Category Archives: California Divorce

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.

Can I Recover Attorney Fees in My California Divorce?
California Divorce

Can I Recover Attorney Fees in My California Divorce?


The payment of attorney’s fees in a divorce proceeding is not always a simple matter. You might think that each party hires a lawyer and dives into the process. California Family Code § 2030, however, requires the family court to ensure that each party has access to legal representation.


In that regard, the court may award attorney’s fees to be paid by one party to the other or her attorney. This happens when an income and needs assessment indicates a disparity in the parties’ access to funds.


An award may be in any amount deemed reasonably necessary to defend or maintain the proceeding during its pendency. The court’s authority to make an award is tempered by the ability of one party to pay the fees of the other. If a party is unrepresented or attempting self-representation, the court may order the other party to pay a reasonable amount to permit the unrepresented party to hire a lawyer before proceedings start.


At all times, the court is required by California Family Code § 2032 to ensure that awards of attorney’s fees are just and reasonable given the relative circumstances of the respective parties. To make such a determination, the court must take into account the need for the award, to the extent that it will allow the parties to adequately present their cases. Awards may be made from any asset of the parties, whether community or separate.


Pursuant to California Family Code § 271, attorney’s fees may also be awarded when one party or her attorney acts in a way that inhibits the progression of the case. The Code states as the policy of the law “to promote settlement of litigation and, where possible, to reduce the cost of litigation by encouraging cooperation between the parties and attorneys.” Such actions may include the refusal to communicate as necessary to advance the case, the filing of frivolous motions, or similar behavior. Awards under this section of the Code are restricted by a party’s ability to pay, and they may only be awarded after notice and opportunity to be heard. Awards of this nature may be paid only from the separate property of the sanctioned party, including her share of community assets.


As you might imagine, the financial positions of the parties to a divorce can be complex and must be accurately portrayed to a court. Judy L. Burger has substantial experience in California family courts, and she also has a business background that allows her to effectively analyze and present financial information. Please contact her at (415) 259-6636 or visit her website to learn more.

California Divorce

Why Is There a Mandatory Waiting Period to Get a Divorce in California?

Can I Recover Attorney Fees in My California Divorce?Many states have waiting periods for a divorce to become final after the process begins. In California, it is six months after the petitioner serves notice on the respondent. The petitioner is the person initiating the divorce, and the respondent is the spouse or domestic partner.


The primary purpose of the waiting period is to give the parties time to consider their course of action and to reconcile if that is possible. Secondarily, the time also allows for the parties to prepare for a hearing or settlement negotiation. There is substantial documentation necessary to effect a divorce, and it can take a lot of time for it to be assembled. Even after that is done, mediation or settlement discussions are common and can take a long time.


Other issues can also make the waiting period seem inconsequential. For example, when children are involved, other time-consuming activities can be required, especially if issues are being contested. At a minimum, the court will require custody mediation, which forces the parties to meet and consider child custody arrangements. If the issue is being contested by either or both parties, then motions asking the court to make decisions will also take time to resolve.


California has one of the shorter waiting periods. Some states have one-year periods, and others are contemplating even longer periods. The main argument against waiting periods at all, and especially long ones, is the possibility of domestic violence during that time.


Many divorcing couples do not have the means to maintain separate households during the pendency of a divorce. In addition, the very nature of divorce is that some level of acrimony exists between the parties. Consequently, many divorcing couples are living in an increasingly uncomfortable situation under the same roof awaiting the dissolution of their marriage. With children in the mix, it can only be worse. Therefore, the waiting period can be a serious problem in certain situations rather than acting as the savior of a marriage.


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, Visitation

As a Grandparent, What Rights Do I Have to Visitation?

As a Grandparent, What Rights Do I Have to Visitation?
Grandparents can be a stabilizing force for children whose parents divorce or legally separate. Indeed, the California Legislature has recognized this, providing affirmatively for grandparent visitation.


Sections 3100-3105 of the California Family Code describe the circumstances under which grandparents may obtain visitation with their grandchildren.


When One Parent Is Deceased


It is easiest for a grandparent to obtain visitation when one of the parents is deceased. In such an unfortunate case, a court need only determine that grandparent visitation is in the best interest of the child.


However, a grandparent cannot use this provision of the law if the child has been adopted by someone other than a stepparent or another grandparent. Likewise, if a grandparent previously obtained visitation under this section of the law, the visitation automatically terminates if the child is adopted by someone other than a stepparent or another grandparent.


Other Cases of Grandparent Visitation


If both parents are alive but divorced, a grandparent who wants visitation with his or her grandchild must proceed under a different law. Under that law, before reasonable grandparent visitation may be granted, a court must do two things: (1) find that the two have had a relationship in the past that “engendered a bond” between them, rendering visitation in the child’s best interest; and (2) balance the child’s interest in grandparent visitation with the parents’ right to “exercise their parental authority.” Cal. Fam. Code § 3104.


However, a court may not order grandparent visitation when the parents are still married unless one of the following six circumstances exist:

  • The parents are either permanently or indefinitely separated;
  • The whereabouts of one of the parents have been unknown to the other parent for at least one month;
  • One of the parents joins the petition for grandparent visitation;
  • The child does not live with either parent;
  • A stepparent has adopted the child; or
  • One of the parents is either in jail or has been institutionalized.

In these limited circumstances, grandparent visitation may be granted; however, if the supporting circumstance ends, either parent may successfully move to have grandparent visitation terminated.


The attorneys at The Law Offices of Judy L. Burger have extensive legal experience in family law matters. We have handled all types of visitation requests, including those involving grandparents. Contact us today at (415) 259-6636 to learn how we can help you in this area.

The Mechanics of Business Valuation in California Divorces
California Divorce, Spousal Support

The Mechanics of Business Valuation in California Divorces

In California, the assets of a married couple seeking divorce must be distributed on an equal basis to the extent they were accumulated during the period of marriage. These assets are known as community property. Sometimes, however, one party owns or has an interest in a business that preexists the marriage. That interest is considered separate property.

Even though a business interest may be considered separate property, part of any appreciation in value that occurred during the marriage may be allocated to community property. In order for that to occur, a value must be established for the business. This is a very complicated task that is performed by a variety of professionals such as business appraisers, certified public accountants, economists, and financial analysts.  

Business valuations normally use one of two methods, depending on the nature of the business. These two approaches were established in case law in the beginning of the 20th century and still stand today. Pereira v. Pereira, decided by the Supreme Court of California in 1909, and Van Camp v. Van Camp, decided by the Court in 1921, set the course for allocation of business value to community property.

The difference between the two approaches hinges on the participation of the owning spouse in the operation of the business. Under Pereira, if that spouse was an active operator or manager of the business, appreciation in its market value during the marriage is likely to be considered community property. This is often the case with professional services such as legal or dental practices, as well as with small contractors or retail businesses.

On the other hand, the Van Camp method usually applies if the business was of such a size and structure that the owning spouse did not expend personal effort affecting its income and growth. In that case, appreciation is less likely to be included in community property and subject to equal division. Any amount included would be based on an assessment of the owning spouse’s compensation from the business during the marriage, as well as whether that compensation sufficiently contributed to the accumulation of other community property. This approach would be appropriate for larger manufacturing, contracting, or technology businesses.

The methods of business valuation are complex, and they vary depending on the type of business involved. At a basic level, valuation involves establishing how much a business is worth at the time of marriage and at the time of divorce or separation. The difference in the two values is then considered in light of proper method noted above. Courts will generally accept a business valuation method as long as the evidence on the record legitimately supports the value.

As you might imagine, the value of a business and how it is allocated to marital assets can make a substantial difference in a what both spousal and support orders. If your marriage involves a business interest, you should hire an attorney with substantial experience in complicated divorce cases, especially those involving the valuation of business assets. Judy L. Burger and her team have considerable experience in contested family law matters, and Judy is well-versed in business matters. Submit our Contact form today or call (415) 259-6636 to arrange an appointment.

California Divorce

What is a Deposition and How Are They Used in California Divorce and Separation Proceedings?

Legal Grounds for a California Divorce or SeparationAll civil lawsuits, regardless of their type, involve the exchange of information between the parties and the adjudication of rights by a court. Family law cases are no exception.


“Discovery” is the official term given to the exchange of information among the parties to a lawsuit. In discovery, much information is exchanged in writing. For example, one party may send written questions for the other to answer in writing or may request that copies of written documents be provided. Another form of discovery is an oral deposition.


A deposition is similar to trial testimony in many ways:

  • The witness is sworn in (swears or affirms to tell the truth);
  • The lawyers for the parties are present and may make ask questions and make objections;
  • A court reporter is there to transcribe and/or record the testimony;
  • The witness is asked, and must answer, questions; and
  • The witness’s answers are used as evidence in the case.


However, depositions are also different from trial testimony. The most significant differences are that depositions take place in advance of trial, no judge or jury is present, and depositions are held in less formal settings, such conference rooms.


Depositions may be taken of the parties to the lawsuit—in family law cases, the spouses. These are known as party depositions. Party depositions allow the lawyer asking the questions to lock in the other spouse’s version of the case.


However, depositions may also be taken to learn more about what other witnesses might know. These are known as witness depositions. Witness depositions may be taken of the parties’ employers, friends or neighbors, as well expert witnesses, such as economists.


California law sets forth specific requirements that parties and their lawyers must follow before and during depositions. For example, a notice of deposition must be provided in writing, and it must lay out the date, time, and location of the deposition. If the person being deposed is required to bring documents to the deposition, that must be stated in the notice, as well. In California, most depositions are limited to seven hours.


When conducted by experienced lawyers, oral depositions are a valuable tool used to collect information from the parties to a California family law case. In hotly contested divorce and support matters, you need an aggressive attorney with extensive experience in family law discovery and trials. Call the attorneys at the Law Offices of Judy L. Burger to learn how we can protect you and your children: (415) 293-8314.

 

Legal Grounds for a California Divorce or Separation
California Divorce, Legal Separation

Legal Grounds for a California Divorce or Separation

California is a “no fault” divorce state. In fact, it was the first state to enact a no fault basis for divorce in 1969. Prior to this change, California state law listed specific faults that, if committed by one of the parties, would be grounds for divorce. These included things such as adultery, extreme cruelty, habitual intemperance, and a number of others. Following enactment of California’s no fault basis, every other state eventually followed suit.

Under our no fault approach, there are only two grounds for divorce and legal separation in California: 1) irreconcilable differences, and 2) permanent legal incapacity to make decisions. Nearly every divorce is filed on grounds of irreconcilable differences. This allows a party to a marriage to pursue a divorce even if her spouse wants to stay married. According to Merriam Webster, irreconcilable means “so different that agreement is not possible.” In a marriage, then, at least one party must believe that agreement on the differences is not possible. Even if the other party states a willingness to agree on differences, they are still irreconcilable if the party of the first part maintains his position.

In the divorce proceeding, the party filing for divorce simply has to tell the court that the marriage needs to be dissolved because there are irreconcilable differences. While the differences are put into the record, no proof of their existence needs to be established. The court just needs to know that one of the parties considers there to be differences, and that they are irreconcilable. The court does have the authority to evaluate each case to reach a conclusion that reconciliation is not possible. In situations where a judge believes reconciliation is possible, he may continue the proceedings for 30 days to see if the parties will reconcile.

Before a divorce petition may be filed, there are residency requirements that must be fulfilled. At least one of the parties must have been a resident of California for six month, and a resident of the county of filing for the immediately preceding three months. If the requirements are not met, the court may refuse to accept the case or will dismiss it when the defect is discovered.

The breakup of a marriage is a difficult life event for both spouses. The attorneys at The Law Offices of Judy L. Burger have extensive experience in divorce matters. Call today to learn how our attorneys can help you and your family: (415) 298-8314.
Can I Kick My Spouse Out of the House?
California Divorce

Can I Kick My Spouse Out of the House?

When marital problems reach the point where living under the same roof becomes unbearable, there are remedies to that problem under California law. In an ideal situation, the parties to the marriage recognize that it’s time for physical separation, and they work out an agreeable solution. Often, however, that does not happen. If a mutually acceptable solution cannot be found, one party or the other may request that the court decide which one may retain possession of the family home during divorce or separation proceedings. This is known as a residence exclusion order or a “kick-out” order.

In other situations, there may be a real threat or possibility of harm to one of the parties. Under those circumstances, a party may approach the court to have the other party excluded from the home. There are two bases for excluding a spouse from the home when a possibility of physical or emotional harm exists: (1) emergency, and (2) non-emergency.

Under emergency conditions, a court may issue an exclusion order based only on the request of the threatened party. This is also known as an ex parte order because it happens without the excluded party having an opportunity to give his side of the story. This approach is necessary when the excluded party might be expected to react violently to the knowledge that the request has been made. For a judge to issue an ex parte exclusion order, the court must find the following:

  • That the party remaining in the home has a right to possession of the premises;
  • That the party being excluded has assaulted or threatens to assault the other party or other persons under that party’s care, such as children; and
  • That physical or emotional harm would result to the requesting party or others under her care if the order is not granted.

Under non-emergency conditions, the party to be excluded from the home is given notice of the request and has the opportunity to appear at the hearing. The standard for an exclusion order to be issued in this situation is a little less than the emergency order. In this case, the court must find that physical or emotional harm would be suffered by the requesting party, or someone under her care, if the order is not granted. The difference from the emergency order is the absence of an imminent threat of physical assault.

The breakup of a marriage is most always a time of strong emotions for both parties. It is unfortunate that sometimes the emotion turns hostile and even violent. When faced with such a challenging time in one’s life, experienced legal counsel and representation is necessary. The attorneys at The Law Offices of Judy L. Burger have extensive experience in divorce matters, including emergency and non-emergency exclusion actions. Make the call today to learn how our attorneys can protect you and your family: (415) 298-8314.