California Divorce, Child Custody, Child Support, Domestic Violence, Property Division

Your Top 10 FAQs Answered About Family Law in California

May 16, 2024 TRIWriter

Family law deals with issues like divorce, child custody, child support, alimony, and property division. If you are going through a family law issue in California, you likely have many questions about the process and your rights. Certified Family Law Specialist Judy L. Burger answers the top ten questions we’re asked at our California practice about Family Law matters.

Of course, we can only provide the barest facts in an article. More complete explanations and answers to other questions are available in a complimentary consultation. Contact The Law Offices of Judy L. Burger to schedule your consultation.

Top 10 Family Law FAQs

Review these common questions clients routinely ask Attorney Judy Burger during initial consultations at her offices.

1. What is the process for getting a divorce in California?

To get a divorce in California, you must file a petition for dissolution of marriage with the court. You will need to serve your spouse with the petition and wait for their response. If you and your spouse cannot reach an agreement on all issues, such as child custody and property division, the court will schedule a trial to decide these issues for you.

2. How is child custody determined in California?

California courts determine child custody based on the best interests of the child. The court will consider factors such as the child’s age, health, and relationship with each parent. Generally, the court prefers frequent and continuous contact with both parents as long as it is in the child’s best interests.

3. How is child support determined in California?

California law provides guidelines for determining child support. The guidelines take into account the net disposable income of each parent and the amount of time each parent spends with the child. Other factors, such as the child’s needs and the standard of living before the divorce, may also be considered.

4. What is spousal support in California?

Spousal support, also known as alimony, is financial support paid from one spouse to the other after a divorce. Spousal support can be temporary or permanent, depending on the circumstances of the case.

5. How is spousal support determined in California?

California law requires the court to consider various factors when determining spousal support, including the length of the marriage, the standard of living before the divorce, and the age and health of each spouse. The court has discretion in determining the amount and duration of spousal support.

6. How is property divided in a California divorce?

California is a community property state, which means that property acquired during the marriage is generally divided equally between the spouses. However, there are exceptions to this rule, and the court may consider factors such as the length of the marriage and the economic circumstances of each spouse.

7. Can I get a restraining order in a family law case?

Yes, if you are a victim of domestic violence or harassment, you can obtain a restraining order to protect yourself and your children. The court may issue a temporary restraining order, followed by a hearing to determine whether a permanent restraining order is necessary.

8. Can I modify a child custody or support order?

Yes, if there has been a significant change in circumstances, such as a job loss or relocation, you can petition the court to modify a child custody or support order. The court will consider the child’s best interests when deciding.

9. What is mediation in a family law case?

Mediation is a process in which a neutral third party helps the parties in a family law case reach a mutually acceptable agreement. It can be voluntary or court-ordered and can be a cost-effective alternative to litigation.

10. Do I need a lawyer for a family law case in California?

While you are not required to have a lawyer for a family law case in California, it is highly recommended. Family law cases can be complex and emotional, and having a knowledgeable and experienced lawyer can help protect your rights and interests.

Seasoned Family Law Representation in California

Family law issues in California can be challenging and emotional, but understanding your rights and the legal process can help alleviate some of the stress. If you have questions about a family law issue in California, contact The Law Offices of Judy L. Burger, with eight offices across the state to serve you.

California Divorce

What Certified Family Law Specialist Means for You

January 8, 2019 Judy L. Burger Leave a comment

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.

California Divorce, Child Custody

How is Child Custody Handled During Divorce Proceedings?

May 8, 2017 Judy L. Burger Leave a comment

One of the first things that happens when a couple decides to split up is that they start living in separate places. That seems like the normal course of events. And one of the common issues you hear about when a divorce is finalized is child custody arrangements. But what about child custody during the period of separation? Sometimes, that period can last for a long time.

The number one consideration in child custody under California law is the “best interest of the child.” This is true whether a court must make a determination while a divorce is pending or when it is actually granted.

A separating couple has the right to decide how to manage child custody and rearing. Similarly, they have the right to come to terms on child custody that will endure even after a divorce is granted. The difference is that a court must order the arrangements when the divorce is finalized. Prior to that point, a court will not be involved in child custody arrangements unless asked to do so by either or both parties.

According to California law, when a petition for divorce is filed, it may be accompanied by a petition for a temporary custody order. A petition for custody may also be filed any time after the filing of the divorce petition. If both parties are in agreement as to the custody of the children, the court will usually enter an order granting the temporary custody—so long as their agreement is in the best interest of the child. If the parents do not agree, the court is empowered to grant a temporary custody order based only on the requesting party’s petition. Within 20 days, however, the court will hold a hearing to allow both parents to argue about the appropriateness of the order.

Granting an order of custody based only one party’s request (known as an ex parte order) may only be made when it has been shown that immediate harm to the child may occur or that the child will be removed from the state. In that regard, when granting an ex parte custody order, the court is also required to enter an order to restrain the parent gaining temporary custody from removing the child from the state during pendency of the custody issue.

The attorneys at the Law Offices of Judy L. Burger have extensive experience in family law matters, including temporary and permanent child custody orders. We can help you put your best foot forward in advocating for the best interest of your children. Contact us today to learn how our attorneys can help you in your case: (415) 293-8314.

Marriage

Does California Recognize Common Law Marriages?

May 1, 2017 Judy L. Burger Leave a comment

It seems like no one gets married anymore. We all have family members and friends who choose to live with their significant others rather than “tie the knot.” We have all also probably heard of common law marriage. Doesn’t that mean that people living together are actually tying the knot even though they may think otherwise? In California, perhaps surprisingly, that is not the case. The Golden State has not recognized common law marriage since 1895.

Marriage laws are governed by state laws. Common law marriage was a function of older times when states were either not yet states or had not yet formally codified marriage rules. Today, only 10 states and the District of Columbia recognize common law marriage.

While California law does not allow for common law marriage, it may recognize one that was effected in a state that does permit common law marriage. Such was the case in the matter of In re Marriage of Smylko. In this case, the Smylkos had been formally married in Alabama in 1941, but they divorced in 1953. In 1957, they moved back in together and again lived as husband and wife in such a way as constituted a common law marriage under Alabama law.

The couple moved to California in 1960, where they continued to live together. In 1976, Mr. Smylko moved to Hawaii and subsequently remarried. He continued to send money to his common law wife in California for another five years. When he stopped, his California wife filed an action to “determine the validity of her marriage.” The California court ruled that there was a valid marriage recognized in that state due to its having existed in the state of Alabama before the Smylkos moved to California.

This case, which was decided in 1986, does not mean that any common law marriage from another state will be found to constitute marriage in California. Each case is evaluated on its own particular facts as well as the laws of the state where the marriage occurred.

If you have established a relationship that is commensurate with marriage within the state of California, a claim of common law marriage will not survive. If, however, you came here from another state under circumstances that might fulfill the common law marriage requirements in that state, and you need for that marriage to be recognized for whatever reason, you might have a strong argument.

The attorneys at the Law Offices of Judy L. Burger have extensive experience in family law matters, including what constitutes a legal marriage. We can advise you about the many different issues that can come into play when a marriage is in question. Contact us today to learn how our attorneys can help you in your case: (415) 293-8314.

California Divorce, Legal Separation

New Law in California Addresses Date of Separation

April 24, 2017 Judy L. Burger Leave a comment

When a marriage or domestic partnership fails, the parties are immediately confronted with a number of issues, not the least of which is how to separate physically. Typically, there is an initial intimate separation that then morphs into a physical separation.

Separating physically, however, is not that easy for many couples because of issues like finances and children. Couples advancing toward divorce sometimes choose to continue living under the same roof while they get their affairs in order before finally divorcing. Until recently, separated couples in California had to actually live in separate residences to have their post-separation finances considered as separate.

The rule had been handed down in 2015 by the California Supreme Court in a case called In re Marriage of Davis. In that case, the couple had been living in the marital home pending their divorce, although they were functioning as individuals. For example, their finances were handled separately, they travelled to children’s events separately, and they each did their own laundry. Notwithstanding their living separate lives, the Court ruled that an indispensible component of a married couple being separated under the eyes of the law was living in separate residences.

The legislature took umbrage with this ruling and passed Senate Bill 1255, which took effect January 1, 2017. This bill amended the California Family Code, specifying two grounds on which the date of marital separation could be established: 1) One spouse has expressed to the other spouse his or her intent to end the marriage; and 2) the conduct of that spouse is consistent with his or her intent to end the marriage. The bill also provided that courts “shall take into consideration all relevant evidence” to establish the date of separation.

The new law provides more flexibility to couples who decide to end their marriages. It is a much more sensible way of respecting the decisions that those couples make as they navigate such a significant upheaval in their lives.

California Divorce, Child Support

A Way to Secure Payment of Future Child Support: Court-Ordered Asset Deposit

April 17, 2017 Judy L. Burger Leave a comment

Divorced parents sometimes have a hard time collecting child support payments on a regular basis. The obligated spouse may or may not pay on time and may even go for extended periods of time without making the ordered payments. This can place a severe hardship on the spouse who shoulders the parenting responsibilities. Fortunately, California state law provides an option for that parent to force her ex-spouse to live up to his obligation.

The California Family Code provides that an obligated parent who is 60 days or more delinquent in child support payments may be required to place on deposit assets that will ensure timely payments. The assets are deposited with a court-designated entity and may ultimately be used to satisfy the amount in arrears. The obligated parent may also be required to pay fees and costs to the designated holder of the assets in connection with management or liquidation of the assets.

In making a request for an order requiring the deposit of assets, the requesting parent must declare under penalty of perjury that the obligated parent owes an amount equivalent to 60 days of payments. Once made, the court will provide notice to the obligated parent, as well as an opportunity to be heard. The court may also issue an immediate restraining order instructing the obligated parent not to dispose of any assets except through the normal course of business. The parent may also be required to document any extraordinary expenses after issuance of the notice.

To avoid an order to deposit assets or to prevent the liquidation of deposited assets, an obligated parent must prove that the non-payment of support was not willful and without good faith. He must also show that he did not have the ability to pay. He may also defend against an order by showing one of the following circumstances:

a change in child custody;
a motion pending for reduction of child support based on reduction of income;
illness or disability;
unemployment;
a serious adverse impact on members of his immediate family who reside with him that would outweigh the harm to the custodial parent and children; and
a serious impairment of the obligated parent’s ability to earn income.

The amount of assets required for deposit must be the equivalent of one year’s worth of child support payments or $6,000, whichever is less. If the obligated parent continues to be in arrears and fails to make a reasonable effort to catch up within a court specified time-frame, the designated holder of the assets on deposit may use the assets to pay the amount in arrears. This may involve the use of cash or the sale of assets such as personal property.

In many cases, the threat of filing a request for court-ordered asset deposit is enough to bring a delinquent ex-spouse around. Hopefully, that is most often the case. If you need assistance collecting child support payments, contact the attorneys at the Law Offices of Judy L. Burger. We have extensive experience in family law matters and can help you determine whether court-ordered asset deposit is the right approach. Contact us today to learn how our attorneys can help you in your case: (415) 293-8314.

California Divorce, Debt

Can I Be Held Liable for Debts My Spouse Incurred if I Didn’t Know about Them?

April 10, 2017 Judy L. Burger Leave a comment

Spouses sometimes come into a marriage with debt and also separately incur debt during the course of the marriage. Sometimes these liabilities are known by the non-incurring spouse, and sometimes they are not. The basic rule in California is that both parties are liable for any marital debt accumulated during the marriage but before separation. This is true whether or not one of the parties even knew it was incurred.

Debts owed by a party prior to marriage, known or not to the spouse, are not the debt of the non-incurring spouse. At the time of a divorce, community property—property accumulated during the marriage—is used to satisfy community debt. If there is not sufficient community property to satisfy the debt, then both parties are assigned a portion of the debt to be paid from their own funds post-divorce.

Couples can sign pre-nuptial or post-nuptial agreements that allow debts incurred during marriage to be treated as separate debts under certain circumstances. For example, they might agree that a debt incurred unilaterally, with only the incurring party’s income and liabilities qualifying for the debt, is the separate debt of that party. Such agreements must be drafted carefully to ensure they are legally defensible if that becomes necessary.

Debt incurred by a spouse after separation but before divorce is that spouse’s debt, and the other spouse is not liable from her separate funds or her share of community property. There is but one exception to this rule: when the debt is incurred to provide the “necessaries of life” for the debt-incurring spouse and the separation is not by formal agreement.

If you need assistance in a family law proceeding, you should consult with an experienced California lawyer, especially if there are significant questions of debt and property ownership. The attorneys at the Law Offices of Judy L. Burger will provide authoritative legal support tailored to your specific situation. Make the call today to learn how our attorneys can help: (415) 293-8314.

California Divorce, Child Support

Can My Child Stay on My Spouse’s Health Care Coverage after Divorce?

April 3, 2017 Judy L. Burger Leave a comment

The divorce of a child’s parents does not affect that child’s right to maintain health care coverage under one of the parent’s insurance plans. In fact, California law prohibits an employer or insurer from denying enrollment or coverage for a child based on certain outcomes of a divorce. Specifically, coverage may not be denied because the child is not claimed as a dependent for tax purposes or the child does not live with the parent or within the insurance coverage area.

Typically, as part of a divorce involving children, a court will include an order that one parent or the other maintain or provide health insurance coverage for the children, provided that the insurance is available at a reasonable cost. The amount that parties pay for insurance for themselves and their dependents (even new spouses and stepchildren) is an expense that is factored into child support calculations.

Parents who have been ordered to maintain health insurance for children must provide the other parent with the health insurance information. Conversely, the parent not obligated to provide coverage must advise the obligated parent whether or not she has health insurance through her employer or other group insurance coverage. An obligated parent who is paying child support through a local child support agency (“LCSA”) must also provide documentation to the LCSA of such coverage.

California law also requires courts to include in their child support orders a provision that requires the parent providing coverage to affirmatively seek the continuation of coverage when a child reaches a disqualifying age. Such continuation, however, must be pursuant to other provisions of law that require continued coverage if the child is unable to work due to a physical or mental disability or is otherwise primarily dependent on the parent for support and maintenance.

If you want to learn more about health insurance for children of divorced parents or child support matters in California, contact the attorneys at the Law Offices of Judy L. Burger. We can help. Call us today to make an appointment: (415) 293-8314.

California Divorce

Can I Be Ordered to Pay Attorney’s Fees for My Spouse If I Can’t Afford It?

March 27, 2017 Judy L. Burger Leave a comment

The cost of hiring an attorney for representation in a divorce can range from a reasonable sum to quite expensive depending on the complexity of the case and whether the parties cooperate with one another. For some parties to a divorce, however, their legal fees may be shifted to the other party. California state law provides for the court to order one party to pay the other’s attorney’s fees or costs under certain circumstances.

A foundational requirement for the court to consider when ordering such payments is whether a party “has or is reasonably likely to have the ability to pay.” The law also says that the court “shall not impose a sanction . . . that imposes an unreasonable financial burden on the party against whom the sanction is imposed.” Regardless, then, of the reasons that a party may be found liable to pay the other’s attorney’s fees, if he cannot afford to pay, the court is restrained from issuing such an order.

An order to pay another party’s fees is usually based on a disparity of income between the parties. California Family Code § 2030 imposes a duty on the court to “ensure that each party has access to legal representation.” Accordingly, the court may order a party with sufficient resources to pay the fees of the party with insufficient resources.

The law also states that a party may be ordered to pay based on how the “conduct of each party or attorney furthers or frustrates the policy of the law to promote settlement of litigation and, where possible, to reduce the cost of litigation by encouraging cooperation between the parties and attorneys.” As an example, a party who refuses to engage in settlement discussions, files numerous and frivolous motions, and is otherwise uncooperative may be ordered to pay the fees and costs of his soon-to-be ex-spouse.

The law provides that before making an award, the subject party will be given due notice and an opportunity to be heard on the matter. In addition, the court is required to consider all of both parties’ “incomes, assets, and liabilities” before ordering a party to pay.

A party against whom an order has been issued may only pay the fees and costs from his own property or income. In a divorce, assets are deemed either community—that is—owned equally by both, or separate—owned by one or the other. A party ordered to pay must do so from separate assets or from his share of the community assets.

If you are facing a divorce proceeding, especially one that promises to be contentious, you should consult with an experienced California lawyer. The attorneys at the Law Offices of Judy L. Burger are well-versed in difficult divorce proceedings and what it takes to win an award of fees and costs. Call today to see how we can help you: (415) 293-8314.

California Divorce, Child Custody, Visitation

Signs That a Parenting Plan is Not Working

February 27, 2017 Judy L. Burger Leave a comment

Ask most any parent going through a divorce, and he or she will tell you that the welfare of the kids is of the utmost importance. Unfortunately, it does not always play out that way. Kids are human beings, just like adults, and they will react both positively and negatively to various circumstances. It is important for divorcing parents to develop a good parenting plan, and then pay attention. Given the human variable, children may not always fare well under even the best of plans.

An important thing to remember is that children have not reached maturity. As they go through developmental stages, the parenting plan may need to be adjusted. For example, visitation by a non-custodial parent for an infant will be much different than for an adolescent. Along the way after a divorce, parents should be watchful for signs of distress in their children and recognize that it looks different depending on age.

An improperly parented and cared for infant may cry excessively, eat inconsistently or not fully, and not sleep properly. This can lead to growth and development problems such as being underweight and general malaise. Divorced parents who witness these tendencies may want to consider whether their care arrangements are causing any of the problems.

As a child grows during infancy, he becomes more aware of his surroundings and the people in his life. This becomes more relevant as a child reaches the toddler stage. Stress in children at these stages can, in addition to crying, include abnormal attachment to a parent or caregiver, sleep and appetite issues, and attention-getting behavior. Toddlers will begin to express concerns orally, asking about the other parent, refusing instructions, and making demands.

As children get older and start to have interests beyond the home, stress resulting from parenting issues will take other forms. Kids may demonstrate anti-social behavior with peers in school, clubs, and sporting activities, single out one parent for blame, and withdraw from others at home and school. As adolescence is approached, depression can be a sign of parenting issues, as well as aggressive behavior and confusion over loyalty to one parent or the other.

Adolescence can bring a whole host of behavioral problems to children that have nothing to do with a parenting plan. Therefore, it can be hard to discern whether parents are making mistakes. In addition to depression during this stage of development, suicidal thoughts may occur, as well as drug or alcohol use. While withdrawal is a common thing for adolescents, anxiety over parental issues may make it worse, so parents should be sensitive to whether that behavior can be connected to custody transitions or other events involving one parent or the other.

Parenting children is complicated even in the traditional nuclear home. All of the stress-related behaviors mentioned can occur in any family. For divorced parents, however, balancing the custody and care responsibilities for children naturally produces some level of stress. It is important to watch for signs of undue stress and adjust accordingly.

The attorneys at the Law Offices of Judy L. Burger have extensive experience in family law matters, including complicated parenting plans. We can advise you about the many different issues that can impact the parenting of children after divorce. Contact us today to learn how our attorneys can help you in your case: (415) 293-8314.