an automatic temporary restraining order that disallows a party from altering “life, health, automobile, or disability insurance.”

Second, California Family Code §§ 2050-2053 provide a mechanism that judges or parties to divorce proceedings may use to get insurance companies involved. The statute applies to health, life, and disability insurance coverage for spouses and children.

In essence, this second law allows a party to a proceeding or a judge to send a notice to an insurance company letting the company know that the ownership or benefits of a policy it has issued may be affected by a pending divorce proceeding. The notice advises the company that it must maintain the policy of ownership, beneficiaries, and covered dependents as they currently are until it receives an official document notifying it otherwise.

These laws provide important protections to prevent a spouse from changing or canceling insurance to the other spouse’s detriment. However, even with these laws in place, people are sometimes still successful in altering insurance. When this happens, it is critical to work with an experienced family lawyer who can schedule a quick hearing to protect or reinstate your insurance rights. The attorneys at the Law Offices of Judy L. Burger have extensive experience in divorce matters, including property and insurance issues. Make the call today to learn how our attorneys can help: (415) 293-8314.

 

California Divorce

Transmutation: What It Is and Why You Should Care about It

Transmutation: What It Is and Why You Should Care about It

In every divorce, both parties are concerned about the property they will get and the debt they will be assigned. The threshold issue in the division of property is how it is characterized: community or separate. To read more about community and separate property, please see our earlier blog here.

The importance of property characterization cannot be overstated. If property is truly held separately by one spouse, the other spouse has no right to part of the property. And if property is owned by both partners as community property, each has a right to his or her interest. Transmutation of property allows spouses to change the characterization of property ownership; it can therefore be a critical issue in every divorce.

Merriam-Webster defines “transmute” as “to completely change the form, appearance, or nature of . . . something.” When property is transmuted, its character is completely changed in one of the following three ways:

  • From community property to separate property;
  • From separate property to community property; or
  • From one spouse’s separate property to the other spouse’s separate property.

By law, California spouses have the authority to transmute both real and personal property in these three ways, provided the following requirements are met:

  • The agreement must be in writing; and
  • The “spouse whose interest in the property is adversely affected” must expressly declare that she makes, joins in, consents to, or accepts the transmutation.

Exceptions are narrow. The first is that third parties are not bound by spousal transmutation of real property unless the third party either has notice or the transmutation is recorded at the courthouse. The second exception is that transmutation is not required for gifts between spouses of personal items as long as the gifts are “not substantial in value taking into account the circumstances of the marriage.” To illustrate, most clothing and costume jewelry would qualify as gifts and therefore the separate property of the recipient. Conversely, expensive jewelry may or may not be considered “substantial,” depending on the circumstances of the marriage.

Transmutation can be a powerful force in California divorces. If you are involved in or are contemplating a California divorce and transmutation of property is a concern, you should work with an experienced family lawyer to protect your interests. The attorneys at the Law Offices of Judy L. Burger have extensive experience in divorce, including property division issues such as transmutation. Make the call today to learn how our attorneys can fight for you: (415) 293-8314.
California Divorce, Debt

What Is the Effect of Substance Abuse in California Divorces?

What Is the Effect of Substance Abuse in California Divorces?
California is a no-fault divorce state, but that does not mean that extenuating circumstances existing in a marriage cannot be taken into consideration by courts. Substance abuse and alcoholism are factors that can affect custody and visitation rights, as well as division of marital assets, and even alimony. A party to a divorce who suffers from substance abuse or alcoholism is at a significant disadvantage in the proceeding.


The most common effect of a party’s substance abuse problem is an adverse effect on child custody and visitation rights. Courts are bound by law to make such decisions in the best interest of the child, which I discuss in detail in an earlier blog.


When one or both of the parties are known to be substance abusers, custody and visitation must be structured to mitigate possible negative consequences to the child. A court even has the power to order periodic testing to ensure that a parent complies with an order to remain drug-free.


In rare cases, a court may find that one spouse’s substance-induced behavior during marriage depleted marital assets. Excessive use of marital funds to support an addiction, for example, could result in that party’s share of property distribution being reduced. The same analysis may be applied to the granting of alimony. If the addicted spouse has depleted marital assets to support the addiction, additional alimony could be awarded. More often, parties with such problems will settle for less favorable terms than the law may allow in order to avoid the notoriety a court proceeding might bring.


Establishment of a party’s substance abuse problem by the court is necessary before it can be considered for the mentioned purposes. One party may raise the issue, or it might become known to the court in other ways. Family members, representatives of the state Department of Social Services, or other interested parties might inform the court of a potential addiction or abuse. When the latter occurs, it is normally in relation to custody and visitation determinations.


Once the issue is raised, the court may order an evaluation or investigation to determine the validity of the report. This could involve consideration of existing records of substance abuse or the appointment of an investigator to determine the validity of the report and its potential effect on custody and visitation.


The final impact on custody and visitation orders varies, depending on the extent of the problem. In very extreme circumstances, a parent could be denied any share of custody or even visitation, or the court could order limited and/or supervised visitation. The court has wide discretion in determining what is in the best interest of the child.


The health and well-being of your children are important not only to you, but to the State of California. If your partner has a substance abuse or addiction issue, you need an attorney to fight for you and your children. The attorneys at the Law Offices of Judy L. Burger have extensive experience in divorce, child custody, and child support matters. Make the call today to learn how our attorneys can protect you and your children: (415) 293-8314.

Annulment, California Divorce, Child Custody, Domestic Violence

Best Interest of the Children: What Does It Mean for California Families?

Best Interest of the Children: What Does It Mean for California Families?
California courts often cite to the “best interest of the children” standard when making rulings and issuing decisions on family law matters.  Where does this language come from, and what does it mean for you?


California laws, in many places, refer to the “best interest of the children” or “best interest of the child.” The core statute on what this means is California Family Code § 3011, which is a general provision of law relating to custody.


Section 3011 lists several factors that courts must consider when determining what is in the best interest of children:

  • The child’s “health, safety, and welfare”;
  • Any history of abuse against a child, the other parent, or a parent’s significant other;
  • The nature and amount of the child’s contact with both parents; and
  • Either parent’s use of illegal, controlled substances, or habitual use of alcohol or prescribed controlled substances.

The “best interest of the child” standard applies to many types of proceedings:

  • Divorce;
  • Annulment;
  • Legal separation;
  • Actions for exclusive custody;
  • Custody or visitation actions under the Domestic Violence Prevention Act;
  • Custody or visitation actions under the Uniform Parentage Act; and
  • Custody or visitation actions under brought by a California district attorney.

The “best interest of the child” standard is also at play in related proceedings, such as child custody evaluations and parenting plans.


The California Legislature’s widespread application of the “the best interest of the child” standard shows its commitment to the health and well-being of children. In hotly contested child support matters, you need an attorney to fight for you and your child. The attorneys at the Law Offices of Judy L. Burger have extensive experience in divorce, child custody, and child support matters. Make the call today to learn how our attorneys can protect you and your children: (415) 293-8314.

California Divorce, Domestic Violence

How Do California Courts Decide Mutual Restraining Orders?

How Do California Courts Decide Mutual Restraining Orders
Troubled marriages or domestic relationships are sometimes plagued with violence. Accordingly, California’s Domestic Violence Protection Act provides authority for courts to issue restraining orders in such situations. Normally, one party to the relationship has been threatened or attacked and petitions a court to issue an order instructing the aggressor not to have contact with her. In rare cases, mutual restraining orders—those that direct both parties to stay away from the other—are issued.


Under the DVPA, a judge may issue a restraining order based on a written request from a party, but only after notice and an opportunity to respond has been given to the party to be restrained. In the case of a mutual restraining order, it is necessary that both parties make a written request for the other to be restrained. This point was recently emphasized by the Second District Court of Appeal in a divorce proceeding.


In the case, the wife filed a request for a restraining order. The husband submitted documentation in his response showing that the wife was currently restrained from contact with him by a criminal restraining order and that the wife had pleaded guilty to a charge of assault against him.


The court, of its own volition, issued a mutual restraining order prohibiting each party from having contact with the other. As its basis for restraining the wife as well as the husband, the court pointed to the criminal restraining order and found that the wife had already been restrained. As such, the court noted that the wife had already been deemed guilty of domestic violence beyond a reasonable doubt. Therefore, the court felt it had no need to make any findings regarding the need for an order restraining her.


The appeal court reversed the lower court’s order, however, holding that a restraining order could not be issued without a written request by the party to be protected. In this case, the husband had not made such a request. Rather, he had included documentation in his response to his wife’s request showing that she was currently under restraint.


The appeal court found that the regulatory scheme of the DVPA and its legislative history were clear that a party had to make an actual request for protection. The court also pointed out that the issuance of an order without proper notice to the party to be restrained, as well as an opportunity to respond, violated constitutional standards.


As you can see, the manner in which legal matters are handled can materially affect the outcome.  If you’re involved in a divorce or separation, you should work with an attorney with substantial experience in the area, who knows the mechanics of how family law matters are handled. To obtain experienced legal help, contact the Law Offices of Judy L. Burger at (415) 259-6636 to discuss your case.

California Divorce

Who Gets to Keep Pets in a California Divorce or Separation?

Who Gets to Keep Pets in a California Divorce or Separation
In some divorces or legal separations, one of the foremost concerns is what will happen to family pets. Many of us treat pets like family.  We may even ask for “custody” of them.  But the California courts treat pets as personal property, not like children.  Therefore, no one can obtain “custody” of a family pet.


Perhaps the clearest way to deal with pet “custody” issues is to avoid them in the first place.  Before you are married, include post-marital pet issues in a valid prenuptial agreement.  In such an agreement, you can deal with how you want your personal property to be split; this can include the treatment of pets.


If you didn’t have the foresight to include pets in a prenuptial agreement, all is not lost.  In most circumstances, it is best to cooperate with your soon-to-be-ex.  If your pet is important to you, you may wish to compromise on other issues in order to obtain possession of your animal.  The two of you may even agree to an informal arrangement for where the pet will live, or even for visitation.


Under normal circumstances, it is best to agree on the arrangement for the family pet.  However, if the parties cannot agree, the judge will decide who receives the pet.  Here are some likely considerations:

  • The connections of the pet with the parties and the children;
  • The pet’s primary caretaker; and
  • Acts or threats of violence against the pet, the other party, or a minor child.

This last factor can be particularly important because California has a statute designed to protect pets. California Family Code § 6320, which became effective in 2014, allows courts to take actions to protect personal property from destruction.  If a party can show “good cause,” a court can do two things: (1) grant the exclusive “care, possession, or control” of a pet to the appropriate party; and (2) order a party “to stay away from the animal and forbid” the taking or disposal of the animal.


At the Law Offices of Judy L. Burger, we understand how important family pets are not only to a couple but to their children.  Pets can provide stability and love in a time of instability. Make the call today to learn how our attorneys can advocate for you: (415) 293-8314.

California Divorce

Ashley Madison Data Breach Could Impact Divorces

Ashley Madison Data Breach Could Impact DivorcesMedia stories on the Ashley Madison hack have spotlighted data security and privacy issues. But there is much more at stake: families. Some have speculated that the release of the Ashley Madison data will lead to increased marital problems and divorce rates.


Before last summer, many people would have had no idea that Ashley Madison was anything other than a person’s name. Now, people nationwide recognize Ashley Madison as a hook-up site for those who are married.


In case you missed it, the personal and private data of over 33 million of Ashley Madison’s customers was recently compromised. The hackers scored traditional personally identifiable information, such as names, street names, passwords, partial credit card debt, and telephone numbers. However, they also accessed private information of a very intimate nature, such as sexual fantasies and message history.


Much of this information was posted online for the world to see. Suddenly, friends, spouses, and others knew not only who was a customer of Ashley Madison but much, much more.


What are the implications of this giant data breach in family law?


Very early on, some divorce attorneys predicted a spike in the divorce rate. Certainly, the ability to confirm infidelity could cause spouses who previously weren’t sure about divorcing to file their papers.


But the implications of this data breach could be wider than originally thought.


Suddenly, one partner is armed with what would appear to be undeniable evidence of infidelity, and the other partner is likely to be riddled with guilt. This imbalance could cause the former to stake out a position and refuse to budge and the latter to simply fold. Is it possible that these feelings could affect the outcome of divorce proceedings?


Any issue that is wholly or partly in the parties’ control could be easily affected. For example, the parties have a great deal of influence on issues such as personal property division and visitation plans. The guilty partner might feel obligated to cave in, and often, the judge will approve the parties’ plan as long as it is reasonable. Likewise, the imbalance in perceived power could greatly affect settlement and, because feelings are hurt, drive up attorney fees in protracted litigation.


Some issues, however, will not be impacted. For example, California law explicitly spells out how property division will take place. Barring proof of money spent by the guilty partner on affairs, which might be considered marital waste, property division will not be affected. Custody of the parties’ children also will not be affected, as the core focus in custody determinations is the “best interest of the children” and the factors considered by courts are spelled out by law.


If you’re involved in a divorce and don’t know where to turn, you should work with an experienced, compassionate attorney who can help guide you through California law. Attorneys at The Law Offices of Judy L. Burger have substantial experience in Northern California family law, including cases involving infidelity. Please contact us today at (415) 259-6636 to learn more.

How Is Paternity Established
California Divorce, Child Custody, Child Support

How Is Paternity Established and Why Does It Matter?

Establishing paternity—the father of a child—is increasingly necessary in today’s non-traditional family structures. People who have not been touched by this issue might be surprised to know that it is not simply a matter of DNA testing.


When a child is born to a married couple who reside together, the law presumes that the husband is the father. More and more often, however, children are born to couples who are not married. When this happens, a determination must be made as to the father of the child.


Medical care providers are required to provide information to the mother of the child regarding a “voluntary declaration of paternity.” If the mother and the father sign a voluntary declaration, the father will be listed on the birth certificate and will have paternal rights and responsibilities under state law. There is no test required to prove that the father is biologically related to the child.


When no one steps forward to acknowledge paternity, a superior court can make the determination. This typically happens when the biological father does not know of his parentage or wants to avoid involvement with the child. A paternity action can be initiated in court by 1) the child’s mother, 2) the man claiming or denying paternity, 3) a child support agency, or 4) an adoption agency. In this situation, DNA testing is normally used to resolve the conflict.


The reasons for establishing paternity are several. Foremost is the need for financial support for the child. It is also in the State of California’s interest to see that both parents support their child. Otherwise, public assistance may be necessary to support the child. Appropriately, and as noted above, the state child support agency can therefore bring an action to establish paternity.


Another reason for establishing the identity of the father is for health care purposes. Eligibility for health insurance is an important benefit for children. A court can order health care coverage as appropriate once paternity is established. Genetic health information is also important for the child’s wellbeing throughout his life. Many health care decisions are impacted by genetic predispositions inherited from one’s parents.


The emotional and social development of a child can also be positively affected by a child having a father in his life. Even though the father may not live in the home, appropriate visitation arrangements can be made that will support the parent and child relationship. Even if the relationship is minimal, children are better off emotionally and socially knowing the identity of their fathers.


The attorneys at The Law Offices of Judy L. Burger have extensive experience in family law, including paternity matters. Make the call today to learn how our attorneys can help you proceed through the divorce process while protecting your rights or those of loved ones: (415) 298-8314.
California Divorce

How Divorce Proceedings Work in California

How Divorce Proceedings Work in CaliforniaLike most states, California provides for divorce on a “no fault” basis. This means that there is no need for a demonstration as to whom or what has caused a marriage to fail. Instead, a spouse initiating a divorce must only cite “irreconcilable differences.”


The beginning point for a divorce is when one party files a petition and a summons with the Superior Court in the county in which she resides. After the filing of these forms, the petitioner arranges for a copy of the forms to be served on her spouse. Service of the forms must be made by someone other than the petitioner who is at least 18 years of age, and there is a specific form to be completed to show that the forms were personally handed to the receiving spouse, who becomes known as the “respondent.”


The respondent has 30 days to file a response with the court and to deliver a copy to the petitioner in the same manner as the petition was provided to him. After the response is filed, the petitioner and respondent complete financial forms that document the marital assets and debts so that an equitable property division may be determined by the court. For more information about property division in California, see my earlier blog here.


Marital assets and debts are those that were accumulated during the period of the marriage. They do not include any accrued by either spouse before marriage or after the date of separation. For information about the law’s handling of separate and apart, see my blog here. Marital assets also do not include anything that was inherited individually by either party, even during the marriage.


Sometimes, the parties can work amicably to decide how their assets and debts can be divided. In this case, a proposed agreement will be presented to the court and will be made part of the final divorce decree. If no agreement is achieved, the parties will attend a mandatory settlement conference. Any issues that remain unresolved at the settlement conference will be brought before a judge, who will make the final determination of the distribution.

Spousal support, sometimes referred to as “alimony,” may be considered and awarded by the court. Many factors are considered by the court in awarding spousal support, such as the length of the marriage or partnership, the marital standard of living, and each party’s income earning capacity and needs. For a complete listing of the factors considered by California courts in awarding spousal support, see my earlier blog here. If the parties come to an agreement on spousal support, the court will normally accept that and incorporate it in the decree.


When the parties have minor or dependent children, child support and child custody must also determined. As with the other matters, an agreement between the parties will be accepted by the court. For a complete discussion about how child support is determined in California, see my blog here.


The attorneys at The Law Offices of Judy L. Burger have extensive experience in family law, including the dissolution of  marriages and domestic partnerships. Make the call today to learn how our attorneys can help you proceed through the divorce process while protecting your rights or those of loved ones: (415) 298-8314.

California Divorce

How Are Appraisers Used in California Divorce Proceedings?

How Are Appraisers Used in California Divorce Proceedings?In any divorce, the value of the marital estate must be established before the parties can be allocated their rightful share. The value many assets is obvious, but that is not the case for real estate. This type of property must be assigned a value. Most often, an appraiser will be hired to perform a formal litigation and real estate appraisal.


Real estate in a divorce usually is the family home, but it may also include vacation homes or business property. Business property is sometimes appraised within the context of the business itself being valued. See my previous blogs here regarding business valuations in divorce proceedings.


The parties to a divorce may retain their own appraisers or jointly select one. If the parties ultimately do not agree on a figure as suggested by the appraisal(s), the court will hear testimony and determine the fair market value. The appraisal of property can be pretty straightforward much of the time, but it can also become somewhat complicated and, at times, subjective.


Most appraisals are based on the sales of comparable properties in the geographic area. An average sale price is normally the key indicator, but any special or unique features of a home may increase or decrease the value assigned by a particular appraiser. For example, a detached garage converted to a workshop with special wiring for power tools might cause an appraiser to add to the average sale price. On the other hand, a backyard greenhouse might be seen as a specialty item that clutters the property and cost money to have removed.


It is also important to know that the assessed value of the property by county or municipal governments is researched by the appraiser, but these values usually have no real effect on fair market value. The assessed values are not based on professional appraisals and are also sometimes affected by laws governing the assessment of real property.


In selecting an appraiser, first make sure she is licensed by the state. Second, it is important to find someone who is knowledgeable of the local market and of the type of property being appraised. If there is business property, make sure the appraiser has experience or even specializes in that area. Similarly, if there is vacation property, make sure you hire someone in that market. An appraiser in San Francisco won’t know the business of vacation homes in Vail, Colorado.


Judy L. Burger’s experience as an aggressive family lawyer is paired with an extensive business background, an invaluable combination in contested divorce and separation proceedings. If you need the assistance of a lawyer who is not afraid to fight in court and who understands complicated financial issues, call her today at (415) 293-8314 or visit her online.