Does California Recognize Common Law Marriages?
Marriage

Does California Recognize Common Law Marriages?

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.

New Law in California Addresses Date of Separation
California Divorce, Legal Separation

New Law in California Addresses Date of Separation

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.

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

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

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.

Can I Be Held Liable for Debts My Spouse Incurred if I Didn't Know about Them?
California Divorce, Debt

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

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.

Can My Child Stay on My Spouse's Health Care Coverage after Divorce?
California Divorce, Child Support

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

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.

 

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

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

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.

Age-Appropriate Parenting Plans
California Divorce, Child Custody, Visitation

Age-Appropriate Parenting Plans

Leave a comment

For divorcing couples with children, perhaps the most important thing to address is a parenting plan. Property and money issues are usually more straightforward because they are assigned a value and appropriated according to legal standards. Deciding what is in the best interest of a couple’s children, however, is never easy.

A parenting plan must be established and approved by the court for the good of both the parents and the children. For the parents, it will define the respective roles to be played in the many and varied important issues involved in raising children. For the children, the plan will be critical to help them adjust to the effects of their parents divorcing. If handled poorly, that outcome can affect children for the rest of their lives.

Perhaps the most important aspect of a parenting plan is the age of each child. Infants, for example, need a consistent schedule for sleeping and eating. They also need physical comfort and bonding with the mother, particularly if being breast-fed. The non-custodial parent should visit on a regular schedule to also promote bonding.

Toddlers also need consistency in their environment, but the environment can be more flexible. Regular time with the non-custodial parent in their home is appropriate at this age, but the rules of each household should be the same for the child. If one parent has the primary parenting role, visits to the other parent should limited to 24 hours at a time. If shared custody is the plan, the time split should be limited to three days at a time.

Children at the pre-school age can adapt to longer periods away from a primary parent, again, with consistent rules in both households. Children at this age begin to need to know in advance when a change in location or caregiver is to occur. A sense of security is important at all points in a child’s developmental years, and at this age range, unexpected change can induce insecurity.

During the childhood years of 6 to 10 years of age, children begin to participate in a world outside the home and control of their parents. This can also cause insecurity, so it is ever more necessary for the parenting plan to provide a safe and secure home environment. Clear plans for time spent with each parent are important, as is the involvement of both parents in school and outside activities. Children need to feel supported by both parents in their school and other activities. This adds to their feelings of security and self-worth.

In pre-adolescence, children’s relationships with people outside the home increase and their time spent with parents starts to decrease. A child will begin to want variations in the parenting arrangement to accommodate his or her outside interests. It is fine for the child to have some say in when and where she will spend time, but it is important to demonstrate that the decision is still made by the parents, preferably together. Parents may need to sacrifice some of their time for the child to participate in outside activities.

The adolescent stage is when the parenting plan begins its descent, so to speak. Kids in this period are becoming more independent as they head for adulthood. They are increasingly in control of their schedules for school, sports, and other extra-curricular activities. Parents need to work together to allow this to occur while maintaining control. Children may try to play their parents off on one another to achieve a goal neither parent would otherwise approve. It is more important than ever for divorced parents to work together supervising adolescent children. At this age, ill-conceived actions by an unsupervised child can have dire consequences.

Obviously, there cannot be a one-size-fits-all parenting plan. The plan must be both rigid and flexible, depending on the needs of the children and the parents. The observations contained herein, however, can provide some insight as to a broad framework within which a plan can be refined.

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.

Get the Best Result by Working With Your Divorce Lawyer
California Divorce

Get the Best Result by Working With Your Divorce Lawyer

Leave a comment

Divorce proceedings can sometimes take a while to reach a conclusion. This period of time can sometimes feel lonely as your world and relationships are reshaped.  One person with whom you do not have to reshape a relationship is your divorce attorney. Typically, you did not know this person before you needed legal representation. It is important to remember that working with your attorney can be one positive relationship during a difficult time.

The key to a positive relationship with your attorney is communication. Sometimes, clients are reluctant to tell their attorneys the whole story about their marital relationships and what led to the breakup. This is understandable. Many details are intensely private, maybe even embarrassing. Consequently, some may choose to leave out ugly details, and some may trick themselves into thinking some things are not really relevant.

It is important to recognize that a divorce attorney is the best person to determine whether information is relevant. An experienced attorney has “heard it all.” She is not likely to be shocked or surprised by anything you reveal. In this regard, telling the whole story can actually have a therapeutic effect. Knowing that others have had the same or worse issues can help you breathe a sigh of relief and open up about relevant details. And remember, your lawyer is there to help you. When the two of you communicate about your case, those communications are private.

Another aspect of communication is to keep your attorney apprised of any developments while the action is pending. Actions taken by you or your spouse with regard to marital property, harassment, or child issues could have an effect on the proceedings. Even if you have done something you should not have, tell your lawyer. The worst thing you can have happen is for your attorney to be surprised in a hearing before the judge with information about inadvisable conduct on your part. Likewise, if your spouse has acted inappropriately, your attorney will know whether and how to use that information to benefit you and your children.

A third aspect of communication is your documentation of income, expenses, marital assets, and private assets. You can’t rely on memory for this type of information; records are essential. Make sure you provide all necessary records and, again, do not assume something is not relevant or needed on your own. In a court of law, a fact is not true unless backed up by proof. Written documents are often necessary to establish proof.

If you work well with your attorney, you have the best chance of achieving the best possible result in your divorce. What’s more, working well with your attorney provides you with a positive influence and maybe even strength during a trying time.

For compassionate legal counsel during this difficult time, contact the experienced family attorneys at the Law Offices of Judy L. Burger. We will provide legal support tailored to your specific situation. Make the call today to learn how our attorneys can help: (415) 293-8314.

California Divorce

How a “Typical” Divorce Case Proceeds

Leave a comment

How a Typical Divorce Case ProceedsBeing a party to a divorce proceeding is no walk in the park. The emotional toll of ending a relationship is enough for it to qualify as one of life’s least desirable experiences. Actually navigating the divorce process through the court system can also take its toll, but the state does provide a framework that allows for amicable or adversarial proceedings, depending on the desires of the parties.

Naturally, a divorce case begins with a decision by one or both parties to a marriage that the union should end. At this, and any other point in the process, the parties are free to mutually agree to terms of the divorce, including allocation of property, child support and custody, and spousal support. In this best of circumstances, the parties can file the appropriate documents with the court and seek a divorce order reflecting their mutual agreements. 

Whether or not mutual agreement is reached, the divorce must be initiated by the party seeking the divorce (called the petitioner) filing a petition with the appropriate court. The petitioner must also have a copy of the petition independently served on her spouse. The responding party then may file a response with the court within 30 days of having been served with the petition. Just as with the petition, the response must be independently served on the petitioner. 

After the proper filing of the petition and response, the parties will exchange financial documents that show their assets, such as money and property, as well as their earnings. Assets attained during the marriage are normally considered to be marital property—that is—owned by both parties and subject to equitable distribution. Assets owned by a party prior to the marriage or attained after separation are usually considered the separate assets of that spouse. 

If the parties have not reached a mutual agreement for the terms of their divorce, the court will hold a hearing to allow both sides to present their views of how the assets should be divided, whether spousal support should be paid, custody plans, and child support for minor children. The court will ultimately issue a decree officially ending the marriage and spelling out the terms of the divorce. 

The process is pretty straightforward, but it can become very convoluted. Bitterness and anger often prompt excessive legal wrangling. In addition, complex financial issues, such as business and other asset valuation, can complicate the proceedings. 

If you need assistance in a family law proceeding, 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.