Dual Citizenship’s Effect on Divorce

December 27, 2018 Judy L. Burger Leave a comment

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.

California Divorce

The Rise of Gray Divorce

December 18, 2018 Judy L. Burger Leave a comment

Jack and Susan B. had just celebrated their 32^nd anniversary when they hit their children with a bombshell. They planned to divorce as soon as possible. No one really saw it coming. However, after much reflection, they joined the ranks of baby boomers heading for a gray divorce.

Divorce After a Certain Age

The term “gray divorce” typically refers to couples who divorce after age 50. According to Pew Research, the divorce rate for adults age 50+ has just about doubled in the past 25 years. Rates in other age groups have decreased, though. So, what is causing this “divorce revolution” among our older population?

Divorces are all different. Some of the reasons given for gray divorce include:

The couple may have grown apart over the span of their marriage. Interests, attitudes, even beliefs change over time. For some couples, these changes present insurmountable obstacles to their continued happiness.
Couples with children sometimes stay together until the children are out on their own. They may be unable to recover from empty nest syndrome and feels it’s best to separate.
Longer life expectancy may mean more time spent together after retirement. Some couples cannot imagine living without their spouse. Others cannot imagine living with their spouse through retirement.
People may have different beliefs about money, debt, and spending. At a certain point, especially looking toward the future, differences of opinion may grow too big to ignore.

While gray divorce is common, it is not without its perils.

Gray Divorcees Face Unique Problems

Most divorced couples experience the stress of reinventing their lives. Everything changes, from finances to living arrangements to relationships. However, people who divorce late in life have a few new wrinkles to deal with.

Sometimes the husband has been the breadwinner while the wife cared for home and children. This puts the wife in an awkward position after a divorce. Many older women who lack job skills and experience struggle to enter the workforce. Some may be able to rely on spousal support for years if the marriage lasted more than 10 years.
Often one spouse handled every aspect of the family’s finances. The spouse who was not involved in financial matters may face some unpleasant surprises during the course of the divorce. In addition, the non-financially-savvy spouse now has to take on their own financial planning.
The fact that gray divorcees are closer to retirement may also cause a few hitches. Spouses who expected to rely on retirement accounts in their golden years may have to adjust their expectations. Even worse, there’s not much time to rebuild before retirement. Older people may have maxed out their salaries and reached the end of their career opportunities, which could make rebuilding those retirement accounts very difficult.

As with any divorce, it’s best to consult with an attorney to make sure you get the best result.

Learn More About Filing for Divorce

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. We plan to add a Beverly Hills office soon.

California Divorce, Child Support, Debt, Spousal Support

Financial Tips for Men Going Through a Divorce

December 14, 2018 Judy L. Burger Leave a comment

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.

California Divorce

Applying the Brakes with an ATROS

December 6, 2018 Judy L. Burger Leave a comment

Life moves fast sometimes. Take divorces, for example. The filing of a divorce petition may quickly set the divorcing couple in motion. The parties to the divorce react in different ways: one may become depressed, another focuses on any children involved. Unfortunately, some people immediately start closing bank accounts, taking possessions from the family home, and making drastic changes to insurance policies. An ATROS may help divorcing couples find some balance between what they want to do and what they are allowed to do.

What is an ATROS?

ATROS stands for Automatic Temporary Restraining Orders.

What exactly does this mean?

Occasionally, one party in a divorce may seek a temporary restraining order against their spouse due to domestic violence. However, ATROS is a standard order that is not based on domestic violence. It goes into effect as soon as the summons is served. In fact, the summons contains the terms of the ATROS, which should be read carefully.

What does an ATROS mean for me?

An ATROS applies to both parties. So, whether you filed the divorce or were served papers by your spouse, each of you is responsible for obeying the ATROS.

The ATROS restrains divorcing spouses from the following types of activities:

Children: Don’t take minor children out of state or apply for a passport without written consent from the other parent or from the court.
Insurance Policies: Don’t cash out, borrow against, cancel, transfer, terminate, or change any beneficiary designations for any insurance policies that benefit the parties or their children.
Property: This applies to any property, whether it is community, separate, quasi-community. Don’t transfer, borrow against, hide or dispose of property without a court order or consent from your spouse. The exception to this is that action can be taken regarding property if it’s being taken in the ‘normal course of business’ or to pay for necessities.
Nonprobate Transfers: Assets may pass to heirs through a probate proceeding. However, property also may be transferred to heirs through beneficiary designations or property titling instead of probate (nonprobate transfers). The ATROS restricts the parties from changing or adding any nonprobate transfers. This restriction may seem complicated, so let’s look at an example: Sam decides to divorce Diane. Sam is the named beneficiary of Diane’s retirement and savings accounts. As much as she wants to, Diane cannot change the beneficiary designations without Sam’s consent or a court order.
Extraordinary Expenditures: Do not pay any unusual or extraordinary expenses without notifying your spouse at least five days before incurring the expense. Remember that you will have to account for this type of purchase to the court.

Talk to an Attorney About Your ATROS.

Violating an ATROS can lead to fines, attorney’s fees, and criminal charges. Make sure you are in compliance by discussing your divorce and ATROS with a qualified California divorce attorney.

To make an appointment, please call us at 415-293-8314. The attorneys at the Law Offices of Judy L. Burger assist clients in San Francisco, Marin County, Santa Barbara, Ventura/Oxnard, San Jose, Gold River (Sacramento) and surrounding communities. We are opening a new Beverly Hills office soon.

California Divorce, Spousal Support

Vocational Experts May Make a Difference in Your Divorce Settlement

December 4, 2018 Judy L. Burger Leave a comment

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.

California Divorce, Child Custody, Visitation

I’m Afraid My Spouse Will Take Our Children Out of State. What Can I Do?

November 29, 2018 Judy L. Burger Leave a comment

Child custody is complicated. Between physical custody, legal custody, joint custody, sole custody – it’s easy to get confused. However, doing what’s best for the children should be at the forefront of every discussion about child custody. It’s typically best for children to live near both parents, whenever practical, to maintain and foster their relationships. But what happens when it becomes necessary to relocate? Many parents struggle to decide where their children will live and whether the other parent can move the children out of state.

Before the Parenting Plan … and After

Address relocation issues in your parenting plan, if possible. Disagreements about where the children can live may be worked out with a mediator. As always, if parents are unable to agree, the court will decide where the children will live and with whom.

After a parenting plan is put in place, however, things may change. One parent may want to move children to another city or even out of state. Sometimes it is necessary to put the issue before a judge.

Courts try to make all decisions keeping the best interests of the children in mind, and relocation issues are no different. The judge may consider some of the following issues when deciding whether children can be moved out of state:

Will the move alter visitation?
Will the move hurt the relationship between the child and the parent who is not moving?
What type of custody arrangements are already in place?

The parenting plan can be changed by agreement or by court order. The form of custody granted to the parent seeking to move may influence a judge’s decisions about relocation.

The Type of Custody May Matter

Child custody generally falls into these categories:

Joint legal custody,
Sole legal custody,
Joint physical custody, and
Sole legal custody.

A parent with sole physical custody may move the children unless the other parent proves that the move will harm the children in some way. For example, Hannah wants to move her children from California to Connecticut to be closer to her family. Jonah, the children’s father, has a very close relationship with his children, and he filed a motion to stop the move. Because of that relationship and the children’s ties to the community, the judge ruled in Jonah’s favor. Hannah was free to move out of state but was not allowed to take the children.

When the parents have joint physical custody, the parent seeking to relocate must prove that the move is beneficial to the children. Let’s say Hannah and Jonah have joint legal custody. Hannah wants to move, but Jonah objects. The burden is on Hannah to prove that the move is good for the kids.

It’s Complicated. We Can Help.

Moving children out of state can be difficult. You need an advocate to help you understand 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.

California Divorce, Child Support, Spousal Support

How to Get Temporary Spousal Support or Child Support

November 27, 2018 Judy L. Burger Leave a comment

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.

California Divorce, Child Custody, Child Support

FAQs About Parenting Plans

November 22, 2018 Judy L. Burger Leave a comment

California courts are strongly “pro-child.” Typically, decisions are based on the best interests of any children involved in a divorce or legal separation. Let’s look at a few questions frequently asked about parenting plans.

What is a parenting plan?

When a divorcing couple have children, they need to agree on how to care for them. Also called a custody and visitation agreement, the parenting plan sets out how physical and legal custody will be handled.

To avoid misunderstandings, a parenting plan should include specific provisions about each parent’s responsibilities and obligations. For example, a plan might state who will handle:

Health care and medical treatments,
School, educational, and extracurricular activities,
Exchanging the children after a visit,
Parenting styles,
Child care; and
Travel and relocation.

Courts look for a plan that provides the best possible solution for the children.

What if parents can’t agree on a parenting plan?

The first step is mediation. Both parents work on sample plans with their attorneys, then present their proposed parenting plans to the mediator. Although mediation is not legally binding, mediators often facilitate agreements between disputing parents.

However, sometimes mediation fails. If so, the couple schedule a hearing where their parenting plans can be presented for the judge’s consideration. The court renders a decision, sometimes with the help of independent counselors or the mediator.

What happens after we sign the parenting plan?

When parents are able to agree, then they simply submit their parenting plan to the court. Unless the judge sees something wrong with the plan – something that is not in the best interests of the children – the plan usually is approved.

Our parenting plan was approved. What now?

Follow the parenting plan. If you find that sections are not working, talk to your attorney about adjustments.

Any of the following behaviors may violate the terms of your parenting plan:

Trying to turn your child against his or her other parent,
Being late when it is time to return your child after visitation,
Refusing to allow visitation at all, or
Refusing to handle educational or healthcare decisions as agreed.

When you violate your parenting plan, you are violating a court order. A judge may hold you in contempt of court. The consequences could be as simple as attending a parenting class or as severe as jail time.

Final Thoughts

The driving principle behind a parent plan is to act in the best interests of the child. Make sure your parenting plan is right for your children.

Ms. Burger is a California Certified Family Law Specialist and founder of the Law Offices of Judy L. Burger. Please call us at 415-293-8314 to talk about your divorce. The attorneys at the Law Offices of Judy L. Burger assist clients in San Francisco, Marin County, Santa Barbara, Ventura/Oxnard, San Jose, Gold River (Sacramento), and surrounding communities. We are opening a Beverly Hills office soon.

California Divorce, Debt

Hitting the Books: Handling Finances When Students Divorce

November 20, 2018 Judy L. Burger Leave a comment

Jordan and Hailey met and married while both were freshmen at Sacramento State. Unfortunately, the marriage ended after two years. Both were still in college. As their divorce progressed, they ran into some issues regarding their student loans. They learned that debt is handled differently when students divorce or when student loans are involved in a divorce.

Splitting Debt in a Divorce

Typically, most debt incurred during a marriage is community debt that is split between the spouses. There are exceptions, and other factors to consider, but this is the general rule of thumb.

For example, Jordan uses the couple’s credit card more than Hailey does. When they divorce, however, it is possible that Hailey will be forced to pay half of Jordan’s credit card debt.

But that’s credit card debt. What about debt related to education?

Student Loans in a Divorce

Debt incurred for education or training is handled differently that other debt. Student debt acquired before or during a marriage is the separate debt of the spouse that incurred it.

Our star-crossed couple, Jordan and Hailey, both took out student loans. Some of the loans were taken out before the marriage and some during the marriage. Jordan most likely will pay his loans only. The same is true for Hailey.

Even so, there may be exceptions to the ‘student-debt-is-separate-debt’ issue when it affects the community estate.

Community Reimbursement

According to California law, community contributions for one spouse’s education or training may be reimbursed if the training enhanced his or her earning capacity. The same may hold true for repayment of loans for education or training.

However, reimbursement may be limited or eliminated if:

The community benefited from the party’s education, training, or student loan.
Both parties received community contributions for education, training, or student loans.
Education paid for with community funds reduces that party’s need for support.

The parties may agree to different settlement amount.

Learn More About Student Loans and Divorce

California Divorce, Child Custody

What Is Joint Legal Custody?

November 10, 2018 Judy L. Burger Leave a comment

Zach and Mary decide to divorce after 14 years of marriage. Of course, they are concerned about how their three children will handle the stress of divorce. Both parents want custody, but realize they need a plan. As they learn more about how custody is decided, they have questions. For example, they aren’t sure what joint legal custody entails.

Types of Child Custody

In a divorce proceeding, the term “child custody” refers to the care, control, and maintenance of a child or children. However, there are two different types of custody: physical and legal. Each type of custody can be sole or joint. Sometimes a judge may even award one parent sole physical custody of a child, but joint legal custody. As always, the judge will decide what’s best for the child when finalizing child custody arrangements:

Sole Custody. A parent with sole physical custody decides where a child lives. If a parent is awarded sole legal custody, he or she will make all legal decisions related to a child’s health, education, and welfare. The non-custodial parent may have visitation rights as ordered by the court.
Joint Custody. Parents may share legal or physical custody under joint custody arrangements. Physical custody still relates to arrangements regarding the physical presence of the child. Legal custody still refers to the child’s health, education, and welfare. The difference, of course, is that each parent has at least some say in what happens with the child.

So, how does joint legal custody vary from sole legal custody and joint/sole physical custody?

Joint Legal Custody

Parents who are given joint legal custody generally are required to make decisions together. However, if a parent refuses to work with the other parent, they may both end up back in court. That’s not the ideal situation for anyone.

Sometimes Sharing is Impossible.

A judge may give one parent sole legal custody if:

parents are unable to work together
one person is considered an unfit parent
one of the parents is just not capable of making legal decisions
it appears that it’s not in the children’s best interests for both parents to share legal custody

Final Thoughts.

Zach and Mary found it difficult to agree on a parenting plan. Both wanted maximum time with their kids. Both wanted to make all decisions. The judge presiding over their case sent to them mediation, where they came up a parenting plan that worked for the children. They were able to see that joint custody could work as long as they continued to communicate and put their children first.

Acting in the best interest of the child is the driving principle behind a parent plan. Make sure custody issues are handled while negotiating your marital settlement agreement.

To discuss your child custody concerns with an experienced California attorney, please call us at 415-293-8314. The attorneys at the Law Offices of Judy L. Burger assist clients in San Francisco, Marin County, Santa Barbara, Ventura/Oxnard, San Jose, Gold River (Sacramento), Roseville, and surrounding communities.