Change These Documents After Your Divorce

June 30, 2018 Judy L. Burger

Many things change during a divorce: residence, last name, marital status (of course). With all these adjustments, it may be natural to miss a few. Certain documents, though, may have a long-lasting effect on you and your heirs.

Your Estate Planning Documents.

Any time you experience a life event – like divorce, marriage, or an addition to the family – it’s extremely important to review and update your estate planning documents.

Why?

Your Will tells everyone where you want your possession to go when you die. People who are married often give most, if not all, of their estate to their spouses. Sometimes the executor named is also the spouse of the person signing the Will. Obviously, if your marriage is at a point where you want out, you’ll want to remove all references to your spouse.

A durable power of attorney grants an agent the authority to act on your behalf. Married couples often name each other as agents. You can revoke your power of attorney at any time.

The Advanced Healthcare Directive is another common estate planning document. This document also grants an agent power to act on your behalf. Unless you really want your ex-partner making end-of-life decisions for you, you should change this document immediately.

Your Beneficiary Designations.

Companies like financial institutions and insurance companies give accountholders the ability to designate beneficiaries on their accounts. These designations should be changed as soon as possible. However, unlike estate planning documents, these designations usually cannot be changed during a divorce proceeding. As soon as you are legally allowed, name new beneficiaries on all your accounts.

Also, remember that changing your Will does not affect how accounts with beneficiary designations pass to your heirs. So, disowning your spouse in a new Will does not mean he won’t have a claim against a life insurance policy where he’s named the beneficiary.

Divorce Is Hard. We Can Help.

The attorneys at the Law Offices of Judy L. Burger specialize in family law matters. Feel free to give us a call at 415-293-8314 to set up a confidential appointment.

Our offices are conveniently located in San Francisco, Marin County, Santa Barbara, Ventura/Oxnard, San Jose, Gold River (Sacrament), and Roseville.

Uncategorized

Can I Keep My Divorce Records Private?

June 19, 2018 Judy L. Burger

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.

California Divorce, Child Custody

Can I Move Out of State with My Child?

June 17, 2018 Judy L. Burger

Despite everyone’s best efforts, child custody issues arise. Even in cases where the court and parents have agreed on what’s in the best interests for the children, life changes. At some point after a divorce, one parent may want or need to move out of state.

What California law says about move aways.

According to California Family Code 7501:

(a) A parent entitled to the custody of a child has a right to change the residence of the child, subject to the power of the court to restrain a removal that would prejudice the rights or welfare of the child.

(b) It is the intent of the Legislature to affirm the decision in In re Marriage of Burgess (1996) 13 Cal.4^th 25, and to declare that ruling to be the public policy and law of this state.

The decision in In re Marriage of Burgess grants a parent the presumptive right to move, not an absolute right. This means the court may or may not allow you to move. The court will consider factors in addition to your custody order before granting or denying your request to move away.

How much time do you usually spend with your child?

The court may consider how much time each parent spends with the child when deciding a move away case. The parent who has physical custody of a child more than the other parent may be more likely to win a move away case. Whether the time spent together is quality time may also influence the court’s decision.

Will the move be detrimental to your child?

Is the move being made for a legitimate reason that may benefit the child? Moving closer to extended family, living in a better neighborhood, and attending a better school are good reasons to move. Moving to be closer to your boyfriend or your favorite beach are not.

However, moving can be tough on a child’s relationship with his or her non-custodial parent, but courts often don’t consider that harmful enough to deny the motion to leave. However, if any of the child’s rights will be restricted due to the move, the court may refuse to allow the parent to move away.

Do you have a plan?

If you’re thinking of moving away, you need to plan ahead. It can be months before a judge grants or denies your request to move.

The attorneys at the Law Offices of Judy L. Burger are highly experienced with child custody issues. 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.

California Divorce

When One Spouse Has Serious Health Problems

June 12, 2018 Judy L. Burger

After 28 years, Olivia and Simon’s loveless marriage sputtered to an end. Before they could finalize their divorce, however, Simon learned he had Stage 2 prostate cancer. He and Olivia needed time – and the advice of their respective counsel – to assess the affect his serious health problems had on their divorce.

Health Insurance and Medical Bills

People in the middle of a divorce proceeding may be concerned about one of their biggest expenses – health insurance. This is especially true if one spouse has been paying the insurance premium for the other. Each divorce may be decided on a case-by-case basis.

In some situations, the insured spouse may continue paying their ex-spouse’s premiums as part of their settlement. In fact, the California Family Code states that health and medical insurance should be maintained until the divorce has become final.

Some couples may decide that the uninsured spouse should seek COBRA coverage. This option, though expensive, may be necessary if one of the spouses has a serious medical condition.

In a community property state like California, marital assets and marital debts are split between spouses. Medical bills incurred during the marriage, then, are likely to be considered the responsibility of both spouses.

Mental Health Concerns

If one spouse is mentally ill or lacks the ability to make decisions, the other spouse can usually obtain a divorce. The court may require medical examinations before granting the divorce. Also, just because one spouse suffers from mental illness does not mean the other spouse receives more of the marital property. Assets and debts still become part of the marital property.

Estate Planning

A complete estate plan typically includes a financial power of attorney, a living will, and a Physician’s Order for Life-Sustaining Treatment. Parties to a divorce should make sure their estate planning documents are updated, especially when one partner is ill.

For example, when Olivia and Simon finalize their divorce, they need to change their estate planning documents. It’s especially important for Simon to prepare estate planning documents that relate to medical and financial decisions because his medical condition may require others to make medical decisions for him. If he named Olivia as his agent, she most likely will no longer want to serve.

Call to Learn More About Preliminary Financial Disclosures and Your Divorce.

In addition to legal decisions, Olivia faced tough moral and ethical dilemmas. People dealing with a divorce and a seriously ill spouse may decide to continue with the divorce, stop the divorce, or file for legal separation until they decide what is best. An experienced California divorce attorney can suggest options that are right for your situation.

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, Legal Separation

The Difference Between Legal Separation and Divorce

May 29, 2018 Judy L. Burger

Sometimes two things are similar, but not quite the same. For example, divorce and legal separation both involve major changes to marital relationship. Yet there are some distinct differences between divorce and legal separation. Before deciding which is right for you, you’ll need to consider several factors.

Marital Status

One difference between a separation and a divorce proceeding is that a legal separation does not seek termination of the marriage. Divorce does.

In a legal separation, the parties remain married. Neither can remarry. Remarriage is an option for divorced couples, although it may affect spousal support and social security benefits.

People who remain legally separated may be eligible for:

greater social security benefits at retirement (depending on other factors);
health insurance benefits;
tax benefits enjoyed by filing jointly; and
some military benefits.

A divorced spouse may lose benefits as soon as the divorce is final.

Finances.

The parties still divide up marital and community property and debts whether they are divorcing or legally separating.

Just living apart may not be enough. Couples may remain liable for each other’s debts and legal problems unless they formally separate. A legal separation agreement may provide some protection while spelling out each party’s responsibilities when it comes to financial obligations.

In a divorce proceeding, the final divorce settlement shows a clear division of assets and debts.

Residency Requirements

The party filing for divorce must be California residents for at least six months before filing. In addition, the party must live in the county in which they filed for at least three months. People who do not meet that residency requirement mays file for legal separation instead. The legal separation can be changed to a divorce proceeding at a later date.

Other Factors to Consider.

A legal separation goes into effect as soon as the paperwork is filed. A divorce, however, may take at least six months from filing the petition to signing the final divorce settlement. For couples who need some space, but not a complete end to the marriage, a legal separation might be best.

Also, sometimes a legal separation fits the couple’s religious beliefs better than a divorce. The couple don’t completely break their marriage vows, which may satisfy family and church leaders. However, the parties are spared the ordeal of living together.

Need Help Deciding Whether to Divorce or Legally Separate?

Find out about whether to terminate your marriage or just put it on hold.

To discuss the particulars of your situation, 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.

California Divorce, Debt

Paying Bills After Filing the Divorce Petition

May 22, 2018 Judy L. Burger

Bill and Marcie decided to end their stormy 13-year marriage. After Bill filed the divorce petition, he and Marcie started negotiating the final divorce settlement. One of the first things they did was to divide their bills and household expenses. Bill became concerned when he started receiving late notices from utility companies and the mortgage company. Marcie was living in the house, so he felt she should be paying all the household-related bills. But Marcie felt like Bill had always paid the bills and, as primary breadwinner, should continue doing so. They took the issue to their respective attorneys.

Joint Debts, Separate Debts

As couples head toward a negotiated divorce settlement, decisions are made about marital property. Debt is also divided along community debt and separate debt lines. Those lines can be a bit vague until the settlement is final, but the bills still keep rolling in.

If possible, both spouses could cover the bills by:

Splitting the bills with each party paying approximately the same amount;
Total the bills and have each spouse pay half;
Temporarily separate the bills related to the home, if any, based on who is living at the home.

Each party should retain receipts of any bills they pay.

Spouse often keep joint credit cards. Typically, the balance due at date of separation may be considered to be marital debt owed by both parties. Sometimes people cancel joint credit card accounts so that one spouse does not run up a bill while the divorce is pending. However, if one spouse does use the card inappropriately, the other can ask for reimbursement.

Decisions about community debt and separate debt may be made on a case-by-case basis. For example, if Bill uses the joint credit card to pay expenses for the home that Marcie is still living in, it may be considered joint debt instead of Bill’s separate debt.

Sometimes one spouse is unable or unwilling to pay their fair share of the bills. In that case, the other spouse may pay the bills and request reimbursement. This may include situations where one spouse is living in the marital home while the other spouse pays the house-related expenses.

When Homes Are Involved

Mortgage companies, financial institutions, and landlords still expect to get paid. That’s reasonable. A party that is unable to pay a fair share of the expenses may ask the court to order the other spouse to temporarily pay them. For example, Marcie may ask a judge to order Bill to continue paying expenses although he is no longer in the home.

In situations where the couple leased or rented a home, things can become more complicated. Did both spouses sign the lease or only one? Did one spouse sign the lease, but now the other spouse is living in the leased property? The party or parties that signed the lease are still responsible for paying the lease. It’s best to discuss these situations with your attorney.

If Your Divorce Is Pending …

Protect yourself. Gather your bills and address their payment before late notices pile up.

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, Oakland, Santa Barbara, Ventura/Oxnard, San Jose, Gold River (Sacramento), Roseville, and surrounding communities.

California Divorce

Community Property FAQs

April 3, 2018 Judy L. Burger

California is a community property state. Everyone says that, but what does it really mean? The following questions tackle a few of the questions you may have about community property.

When one spouse makes more money than the other, will their property still be split 50/50?

Divorcing couples negotiate an agreement called a divorce settlement. The division of the community estate is decided by the couple and their attorneys. Couples may agree to split that is not 50/50.

However, when couples are unable to agree, then the court gets involved. To arrive at a fairly equal division of assets and debts, courts may award part of the community property to one party based on economic circumstances. And, remember that income is considered community property in California.

Is an inheritance received during a marriage considered community property?

Property that is inherited by one spouse usually remains the separate property of that spouse unless one of the following two conditions occurs:

Commingling. The nature of an inheritance changes if the receiving spouse mixes, or commingles, the inheritance with community property.

For example, if Rosie keeps the $120,000 cash she received from her grandmother’s estate in an account that only she owns, her husband John generally can’t take it in the divorce. If Rosie instead deposits the cash into the joint account she has with John, the inheritance is now community property.

Transmutation. This occurs when the spouse who received the inheritance takes action that shows an intent to make the inheritance community property.

Using the example above, Rosie receives the $120,000 inheritance and puts it in a separate account. However, she later uses the money to buy a home that she titles in both her and her spouse’s names. She has transmuted the inheritance from separate property to community property.

A spouse who has commingled or transmuted separate property can request reimbursement if the separate property contribution can be traced back to its source. Rosie could ask to have her $120,000 returned, but she would have to prove that the money came from her inheritance. Keeping accurate, up-to-date records is critical.

Does community debt include a spouse’s credit card bills?

Debts incurred during a marriage are typically community debts.

For example, John uses his credit card to buy a wardrobe full of Louis Vuitton while still married to Rosie. His credit card bills are considered community debt and will have an impact on the value of the community estate. When dividing up their assets and debts, John could take the Louis Vuitton and the debt. However, creditors don’t really care about divorce settlements and may come after Rosie for payment if John defaults.

Is a house purchased by one spouse before marriage considered community property?

When spouses buy a house together using community funds, the house is community property. A house purchased by one spouse before the marriage is the separate property of that spouse.

However, the issue can become complicated if community funds were used for the mortgage or other house-related expenses. Also, the spouse may be found to have an interest in the home if the couple was married for a long period of time.

Call to learn more about community property.

It’s not always easy to understand which assets are considered community property and which ones are not. An experienced California divorce attorney can help you understand how much financial information needs to be disclosed.

California Divorce, Domestic Violence

Dealing with Harassment During Divorce

March 27, 2018 Judy L. Burger

Harassment can take many forms. During an emotional time, such as a divorce, power struggles and frustration can lead to disturbing behavior from your spouse. Though it may seem like just one more hurdle to overcome, there are ways of dealing with harassment during your divorce.

What Behavior Rises to the Level of Harassment?

California Code of Civil Procedure 527.6 defines harassment as “unlawful violence, a credible threat of violence, or a knowing and willful course of conduct directed at a specific person that seriously alarms, annoys, or harasses the person …”

That may sound vague, but the Code also defines “course of conduct” by listing the following behaviors:

Following or stalking an individual
Making harassing telephone calls to an individual
Sending harassing correspondence to an individual by any means, including, but not limited to, the use of public or private mails, interoffice mail, facsimile, or email.

If someone is threatening you, make sure you are in a safe place. Then, seek court intervention.

What Kind of Order Might Help?

A restraining order is often used to curb such harassing behavior. There are four types of restraining orders:

Domestic violence;
Civil harassment;
Elder abuse; and
Workplace violence.

Also, protective orders may be temporary (usually for 20-25 days), permanent (lasting for up to 5 years), or criminal (if the harasser is charged with a crime, for 3 years after the case is over).

When harassment is done by a spouse, ex-spouse, registered domestic partner, someone you formerly dated or lived with as more than roommates, or a close relative, you may ask for a domestic violence restraining order.

However, when harassment does not meet the criteria for domestic violence, a civil harassment restraining order can be used to stop the abuse.

What Can a Restraining Order Do?

First, it’s important to understand the people involved in the restraining order, also called a protective order. The person asking for the order is the “protected person.” Often, other people are included as protected persons, including family members or others living with a protected person. The person who is accused of harassment is the “restrained person.”

A protective order may seek to stop specific behaviors, like stalking, hitting, or destroying personal property. In addition, some orders require the restrained person to stay a certain distance away from the protected persons. For example, a spouse may be told to stop emailing their spouse during a divorce and to stay at least 100 yards away from the children’s school.

When a restrained person violates a protective order, consequences include paying a fine, going to jail, or both.

Take Care of You.

If you are being harassed, abused, or threatened, help is available:

Ask trusted friends and family members to help.
Contact your local domestic violence shelter.
Call the National Domestic Violence Hotline (1-800-799-7233).
Call 911 if you or a loved one is in immediate danger.

You Don’t Have to Do This Alone.

Divorces are hard on everyone involved. 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 Cost, including San Francisco, Gold River, Santa Barbara, Ventura/Oxnard, and surrounding communities.

California Divorce, Marriage, Spousal Support

The Effect of Long-Term Marriage on Divorce Settlements

March 20, 2018 Judy L. Burger

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.

California Divorce

What is a QDRO?

November 6, 2017 Judy L. Burger

Divorce proceedings are stressful and emotional for everyone involved. In the midst of chaos, it can be difficult to put together a comprehensive list of assets. One of the largest assets in a marriage that is often overlooked is a retirement plan. While retirement may be years down the road for many couples seeking a divorce, the division of that retirement plan must be addressed and approved during the proceedings. Failing to address the issue can lead to additional cost and a great deal of uncertainty down the road.
Retirement plan distributions ordered in divorce proceedings are governed by a document called a Qualified Domestic Relations Order (or “QDRO”). A QDRO is a court order or judgment for a retirement plan to pay benefits to the dependent of a participant.
A QDRO is different from a “Domestic Relations Order” from the court as it must be “qualified.” To be “qualified” means that the order must be approved by the retirement plan in order to be valid. During divorce proceedings, the QDRO is sent to the retirement plan for approval.

Why is a QDRO Important?
Obtaining a QDRO is an important consideration in divorce proceedings as it governs the division of a large martial asset and is the only way to receive a pay-out benefit from a retirement fund. A retirement benefit could be granted by a judge and listed in the divorce decree, but a party is not entitled to a pay out of any benefits from a retirement fund unless a QDRO was sought and issued. The retirement plan then uses the QDRO as the legal basis for making pay-outs to the beneficiaries listed in the Order.

Requirements for a QDRO
There are thousands of retirement plans in the U.S., each with specific requirements as to what information must be included in a QDRO. The IRS requires that a QDRO contain the following information:
• the participant and each alternate payee’s name and last known mailing address; and
• the amount or percentage of the participant’s benefits to be paid to each alternate payee.
While this is a bare minimum, it is also a good idea to include the name of each plan governed by the Order as well as the total time period or number of payments to which the Order applies.
Keep in mind that every retirement plan will have different requirements and may want additional information added to the QDRO. This is why it is important to submit the Order to the retirement plan as soon as possible during divorce proceedings and to make any revisions necessary to obtain approval prior to finalization of the divorce.

If a QDRO is not set up correctly, it may not be enforceable after a divorce. This is where a California divorce attorney with experience in obtaining QDROs is invaluable. The attorneys at the Law Offices of Judy L. Burger are highly knowledgeable and experienced with negotiating and obtaining QDROs. Call (415) 293-8314 to find out how we can help.