Category Archives: Marriage

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.
Marriage

Can Spouses Reconcile During Divorce Proceedings?

Dating We recently discussed the fact that Kobe and Vanessa Bryant decided to try to work things out rather than get divorced.  It happens.  Sometimes after deciding to file for divorce, couples work out their differences and decide to stay together. If you already have your divorce proceedings in court, it may be possible to stop the proceedings before the divorce becomes final. A divorce is initiated by filing a petition for divorce. To stop the proceedings, the spouse who filed the petition has to file a Request for Dismissal. If the other spouse filed a Response, then the other spouse will also have to join or file a Request for Dismissal. Keep in mind that if you later want to pursue the divorce, you will have to start over with a new petition and pay the filing fees again. At the Law Offices of Judy L. Burger, we take a firm stand to represent the best interests of our clients. If you and your spouse decide to give your marriage another chance, we will support your wishes wholeheartedly. Until then, we will aggressively pursue the best outcome possible for you in your divorce or custody proceedings. Judy L. Burger is known for her tenacious representation of clients in high conflict cases in and around the San Francisco Bay and Sacramento areas.  If you are a parent facing a divorce or custody dispute, call us today to learn more about how we can help.  Call (415)293-8314 in the San Francisco Bay area or (916)631-1935 in the Sacramento area, or contact us online via our confidential inquiry form.
Marriage

Can a Man Legally Adopt His Wife’s Last Name When Marrying in California?

EngagementIn California, our state allows both men and women to change their last names when they get married if one or both of them choose to do so.  California is one of only nine states that officially has this equal opportunity law on the books. A recent incident in Florida brought to light the lingering gender discrimination in other parts of the country.  According to news reports, a Florida man was accused of fraud by the state Department of Motor Vehicles after he adopted his wife’s last name following their 2011 marriage. Lazaro Dinh decided to take his wife’s last name rather than vice versa. Lazaro said he had no emotional ties to his last name and he wanted to help his wife’s Vietnamese family perpetuate their surname. After the wedding, Lazaro followed the usual steps to obtain a new passport and Social Security card.  He also changed his bank accounts and credit cards before attempting to obtain a new driver’s license. Lazaro then applied for a new driver’s license the same way female Floridians do when changing their name after marriage.  The Florida DMV issued Lazaro a new license and he went on with life. More than a year later, Lazaro received a letter from Florida’s DMV informing him that his license had been suspended due to an accusation of “obtaining a driving license by fraud”. He first thought it must be a mistake, but when he called the DMV office in Tallahassee he was told that in order to legally change his name he must do so through a court, a process that takes several months and over $400 in filing fees. When Lazaro explained that his name change was the result of a marriage he was told the rule only applied to women. Luckily for Lazaro, the Florida DMV decided not to pursue fraud charges at roughly the same time the news hit the internet. At the Law Offices of Judy L. Burger, we will aggressively pursue the best outcome possible for you in your divorce or custody proceedings.  Judy L. Burger is known for her tenacious representation of clients in high conflict cases in and around the San Francisco Bay and Sacramento areas.  If you are a parent facing a divorce or custody dispute, call us today to learn more about how we can help.  Call (415)293-8314 in the San Francisco Bay area or (916)631-1935 in the Sacramento area, or contact us online via our confidential inquiry form.
California Divorce, Marriage

What’s In a Name? And Whose Will it Be?

1040 Form

If you decide to change your name when you get married, you will need to submit a series of forms notifying several different institutions and government bodies of your name change. The first one to tackle should be the Social Security Administration for tax purposes and retirement benefits. Notifying the Social Security Administration of your name change serves dual purposes. Within 10 days of notifying the Social Security Administration, they will automatically notify the IRS of your new name. Failure to alert Social Security could likely end up causing the IRS to reject your tax return, since your new name on your tax forms will not match Social Security records. The next agency to notify is your state’s DMV office to obtain a new driver’s license. While you’re there, ask for a form to get your vehicle’s registration changed to reflect your new name. Once you have a new driver’s license, you will need to alert your employer of your new name so that your next paycheck will have the correct name on it.  Depending on where you bank, it might be a little difficult to cash a check with someone else’s name on it. Finally, you should alert your creditors so that your creditor accounts can be transitioned to reflect your new name.  Otherwise, your good credit history with your old name could disappear. At the Law Offices of Judy L. Burger, we will aggressively pursue the best outcome possible for you in your divorce or custody proceedings.  Judy L. Burger is known for her tenacious representation of clients in high conflict cases in and around the San Francisco Bay and Sacramento areas.  If you are a parent facing a divorce or custody dispute, call us today to learn more about how we can help.  Call (415)293-8314 in the San Francisco Bay area or (916)631-1935 in the Sacramento area, or contact us online via our confidential inquiry form
Marriage

Requirements for Getting a Marriage License in California

Love We spend a good amount of time here talking about getting divorced in California, so it seems only fair to turn our attention for a few moments to how to get married in California in the first place. In order to get married in California, you must first obtain a marriage license. You do not have to be resident of California to obtain a marriage license, but California has a few unique laws and regulations which will require a few decisions on your part before going to get a license. For example, you may decide that you would like a confidential marriage license. Or, you may decide you would rather a friend or relative perform the marriage ceremony by participating in the Deputy for a Day program.  You will also need to decide what names each of you will use are your married names. Marriage licenses are issued by the Clerk’s office, which will require a picture ID and possibly a certified birth certificate.  You will also need to know the city and state where your parents were born and each of their full names, including your mother’s maiden name. If you were previously married, then you should be prepared to present proof of divorce, death, or annulment when you apply for a marriage license.  If you were granted a divorce within the last 90 days before applying for a marriage license, then you will need to provide a copy of your final divorce decree. These are some of the technical requirements for getting a marriage license.  Of course, we will add that premarital counseling with a qualified family law attorney and perhaps an estate planner are always recommended, especially if you have or expect to have assets you want to protect in the event of a future divorce. At the Law Offices of Judy L. Burger, we will help you determine the best course of action to achieve your goals in your divorce or custody proceedings.  Judy L. Burger is known for her aggressive representation of clients in high conflict cases in and around the San Francisco Bay and Sacramento areas.  If you are a parent facing a divorce or custody dispute, call us today to learn more about how we can help.  Call (415)293-8314 in the San Francisco Bay area or (916)631-1935 in the Sacramento area, or contact us online via our confidential inquiry form.
Marriage

Check this List Before You Go to the Chapel

Runaway BrideThere is more to getting married than just showing up at the church.  If you live in California and are thinking about getting married, be sure to check the requirements.  Marriage laws vary by state, so don’t wait until the last minute to make sure you are ready.

California does not have many requirements in order to get married, so this will be a short checklist:
  • Get a marriage license. California requires each couple to make an application and obtain a marriage license. Once issued, the license is good for 90 days.
  • Make sure your marriage license will not expire before the wedding day.  If the license expires before you get married, then you must get another one.
  • Check your fiancé’s date of birth.  He or she must be of legal age of consent, which in California is eighteen, unless parents sign documents consenting to the marriage.  (Which is another matter entirely.)
  • Find an authorized person to conduct the marriage ceremony, along with a witness.  The authorized person to conduct the ceremony may be a judge, county clerk, priest, minister or rabbi of any religious denomination who is at least 18 years old. Active and retired judges can also perform the ceremony, as well as anyone who completes the Deputy for a Day program.
In addition to completing the list above, if you are planning to get married, you should seriously consider premarital counseling with a qualified family law attorney.  You may not be planning on getting divorced, but it makes sense to know what you should expect in the event of a future divorce.  A qualified family law attorney can explain your options and recommend the best course of action for protecting your assets, including drafting a comprehensive prenuptial agreement if needed. At the Law Offices of Judy L. Burger, we will aggressively pursue the best outcome possible for you in your divorce or custody proceedings.  Judy L. Burger is known for her tenacious representation of clients in high conflict cases in and around the San Francisco Bay and Sacramento areas.  If you are a parent facing a divorce or custody dispute, call us today to learn more about how we can help.  Call (415)293-8314 in the San Francisco Bay area or (916)631-1935 in the Sacramento area, or contact us online via our confidential inquiry form.