Category Archives: Spousal Support

What Is “Property” in a Divorce?

What Is “Property” in a Divorce?

We all own ‘stuff.’ Sometimes we get quite attached to that stuff, which makes it that much more difficult to divide it up during a divorce. Both parties may want an item and have trouble deciding whether it is considered property in a divorce. Basically, property is anything that can be bought or sold or has a value. However, the question may become more complex during the property division stage of a divorce.

Community Property vs. Separate Property

Generally, courts consider most property (and debts) accumulated during a marriage to belong to both parties. However, this is not as cut and dried as it may seem. For example, an inheritance one spouse receives during the marriage may remain the separate property of that party. Sometimes separate property may become mixed with community property during the course of the marriage. Hard decisions have to be made, then approved by the court.

But Is it Really “Property”

Generally, we think of personal property and real property. Some possessions may not be thought of as property, though, especially when it comes to splitting them between spouses. That said, you might expect the following items to be personal property:
  • Furniture,
  • décor,
  • collections, like wine or art,
  • appliances,
  • clothes,
  • jewelry,
  • books, and
  • other personal effects.
However, personal property also may include:
  • bank accounts,
  • retirement accounts,
  • investment accounts,
  • vehicles, including boats, cars, and airplanes.
Real estate, or real property, may include:
  • Your home,
  • Commercial property, and
  • investment property.
We sometimes don’t think of our belongings as “property” in a divorce, property that needs to be split. For example, Margie never considered her husband’s tool collection as property  — until she filed for divorce. And Liam never thought his wife’s art collection was a big deal, but then it became property to be appraised during their property division negotiations. Whether you consider items to be property or not, be aware that they may figure into your divorce settlement.

Final Thoughts on Property in a Divorce

Determining whether a possession is community property or separate property makes a difference in property division. It’s also important to know the value of your property before dividing it up. You need an attorney who understands simple to complex property situations. To discuss how to handle property and divorce issues, please call us at 415-293-8314. The attorneys at the Law Offices of Judy L. Burger assist clients in San Francisco, Beverly Hills, Marin County, Santa Barbara, Ventura/Oxnard, San Jose, Gold River (Sacramento), and surrounding communities.
3 Debunkable Myths About California Spousal Support

3 Debunkable Myths About California Spousal Support

Myths are widely-held beliefs that are actually incorrect. Even California divorces face a few myths, especially about spousal support. Fortunately, those myths are easy to debunk using California divorce laws.

Myth #1 – All Women Receive Spousal Support

This belief is false. According to California law, the court may consider the following factors when deciding whether either party will receive spousal support:

  • Each party’s ability to earn a living.
  • Whether one party helped the other party with education, training, career opportunities, and obtaining licenses necessary for employment.
  • If the supporting party makes enough money to pay spousal support.
  • The standard of living each party enjoyed during the marriage.
  • Each party’s obligations and assets, including their separate property.
  • How long the marriage lasted.
  • Whether the supported spouse can work without hurting the couple’s dependent children.
  • The parties’ age and health.
  • Whether the couple has a history of domestic violence, including actions taken against their children.
  • Any tax consequences the parties may face.
  • Whether the supported party can eventually become self-supporting.
  • Whether one party has a criminal conviction for abuse against the other.

The courts may decide not to give spousal support to a woman based on the factors listed above.

Myth #2 – Only Women Can Receive Spousal Support

Also easily debunked. California law does not state that women can receive support under the circumstances listed above. Instead, it refers to the parties to the divorce.

For example, it is uncommon for wives who earn more than their husbands to receive support payments. In fact, they may be ordered to pay spousal support to their ex-husbands if the conditions are right.

Myth #3 – Marriages of Over 10 Years Guarantee Spousal Support

This is a common misunderstanding. California law does mention marriages of long duration, which means marriages of 10 years or more.

However, the law states that the court “retains jurisdiction” indefinitely for marriages that meet the long duration test. Whether a party receives spousal support or not is still determined by the court’s consideration of the factors listed in Myth #1 above.

Learn More About Your California Spousal Support Options

The attorneys at the Law Offices of Judy L. Burger are experienced at all phases of divorce proceedings, including spousal support. Call us at 415-293-8314 to schedule a private appointment or visit our website. We maintain offices in San Francisco, Beverly Hills, Marin County, Santa Barbara, Ventura/Oxnard, San Jose, Gold River (Sacramento), and surrounding communities.

Getting Spousal Support in a Registered Domestic Partnership

Getting Spousal Support in a Registered Domestic Partnership

Ending a long-term or very close relationship is never easy. Spousal support is one sometimes hotly contested issue in a divorce. If spousal support is appropriate, then how much should be paid? This holds true for registered domestic partnerships, too. Partners embroiled in a breakup may also be facing spousal support questions.

How is a domestic partnership registered in California?

Couples who want to have an opposite-sex marriage must get a marriage license from the County Clerk’s office. Same-sex couples, and certain opposite-sex couples, do not buy a license to memorialize their relationship. Instead, they file a Declaration of Domestic Partnership or a Confidential Declaration of Domestic Partnership with the California Secretary of State’s office. California Family Code Section 297 outlines the requirements for couples who form a domestic partnership.

To terminate or dissolve a registered domestic partnership, the partners may file a Notice of Termination of Domestic Partnership, also with the Secretary of State. Requirements for termination are laid out in California Family Code Section 299.

Can you get spousal support in a registered domestic partnership?

Filing the Notice under Section 299 means that both parties waive their rights to spousal support. To claim support, partnership typically must file a Petition for Dissolution of Domestic Partnership with the California Superior Court.

Parties who file a Notice of Termination do not go through court hearings or mediation. When filing a Petition for Dissolution, however, the parties may attend hearings and ask a judge for temporary orders. Support is one issue that will be addressed by the court.

What does a partner need to do to get spousal support?

As noted above, the first step is to file the Petition for Dissolution. After that, the dissolution proceeds similar to a divorce. The partners will negotiate an agreement on community property and debt, arrive at child custody and support arrangements if necessary, and come to an agreement about support. If the partners are unable to do this through negotiation or mediation, their case may be heard by a judge, who will then issue an order about these issues.

Make sure you get the support you deserve.

Please call us at 415-293-8314. The attorneys at the Law Offices of Judy L. Burger assist clients with dissolution of marriages and domestic partnerships from our offices in San Francisco, Beverly Hills, Marin County, Santa Barbara, Ventura/Oxnard, San Jose, Gold River (Sacramento), and surrounding communities.

Financial Tips for Men Going Through a Divorce

Financial Tips for Men Going Through a Divorce

In a previous blog, we talked about finances for women going through a divorce. Now, it’s the men’s turn. The divorce experience is as different for men and women as, well, men and women. Nowhere is that more apparent than in family finances. Even though men tend to fare better financially than women post-divorce, it is still important to consider some financial tips for men who are going through a divorce.

Learn Everything You Can About Your Finances

It may be difficult to negotiate a reasonable divorce settlement if you don’t know what’s involved. What bank accounts do you and your spouse have? How much debt do you have? Did you or your wife take the leading role in financial decisions. Make sure you know where you stand.

Make an Inventory of All Property

At this point, don’t worry about whether it is community property or separate property. Account for cash, bank accounts, real estate, personal property, and other assets. Prepare a list that is as complete as possible. Then put it in a safe place.

Explore Spousal Support Options

Some men resist paying spousal support. The reasons vary. Sometimes the husband took a greater role in financially supporting the family while the wife focused on home and children. Others may be worried they won’t have enough money to live on.

Some men resist receiving spousal support. In divorce cases where the wife makes more money than the husband, or where the husband takes an increased child custody role, the wife may pay spousal support to the husband.

Prepare for Child Support

Whether you will pay and how much depends on a number of factors. The judge hearing your divorce case will enter an order for one or both parents to provide a certain amount to cover a child’s living expenses.

Make sure you provide complete and accurate financial disclosures. The court will consider both parents’ net disposable income when deciding on child support.

Hold Off on Impulse Buying

Depression or even a sense of freedom sends some men over the financial deep end. This may not be the best time to buy a boat, go to Vegas, or move cross country. If possible, wait until after the divorce is final before making any big decisions.

Divorce is Hard

An experienced California divorce attorney can help you achieve the best outcome possible. Judy Burger is a California Certified Family Law Specialist, and founder of the Law Offices of Judy L. Burger. Please call our offices at 415-293-8314 to set up an appointment with one of our attorneys. We assist clients along the Northern to Central California Coast.
Vocational Experts May Make a Difference in Your Divorce Settlement

Vocational Experts May Make a Difference in Your Divorce Settlement

Sometimes it is necessary to call in experts to help finalize a divorce settlement. In addition to forensic accountants, child psychologists, and financial experts, one or both parties may call vocational experts for assistance.

Vocational experts analyze an individual’s ability to work compared to the job market. They also calculate the earning power of one or both spouses. This calculation may be particularly useful where one spouse has stayed home to care for children while the other worked. Typically, the expert will assess the abilities, interests, experience, and training of an individual before compiling a report.

Why Hire a Vocational Expert?

Sometimes one party will reduce their income in an effort to avoid child support and spousal support obligations. Income assessments performed by a vocational expert may be used by the court instead of that spouse’s actual earnings. For example, let’s say Stan quits his six-figure corporate job to flip burgers. He does not want to pay child support or spousal support. Based on a vocational expert’s report, the court may overlook what Stan is actually paid in favor of what he is capable of earning.

In some divorce proceedings, vocational experts may be needed to assess both parties. Consider the divorce of Joe and Patricia M. One spouse, Joe, has been the primary breadwinner for most of the marriage. He claims that he should pay very little spousal support because Patricia has a degree in accounting. However, Patricia’s vocational expert estimates her earning potential to be much lower than Joe’s because she was a stay-at-home mom for 20 years. Their divorce settlement likely will be based at least in part on the vocational expert’s lower estimate.

Vocational experts may also assess a spouse’s abilities, then compare them to the current job market. For example, Jackie trained and worked as a travel agent before she married. Unfortunately, travel agents are being replaced with online reservation sites, so Jackie’s job opportunities may be limited. A vocational expert might report that Jackie’s earning potential is low or that she needs extensive retraining to find a new career. Either way, a court may take this information into account when finalizing her divorce settlement.

Learn More About Vocational Experts

Courts are not generally required to accept a vocational experts’ report. However, such reports are often considered during the final negotiation of a divorce settlement.

The attorneys at the Law Offices of Judy L. Burger are experienced at all phases of divorce proceedings. Call us at 415-293-8314 to schedule a private appointment or visit our website. We maintain offices in San Francisco, Marin County, Santa Barbara, Ventura/Oxnard, San Jose, Gold River (Sacramento), and surrounding communities. Our new Beverly Hills office is opening soon!
How to Get Temporary Spousal Support or Child Support

How to Get Temporary Spousal Support or Child Support

Often a party to a divorce may be eligible for temporary spousal support, temporary child support, or both. Calculating the amounts due can be a complicated process. Though this is not a comprehensive list, courts may consider some of these factors when calculating support:

  • Earning capacity, including employability and ability to work without harming dependent children;
  • Future earning capacity of a party who chose caring for family over pursuing a career,
  • Contributions made by one spouse toward the education or training of the other,
  • Ability to pay spousal support while maintaining a standard of living,
  • Community and separate obligations and assets,
  • Length of marriage,
  • Age and health of each spouse,
  • Domestic violence claims,
  • Tax consequences to the parties,
  • Criminal convictions, and
  • Any other factors the court considers to be important.

One thing to remember is that temporary spousal support and child support are not granted automatically. You have to ask for them.

Applying for Temporary Spousal Support

Temporary spousal support can be requested if you have an open case for divorce, legal separation, or a domestic violence restraining order. Your attorney can help you complete and file the following forms to request temporary spousal support or child support:

  • Request for Order, and
  • Income and Expense Declaration.

After filing your papers, you will have someone else serve a copy on your spouse, along with two other documents:

  • Responsive Declaration to Request for Order, and
  • Income and Expense Declaration.

Then you and your attorney will file a document stating that your spouse was served. At the hearing, the judge will sign an order stating whether you get temporary spousal support and how much.

Applying for Temporary Child Support

You must have opened one of the following cases to request temporary child support:

  • If married or a registered domestic partner – a divorce, legal separation, annulment, domestic violence restraining order, petition for custody, or local child support agency case.
  • If not married or a domestic partner –a parentage (paternity) case, domestic violence restraining order, petition for custody and support of minor children, local child support agency case.

This process is similar to requesting temporary spousal support. However, make sure you serve copies with the local child support agency if they are involved.

As with spousal support, the judge enters a court order. After the hearing, the process is slightly different. You’ll need to prepare a Notice of Rights and Responsibilities – Health-Care Costs and Reimbursement Procedures. Each parent will also complete a Child Support Case Registry Form

You Don’t Have to Do This Alone.

Navigating divorce court can be distressing. We’re here to help. Please call us at (415) 293-8314 to schedule a confidential appointment with one of our attorneys.

Ms. Burger is a California Certified Family Law Specialist and founder of the Law Offices of Judy L. Burger. We assist clients in California’s Northern to Central Coast, including San Francisco, Gold River, Santa Barbara, Ventura/Oxnard, and surrounding communities. Our new Beverly Hills office is opening soon.

The Effect of Long-Term Marriage on Divorce Settlements

The Effect of Long-Term Marriage on Divorce Settlements

Jack and Diane’s marriage lasted much longer than the average marriage. But after 32 years, they decided to call it quits. They knew their adult children would be fine, but really had no idea how their long-term marriage would affect their divorce settlement.

Divorce Settlements, in General.

The parties to a divorce agree on a divorce settlement, or the court irons out the details for them. Typically, such settlements include custody and visitation agreements, child support, division of assets and debts, and spousal support.

For issues involving children, courts look for an arrangement that best suits the children’s needs.

When it comes to assets and debts, California is a community property state. This means that a couple’s debts and property are generally considered to be owned 50-50, although there are exceptions.

Spousal support is based on factors like:

  • The standard of living established during the marriage.
  • Whether the supported party contributed to supporting party’s career.
  • The supporting spouse’s ability to pay.
  • Each spouse’s needs.
  • Each spouse’s assets and obligations.
  • The duration of marriage.
  • Whether supported spouse can work without harming children.

This is not the complete list contained in the California Family Code 4320. However, in this blog, we are looking at how people married for over 10 years fare in a divorce. The length of the marriage is only one factor in negotiating a settlement.

So, What’s Different About Long-Term Marriages?

Marriages that last less than 10 years are generally thought of a short-term when it comes to calculating spousal support. When one spouse needs support from the other, courts often give the needy spouse alimony for one half the duration of the marriage. Importantly, the court orders a time period wherein the court can make further decisions related to alimony. For example, for a marriage of 8 years, the supported spouse might receive alimony for 4 years, but the court retains jurisdiction for only 2.

A supported spouse leaving a long-term marriage may receive support for half the duration of the marriage. Courts tend to be more flexible in longer-lasting marriages. As for jurisdiction, the court can make decisions about alimony for this divorce indefinitely. If the supported spouse becomes ill while receiving support, the court could order additional support after taking all factors into consideration.

Years Can Make a Difference.

If you’re facing divorce, how long you remained married influences your divorce settlement. However, courts are not required to abide by a 10-year rule. It’s just a very common measurement. It’s best to speak with an attorney to make sure you receive everything to which you are entitled.

Judy Burger is a California Certified Family Law Specialist, and founder of the Law Offices of Judy L. Burger. Please call our offices at 415-293-8314 to set up an appointment with one of our attorneys. We assist clients along the Northern to Central California Coast.
spousal support taxes

How is Spousal Support Taxed?

After months of uncertainty the court finally entered a judgment in your divorce proceedings. To your relief, the judgment included a spousal support order and you’ve been receiving payments from your former spouse for about a year. The payments have come in handy and you’ve used that money for important household bills. All is well until your accountant calls to tell you that you owe hundreds of dollars in taxes. Unfortunately, when you started receiving spousal support, you didn’t realize that you would be taxed on those payments. This is a mistake that could cost you thousands.

Taxation is an important consideration that is often overlooked regarding spousal support. Both the party ordered to pay spousal support and the person receiving the support should be aware of the tax consequences of the support award in order to prepare for any tax ramifications once payments begin. Ideally, both federal and state tax implications should be considered during divorce or separation proceedings so a spousal support agreement may be reached that minimizes the tax consequences for all parties involved.

There are both federal and state tax implications for spousal support awards. Usually, spousal support is tax deductible for the person who is paying spousal support. The spousal support payments received by the supported spouse are considered to be taxable income. This is only the case for couples who have a final court order. If a couple does not have a final court order of legal separation or divorce, spousal support payments are considered gifts for tax purposes which are not deductible for the paying party nor considered income for the receiving party.

For federal tax purposes, strict IRS guidelines must be followed for the spousal support payments to be tax-deductible. The support payments must be 1) authorized by a court order for divorce or legal separation; 2) in cash; 3) not part of a property division or child support payment; and 4) paid only while the spouses are not members of the same household. 

Each state has its own guidelines for taxation of spousal support. In California, spousal support is tax-deductible for the paying spouse and taxable for the receiving spouse, as long as the spouses file separate state tax returns. 

The law is more complicated when it relates to partner support.  Federal tax laws were not changed to recognize domestic partners and states other than California may not have laws that consider the legal validity of a domestic partnership. A California attorney experienced with issues relating to domestic partnerships can advise you on the federal and state tax implications of a partner support award. 

When seeking a spousal support award, it is imperative to retain an attorney who is knowledgeable about how to structure support awards to ensure the best possible tax benefits.   The knowledgeable attorneys at the Law Offices of Judy L. Burger are experienced with spousal and partner support awards and the tax implications.  Call us now at (415) 293-8314 to schedule your private appointment regarding your California divorce case or visit us online to find out more about how we can help.
spousal support in California

How Long Does Spousal Support Last?

A party to a divorce or separation case in California may request that the court order support as part of a final divorce or separation decree.  For a spousal or partner support award, one party petitions the court to request that the other party support him or her during the pendency of proceedings and after.  But questions sometimes arise regarding how long these support awards last and the factors the court considers. 

The length of a marriage is one of the primary factors that a court considers when fashioning a permanent spousal support award and determining a time period. Under California Family Code 4320, the court’s goal is that a supported party will be able to support themselves within a “reasonable period of time.” Generally that is considered to be one-half of the length of the entire marriage. So if a marriage lasted 8 years, a spousal support award may last for 4 years. This is not a requirement, however, under California law a judge can order that a spousal support award last for as long as the judge deems necessary. 

There is an important exception.  California Family Code Section 4336 deals with a marriage or partnership of a “long duration” (usually 10 years or more).  In this case, the judge may not set an end date to the spousal or partner support and will retain jurisdiction for an indefinite period of time. 

The calculation of the length of the marriage or domestic partnership is generally from the date of the marriage to the date of the separation. The date of separation is important when deciding issues of spousal or partner support.  If the parties in a divorce or separation case can’t agree on the date of separation, the judge may have to decide the date for them.  The judge may also consider periods of separation when determining if a marriage is of “long duration” under California law.

Spousal support usually ends on the date decreed by the court in the final order or judgment. It can also end when one of the spouses or domestic partners dies or when the person receiving the support remarries or registers a new domestic partnership.

As detailed above, spousal and partner support involves complicated legal issues and date complications. Arguments may need to be submitted to the court regarding dates of separation as these can have a significant impact on the amount of a support award.  If you are facing divorce or separation proceedings you need a knowledgeable and experienced California divorce attorney to fight for your rights. Visit our website to learn more or call us today at (415) 293-8314 to set up a personal, confidential consultation.

What is the Difference Between Temporary Spousal Support and Permanent Spousal Support?

The term “spousal support” is discussed frequently regarding California divorces, but many people aren’t aware that there are different types of spousal support.  In California, a court can award either temporary or permanent spousal support depending on the situation.

As a preliminary matter, spousal or partner support in California cannot be ordered by a judge until a court case is started. The court case is usually a divorce, legal separation or annulment, but can also be a domestic violence restraining order. The difference between a “temporary” and “permanent” support order is the time that it is entered and the duration.

A spouse or domestic partner can request a support order to be paid while the case is going on.  This is a “temporary” support order as it is established temporarily to support a party during the case duration. This type of order is known under California law as a “temporary spousal support order” or a “temporary partner support order.” Particularly in situations involving domestic violence, a temporary support order is vital to ensuring the financial stability of a party during the course of proceedings.

For temporary spousal or partners support, a formula is often used to calculate the amount.  This formula can vary depending on which California county you are in. The court’s local rules for each county should explain how temporary support is calculated. 

As an example, in Marin County, the local rules state that the presumed amount of temporary spousal support is 40% of the net income of the party paying support, minus 50% of the net income of the supported party.  In the case where the supported party is also receiving child support, those percentages change to 35% of the net income of the payor (minus child support) minus 45% of the net income of the supported party (without considering child support received). 

As you can see, the calculation of temporary spousal support can be complicated and varies based on the county in which your case is pending.  This is why it is so important to hire an experienced divorce attorney to help you with the calculations of spousal support as soon as you file your case.

A “permanent” spousal or partner support order is usually entered at the end of a case when the judge makes a final determination regarding an award or the parties enter into a binding agreement.  This order will become part of the final divorce or separation decree and judgment.  There are various factors set out by California law that a judge will consider when determining an award of permanent spousal or partner support.  For more information on those factors, see our previous blog post here.

If you want to learn more about whether you qualify for spousal or partner support in your California divorce, separation, annulment, or domestic violence case, contact the attorneys at the Law Offices of Judy L. Burger right away.  Our office has years of experience helping clients obtain the support they deserve.  Call us now at (415) 293-8314.