Category Archives: Marriage

What Duties Do Spouses Owe to Each Other?
Marriage

What Duties Do Spouses Owe to Each Other?

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You have probably heard the term “fiduciary” used in the context of business relationships. In a nutshell, married people have a fiduciary duty to one another in all matters involving marital property. Marital property is anything of value that is obtained or accumulated while a couple is married.

California Family Code § 721 provides that “in transactions between themselves, spouses are subject to the general rules governing fiduciary relationships . . ..” What exactly does that mean? It means a duty of “good faith and fair dealing” with one another. This code section also states that the duty is the same as between business partners who are not married.

In practical terms, each spouse is obligated to ensure that in any action that adds to or diminishes marital property, the interests of the other spouse are protected. Section 721 authorizes spouses to enter into transactions with third persons. This can range from very basic things like buying a television to more complex things like investing retirement funds. The fiduciary duty imposed by the law protects the spouse who is not involved in the transaction.

The general idea of a fiduciary relationship is that one party trusts another to act on her behalf in financial matters. This is true in various business relationships, such as banking and investments, as well as in matters of marital property. The person being trusted has a fiduciary duty to ensure to the greatest extent possible that the trusting person’s financial interests are not harmed.

In many marriages, one of the spouses manages the household finances without much involvement from the other. The managing spouse functions as a trustee of the other spouse’s interest in the marital assets. If the managing spouse harms the other’s interest by error or fraud, then the trusting spouse has a cause of action just as she would against a business partner.

When a marriage is dissolved, disputes often arise regarding management of the marital assets by one spouse or the other. If a spouse is found to have harmed the other’s interest in the marital assets, California Family Code § 1101 permits the court to award an offset to restore the harmed spouse’s share of the marital assets she lost as a result of a transaction. This is true whether or not the managing spouse intended to cause harm. If a spouse is found to have fraudulently harmed the other’s interest, a court is required to grant 100 percent of the value of the fraudulent transaction to the harmed spouse.

In an ideal world, a spouse would never act in a way that is detrimental to the other. But that is not always the case. If you are contemplating divorce or need advice regarding matters of marital property, you should consult with an experienced California lawyer. The attorneys at the Law Offices of Judy L. Burger are experienced in difficult divorce proceedings and what it takes to sort out complexities in the marital estate. Call today to see how we can help you: (415) 293-8314.


 

Who “Owns” Money Damages Recovered by One Spouse During the Marriage?
Marriage

Who “Owns” Money Damages Recovered by One Spouse During the Marriage?

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Money damages received by a spouse as compensation for a personal injury that occurred during the marriage are owned by both parties. The money is marital property. As with most things that come up in the dissolution of a marriage, however, there are additional details to be considered.

While California Family Code § 780 provides that damages received for an injury that occurred during marriage are marital property, Section 781 states that if the injury occurred after entry of a final divorce decree or after separation of the parties, the money damages  are the separate property of the injured party. It is important to recognize, however, that whether a couple is considered legally separated can be complicated. If there is a formal separation approved by the court, there is no question. If not, the court considers various factors, including living arrangements, comingling of funds, and other indications of whether the couple otherwise functioned as if they were married.

If a couple dissolves a marriage during which one of the parties received money damages, California Family Code § 2603 provides for the allocation of those funds to the spouse who received them. But that is assuming the funds can be distinguished from other marital funds and have not been comingled. If, for example, the money was set aside in an investment account in the injured party’s name, that money, although marital property during the marriage, would be allocated to the injured spouse at the time of dissolution.

If the money damages were comingled with other marital funds, then they may be considered marital property at the time of dissolution. Where comingling is concerned, money damages are treated essentially the same as property owned by a spouse before the marriage. If the owning spouse allows the money or property to be comingled with other marital property, it is treated as part of the marital estate at the time of dissolution.

Once again, though, there are more details. Section 2603 also authorizes the court to allocate some of those funds to the non-injured spouse “after taking into account the economic condition and needs of each party, the time that has elapsed since the recovery[,] . . . and all other facts of the case.” If the court makes such an allocation, however, no more than one-half of the funds may be so allocated.

Division of the marital estate at the time a marriage is dissolved can be highly contentious and complicated. While state law provides the framework for issues such as money damages for personal injury, it also gives the courts broad discretion to achieve a fair outcome for both parties. If you are facing a divorce proceeding, especially one that involves a complicated estate, you should consult with an experienced California lawyer. The attorneys at the Law Offices of Judy L. Burger are well-versed in difficult divorce proceedings. Call today to see how we can help you: (415) 293-8314.

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

Who Controls Marital Property During the Marriage?

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

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

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

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

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

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

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

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


 

Does California Recognize Common Law Marriages?
Marriage

Does California Recognize Common Law Marriages?

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It seems like no one gets married anymore. We all have family members and friends who choose to live with their significant others rather than “tie the knot.” We have all also probably heard of common law marriage. Doesn’t that mean that people living together are actually tying the knot even though they may think otherwise? In California, perhaps surprisingly, that is not the case. The Golden State has not recognized common law marriage since 1895.

Marriage laws are governed by state laws. Common law marriage was a function of older times when states were either not yet states or had not yet formally codified marriage rules. Today, only 10 states and the District of Columbia recognize common law marriage.

While California law does not allow for common law marriage, it may recognize one that was effected in a state that does permit common law marriage. Such was the case in the matter of In re Marriage of Smylko. In this case, the Smylkos had been formally married in Alabama in 1941, but they divorced in 1953. In 1957, they moved back in together and again lived as husband and wife in such a way as constituted a common law marriage under Alabama law.

The couple moved to California in 1960, where they continued to live together. In 1976, Mr. Smylko moved to Hawaii and subsequently remarried. He continued to send money to his common law wife in California for another five years. When he stopped, his California wife filed an action to “determine the validity of her marriage.” The California court ruled that there was a valid marriage recognized in that state due to its having existed in the state of Alabama before the Smylkos moved to California.

This case, which was decided in 1986, does not mean that any common law marriage from another state will be found to constitute marriage in California. Each case is evaluated on its own particular facts as well as the laws of the state where the marriage occurred.

If you have established a relationship that is commensurate with marriage within the state of California, a claim of common law marriage will not survive. If, however, you came here from another state under circumstances that might fulfill the common law marriage requirements in that state, and you need for that marriage to be recognized for whatever reason, you might have a strong argument.

The attorneys at the Law Offices of Judy L. Burger have extensive experience in family law matters, including what constitutes a legal marriage. We can advise you about the many different issues that can come into play when a marriage is in question. Contact us today to learn how our attorneys can help you in your case: (415) 293-8314.

What Is Required to Marry in California?
Marriage

What Is Required to Marry in California?

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Every state has legal requirements that must be met if two people want to get married. One of the main requirements is the issuance of a marriage license. The marriage license must be obtained before the marriage takes place, and it must be filed with the appropriate office within 10 days after the ceremony occurs. This article will discuss the prerequisites for marriage in California.

California recognizes two types of marriage licenses: public and confidential. Public marriage licenses are part of the public record in the county in which the license is purchased. Anyone can obtain a copy of a public marriage license. Confidential marriage licenses are confidential records that are registered in the county where they are purchased. Other than the couple, only people who have a court order may obtain a copy of a confidential marriage license.

Some of the requirements for a marriage license are common to both public and confidential licenses:

  • Both people must be at least 18 years old (with one exception for public licenses noted below).
  • Neither person may be a partner in a current marriage.
  • Both people must appear personally with photo identification and, depending on the county’s requirements, a copy of their birth certificates.
  • The marriage must be solemnized in a ceremony conducted by someone legally authorized to do so.
  • If either person was married before, he or she must know the ending date of the marriage and how the marriage ended, such as through divorce or death.
  • The couple must pay a fee for the issuance of the license.

To obtain a public marriage license, at least one witness must be present and must sign the certificate. Additionally, a person under the age of 18 may marry with permission of both a parent and a superior court judge.

To obtain a confidential marriage license, the parties must be living together at the time they apply for the license. No witnesses are required.

Once issued, a marriage license is valid for 90 days. The marriage must take place within this time. If it does not, the couple will need to obtain a new license.

If you need the assistance of an experienced California family lawyer, the attorneys at the Law Offices of Judy L. Burger can help. Make the call today if you have questions about California family law: (415) 293-8314.

Marriage

California Law on Premarital Agreements

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California Law on Premarital Agreements
If asked, few people would willingly turn over their future financial decisions to lawmakers or judges, but the truth is that without a premarital agreement, that is exactly what happens. Executing a premarital agreement gives both parties control over future financial matters. And premarital agreements are designed for more than just divorce.

In fact, California law allows the parties to a planned marriage a great degree of control over future financial matters, regardless of how the marriage ends. For example, a couple could agree to one set of conditions if the marriage ended in divorce but a separate set of conditions if the marriage ended with the death of one of the parties.

At the core of a valid premarital agreement are voluntariness and full disclosure. In fact, if either of these conditions are not met, the agreement is unenforceable. In addition, a premarital agreement must be made before the marriage occurs. The agreement only becomes effective after the marriage has been formalized.

A couple can set forth their respective rights and obligations with regard to several matters in a premarital agreement:

  • real and personal property ownership, management, and control;
  • the disposition of property at the termination of the marriage;
  • the requirement to create another document — such as a will or trust — to execute the provisions of the premarital agreement; and
  • the ownership and disposition of life insurance death benefits.

A premarital agreement may make provisions for spousal support, but, by law, it cannot control child support or child custody.

California law relating to premarital agreements also contains several formalities that must be followed for the agreement to be enforceable. If you need the assistance of an experienced California family lawyer to protect your interests in the drafting or interpretation of a premarital agreement, the attorneys at the Law Offices of Judy L. Burger can help. Make the call today to learn how our attorneys can fight for you: (415) 293-8314.

Name Changes after Marriage in California: What's Legal?
Marriage

Name Changes after Marriage in California: What’s Legal?

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Did you ever wonder what name changes are legal after marriage in California? People planning to marry often want to change their names, but they aren’t sure what is legal. Fortunately, California law specifically addresses this issue.

Initially, it is important to know that California law allows both parties to a marriage to retain their names; no name change is required of either party. However, if one or both parties wish to do so, California Family Code § 306.5 allows them to change their middle names, last names, or both. The provisions for changing names vary slightly, depending on which name or names are being changed.

Either party to a marriage may choose from the following last names:

  • The current last name of the other spouse;
  • The last name of either spouse at birth;
  • A single last name that combines all or a portion of either spouse’s current last name or last name at birth; or
  • A hyphenated version of the parties’ last names.

The law also sets forth allowable middle name choices after marriage. As with last names, a person may choose to use his or her spouse’s last name as a middle name. Likewise, a person may adopt, as a middle name, the given last name of either spouse at birth. The remaining two options are as follows:

  • A hyphenated version of the middle and/or last names of either spouse; and
  • A hyphenated version of the middle and/or birth last names of either spouse.

In either case, the new name or names are listed on the marriage license application. By law, a certified copy of the marriage certificate serves as proof that the party either retained his or her original name or changed it legally. The same document may be used to show the person’s “true, full name” for licensure under the California Vehicle Code.

These provisions apply when the choice to change a name is made at the time the marriage certificate is issued. The only changes to the marriage license that are permitted thereafter are those to correct clerical errors. Changes due to clerical error may be made to ensure that the names on the marriage license comport with the names on the application for the license.

If a party wishes to change his or her name at a later date, these provisions do not apply. Instead, the person may apply to a superior court for a name change or may change his or her name under the provisions of California common law.

When marriage is contemplated, many legal issues arise, from name changes to prenuptial agreements. Experienced legal counsel can help you navigate these issues and structure your marital expectations commensurate with your wishes. The attorneys at The Law Offices of Judy L. Burger have extensive legal and business experience in family law matters. Contact us today at (415) 259-6636 to learn more.

"Unsound Mind" and the Capacity to Marry in California
Marriage

“Unsound Mind” and the Capacity to Marry in California

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Mental competence is a term often heard in the course of various legal proceedings. We have all heard of criminal defendants being evaluated for competence to stand trial, or of wills being challenged on the basis of the maker not being “of sound mind and body.”

Contracts are also subject to mental capacity requirements, and while marriage is considered a matter of the heart, it is a legal contract. The California Family Code says that for a marriage to be valid, the parties must first be consenting, and then must be capable of making the contract of marriage.

Under California law, there is a rebuttable presumption that people are mentally capable of making decisions such as whether to marry or enter into other kinds of contracts. The Due Process in Competency Determinations Act provides a framework for rebutting the presumption of competence in cases where a person may be of unsound mind. The Act gives examples of mental functions to be considered in assessing mental competence, such as information processing, thought processing, and general alertness. Any deficit in one of these areas may cause a finding of incompetence if it impairs the person’s ability to appreciate the consequences of his or her actions.

Capacity to make a marriage contract by persons with mental deficiencies, however, is treated a little more favorably under the law than capacity for other legal transactions. Specifically, a person with a mental deficit for whom a conservator has been appointed is not automatically considered incapable of marrying. Rather, he or she is free to marry unless his conservator, a relative, friend, or other interested party petitions a court to intervene.

In that case, the law allows a court to order a determination to be made as to competence. In the course of a hearing on the matter, testimony may be heard from any interested party who can provide relevant information regarding the conservatee’s mental state. In this way, the law provides special treatment for the rite of marriage in cases of persons with mental disabilities. Rather than discouraging marriage, it encourages and protects the rights of people to marry, while also protecting those who truly lack the capability to make a marriage contract.

The attorneys at The Law Offices of Judy L. Burger have extensive experience in family law, including cases involving the capacity to enter a marriage contract. Make the call today to learn how our attorneys can help protect your rights or those of a loved one: (415) 298-8314.

 

United States Supreme Court: Gay Marriage Legal in All 50 States
Marriage, Same Sex Marriage and Divorce

United States Supreme Court: Same-Sex Marriage Legal in All 50 States

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Until June 26, 2015, state laws governing same-sex marriage were as diverse as the states themselves. On one end of the spectrum were states that would recognize a right for same-sex couples to marry; on the other end were states that would neither issue a marriage license nor recognize valid same-sex marriage licenses issued by other states. The ability of states to treat same-sex couples differently than opposite-sex couples forever changed when the United States Supreme Court issued its decision in Obergefell v. Hodges.

The plaintiffs who filed lawsuits in the Obergefell case consisted of 14 same-sex couples and two homosexual men whose life partners had passed away. The plaintiffs were from Kentucky, Michigan, Ohio, and Tennessee. Initially, the cases were brought in separate actions in federal trial courts, called the district courts. All of the district courts ruled in favor of the plaintiffs. However, the cases were consolidated at the next stage of the judicial process, and the United States Court of Appeals for the Sixth Circuit reversed the judgments, ruling against the rights of same-sex couples.

The two issues in the case related to the ability of the states to (1) refuse to issue marriage licenses to same-sex couples; and (2) refuse to recognize as legal same-sex marriages that had been performed in other states.

The United States Supreme Court ruled in favor of the plaintiffs, holding that the state laws that “exclude[d] same-sex couples from civil marriage” were unlawful and that states could not ” refuse to recognize a lawful same-sex marriage performed in another State.”

This decision will affect many aspects of same-sex marriage nationwide, as marriage is a cornerstone of American society. Indeed, the Court specifically delineated many benefits of marital status, such as the following:

  • tax benefits;
  • inheritance rights;
  • medical decisionmaking rights;
  • vital statistics records, such as birth and death certificates;
  • survivor rights for the purposes of insurance and workers’ compensation; and
  • child custody and support.

California was the second state to recognize same-sex marriage, in 2008. However, it has had a rocky history due the passage of a state constitutional amendment, Proposition 8, which prohibited same-sex marriage. The constitutional amendment was challenged but ultimately invalidated.

The termination of a legal union can be financially and emotionally devastating. In such a circumstance, it is important to work with an experienced, compassionate lawyer who can help you navigate a very difficult time. Judy L. Burger has an extensive, successful background in family law matters in Northern California. Call her today: (415) 293-8314.


 

The Intentional Breach of a Spouse's Fiduciary Duty
California Divorce, Marriage

The Intentional Breach of a Spouse’s Fiduciary Duty

A fiduciary duty is one in which one party owes another the highest duty of care. For example, someone serving as an executor of an estate has a duty to handle its property and finances with the utmost care. An executor cannot misappropriate money or steal property belonging to the estate, or he may be liable for damages.

Similarly, California law places a fiduciary duty on each spouse to act in the best interest of the other spouse. California Family Code § 721 explains that spouses have “a duty of the highest good faith and fair dealing” with each other and that “neither shall take any unfair advantage of the other.” This fiduciary duty includes three core components: (1) allowing access to records of financial transactions; (2) providing accurate and complete information about community property transactions; and (3) treating benefits and profits from certain community property transactions fairly and accounting to the other spouse for them.

 In addition, California law provides a duty of full disclosure regarding all community assets. The duty applies during the period of marriage and after the parties separate, until the item is divided by the court or the parties. Indeed, the California laws regarding divorce provide a formal method by which the assets and liabilities of each party are disclosed to the other.

What happens if one spouse does not perform his or her fiduciary duties? The failure to perform these duties is a called a “breach,” and the law sets forth what happens when there is a breach. The consequence that is imposed depends upon the seriousness of the breach and the view of the family court.

Examples of ways that parties may breach their fiduciary duties include hiding assets or transferring assets to try to deprive the other spouse of any interest in them. The law provides several remedies, or consequences, for a breach of spousal fiduciary duties, including the following:

  • A court-ordered accounting and determination of rights of ownership;
  • The placement of the name of a party on the title of an asset;
  • An award of either 50% of an undisclosed or transferred asset or of an amount of money to compensate the injured party for the loss of interest in that asset; and
  • Attorney’s fees and court costs.
In particularly egregious cases, the family court can order the breaching party to give the injured party the whole asset or to pay the injured party its full value . When fraud, oppression, or malice have been adequately proven, the court may award punitive damages, designed to punish the breaching party . It is sometimes necessary to hire a forensic accountant to show that a spouse intentionally breached his or her fiduciary duty. A forensic accountant is trained to trace funds and assets, which can help demonstrate that a spouse intended to hide or misappropriate community assets.

Breach of the spousal fiduciary duty is serious wrongdoing. If you are concerned that your spouse may be attempting to hide or minimize assets, you need an aggressive lawyer who will fight on your behalf. The attorneys at the Law Offices of Judy L. Burger have extensive experience in contested divorce and property proceedings. Call today to learn how our attorneys can protect your property interests as you go through this difficult time: (415) 293-8314.