When Are You Considered by California Courts to Be “Separated”?
California Divorce, Legal Separation

When Are You Considered by California Courts to Be “Separated”?

One of the most hotly contested issues in many divorce proceedings—the date of separation— drives when the partners to marriage can claim their respective incomes as separate property. This is a vitally important question that can substantially change each person’s financial standing well into the future.

California Family Code § 760 provides that property acquired during a marriage is considered community property that is subject to equitable distribution in a divorce unless another law provides otherwise. One major exception to this conglomeration of community property applies after the spouses are separated. This exception is located in California Family Code § 771.

Last year, the California Supreme Court considered whether a couple could be considered separate even though they were living in the same house. In the case, the couple was married in 1993 and had two kids during the 1990s. They stayed together but at some point started sleeping in separate bedrooms. There were also several other indicators of their separateness, such as the following:

  • driving separately to their children’s activities;
  • the husband washing his own laundry; and
  • the separation of their financial affairs.

Despite these indicators, the two continued to live together. The wife received her mail and telephone calls at the couple’s home, and she did not change the address on her driver’s license.

The wife argued that the two had been functioning as roommates and were separated as of 2006 despite continuing to live together. The husband argued that they did not truly separate until much later, in 2011. The trial court agreed with the wife and found the date of separation to be 2006. The court of appeals affirmed, and the husband filed an appeal.

The California Supreme Court first considered the language of the law regarding the date of separation as it related to a claim of separate property: “[t]he earnings and accumulations of a spouse . . ., while living separate and apart from the other spouse, are the separate property of the spouse.” The court determined that the plain meaning of this language seemed to require the “occupation of separate residences.”

The court also considered the legislative history of the law and later legislative developments. The court ultimately held that a couple was not considered to be living separate and apart unless two conditions were met: (1) they were living in separate residences; and (2) at least one of the partners had a “subjective intent to end the marital relationship” that was “objectively evidenced by words or conduct.”

If you need an experienced California family lawyer to discuss the particulars of your situation, contact the Law Offices of Judy L. Burger. We have decades of experience in family law matters, and we will put our experience to work for you. Call (415) 259-6636 to get started today.
Is There a Season for Divorce?
California Divorce

Is There a Season for Divorce?

If you suspect that divorce filings might be more likely at certain times of the year, you are right. A recent University of Washington analysis showed that filings spiked not once, but twice, each year, leading some in the media to proclaim that there is a “season” for divorce.

The researchers reviewed 15 years of divorce filings in nearly all counties in Washington state, then compared what they found with filings in four other U.S. states.

The results were consistent across all locations examined: filings jumped in March and August.

The researchers noted that those filing for divorce seemed to avoid three times of year:

  • Valentine’s Day;
  • summer vacations; and
  • the winter holidays.

They speculated a few potential reasons for the timing of the filings:

  • a concern that”[w]inter and summer holidays are culturally sacred times for families,” when it might be “taboo” to announce intentions to divorce;
  • the stress created by winter and summer holidays, which might lead people to “decide their differences are irreconcilable right after a big trip”; and
  • dashed expectations for family time or positive expectations during the holidays.

The authors also thought that the beginning of the school year might press unhappy spouses into action.

Interestingly, the biannual pattern held true even when the researchers controlled for “other seasonal factors such as unemployment and the housing market.”

If you need help in a California family law matter, contact the attorneys at the Law Offices of Judy L. Burger. We will provide the compassionate, competent legal support you need. Make the call today to learn how our attorneys can help: (415) 293-8314.

Family Dispute Resolution: How It Is Used in Custody Disputes?
California Divorce, Child Custody

Family Dispute Resolution: How It Is Used in Custody Disputes?

Our children are near and dear to our hearts. When marriages break up, many of the most difficult issues pertain to a couple’s children. Most of the time, both parents want what is best for the kids. However, it can be difficult to come to an agreement about how to handle custody and visitation issues because parental judgment may differ. That’s where family dispute resolution comes into play.

In an ideal circumstance, parents have similar ideas about what is best for their kids in terms of where the kids should live, go to school, and so on. Sometimes, however, they do not. In an even worse circumstance, one or both parents does not have the child’s best interest at heart or is not healthy enough to have a proper perspective on what is best for the child.

It is in circumstances like these that family dispute resolution is used by the court system. When the parents cannot come to an agreement, the family dispute resolution program helps by conducting services such as child custody evaluations and mediations.

The goal is to help families craft their own agreement about child custody and visitation issues. Dispute resolution allows parents to play a critical part in creating their own agreement for the approval of a judge. When it is successful, dispute resolution can often help the parties avoid a hearing in front of a judge about controverted issues.

The law sets forth three goals when family dispute resolution is used for custody or visitation matters:

  • mitigating negative relationships between the parents;
  • developing an agreement that serves the child’s best interests in a way that, ideally, continues contact with both parents; and
  • resolving custody and visitation issues in the best interest of the child.

At the end of family dispute resolution, the mediator helps to draft the parties’ agreement.

If you have questions about custody or visitation issues, you should consult with an experienced California lawyer. 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.

What Is Required to Marry in California?
Marriage

What Is Required to Marry in California?

Every state has legal requirements that must be met if two people want to get married. One of the main requirements is the issuance of a marriage license. The marriage license must be obtained before the marriage takes place, and it must be filed with the appropriate office within 10 days after the ceremony occurs. This article will discuss the prerequisites for marriage in California.

California recognizes two types of marriage licenses: public and confidential. Public marriage licenses are part of the public record in the county in which the license is purchased. Anyone can obtain a copy of a public marriage license. Confidential marriage licenses are confidential records that are registered in the county where they are purchased. Other than the couple, only people who have a court order may obtain a copy of a confidential marriage license.

Some of the requirements for a marriage license are common to both public and confidential licenses:

  • Both people must be at least 18 years old (with one exception for public licenses noted below).
  • Neither person may be a partner in a current marriage.
  • Both people must appear personally with photo identification and, depending on the county’s requirements, a copy of their birth certificates.
  • The marriage must be solemnized in a ceremony conducted by someone legally authorized to do so.
  • If either person was married before, he or she must know the ending date of the marriage and how the marriage ended, such as through divorce or death.
  • The couple must pay a fee for the issuance of the license.

To obtain a public marriage license, at least one witness must be present and must sign the certificate. Additionally, a person under the age of 18 may marry with permission of both a parent and a superior court judge.

To obtain a confidential marriage license, the parties must be living together at the time they apply for the license. No witnesses are required.

Once issued, a marriage license is valid for 90 days. The marriage must take place within this time. If it does not, the couple will need to obtain a new license.

If you need the assistance of an experienced California family lawyer, the attorneys at the Law Offices of Judy L. Burger can help. Make the call today if you have questions about California family law: (415) 293-8314.

Will a California Judge Listen to My Child’s Preferences About Custody?
Child Custody, Visitation

Will a California Judge Listen to My Child’s Preferences About Custody?

If you have ever wondered whether a judge will listen to your child’s preferences about custody or visitation, you are not alone. There is a short answer: Yes, under certain circumstances. However, there is much more to the story, and there are common misconceptions about the effect of the child’s preferences.

To understand the longer answer, you have to start with California law. In 2012, the California State Legislature enacted a law to give children more of a voice in custody and visitation matters. The law applies when a child is mature enough by “age and capacity to reason so as to form an intelligent preference” about custody or visitation.

The law has a specific provision when the child at least 14 years old, specifically with regard to how the child’s preferences are obtained and presented to the court. For these older children, the court “shall consider, and give due weight to” the child’s wishes unless doing so “is not in the child’s best interest.”

For kids less than 14 years of age, the court may permit the child to express his or her wishes if it is “appropriate pursuant to the child’s best interests.”

Any time a court does not allow a child to testify as a witness, the court must allow alternative means to obtain the child’s input. For example, the court may be informed of the child’s preferences through the child’s lawyer, an evaluator, or a mediator.

There is a common misconception that a court will necessarily do as the child asks.  This is not true. Even when the court does hear from the child, the court is not bound to follow the child’s preference. Rather, the court’s guiding principle is the best interest of the child. For this reason, the court can consider issues such as parent manipulation of the child and the child’s desire to avoid parental rules or discipline.

The attorneys at the Law Offices of Judy L. Burger have extensive experience in child custody and visitation matters and can advise you in detail about how courts deal with these issues. 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

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?

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.

Adoption

An Overview of California Adoption

An Overview of California Adoption
California law provides many options for adoption. Of course, California recognizes traditional adoptions, which rely on a state agency. However, California recognizes that all families and their needs are different. For that reason, other mechanisms include stepparent/domestic partner adoption, relative (kinship) adoption, independent adoption, and international adoption.

Traditional Agency Adoption

In a traditional adoption, the California Department of Social Services is involved in the placement of the child with a family, which may consist of a single person. The agency conducts a home study and supervises the adoption placement for a period of time before court approval. A major advantage of adopting a child through the state agency is that state regulations apply. Many children adopted in this manner are in state custody before being placed with a family.

Stepparent/Domestic Partner Adoption

California uses a streamlined adoption procedure when the stepparent or domestic partner of a biological parent wants to adopt a child. To take advantage of this procedure, two requirements must be met:

  • The person who wants to adopt the child must have been married to or in a domestic partnership with the biological parent when the child was born.
  • The person who wants to adopt the child must still be married to or in a domestic partnership with the child’s biological parent.

In these cases, no home study is completed.

Relative (Kinship) Adoption

A simple procedure is also used when certain eligible relatives wish to adopt a child. A relative adoption is unique in several ways, such as the following:

  • The relative can continue to receive financial assistance from the state.
  • After the case is closed, no state agency continues to provide supervision of the relationship between the relative and the child.
  • The relative can choose to enter into an agreement with the biological parents to allow their continuing contact with the child.

Relative adoptions can help continue important family relationships while allowing the relative to receive financial assistance for raising the child.

Independent Adoption

In an independent adoption, no state agency or placement agency is involved in the adoption process. Instead, the adoptive parents and the birth parents agree themselves to the adoption. A main advantage to this option is that parental rights of the birth parents need not be terminated if everyone agrees. Because independent adoptions are highly regulated, is usually advisable to consult with an attorney if you choose this option.

International Adoption

When child to be adopted in California is born overseas, it is referred to as an international adoption. International adoptions can be more complicated because of differing country laws and because the child must have a visa to enter the United States. This is another area in which working with an experienced attorney can help make everything go more smoothly and according to your expectations.

Adopting a child is very exciting and can be very rewarding. If you need the assistance of an experienced California family lawyer to protect your interests in an adoption proceeding, the attorneys at the Law Offices of Judy L. Burger can help. Make the call today to learn how our attorneys help: (415) 293-8314.

 

Contesting Parentage in California
Child Custody, Child Support

Contesting Parentage in California

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

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.