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Legal Separation When You’re Not Sure About the Split
Legal Separation, Uncategorized

Legal Separation: When You’re Not Sure About the Split

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Brad and Sheila’s marriage had been rocky almost from the start. Still, they always seemed to be able to patch things up. This time, though, Brad did more than just move out for a few weeks before returning home. He filed for a legal separation from Sheila. Both Brad and Sheila felt that a legal separation might be best since they still were not sure about their split. Before reaching a final decision, they should understand a little more about how legal separation works in California.

California Laws

Every state has its own family laws. While some states do not recognize legal separation, California law does allow legal separation of both marriages and registered domestic partnerships. However, the parties will go through a formal court proceeding. To start the process, one spouse files a petition with an appropriate court asking for a legal separation. The other spouse has 30 days to answer the petition for legal separation. After considering issues like child support, custody, property, and spousal support, the court decides whether to allow a legal separation. You may be wondering why a couple would go to the trouble of obtaining a legal separation rather than just getting a divorce.

Marital Status

During a legal separation, the parties are still married and so cannot marry anyone else. For some people, this is an advantage.

Property

After a judge approves the legal separation, the “earnings and accumulations of each party are the separate property of the party acquiring the earnings or accumulations.” Separation of earnings may be a compelling reason for some couples to legally separate.

Religion

Some may prefer legal separation to divorce because some religions do not condone divorce. The couple can live apart without breaking religious laws.

Residency

To obtain a divorce, either party has to meet California residency requirements:
  • At least one spouse must have lived in California for the past six months, AND
  • That spouse must have lived in the county where the divorce will be filed for the past three months.
People who want a legal separation are not bound by such residency requirement. In fact, some parties file a legal separation, then convert it to a divorce as soon as they have met the residency rules.

Legal Separation May Be a Solution

Our couple, Brad and Sheila, preferred the legal separation because it gave them time to adjust to the reality of divorce before actually divorcing. At some point, they may choose to convert their legal separation to a divorce or end the separation by reconciling. The attorneys at the Law Offices of Judy L. Burger are experienced at all phases of legal separations and divorce proceedings. 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.
Can I Keepy My Divorce Records Private?
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Can I Keep My Divorce Records Private?

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Divorce is a highly personal experience. Most people would prefer to keep details about their divorce within their circle of friends and family. In California, though, most court proceedings are maintained as a matter of public record. Divorce is no exception, but there may be things you can do to keep at least some of your divorce records private.

Sealed Cover

Documents filed under what’s called a ‘sealed cover’ are not accessible to the public. Family law documents that include the following information may be filed under a sealed cover:

  • Paternity;
  • Healthcare records;
  • Financial records;
  • Identifying information about minors; and
  • Information about the identity of a victim of domestic or sexual violence.

If your divorce papers include this type of information, consult with your attorney about ensuring the information is filed under sealed cover.

Motion or Application to Seal

Some documents containing embarrassing or highly personal information are not automatically filed under a sealed cover.

To have these records kept confidential, your attorney may file a motion to seal the record. The motion will be served on all parties. The court then may enter an order granting or denying the request. If granted, not only will the records be hidden from the public, but other parties generally will be prohibited from disclosing information they learn from sealed records.

Redaction

The term ‘redaction’ means marking out sensitive information in a document. Information may be redacted from documents that are public record. Protected data includes social security numbers and financial account information. So, if you must provide information to the court or opposing counsel that includes your bank account numbers, for example, the account numbers can be redacted.

Learn More About Filing for Divorce

In general, you cannot keep all your divorce records private. However, your attorney may be able to get the court to seal records under certain circumstances.

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), Roseville, and surrounding communities.
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Help! Can I Still Get a Divorce if My Spouse Doesn’t Respond.

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Help! Can I Still Get a Divorce if My Spouse Doesn't Respond?
Sometimes only one person in a marriage wants a divorce. The other spouse may threaten to put up roadblocks such as not answering the petition for divorce. Can your spouse really prevent the divorce by failing to respond? Fear not. Your spouse’s lack of participation in the proceedings will not prevent you from getting a divorce.

In California, you begin the process to end your marriage by filing in superior court a petition for divorce (form FL-100) and a summons (form FL-110), along with other documents. After you have filed these documents, you must have a copy of each served on your spouse. This is called service of process, and it is done by having someone personally deliver the documents to a spouse living in California or by mailing the documents certified mail to a spouse residing out-of-state. The person or service that delivered, or served, the documents on your spouse files proof of service in the court.

The summons informs your spouse that he or she has 30 days to respond to the petition for divorce. The 30-day time period begins to run on the day your spouse is served with the petition and summons. Your spouse can respond by agreeing to the requests in your petition or by opposing your requests. But how do you move forward with the divorce if your spouse does not respond at all?

Although your spouse has 30 days to respond to the petition for divorce, you are not automatically divorced once that time period has passed without a response. The earliest your divorce could be final is six months from the date the petition for divorce was served, but you may still move your case forward during the six-month waiting period. After the 30-day response period has run, and if you and your spouse do not have a written agreement, you may ask the court to enter a default judgment called a “true default.”

To obtain a true default judgment, you need to file the original and two copies of the following forms:

  • a Request to Enter Default (Form FL-165);
  • a Declaration for Default or Uncontested Dissolution or Legal Separation (Form FL-170);
  • a Judgment (Form FL-180); and
  • a Notice of Entry of Judgment (Form FL-190).

Additional forms may be required as well, such as the additional forms required if you are asking for custody, child support, spousal support, or partner support. Each county may require its own forms also.

Once you have filed these forms, the clerk of court will mail a copy to you and to your spouse. If your spouse does not oppose default or respond to the court in any way, the court will enter a default judgment. In the case of a true default, the court will grant the requests in your petition, but the court does not grant the divorce until at least six months have passed since you served your petition for divorce.

At a later date, your spouse may try to oppose the entry of default judgment by arguing surprise, mistake, or excusable neglect. In such a case, you may be required to appear in court for a hearing. After hearing arguments on both sides, the court will either grant default judgment or deny the same, but at least your case is proceeding.

Obtaining a “true default” defeats an opposing spouse’s attempt to stop or slow down the divorce, but it also has some downsides. In a case with a true default, you must also file a property declaration, which is a public record, and the court must divide property equally between the parties.

If your spouse is attempting to thwart your divorce by not responding to the summons, consult a qualified family law options to discuss your best options. The attorneys at the Law Offices of Judy L. Burger are experienced in difficult divorce proceedings and what it takes to sort out complexities when your spouse fails to respond. Call today to see how we can help you: (415) 293-8314.
The Basics of Domestic Partnerships in California
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The Basics of Domestic Partnerships in California

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California’s legal option for domestic partnerships remains intact for eligible partners who wish to “share one another’s lives in an intimate and committed relationship of mutual caring.” Domestic partnerships provide a viable alternative to marriage for those who meet the legal requirements.

A couple who wishes to register their domestic partnership must meet certain requirements under California law:

In addition, the people must either be of the same sex or at least one of the individuals must be older than 62. If either of the partners is less than 18 years old, either parental or judicial consent is required.

Domestic partnerships are registered with the California Secretary of State. After the necessary paperwork is filed, each partner has the “same rights, protections, and benefits,” as well as “the same responsibilities, obligations, and duties” as do married spouses. California law also provides domestic partners with protection against discrimination by state agencies.

California also offers registration of confidential domestic partnerships. While most domestic partnerships are a matter of public record, a confidential domestic partnership “is a permanent record that is not open to the public.” The members of a confidential domestic partnership may obtain a copy of their filing documents. However, no one else may obtain a copy unless they can produce a certified copy of a court order.

The United States Supreme Court’s opinion that required states to license same-sex marriages did not change California’s domestic partnership law. Couples may still take advantage of domestic partnerships to formalize their relationship if they so choose.

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.

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What Must You Disclose about Your Assets and Liabilities in Your California Divorce Proceeding?

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What Must You Disclose about Your Assets and Liabilities in Your California Divorce Proceeding?
It is human nature to not want to disclose financial details with your soon-to-be-ex spouse. However, when you are involved in a legal proceeding for dissolution of marriage, legal separation, or nullity, it is mandatory that you do so. In fact, failing to make full and accurate disclosures can have severe consequences.

Under California law, spouses must act as “fiduciaries” to one another. This is an obligation of the highest order, requiring each spouse to deal with the other in “good faith” and not to take “unfair advantage” of the other. The fiduciary duty continues past the date of separation even while the divorce case is pending. The fiduciary duty also applies when it is time to make mandatory financial disclosures during the legal proceedings.

California law provides for the systematic disclosure of financial information between the spouses. Complete and accurate disclosure is important for several reasons:

  • It prevents the parties from dissipating assets before the court officially distributes them.
  • It helps to “ensure fair and sufficient child and spousal support awards.”
  • It helps the court divide the couple’s assets and liabilities.
  • It helps reduce acrimony between the parties.

The first disclosure is considered preliminary and consists of two main documents: the “Schedule of Debts and Assets” and the “income and expense declaration.” These documents are both basic inventories. The first document must list all actual or potential assets and liabilities, regardless of how they are titled or listed on paper. The second document must provide information about each party’s income and expenses. Both parties have an ongoing duty to update these documents immediately if there are any material changes.

The second disclosure is called final. The final disclosures provide much more detail about each party’s financial information. These documents must provide “all material facts and information” about assets, liabilities, community property, community obligations, and party income and expenses.

California laws include specific requirements that must be met in financial disclosures. If these requirements are not met, the court can impose monetary sanctions, including attorney’s fees and costs, and can hold the party in contempt of court. The attorneys at the Law Offices of Judy L. Burger have extensive experience in family law matters, including financial disclosures. Contact us today to learn how our attorneys can help you in your case: (415) 293-8314.

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When Does a California Court Appoint a Child Guardian?

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When Does a California Court Appoint a Child Guardian

Child guardianships are established in California in both probate and juvenile dependency court proceedings. Guardianships are used to give someone the legal authority to tend to a child or to his or her property. The nature of the authority depends on the reason the guardianship is established and the court order.

Probate Guardianship

The first type of guardianship is a probate guardianship. A probate guardianship is set up when a child’s parents are not able to care for him or her. Here are some examples of reasons parents may not be able to take care of their child:

  • Serious physical or mental illness;
  • Military duty;
  • Substance addiction or inpatient rehabilitation;
  • Incarceration;
  • A history of child abuse; and
  • Death.

Probate guardianships may be over the child, the child’s property, or both.

Guardianships over the child that are established through the probate process do not terminate parental rights; in fact, the child’s parents may even receive visitation rights in a probate guardianship. However, the guardian receives all of the rights and responsibilities of a parent, including full legal and physical custody. Please see my earlier blog here for a detailed description of legal and physical custody.

A probate guardianship may give the guardian rights and responsibilities relating to a child’s property, also known as the child’s “estate.” This type of guardianship is usually set up when a child owns or inherits significant assets before he or she is 18 years old. The guardian’s role is to manage the child’s estate responsibly, with a very high degree of care. If the child has a responsible, living parent, the parent is usually appointed in this role.

Guardians established through the probate court must submit annual status reports to the court, and court volunteers visit the guardian and child periodically. In addition, a probate guardian over a child’s estate is required to submit regular accountings to the court regarding the child’s property.

Juvenile Dependency Guardianship

Guardianship may also be established through the juvenile dependency court when a child has been removed from his or her home due to child abuse or neglect or other dangerous conditions. This type of guardianship is only used as a last resort, when a damaged parent-child relationship cannot be repaired. Guardianships established through juvenile dependency court terminate parental rights and usually last until the child turns 18.

California laws direct judges to make rulings consistent with the best interest of children. The attorneys at the Law Offices of Judy L. Burger have extensive experience in family law matters, including guardianships. Contact us today to learn how our attorneys can protect you and your children: (415) 293-8314.

 

 

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Parental Access to Child Medical Records

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Parental Access to Child Medical Records
If you have never been denied access to your child’s medical records, you may be unaware of the patchwork of laws that generally grant parental rights to them. However, both federal and state laws govern aspects of parental rights to access their children’s medical records, and there are many exceptions to the general rule of access.

The HIPAA Privacy Rule and Child Medical Records

The main federal law that relates to a parent’s ability to access her child medical records is the Health Insurance Portability and Accountability Act. Nearly everyone has some basic level of familiarity with HIPAA because doctors must provide patients with privacy notices as a result of this law. Doctors require their patients to provide consent to allow medical information to be provided to certain people, known under the law as “personal representatives.”

What you may not realize is that, for the most part, HIPAA’s Privacy Rule allows you, as a parent, to access your child’s medical records as long as doing so does not contravene another law. The Privacy Rule considers you to be your child’s “personal representative” eligible to receive his or her medical information.

If any of the following apply, you are not considered your child’s personal representative and are therefore usually unable to obtain your child’s medical information:

  • When state law only requires your child’s consent (see list below);
  • When your child receives health care pursuant to a court order or the request of a person appointed by the court;
  • When you agree that your child has a confidential relationship with a health care provider;
  • When your child’s health care provider reasonably believes that allowing you to serve as your child personal representative could endanger your child; or
  • When your child’s health care provider reasonably believes that your child has been subjected to domestic violence, abuse, or neglect or that your child will be subjected to these in the future.
California Laws and Child Records

As you might expect, California has many laws that impact parents’ ability to obtain their child’s medical records. The most general provision is located in California Family Code § 3025, which provides rights, even to noncustodial parents, to a child’s “medical, dental, and school records.”

You will recall that the HIPAA Privacy Rule specifically disallows parental access to records when state laws allows minors to consent for their own procedures. Here is a summary of procedures for which minors may consent in California:

  • Minors of any age may consent to birth control (except sterilization), pregnancy, abortion, and sexual assault;
  • Minors 12 years of age or older may consent to receive HIV testing (if competent to provide informed consent); federally assisted alcohol and drug counseling; outpatient mental health treatment; and treatment for STIs, contagious, and reportable diseases.
In the following situations, California law allows a health care provider to notify parents only if a minor provides consent:

  • Birth control;
  • Pregnancy;
  • Abortion;
  • STIs, contagious, and reportable diseases;
  • HIV testing; and
  • Federally-assisted alcohol and drug counseling.
However, parents must usually be notified when a child seeks outpatient mental health treatment or health care for a sexual assault.

All of these situations are devastating to families, and it can be extremely frustrating for a parent not to be able to obtain records or information relating to their children. At the Law Offices of Judy L. Burger, we understand how important your children are to you. Make the call today to learn how our attorneys can advocate for you: (415) 293-8314.
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California Laws on Child Abduction

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California Laws on Child Abduction
Taking or keeping a child away from his or her legal custodian is a crime that carries substantial penalties.  Even a child’s own parent can be convicted of child abduction under California law.


The offense of child abduction is committed when all of the elements below are present:

  • The person “takes, entices away, keeps, withholds, or conceals” the child;
  • The person acts maliciously; and
  • The person has the intent to detain or conceal the child from a lawful custodian.

In addition, the person who takes the child either has to have no right to custody or must take the child with the intent to deprive a legal custodian of custody or visitation.


By law, it does not matter whether the child resists or objects to the offending party’s actions.


If all the elements are present, there is only one true defense to a charge of child abduction.  This defense may apply if the person has a “right of custody” and takes the child “with a good faith and reasonable belief” that the child “will suffer immediate bodily injury or emotional harm” if left where she is. However, even when this limited defense applies, the person taking the child must report certain information to the county district attorney and must initiate a custody proceeding within a specified period of time.


The following are not defenses to child abduction:

  • Taking or keeping the child because the other parent failed to pay child support; or
  • Obtaining a custody order after the child has been abducted.

The punishment for child abduction is stiff: up to four years in prison and a $10,000 fine.  The judge considers several factors in determining the proper penalty, including the following:

  • The child’s age and the length of the abduction;
  • Any physical harm or threat of physical harm to the child during the abduction;
  • Whether the child was removed from the country;
  • Whether the child was returned to the lawful custodian;
  • Whether the child’s appearance was substantially altered during the abduction; and
  • Whether the child was returned unharmed and before any arrest was made.

A judge may also impose restitution, either to the victim or to a state prosecuting agency. It should be noted that the criminal offense of child abduction is different than the civil offense of false imprisonment.  This means that in addition to prison time and a fine, someone who abducts a child in California could be sued for money damages in a lawsuit.


Child abduction is a serious crime. If you are concerned that your child has been abducted, contact the police immediately. If you are involved in a divorce or separation proceeding, you’ll also need an aggressive, experienced attorney to protect you and your child. For help, contact The Law Offices of Judy L. Burger at (415) 259-6636.

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California’s New Law Allows Petitions to Seize a Family Member’s Guns

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California’s New Law Allows Petitions to Seize a Family Member’s GunsEffective January 1, 2016, a new law went into effect that allows family members to ask a court to seize their family member’s guns temporarily. The bill was introduced in the California Legislature in 2014 after the Isla Vista massacre near Santa Barbara. Before six people tragically lost their lives, the shooter’s mother had noticed that he was increasingly agitated, and she had heard him make threats of violence.


The law places strict limits on judges who are presented with petitions to seize guns.


Temporary Emergency Gun Violence Restraining Orders


The new law authorizes a judge to issue a temporary order to prevent the possession of guns for 21 days when a petition is presented by an immediate family member or a law enforcement officer and the judge finds the following:

  • There is reasonable cause to believe that the person presents an “immediate and present danger” of personal injury to another person or himself;
  • By having, owning, purchasing, possessing, or receiving a firearm; and
  • The order is needed to prevent personal injury to a specified person.

If the dangerous person can reasonably be found, a law enforcement officer must serve a copy of the order on him.


Ex Parte Gun Violence Restraining Orders


Probably the most controversial aspect of the new law is the power of a judge, in very narrow circumstances, to issue an order restraining a person from possessing a gun or ammunition without providing the person advance notice. This is known as an “ex parte” order. Before an ex parte order may be issued, the following criteria must be met:

  • There is a “substantial likelihood” that the person poses a “significant danger of harm” to another person or himself;
  • In the near future;
  • By having, owning, purchasing, possessing, or receiving a firearm; and
  • The order is needed to prevent personal injury to a specified person.

When these criteria are met, the judge may issue an order preventing the dangerous person from having firearms or ammunition in his custody or control. Ex parte orders have a limited shelf life: They cannot last longer than 21 days, and the judge must order a hearing within that 21-day period. At the hearing, the judge determines whether a one-year restraining order is warranted. Again, the person must be served with a copy of the order if he may reasonably be found.


One-Year Gun Violence Restraining Order


A longer term restraining order, up to one year, may be issued after the person receives notice and an opportunity to attend a hearing. Before a one-year order may be entered, the following must be shown by clear and convincing evidence:

  • The person “poses a significant danger of personal injury to himself” or another;
  • By having a firearm or ammunition;
  • A restraining order is needed to prevent personal injury to the person or another; and
  • Either less restrictive alternatives have been ineffective or they would be inappropriate.


The health and well-being of you and your children are important to the State of California. If you are concerned about your safety, do not hesitate. Call the attorneys at The Law Offices of Judy L. Burger today at (415) 293-8314. We have extensive experience in family law matters, including those involving family member violence and threats of violence.

How Can a California Minor Become Emancipated?
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How Can a California Minor Become Emancipated?

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Most people associate the term “emancipation” with the Emancipation Proclamation, issued by President Lincoln to free the slaves in 1863. However, more broadly construed, the term actually means “to free from restraint, control, or the power of another.” A minor automatically reaches this stage of life at age 18, but a minor may also become emancipated before that age. When that happens, the minor is free from her parents and gains almost complete control over the decisions in her life; likewise, she gains the responsibility to take care of and provide for herself.


California law provides three methods through which a minor may become emancipated: getting married, joining the Armed Forces, and obtaining a declaration of emancipation from a judge.


Marriage


The first way a California minor may become emancipated is by getting married. To use this option, the minor must have permission of her parents as well as a judge.


Armed Forces


A minor may also become emancipated by joining the United States Armed Forces. However, parental consent is again required, and the minor must be accepted into the Armed Forces.


Declaration of Emancipation


If a minor does not have parental consent for either of the first options, she may ask the court to grant her a declaration of emancipation. To be successful in this method, the minor must show the court the following things:

  • she is at least 14 years of age;
  • she can support herself financially;
  • she does not want to live with her parents;
  • her parents do not mind if she lives on her own, and
  • emancipation would be good for her.


Result of Emancipation


An emancipated minor is treated as an adult for almost all purposes, such as the following:

  • Consent to medical care;
  • Enter into contracts, including contracts for insurance;
  • Buy and convey property and stocks;
  • Sue or be sued;
  • Make a will, trust, or gift;
  • Enroll in school or college.


The minor is also financially independent from her parents, so she has full responsibility for supporting herself.


The only thing an emancipated minor cannot do, assuming she was not emancipated as a result of marriage, is get married. An emancipated minor can only get married with the permission of her parents or a judge.


The decision to seek or to contest emancipation brings up many emotions for everyone involved. When you need an attorney who has extensive experience in family law matters, including emancipation, call the attorneys at the Law Offices of Judy L. Burger. We understand the law underlying emancipation requests, and we’ll help you make the best decision possible. Call today to arrange an appointment: (415) 293-8314.