Category Archives: California Divorce

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.

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.