California Divorce

Protect Yourself: Update These Documents after a Divorce

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If you are recently divorced, you need to make sure you update key documents. Many people remember to change the name on their driver’s license, credit cards, and so on. While that is important, there are other documents that are arguably more so; the failure to change certain documents could result in a different distribution of your property than you might intend.

Whether or not you initiated the divorce proceedings, you probably have strong feelings about whether you want your ex to have your property or insurance benefits if something happens to you. Unfortunately, too often, people overlook or postpone dealing with this issue, with potentially disastrous results.

Here is a list of some of the types of documents you will want to update:

  • employment documents, such as payroll data and withholdings;
  • financial documents, such as bank and brokerage accounts, as well as credit cards;
  • government and identification documents, such as your Social Security card and driver’s license; and
  • documents that relate to the ownership of property, such as car titles.

Beneficiary designations should be at the top of your list. You will need to identify all of these, which typically include insurance policies, retirement plans, financial brokerage accounts, and bank accounts that are payable on death (POD).

Other critical documents that need immediate attention are your will, any trusts, and any powers of attorney or advance directives. California Probate Code § 6122 provides that a divorce automatically revokes certain aspects of a will. However, that automatic revocation may cause other unintended consequences where property is concerned.

Even if you are relatively healthy, life is unpredictable. To ensure that your wishes are carried out, it is best to update your key documents and to consult with an experienced California lawyer who can help you identify important issues that may result from your divorce.

The attorneys at the Law Offices of Judy L. Burger have extensive experience in family law matters and can advise you about many of the consequences of divorce. Contact us today to learn how our attorneys can help you in your case: (415) 293-8314.

California Divorce

Parental Access to Child Non-Medical Records

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Parental Access to Child Non-Medical Records
One of the rights a parent has with respect to his or her children is the right to receive or review the child’s important records. Access to child records allows a parent to advocate for his or her child and to parent more effectively. This blog will discuss parental access to dental and school records.

California Family Code § 3025 specifically provides that parents have access to their minor child’s medical, dental, and school records. Under this law, it does not matter whether a parent is the custodial parent or not. You can read more about parental access to child medical records at my earlier blog here.

Parents also have the right to access their minor child’s dental records unless one of the following applies:

  • The child is emancipated.
  • The child is on active duty.
  • The record relates to certain restricted topics, such as sexual assault, communicable or sexually transmitted diseases, or alcohol abuse.
  • The dentist determines that releasing the record may harm the patient.

The California Education Code provides parents with wide-ranging rights relating to their children. Many of these rights relate directly to child education records:

  • notification of child absenteeism;
  • standardized and statewide test performance of the child;
  • class curriculum materials;
  • child progress; and
  • “academic performance standards, proficiencies, or skills their child is expected to accomplish.”

Leaving no room for doubt, the law also specifically provides that parents “have access to the school records of their child” and that they have the right to question inaccurate or misleading information in their child’s records. When a parent does this, the school is legally required to provide a response to the parent.

An experienced California family lawyer can be an invaluable advocate for you and your children. If you are involved in a difficult divorce or separation and have questions about your rights, contact the Law Offices of Judy L. Burger. We have decades of experience in contested divorce and custody issues, and we will put our experience to work for you. Call (415) 259-6636 to get started today.

California Divorce

Get Ready for Next Tax Year: Who Can Claim a Child as a Dependent?

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Get Ready for Next Tax Year: Who Can Claim a Child as a Dependent?
If you anticipate that your divorce will be final during the 2016 calendar year, you need to start thinking about changes in your federal tax status. Of course, one of the most obvious changes is that you will no longer be eligible to file as “married,” either jointly or separately. Your filing status can significantly impact your tax liabilities. However, child dependency exemptions also affect your taxable bottom line.

The Internal Revenue Service (IRS) only allows one parent to claim an exemption for each child during each tax year. Most of the time, the custodial parent has the right to claim the child dependency exemption. That is because one of the requirements for the exemption, known as the “residency requirement,” mandates that the child live with the taxpayer for more than half of the year.

Here are the other requirements:     

  • The child must meet a relationship test. Sons, daughters, and stepchildren all meet this requirement.
  • The child must meet an age test. This generally means that the child must be either under the age of 19 and younger than you are, under the age of 24 and a student, or permanently and totally disabled.
  • The child cannot have provided more than half of his or her annual needs for support.
  • The child must not be filing a joint return.

Special rules apply that may allow a noncustodial parent to claim a child dependency exemption. From a very basic standpoint, this exception applies when the parents are divorced or legally separated and formally agree to the change. However, there are other requirements before this shift may be made, and it is wise to consult with your accountant or tax lawyer to protect yourself if you decide to do this.

If you anticipate losing the dependency exemption for the 2016 tax year, you can be proactive by electing to have more money withheld from your paycheck. This can reduce shocking surprises when filing time rolls around.

With a divorce come many changes, including tax options that can affect you and your children financially. If you need legal assistance in a California divorce, the attorneys at the Law Offices of Judy L. Burger can help. Make the call today to learn how our attorneys can work for you and your children: (415) 293-8314.

Contesting Parentage in California
Child Custody, Child Support

Contesting Parentage in California

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It goes without saying that being a parent comes with both rights and responsibilities. Nowhere is this more evident than in legal proceedings that relate to families. In the realm of family law, a child’s parents have the right to request custody and visitation. However, they also have the responsibility of supporting the child, sometimes by paying child support, uninsured healthcare costs, and child care costs.

When a child is born, the mother’s name is listed on the birth certificate. If the mother is married at the time of birth, her husband is presumed to be the father, and his name is also placed on the birth certificate. Likewise, if the mother was married at the time the child was conceived, that man is presumed to be the father and is listed on the certificate.

If the mother is not married, determining who the father is can be more complicated. A very common way of establishing paternity is through a voluntary Declaration of Paternity completed by the parents. Outside of a presumption or voluntary declaration, court proceedings are often used to determine the child’s father. You can read more about paternity at our earlier blog here.

But what happens when a man disputes that he is the father of the child? Indeed, much is at stake for everyone involved — the mother, the putative father, the child, and the state of California.

The California Family Code reaffirms that the state has a compelling interest in establishing child paternity and that both parents have a duty to support their children. This makes sense because parentage affects many rights:

  • child support;
  • child custody and visitation;
  • health insurance;
  • military benefits, survivors’ benefits, and Social Security benefits; and
  • inheritance rights.

When a parent does not support a child, the child suffers. However, the child’s family and the state are also often negatively affected.

The state child support agency can request that a court establish the paternity of a child. Others who may start a paternity suit include the mother, the child’s personal representative, and, of course, the father. A man has the legal right to request a genetic test to determine whether he is the biological father of a child.

Under California Family Code § 7575, if a man who signed a voluntary declaration of paternity is determined by genetic testing not to be the father, the court may still refuse to set aside the declaration. The court’s decision in this regard is focused on the best interest of the child.

The attorneys at the Law Offices of Judy L. Burger have extensive experience in family law matters, including challenges to paternity. Contact us today to learn how our attorneys can help you in your case: (415) 293-8314.

Child Custody

Supervised Custody Exchanges in California

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Supervised Custody Exchanges in California
One of the most difficult aspects of divorce is its effect on children. It is particularly hard for children when their parents do not speak to each other or, worse yet, fight when they do. The public policy of the state of California is to support the best interest of the state’s children. One way this is done is by providing for supervised custody exchanges.

Supervised custody exchanges are designed to make it easier for parents to transfer the child between one another. A neutral third party supervises the exchange. In fact, the parents need not see each other at all.

By preventing the parents from interacting, supervised custody exchanges reduce the negative impact of divorce on California’s children. They also reduce the likelihood that children will be exposed to foul language, physical hostility between the parents, or discussions of adult issues.

Supervised custody exchanges are carried out at a neutral location. By way of example, the two parents would report to the same location, such as a school, but at different times. Each would wait in a separate room. Once everyone was there, the child and his or her belongings would be transferred from one parent to the other by way of the neutral third party. In this way, the parents would not need to encounter one another at all, even in the parking lot.

As with California’s supervised visitation program, the core of supervised custody exchanges is the safety of the child and other involved parties, followed by the best interest of the child. You can read more about supervised visitation at our earlier blog here.

An experienced California family lawyer will advocate for the custody and visitation plan that is best for your children. If you are involved in a difficult divorce or separation, contact the Law Offices of Judy L. Burger. We have decades of experience in contested divorce and custody issues, and we will put our experience to work for you. Call (415) 259-6636 to get started today.

Visitation

Supervised Visitation in California

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Supervised Visitation in California
Supervised visitation is a tool available to California judges when they want to ensure safety and look out for the best interest of a child. Supervised visitation allows a non-custodial parent to visit with his or her child in a safe environment under the supervision of a neutral third party.

There are several reasons a court might use supervised visitation, such as the following:

  • to allow the child and parent to become acquainted or reacquainted if they have no relationship or have been apart for some time;
  • to prevent the parent from abducting the child:
  • to address concerns about parenting skills or parental mental illness; and
  • to allow the parent and child to see each other even though there may be concerns about child abuse or neglect.

The legislature’s top priority in supervised visitation is “the safety of children, adults, and visitation supervisors.” After safety is assured, the paramount consideration is “the best interest of the child.”

California law allows for professional, paid providers to supervise visitation. However it also permits this need to be met by a nonprofessional provider, who is often a family member or friend. In either case, the law strictly regulates the qualifications of supervising providers. Regardless, the following three criteria apply:

  • no prior convictions for crimes against the person, including child molestation or abuse;
  • “no current or past court order in which the provider is the person being supervised”; and
  • if the person will be transporting the child, proof of current automobile insurance.

Professional providers must receive extensive training in many areas, including the following:

  • the responsibilities and duties of providers and their specific role;
  • laws relating to child abuse reporting, family law, and juvenile law;
  • child development needs;
  • cultural sensitivities; and
  • confidentiality

Supervised visitation sessions may be terminated if rules are violated, the child is “acutely distressed,” or a safety issue is present.

Supervised visitation provides an important means for a child to build or maintain a relationship with his or her noncustodial parent. If you need legal assistance in a hotly contested child custody or visitation matter, the attorneys at the Law Offices of Judy L. Burger will provide respectful legal support. Make the call today to learn how our attorneys can help: (415) 293-8314.

Marriage

California Law on Premarital Agreements

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California Law on Premarital Agreements
If asked, few people would willingly turn over their future financial decisions to lawmakers or judges, but the truth is that without a premarital agreement, that is exactly what happens. Executing a premarital agreement gives both parties control over future financial matters. And premarital agreements are designed for more than just divorce.

In fact, California law allows the parties to a planned marriage a great degree of control over future financial matters, regardless of how the marriage ends. For example, a couple could agree to one set of conditions if the marriage ended in divorce but a separate set of conditions if the marriage ended with the death of one of the parties.

At the core of a valid premarital agreement are voluntariness and full disclosure. In fact, if either of these conditions are not met, the agreement is unenforceable. In addition, a premarital agreement must be made before the marriage occurs. The agreement only becomes effective after the marriage has been formalized.

A couple can set forth their respective rights and obligations with regard to several matters in a premarital agreement:

  • real and personal property ownership, management, and control;
  • the disposition of property at the termination of the marriage;
  • the requirement to create another document — such as a will or trust — to execute the provisions of the premarital agreement; and
  • the ownership and disposition of life insurance death benefits.

A premarital agreement may make provisions for spousal support, but, by law, it cannot control child support or child custody.

California law relating to premarital agreements also contains several formalities that must be followed for the agreement to be enforceable. If you need the assistance of an experienced California family lawyer to protect your interests in the drafting or interpretation of a premarital agreement, the attorneys at the Law Offices of Judy L. Burger can help. Make the call today to learn how our attorneys can fight for you: (415) 293-8314.

Uncategorized

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.

Visitation

Different Types of Child Visitation in California

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Different Types of Child Visitation in CaliforniaDivorces and separations are replete with hot-button issues. Perhaps no issues are more frequently contested, however, than child custody and child visitation. In a prior blog, I discussed the different types and aspects of child custody. This blog will focus on visitation, which is typically granted to the parent who has the children less than half of the time.


A visitation order spells out how the child’s time will be managed. For example, a visitation order might address where a child would spend birthdays, Mother’s Day, Father’s Day, major holidays, and summer break.


The California Legislature has declared that the primary concern of courts in making custody and visitation decisions is the “health, safety, and welfare of children.” However, an additional public policy of the state is “assur[ing] that children have frequent and continuing contact with both parents.” The law specifically “encourage[s] parents to share the rights and responsibilities of child rearing” to meet this second goal, unless regular contact is not in the best interest of the children. Custody decisions are not made on the basis of a parent’s marital status, lifestyle, religious beliefs, or sexual orientation.


There are four types of visitation orders in California: (1) reasonable visitation; (2) scheduled visitation; (3) supervised visitation; and (4) no visitation.


A reasonable visitation order leaves decisions about how the parents will share the children’s time largely to the parents. These orders provide the parents with the ultimate flexibility; however, if the parents do not get along or if future disagreements may occur, these are not a good choice for the family.


Scheduled visitation provides clear direction to the parents about how the children’s time will be spent. These orders are ideal for parents who may not get along or communicate well because they provide clear expectations. If you’ve ever heard someone say that it was “their weekend” with their children, the court probably ordered scheduled visitation in their divorce. These orders dictate everything from birthdays and major holidays down to evenings and weekends.


Courts use supervised visitation orders when necessary to protect the health, safety, and welfare of children. In supervised visitation, the parent still gets to spend time with the children but only under the supervision and presence of another adult or, sometimes, a professional agency. Supervised visitation may be used in situations like the following:

  • Allegations or a history of abuse, neglect, or domestic violence;
  • A nonexistent or weakened parent-child relationship;
  • Parental mental illness or substance abuse.


In rare cases, a court will order no visitation for a parent. This is only done when visits would not be in the best interest of the children, such as when a parent refuses to refrain from alcohol or drugs while visiting with the child.


Remember that child support is a matter separate from child visitation. That means that a parent cannot deny visitation to another for nonpayment of support; likewise, a parent cannot deny payment because the other refused visitation.


An experienced family lawyer can ensure that you understand the issues that might impact child visitation and help you present them in the best light possible to a judge. The attorneys at The Law Offices of Judy L. Burger have substantial experience in Northern California and will represent you aggressively. Please contact us today at (415) 259-6636 to learn more.

 

California Divorce

Ashley Madison Data Breach Could Impact Divorces

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Ashley Madison Data Breach Could Impact DivorcesMedia stories on the Ashley Madison hack have spotlighted data security and privacy issues. But there is much more at stake: families. Some have speculated that the release of the Ashley Madison data will lead to increased marital problems and divorce rates.


Before last summer, many people would have had no idea that Ashley Madison was anything other than a person’s name. Now, people nationwide recognize Ashley Madison as a hook-up site for those who are married.


In case you missed it, the personal and private data of over 33 million of Ashley Madison’s customers was recently compromised. The hackers scored traditional personally identifiable information, such as names, street names, passwords, partial credit card debt, and telephone numbers. However, they also accessed private information of a very intimate nature, such as sexual fantasies and message history.


Much of this information was posted online for the world to see. Suddenly, friends, spouses, and others knew not only who was a customer of Ashley Madison but much, much more.


What are the implications of this giant data breach in family law?


Very early on, some divorce attorneys predicted a spike in the divorce rate. Certainly, the ability to confirm infidelity could cause spouses who previously weren’t sure about divorcing to file their papers.


But the implications of this data breach could be wider than originally thought.


Suddenly, one partner is armed with what would appear to be undeniable evidence of infidelity, and the other partner is likely to be riddled with guilt. This imbalance could cause the former to stake out a position and refuse to budge and the latter to simply fold. Is it possible that these feelings could affect the outcome of divorce proceedings?


Any issue that is wholly or partly in the parties’ control could be easily affected. For example, the parties have a great deal of influence on issues such as personal property division and visitation plans. The guilty partner might feel obligated to cave in, and often, the judge will approve the parties’ plan as long as it is reasonable. Likewise, the imbalance in perceived power could greatly affect settlement and, because feelings are hurt, drive up attorney fees in protracted litigation.


Some issues, however, will not be impacted. For example, California law explicitly spells out how property division will take place. Barring proof of money spent by the guilty partner on affairs, which might be considered marital waste, property division will not be affected. Custody of the parties’ children also will not be affected, as the core focus in custody determinations is the “best interest of the children” and the factors considered by courts are spelled out by law.


If you’re involved in a divorce and don’t know where to turn, you should work with an experienced, compassionate attorney who can help guide you through California law. Attorneys at The Law Offices of Judy L. Burger have substantial experience in Northern California family law, including cases involving infidelity. Please contact us today at (415) 259-6636 to learn more.