When filing for divorce in California, you may be facing a lot of unknowns. This can be especially true when you are unsure if your ex will participate in the case. In some instances, a person filing for a California divorce can get what is known as a default judgment. A default judgment occurs when the other party does not formally answer after being served with a legal case. If you have a pending California divorce case, you may be wondering: Can you get a default divorce in California? Continue reading
Deciding to end your marriage is a complex decision that can raise numerous questions. Are you ready to divorce? Would it be better to live apart? What about a trial separation? Is divorce a better option than separation? How will you divide your property and share custody of your kids? Is separation preferential to divorce in California? If you are thinking about ending your marital relationship, you will want to know: Is it better to get a divorce or legal separation in California? Continue reading
California LawsEvery state has its own family laws. While some states do not recognize legal separation, California law does allow legal separation of both marriages and registered domestic partnerships. However, the parties will go through a formal court proceeding. To start the process, one spouse files a petition with an appropriate court asking for a legal separation. The other spouse has 30 days to answer the petition for legal separation. After considering issues like child support, custody, property, and spousal support, the court decides whether to allow a legal separation. You may be wondering why a couple would go to the trouble of obtaining a legal separation rather than just getting a divorce.
Marital StatusDuring a legal separation, the parties are still married and so cannot marry anyone else. For some people, this is an advantage.
PropertyAfter a judge approves the legal separation, the “earnings and accumulations of each party are the separate property of the party acquiring the earnings or accumulations.” Separation of earnings may be a compelling reason for some couples to legally separate.
ReligionSome may prefer legal separation to divorce because some religions do not condone divorce. The couple can live apart without breaking religious laws.
ResidencyTo obtain a divorce, either party has to meet California residency requirements:
- At least one spouse must have lived in California for the past six months, AND
- That spouse must have lived in the county where the divorce will be filed for the past three months.
Legal Separation May Be a SolutionOur couple, Brad and Sheila, preferred the legal separation because it gave them time to adjust to the reality of divorce before actually divorcing. At some point, they may choose to convert their legal separation to a divorce or end the separation by reconciling. The attorneys at the Law Offices of Judy L. Burger are experienced at all phases of legal separations and divorce proceedings. Call us at 415-293-8314 to schedule a private appointment or visit our website. We maintain offices in San Francisco, Beverly Hills, Marin County, Santa Barbara, Ventura/Oxnard, San Jose, Gold River (Sacramento), and surrounding communities.
Daria met with her attorney, fully intending to file divorce as soon as possible. She and her estranged husband were both confused about whether to end their marriage or try to patch things up. They were also deeply concerned about their two children. As Daria spoke with her attorney, she learned more about divorce and legal separation under California law. She decided to weigh her options carefully to see which fit her situation better.
Some states do not recognize legal separation. California is one of the states that does allow legal separation of a married couple. In fact, filing a divorce petition and a legal separation are essentially the same process. A couple going through a legal separation, as with a divorce, may negotiate separation of community assets and debts, a parenting plan if they have children, spousal support, and child support arrangements.
One reason for Daria to choose a legal separation involves the California residency requirement. To file a divorce, either spouse must have lived in California for the past six months AND have lived in the county where the divorce will be file for the past three months. An individual who wants to file for legal separation is not bound by the residency requirement.
If Daria chooses to file a legal separation under California law, she will need to take these steps:
- File a petition with the appropriate court asking for a legal separation.
- Serve a copy of the petition on her spouse and file a proof of service with the clerk.
- Since she and her spouse have children, she will file a copy of the petition with the local child support agency.
- Daria’s spouse has 30 days to answer the petition for legal separation. What happens next depends on how the spouse responded. The couple may engage in discovery or meet with a mediator if necessary.
- If they reach an agreement, they may each be required to prepare and serve a final Declaration of Disclosure.
- The Judge will issue an order finalizing the separation.
Note that a legally-separated couple are still married to each other and cannot marry anyone else. Also, under California law, the parties involved in a legal separation proceeding may convert the separation to a divorce at any time.
Not Sure Whether to File for Legal Separation or Dissolution?The attorneys at the Law Offices of Judy L. Burger are experienced at all phases of divorce proceedings. Call us at 415-293-8314 to schedule a private appointment or visit our website. We maintain offices in San Francisco, Marin County, Santa Barbara, Ventura/Oxnard, San Jose, Gold River (Sacramento), and surrounding communities. Our new Beverly Hills office is opening soon.
Sometimes two things are similar, but not quite the same. For example, divorce and legal separation both involve major changes to marital relationship. Yet there are some distinct differences between divorce and legal separation. Before deciding which is right for you, you’ll need to consider several factors.
One difference between a separation and a divorce proceeding is that a legal separation does not seek termination of the marriage. Divorce does.
In a legal separation, the parties remain married. Neither can remarry. Remarriage is an option for divorced couples, although it may affect spousal support and social security benefits.
People who remain legally separated may be eligible for:
- greater social security benefits at retirement (depending on other factors);
- health insurance benefits;
- tax benefits enjoyed by filing jointly; and
- some military benefits.
A divorced spouse may lose benefits as soon as the divorce is final.
The parties still divide up marital and community property and debts whether they are divorcing or legally separating.
Just living apart may not be enough. Couples may remain liable for each other’s debts and legal problems unless they formally separate. A legal separation agreement may provide some protection while spelling out each party’s responsibilities when it comes to financial obligations.
In a divorce proceeding, the final divorce settlement shows a clear division of assets and debts.
The party filing for divorce must be California residents for at least six months before filing. In addition, the party must live in the county in which they filed for at least three months. People who do not meet that residency requirement mays file for legal separation instead. The legal separation can be changed to a divorce proceeding at a later date.
Other Factors to Consider.
A legal separation goes into effect as soon as the paperwork is filed. A divorce, however, may take at least six months from filing the petition to signing the final divorce settlement. For couples who need some space, but not a complete end to the marriage, a legal separation might be best.
Also, sometimes a legal separation fits the couple’s religious beliefs better than a divorce. The couple don’t completely break their marriage vows, which may satisfy family and church leaders. However, the parties are spared the ordeal of living together.
Need Help Deciding Whether to Divorce or Legally Separate?
Find out about whether to terminate your marriage or just put it on hold.To discuss the particulars of your situation, please call us at 415-293-8314. The attorneys at the Law Offices of Judy L. Burger assist clients in San Francisco, Marin County, Santa Barbara, Ventura/Oxnard, San Jose, Gold River (Sacramento), Roseville, and surrounding communities.
Like most states, California provides for divorce on a “no fault” basis. This means that there is no need for a demonstration as to whom or what has caused a marriage to fail. Instead, a spouse initiating a divorce must only cite “irreconcilable differences.”
The beginning point for a divorce is when one party files a petition and a summons with the Superior Court in the county in which she resides. After the filing of these forms, the petitioner arranges for a copy of the forms to be served on her spouse. Service of the forms must be made by someone other than the petitioner who is at least 18 years of age, and there is a specific form to be completed to show that the forms were personally handed to the receiving spouse, who becomes known as the “respondent.”
The respondent has 30 days to file a response with the court and to deliver a copy to the petitioner in the same manner as the petition was provided to him. After the response is filed, the petitioner and respondent complete financial forms that document the marital assets and debts so that an equitable property division may be determined by the court. For more information about property division in California, see my earlier blog here.
Marital assets and debts are those that were accumulated during the period of the marriage. They do not include any accrued by either spouse before marriage or after the date of separation. For information about the law’s handling of separate and apart, see my blog here. Marital assets also do not include anything that was inherited individually by either party, even during the marriage.
Sometimes, the parties can work amicably to decide how their assets and debts can be divided. In this case, a proposed agreement will be presented to the court and will be made part of the final divorce decree. If no agreement is achieved, the parties will attend a mandatory settlement conference. Any issues that remain unresolved at the settlement conference will be brought before a judge, who will make the final determination of the distribution.
Spousal support, sometimes referred to as “alimony,” may be considered and awarded by the court. Many factors are considered by the court in awarding spousal support, such as the length of the marriage or partnership, the marital standard of living, and each party’s income earning capacity and needs. For a complete listing of the factors considered by California courts in awarding spousal support, see my earlier blog here. If the parties come to an agreement on spousal support, the court will normally accept that and incorporate it in the decree.
When the parties have minor or dependent children, child support and child custody must also determined. As with the other matters, an agreement between the parties will be accepted by the court. For a complete discussion about how child support is determined in California, see my blog here.
The attorneys at The Law Offices of Judy L. Burger have extensive experience in family law, including the dissolution of marriages and domestic partnerships. Make the call today to learn how our attorneys can help you proceed through the divorce process while protecting your rights or those of loved ones: (415) 298-8314.
The short answer to this question is that the goodwill of a business may be valued in any way the appraiser chooses. The longer answer is that the business appraiser may use any method that does not include impermissible values and that does include values that can be legitimately deduced from past results.
The goodwill value of a business is something that does not show up on the balance sheet. It is often an intangible aspect of the business that ultimately affects the bottom line. California Business & Professional Code defines goodwill in this way: “The ‘good will’ of a business is the expectation of continued public patronage”. It has also been described as a value that is different than capital stock or property of the business.
There are many different types of business that are valued in divorce cases, and, consequently, there are many different aspects to be considered by business appraisers when it comes to a goodwill value. Among the considerations are the following:
- A regular and devoted customer base;
- The length of time in business;
- The likelihood that the business will continue in the future as in the past; and
- The age of the spouse operating the business.
One of the prevalent methods of valuing goodwill is the Excess Earnings Method, which compares the business owner spouse to an employee of comparable experience in the same field. The method then factors in financial details from the performance of the business over a period of time to arrive at a value. The complexity of the method prevents discussion in this forum, but the salient point is that the method uses concrete financial information to arrive at a goodwill valuation.
Another method that has passed judicial muster is the Foster Method, which also uses a comparable salary coupled with financial data of the business. The common thread of these two methods that makes them acceptable to courts is that they are rooted in past performance of the business, and also take into account the likelihood of continued similar results.
The valuation of business goodwill also follows other basic tenets of divorce law. For example, business performance after the parties’ separation may not be used. Similarly, business profitability occurring prior to the marriage of the parties may not be included.The valuation of a business, that is subject to community property distribution in a divorce, particularly the goodwill component, is a very complicated matter. Its complexity naturally gives rise to intense
Spousal or partner support is one of the most critical issues in a legal separation or divorce proceeding. Many factors are considered in determining the propriety and amount of permanent and long-term support orders. Some of those factors, such as earning capacity and ability to pay, are directly affected by the parties’ skills and opportunities to obtain gainful employment. Unfortunately, evidence bearing on issues such as these can be difficult to obtain, especially if a party is inclined not to work in an attempt to deflate his or her income.
Enter the vocational expert. The California Family Code gives family court judges the power to order parties to undergo an examination by a professional known as a vocational expert, referred to in the law as a vocational training counselor. The law requires that these professionals have several minimum qualifications:
- A master’s degree in a field of behavioral science;
- The ability to assess career potential using inventories;
- The ability to interview clients and assess their marketable skills;
- Knowledge of factors relating to the geographic job market; and
- Knowledge of the requirements of educational and training programs.
Vocational experts need to know the mechanics of returning parties to gainful employment or to more lucrative employment. However, they should also be skilled at addressing human factors, such as the emotional and self-confidence issues that may arise due to being out of work for some period of time.
The mechanical portion of the vocational expert’s job consists of the following:
- Evaluating the person’s skills, interests, and limitations;
- Researching the labor market to determine opportunities and the likely earning potential of the party; and
- Drafting a report summarizing these findings and making recommendations for how to help move the person in the direction of being self-supporting, if they are not already functioning at that level.
In addition to these functional tasks, the vocational evaluator can be helpful in easing the emotional burden on the person being evaluated, by explaining the process of imputing income and by helping to develop a career plan. The career plan may then be used by others, such as job coaches or career professionals, to achieve the goals of the evaluated party.
One of the outcomes of the vocational evaluation is that the evaluator can provide an opinion about the party’s earning capacity. This amount may then be imputed as income for the purpose of calculating spousal or partner support.
As you might imagine, the vocational expert report can have a significant impact on the support award in a case. You want an attorney with substantial experience in Northern California, who will represent you aggressively. Please contact the Law Offices of Judy Burger at (415) 259-6636 to learn more.
Often, our clients ask about the difference between divorce and legal separation. The essential difference is that divorce is a final action, but a legal separation is not. In a separation, the parties remain married.
This begs the question: Why obtain a separation if you are still married? There are several reasons that legal separation may be an attractive option, including more beneficial residency requirements, the possible retention of certain benefits, and its immediate effect.
One reason a person may wish to pursue a legal separation rather than a divorce is because of the restrictive residency requirements placed on divorce. California law requires that, before a divorce petition may be filed, at least one of the parties must have lived in the state for at least six months; in addition, the person filing the petition must have lived in the county of filing for at least three months.
There are no state or county residency prerequisites for a legal separation. Therefore, a person who wishes to take immediate action may file for a legal separation, then amend the petition to request a divorce after the residency requirements were met. This option would be particularly helpful for someone who wants to obtain quick court rulings on matters such as property division; child, spousal, or domestic partner support; or child visitation. These things may all be adjudicated in a legal separation proceeding, just as they may in an action for a divorce.
Legal separation may also be a valuable option because it sometimes allows the parties to retain benefits that they might lose in a divorce. Some examples of these of benefits are as follows:
- Allowing the parties to stay within religious restrictions against divorce;
- Allowing the parties to keep health care or other insurance coverage that would be lost due to a divorce;
- Permitting one of the parties to retain immigration status; and
- Enabling the parties to obtain the requisite 10 years of marriage to qualify for Social Security spousal survivor benefits.
Legal separation also has some common-sense advantage for those who are not sure they wish to pursue the finality of a judgment of divorce. That is because legal separations can allow the parties to separate on a trial basis, giving them both the ability to see how they will do financially and emotionally before pursuing a legal end to their marriage.
The financial and other matters involved in legal separations and divorces can be very complex. For example, whether insurance coverage may be lost due to divorce or separation must be determined in each individual case. For this reason, it is critical to consult with an experienced family lawyer who can explain the potential impact of each avenue before a decision is made.
Judy L. Burger pairs her extensive family law experience with compassion and respect. If you would like more information about how California law would impact your situation, please contact her online or call (415) 293-8314.
A common question when divorce or legal separation is being contemplated is whether a professional license or college degree can somehow be split among the parties. This question is particularly common when one spouse worked to enable the other spouse to go to college or to obtain an advanced degree. While neither a degree nor a license is property subject to division, under California law, the marital community may be entitled to reimbursements for payments made toward education or training. Of course, no reimbursement will be ordered if the parties agreed in writing, such as in a prenuptial agreement, that none would be made.
Several issues are presented when one of the parties to a marriage receives education or training during the marriage or when the couple pays back student loans during the marriage, including the following:
- Whether the community should be reimbursed for the use of community funds;
- How any outstanding loan should be allocated; and
- What the impact of the education or training should be on spousal support.
The first issue is whether the community has a claim of reimbursement from the spouse or partner who received the training or education. If educational expenses were paid out of community funds, reimbursement, with interest, will be ordered if the education “substantially enhances the earning capacity of the party”. If circumstances would render reimbursement unjust, it may be reduced or modified. Those circumstances include the following:
- When the marital community has substantially benefitted from the education;
- When the other party also received education or training using community funds, which offsets the education in question; and
- When the need for a spousal support award is substantially reduced because the education or training enhanced the party’s ability to “engage in gainful employment”.
The second issue is how any unpaid student loans will be allocated. Generally, the law provides that outstanding loans shall not be classified as community debt but shall be allocated to the party who received the education or training. Of course, to the extent this is done, it may offset a portion of the community’s right to reimbursement. See our separate blog here for a general discussion of community debt.
The final issue is the extent to which a spousal or partner support award should be impacted by the additional education or training. The California Family Code provides that several factors are considered in rendering such an award. These include each party’s earning capacity, as well as the extent to which one party contributed to the education or training of the other. An experienced family attorney will recognize these implications to the attainment of a degree or license and will position her client favorably in obtaining a support award.As you might imagine, how these matters are presented to a court can make a significant difference in both the issue of reimbursements and in a spousal or partner support order. Judy L. Burger has the experience you need to identify and present issues in family court. Contact her today at (415) 259-6636 to learn more.