Divorce by Default

Divorce by Default

Divorce, like marriage, requires two people. Or does it? Sometimes it may be difficult or impossible for both spouses to participate in the divorce proceeding. Sometimes one spouse may simply refuse to participate. Fortunately, California law allows for divorce by default.

When Both Parties Participate

In a typical divorce, one spouse takes the lead even if both parties want to end their marriage. For example, you may start the divorce case by filing the petition for divorce, then serving the petition and a summons on your spouse. He or she then files a response to the petition. Depending on the situation, you and your spouse may go through a discovery phase before negotiating a marital settlement. If the parties are unable to reach an agreement, their divorce is heard by a judge who makes decisions for them. The divorce will happen either through negotiation of a marital settlement agreement or by court order.

When Divorce by Default Is the Solution

The responding spouse must respond to the divorce petition in 30 days. If no response is filed, the divorce may be concluded in one of the following ways:

  • A default or uncontested case. You and your spouse have reached a settlement agreement about ending the marriage. Final paperwork is filed and, if approved, you are legally divorced.
  • A true default. You and your spouse have not reached an agreement. However, your marriage still ends, as soon as your paperwork is filed and approved. In a true default, the non-responding party generally has forfeited any right to dispute spousal support, child support, child custody, and property division.

Final Thoughts

Opting for a default divorce may open a Pandora’s box of problems. If you are thinking of ignoring a divorce petition and summons, don’t. Never give up your rights without seeking proper legal advice first.

On the other hand, maybe you initiated the divorce and your spouse has refused to respond to the divorce petition. In most cases, you can still finalize your divorce.

Divorces, whether contested or default, are complicated. For assistance, 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.

Who Bears Financial Responsibility for the Kids?

Who Bears Financial Responsibility for the Kids?

It’s no secret that divorces where children are involved can be complicated. California divorce judges make decisions based on what is in the best interests of the children. But raising children is expensive. As a divorce nears finalization, one of the most important questions is who will take on financial responsibility for the kids? Mom, Dad, or is it split between the two?

Child Support Fundamentals

Parents generally are responsible for supporting their dependent children. When the parents are divorced, the court orders one or both parents to providing financial support for their children.

Child support generally ends if the child:

  • turns 18 and is not a full-time high school student
  • marries or registers a domestic partnership,
  • becomes emancipated, or
  • turns 19.

Deciding who will be financial responsible for the kids is not always easy.

Determining Child Support

A number of factors go into calculating child support:

  • What are the financial circumstances of both parents;
  • What do the children need;
  • Are there any special expenses like child care, special medical care, or therapy; and
  • Which parent has the most physical responsibility for the kids.

The parents file and submit an Income and Expense Declaration and provide proof of income. The judge reviews each parent’s submission, paying close attention to their net disposable income. The court also looks at all other sources or income or potential sources.

The child support order typically is based in part on how much time each parent spends with their children. Parents who spend less time with their kids may be ordered to provide more monetary support.

The judge also will consider expenses related to the children, including:

  • Basics like food, clothing, and shelter;
  • Health insurance;
  • Child care;
  • Extracurricular activities;
  • Travel costs related to visitation, and
  • Medical bills currently unpaid.

Of course, the judge will also consider California laws related to child support and California Child Support Guidelines.

The Answer to the Question “Who Bears Financial Responsibility for the Kids” Is . . .

It’s complicated. Both parents bear some of the cost of raising children. However, child support orders may order a greater financial support for the parent who has less physical responsibility.

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.

Residency Requirements Revisited

Residency Requirements Revisited

Christina just finished unpacking the boxes and setting up her new home in California. Now, she is finally ready to divorce her estranged spouse. Or is she? Before filing the Petition for Dissolution of Marriage, she has to meet certain residency requirements.

What California Law Says About Residency Requirements

California Family Code, Section 2320 states:

(a) Except as provided in subdivision (b) a judgment of dissolution of marriage may not be entered unless one of the parties to the marriage has been a resident of this state for six months and of the county in which the proceeding is filed for three months next preceding the filing of the petition.”

Note that only one of the parties to a divorce has to abide by this residency requirement. This is useful if your spouse lives in another state or country.

In Christina’s case, she has lived in Orange County, California, for only two weeks. She does not meet either residency requirement. She may still have an option, though.

What About Legal Separations?

You don’t have to meet any residency requirement to file for legal separation under California law. Maybe you need (or want) to get your divorce started quickly but have not lived in California long enough. Consider filing for legal separation. This gives you some important protections.

As soon as you meet California’s residency requirements, you then have the option of filing an Amended Petition to switch your case from a legal separation to a divorce.

Christina may consider filing for legal separation. She probably will retain certain marital benefits, including joint health insurance, and can start negotiating a marital settlement with her spouse. As soon as she has lived in California for six months and the county in which she wants to file her divorce for three months, she can decide whether to convert her legal separation case into a divorce proceeding.

Learn More About Filing for a California Divorce

We’re here to help. In fact, the attorneys at the Law Offices of Judy L. Burger are experienced in all divorce-related issues.

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, Beverly Hills, Gold River, Santa Barbara, Ventura/Oxnard, and surrounding communities.
Date of Separation: Changes to the California Family Code

Date of Separation: Changes to the California Family Code

A couple’s wedding day is an important date to remember. If the marriage ends in divorce, then the date the couple actually split is also significant. In fact, the California Family Code contains provisions about the date of separation. However, that code changed significantly in 2017.

What is the date of separation?

This might seem like a simple term, but the legal meaning can be complicated. The new California Family Code Section 70 states:

70.(a)  “Date of separation” means the date that a complete and final break in the marital relationship has occurred, as evidenced by both of the following:

(1) The spouse has expressed to the other spouse his or her intent to end the marriage.

(2) The conduct of the spouse is consistent with his or her intent to end the marriage.

For example, Ted tells Mary he wants a divorce on December 12, 2018. However, they continue living together, share bank accounts, and even plan their annual vacation to Hawaii. A court will consider all relevant evidence when determining the legal date of separation. A judge may decide Ted and Mary had not satisfied both (1) and (2) noted above on December 12, 2018.

Why is the date of separation important?

It is the date beyond which a married couple’s income, debts, and so become separate property.

For example, still considering Ted and Mary, Ted gets a huge windfall on December 13, 2018. During the divorce proceedings, he claims it is his separate property because the date of separation was December 12. Prior to the change in 2017, a court may not agree with Ted, since Ted and Mary did not meet the “living separate and part” requirement.

How and why did the law change?

In 2015, the California Supreme Court handed down a decision in a divorce matter titled In re Marriage of Davis. The decision stated that spouses must be living in separate homes for the date of separation to apply.

However, on July 25, 2016, a bill was signed into law that countered that decision. Section 70 was added to the California Family Code, clarifying that date of separation was to be decided using the tests mentioned earlier in this article.

Let’s consider a different scenario for Ted and Mary. Ted does tell Mary he wants a divorce on December 12, 2018. He remains in the home but separates his financial and personal matters from Mary. From that point on, they behaved more like roommates than husband and wife. A court may consider December 12 to be their legal date of separation.

Simple terms may have unwanted consequences

The legal date of separation can make a huge difference in how your divorce plays out. Talk to an attorney about your divorce as soon as 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.

Social Media and Your Divorce

Social Media and Your Divorce

Chris loved posting to all her social media accounts – Facebook, Twitter, Instagram – she had them all. It seemed like innocent fun and a great way to stay connected. The day she posted about her trip to Las Vegas, however, she learned the perils of social media. Her estranged husband learned she was on vacation and not helping her grandmother recover from hip surgery as she stated when she dropped the kids off at his house. At least a few of her 2,372 Facebook friends wondered how she could afford to stay at the Bellagio Las Vegas while claiming she needed more spousal support and child support. Chris found out the hard way that social media and your divorce are not good partners.

Let’s look at several reasons that people in the middle of a divorce should avoid social media.

Hidden Gold

Boasting about buying a new boat while claiming you’re too poor to pay child support is not a smart thing to do – but people do it. Social media posts may be a veritable treasure trove of financial information. Be aware that the parties to a California divorce are required to submit accurate financial disclosures or face penalties. Lying on divorce disclosures violates California law.

Not All “Friends” Are Friends

This may not be the best time to post a picture of you with your new boyfriend or write nasty things about your ex. If your estranged spouse is on the same social media sites, there’s a strong possibility you may have friends in common. Even if you have unfollowed or unfriended your spouse, he or she may still be able to see your posts.

And, of course, there’s always deliberate sabotage. Some friends may be friendlier with your spouse than with you. In addition, people may carelessly share your posts and photos so your ex-spouse will see them.

Posts = Evidence

Most of the messages and photos you posted on social media accounts may be used as evidence in your divorce case. If you are concerned about social media and your divorce, you may be tempted to delete everything. Talk to your attorney before doing anything with your social media accounts. Deactivating your accounts during your divorce may be the best course of action.

Social Media and Your Divorce? Maybe Not a Match Made in Heaven.

If you’re feeling nervous about past posts, you might consider deactivating your account. However, do not delete pics, posts, snaps, tweets, and another other social media stuff without talking to your divorce lawyer first.

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 Beverly Hills, San Francisco, Gold River, Santa Barbara, Ventura/Oxnard, and surrounding communities.
How to Modify Child Custody Arrangements

How to Modify Child Custody Arrangements

Parents may be able to mutually agree upon a parenting plan for their children. Sometimes, though, a judge has to decide how child custody will be handled before a divorce is finalized. No matter how or when the decisions were made, there may come a time that parents have to modify child custody arrangements.

Making the Decision

Parenting Plans and child custody arrangements typically are made keeping the best interests of the child in mind. But people and circumstances change. Some of the common reasons for altering a child custody arrangement include:

  • Refusing to allow the non-custodial parent to contact or visit the children;
  • Putting the children in an unsafe or dangerous environment;
  • Relocation of the non-custodial parent.

In addition, children may ask for a change in custody. Children over the age of 12 may be permitted to tell the judge who they want to live with.

Once one or both parents decide that changes should be made, the court becomes involved.

Filing the Paperwork

The parent requesting the change will file a Request for Order with the court. An additional form – the child Custody and Visitation (Parenting Time) Application Attachment is optional but may be helpful. Remember that you need to show a significant change in circumstances or some compelling reason to modify child custody arrangements.

After filing the Request for Order, you will be given a date to appear in court or to meet with a mediator. Court proceedings can be complicated, especially if the parents are unable to reach their own agreement.

Attending a Hearing

If parents are unable to arrive at a revised custody plan through mediation, they may have to appear in court. The judge may take limited testimony but may rely heavily on the documents filed with the clerk. After making a decision, the judge signs an order altering the terms of the custody arrangement.

It’s Possible to Modify Child Custody Arrangements

However, the court must see significant reasons to change custody before doing so. As always, California courts consider the best interests of the child in making any decisions.

To discuss how to modify child custody arrangements, please call us at 415-293-8314. The attorneys at the Law Offices of Judy L. Burger assist clients in Beverly Hills, San Francisco, Marin County, Santa Barbara, Ventura/Oxnard, San Jose, Gold River (Sacramento), and surrounding communities.
Negotiating Your Marital Settlement Agreement

Negotiating Your Marital Settlement Agreement

A divorcing couple may end their divorce by going to trial or by negotiating a marital settlement agreement. California courts tend to prefer the latter. If the decisions are left up to a judge, assets and debt will be split as close to 50-50 as possible. Parties who negotiate a settlement have a little more freedom, as long as they can reach an agreement.

It may be in your best interests to negotiate rather than going to trial. Here are a few tips that may give you a better chance of negotiating your marital settlement agreement.

Be Open and Honest with Your Attorney

Your lawyer represents your interests in the negotiation process. It may be easier for your attorney to reach agreements that work for you if he or she knows all the facts.

For example, Lila and Jake began discussing their settlement agreement. During the negotiations, Lila’s attorney learned that she had misrepresented her income, her education, and her employment status. These surprises put Lila’s attorney in an awkward position, one that hindered the negotiation process.

Look at the Big Picture

The term “choose your battles” comes to mind. Only push for the things that really matter – arguing over small, relatively insignificant details wastes everyone’s time and energy.

The next tip may help:

Check Your Emotions at the Door (if possible)

Acknowledge that divorce is usually an emotional time, even if you want the divorce. Life is changing in a big way, and you still have to get through the final steps of negotiating  your marital settlement agreement and getting the final divorce decree.

However, negotiating is difficult when emotions are high. Try to stay calm and focused.

Be Realistic

This not the time to exact revenge on your spouse. This is a time to review disclosures and discovery materials, determine community property and debt, then come up with an agreement that fits.

Our divorcing couple, Lila and Jack, had a difficult time in negotiations. Lila would not decrease her spousal support and child support demands, although she knew Jack was on disability. Jack insisted on full custody, although he was living in a one bedroom apartment. Lila and Jack need to review their circumstances and come up with reasonable, workable solutions.

You Need a Lawyer Who Knows How to Negotiate.

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 opens soon.
What Certified Family Law Specialist Means for You

What Certified Family Law Specialist Means for You

You’ve decided to file for divorce. Your next step? Hiring an attorney. As you look online or through attorney directories, you notice that some attorneys are “specialists” in areas of law like taxation, criminal law, and family law. It’s only natural to wonder what a certified family law specialist can do for you.

All attorneys practicing law in California are licensed and regulated by the State Bar of California. The Bar also encourages continued training for lawyers and provides a way for some lawyers to become certified in their area of practice. Attorneys may become certified specialists in several fields, including family law.

 That all sounds great for attorneys, but what does it mean for you?

Training

A certified family law specialist completes training in excess of what is expected of other attorneys. In addition, an attorney specialist has to pass a written test in their legal specialty.

When you hire a specialist, you hire someone who has the broad knowledge of law and the specific knowledge needed for your family law matter.

Experience

A certified family law specialist must practice law in their specialty for at least five years. During that time, at least 25 percent of their time must involve their field of specialty.

This means that the attorney you hire has more experience in family law than an attorney with a general practice. An attorney who specializes in family law understands California divorce laws and how they relate to your individual case.

Continuing Education

All attorneys must go through a certain amount of training every year. A certified family law specialist is held to higher standards when it comes to continued training.

This means the specialist you hire is more likely to have a deep understanding of recent changes to California divorce law.

Respected by Peers and Judges

To become a certified family law specialist, an attorney must be viewed favorably by their peers and by judges with whom they have worked.

The specialist you hire has demonstrated a dedication to family law to people who know the law. What better recommendation can there be?

Cares About Family Law

The rigorous application process required by the State Bar is rigorous. A certified family law specialist who goes through that process has demonstrated great interest and concern in family law matters.

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, Beverly Hills, and surrounding communities.
Settlement vs. Litigation: Which Is Right for Your Divorce?

Settlement vs. Litigation: Which Is Right for Your Divorce?

There are many reasons to file a divorce. Take Henry and Martha. After raising four children during their 31-year marriage, they decided to join the “gray divorce” crowd. Jake and Lucy, married four years ago, had one child together before Jake’s infidelity and substance abuse drove them apart. Both of these couples had some heavy decisions ahead. As their cases progressed, they had to decide whether settlement or litigation was best for their divorce.

Two Pathways.

The parties in most divorce cases are able to reach a divorce settlement agreement. The couple and their attorneys may negotiate privately or go to mediation. Though it is similar to a trial in that both parties present their side, mediations proceed very differently. 

For one thing, agreements reached in a mediation are confidential. Court proceedings are not, although courts can restrict who can view divorce court records. In Jake and Lucy’s case, privacy was a big concern. Lucy did not want Jake’s infidelity and drug addiction publicly aired.

Unfortunately, trial became a necessity for Henry and Martha. A lifelong homemaker, Martha had never worked outside the home. She expected spousal support to continue for some time. Henry, however, felt she deserved nothing because he had been the family’s breadwinner for their entire marriage. Both stubbornly stuck to their positions and refused to compromise.

When Is Settlement Right?

Some couples are in a position to settle their differences quickly. For them, settlement through negotiations or mediation typically is faster than going through the court system. They don’t have to wait for space to clear on a court docket to schedule hearings.

Divorce strains family relationships. Mediation may be less destructive on those relationships because they are typically less combative than trials.

Couples going through a divorce may have financial problems. Mediations and settlement negotiations are usually less expensive than going to trial.

When a settlement agreement is presented to the court, the judge will make sure the document complies with California law. However, many of the agreements contained in the settlement agreement do not require a judge’s scrutiny. Couples may hammer out agreements that suit them, but that most judges would not arrive at.

 

If negotiations and mediation fail, divorce proceedings go to the next level.

When Is Litigation the Best Option?

Some parties may be unable to resolve their issues without court intervention. So, they settle in for the long haul. They may be expected to attend several hearings or even participate in a trial that lasts for days.

Going to trial sounds terrible! So why do some couples end up battling it out in a courtroom?

Divorces with more complex issues are more likely to go to trial. What makes a divorce more complex? Among other things, disputes over property division that can’t be overcome. Inability to agree on hot issues like child custody or spousal support could end up in a courtroom.

Trial may be necessary if domestic violence or child abuse is involved. A judge has the authority issue orders that protect the abused spouse or child, something neither an attorney nor a mediator can do.

Some spouses make unreasonable demands or have unreasonable expectations. In cases where this is an issue, unfortunately, a trial usually becomes necessary.

Final Thoughts.

The attorneys at the Law Offices of Judy L. Burger can help, whether your case is settled or goes to trial. 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.
Dual Citizenship’s Effect on Divorce

Dual Citizenship’s Effect on Divorce

Nancy knew when she married Mark that he was both a United States Citizen and a citizen of Nigeria. He had been born in the U.S., but his parents raised him in their home country. She did not know how Mark’s dual citizenship would affect their divorce a few years later.

Does it matter where the divorce proceeding takes place?

Anyone who considers divorcing a spouse with dual citizenship owes it to themselves to do a little research. Choosing to file in the country with the most favorable divorce laws could make a huge difference, especially when spousal support and child custody are involved.

Nancy may be able to file for divorce in the United States if she meets applicable residency requirements. For example, California law requires the filing party to live in California for the 6 months prior to filing. The filing party is also required to live for at least 3 months in the county in which they plan to file.

What if one spouse moves their children to their home country without permission?

In this situation, a parent who is also a U.S. citizen could reach out to the United States Department of State. However, it may also be necessary to start working through the courts of the country to which the children have been moved.

How can court orders be enforced?

The court handling the divorce proceeding has the authority to hand down orders. The problem may be enforcing orders in another country. The U.S. State Department may be able to help. However, it’s likely that a person based in the U.S., for example, will have to retain counsel in their ex-spouse’s country.

Plan Ahead for Dual Citizenship Issues.

Dealing with this type of issue can take divorce to a whole new level. This is hard to say, but the best time to plan for this type of issue is before the marriage takes place. Actions that seem harmless with the Wedding March still ringing in your ears may have serious consequences if it becomes time to divorce.

Contact a California attorney to learn your options. 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.