Category Archives: Marriage

The Intentional Breach of a Spouse's Fiduciary Duty

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.

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.

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.

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

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.

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.