The Role of Attorneys in Divorce Mediation

Posted by: Gerald A. Maggio, Esq.

Orange County divorce mediation attorney; California Divorce MediatorsIt is a common myth in California and all over the U.S. that  when it comes to mediation, the role of the attorneys becomes next to nothing. This however is more a fiction that a fact. While it is true for those clients that turn to mediation and want to escape the trials and tribulations of an Orange County court, yet it is not to say that attorneys aren’t allowed in mediation. Orange County divorce mediation is definitely a process that involves direct communication in most cases between the spouses and the process encourages the spouses to sort the issues out themselves.

Having said all that though, the role of an attorney still continues to be in Orange County mediation contrary to the popular belief. In this blog, we take a look at the role of the attorneys in mediation both before and during the process.

Pre-Mediation

Mediation is similar to arbitration and litigation in one respect; the fact that all three of these processes need adequate amounts of preparation. This is where the role of the attorney starts. An attorney can help prepare the clients using any of the following methods:

  • By having a detailed conversation with the client regarding what divorce mediation is and the workings of the process. Attorneys are well versed in contrasting and drawing parallels they may use that skill to try and make the client aware of the process by drawing comparison to methods that the client knows well. A good family lawyer is likely to make the client aware of the differences of this method and the intricacies required to make it work.
  • By aiding the client in the preparation of arguments and positions that they should take in Orange County mediation. Mediation is a process that has lots of paper work involved. A good divorce lawyer will make sure all the documents of a client are in order and ready to be used in mediation.

The Role During the Mediation

When it comes to the actual divorce mediation process, the role of the attorney is drastically different to one that they have in litigation proceedings. Here, the role of the attorney will only be to assist the client throughout the process. Below is a list of the ways they can assist the client in terms of divorce mediation:

  • Attorneys need to first of all take note of the supportive role of the client and then try to help them with respects to information and advice.
  • The role of the attorney throughout the process is likely to be one of being cooperative, supportive and committed to the process and their clients, assisting them in trying to bridge decisional differences.

Communication with Your Soon-to-be Ex During a Divorce: Good or Bad Idea?

Posted by: Gerald A. Maggio, Esq.

Orange County divorce mediation lawyers; California Divorce MediatorsDivorce is definitely not one of the happiest decisions one has to make in his or her life. Divorce is the sign of failure for two people who couldn’t adjust with each other, and could not achieve the goal of spending their whole life together. There is a reason divorce cases and divorce mediations are highly charged affairs. The reason for it is the emotionally charged state of the spouses due to an underlying feeling of guilt, shame, and/or hatred. This sense of hatred and competition is carried into the proceedings with fights being raged over financial and asset issues.

On the contrary though, some spouses try to end their relations amicably and many succeed. Once the couples have taken a divorce and the proceedings are underway, is it wise to communicate with the ex spouse? There is no right or wrong per se in communicating with your spouse. Communication requires willingness, and if either or both the spouses want to talk with one another, they can communicate with each other without it being a taboo. Contrary to bad actually, in some cases, communication with your spouse needs to be your way forward in life.

For example, if your marriage with your ex produced children, then throughout the divorce, and even after that, it is recommended that you have a cordial and civil relationship with your ex. Divorces that involve children affect the children the hardest, and to make sure this isn’t the case, the spouses need to highlight a united cordial front. The welfare of the child and their lack of mental suffering are important aspects which can only be ensured via effective parental communication between the two spouses.

All in all, communication is neither good nor a bad thing, the things discussed, the tone taken, and the perceptions that each harbors for the other are aspects that influence conversations. These are the factors that tilt communication towards being good or bad. Any relationship that has cordial relations between two people is likelier to have a better affect on the people around the couple. This is particularly important to save the well wishers of the couple from bearing the brunt of the differences between them.

Orange County divorce mediation is one of the two most commonly used ways by couples to end their relationships. While litigation pits the spouses against each other and harnesses the competition among the spouses, mediation is all about making sure the spouses sit together and end their relation amicably by reaching a mutually acceptable solution. As far as divorce mediation is concerned, the communication between the spouses is a good thing, since it ends the animosity between them and allows them to take their problems to a resolution.

Questions You Should Ask Your Divorce Mediator

Posted by: Gerald A. Maggio, Esq.

Orange County divorce mediation attorney; California Divorce MediatorsDivorce is one of the most painful and uncertain subject in a couples’ life. When it comes to divorce, there are two ways that a couple can choose to carry it out: litigation and mediation. When a couple decides to get a divorce, there are lots of uncertainties with regards to the procedure and other rules and regulations that may or may not apply to them. If you have chosen Orange County divorce mediation, then you are likely to be uncertain about the future procedure. In such situations it is important for you to talk to your mediator and pose queries regarding your doubts to them.

Here are a few of the questions that you should ask your mediator in determining their ability and experience to effectively mediate your case.

How Do I Get the Other Spouse to Agree with the Use of a Mediator?

This is a common question that is posted in front of most mediators. More often than not, there are disagreements between spouses on the procedure to adopt for their divorce. The best way to get the other party to agree to divorce mediation is to explain the pros and cons of the procedure to the other spouse. It is important to highlight that mediation is a process that depends entirely on the decisions of the two spouses. Being in charge of one’s decisions is one reason that can be used to persuade the other party to agree to divorce mediation.

Are Mediators Regulated by Some Code of Professional Conduct?

While there may be no official code of conduct that all mediators follow from a to z, most top Orange County mediators are part of institutions that have their own separate code of conduct that mediators need to adopt when they are working. One of the most important aspects of this code of conduct is the clause of confidentiality which all mediators are required to follow.

How Can I Check the Mediator’s Competency?

The competency and credentials of a mediator are important considerations to make and hence this is one of the most important questions you should ask. The easiest way to make sure of this is by asking the divorce mediator for his resume or certificates or professional qualifications. The key things to look for in the mediator are considerations for assessing his/her suitability for the mediation of a divorce:

  • What is the level of experience of the mediator?
  • What has been the feedback that they have received from previous clients?
  • How respectable and accepted are their decisions?
  • Does the mediator charge a fair price?
  • Has he/she been mired in a controversy?
  • What area does his competency lie in?

Legal Protection for Single Parents in California

Posted by: Gerald A. Maggio, Esq.

child custody mediation Orange County; California Divorce MediationThe most common cases in the Orange County family law courts tend to involve married couples, i.e. husband and wives. There are, however, times when a case is a little different and is likely to involve single parents. The way the law in Orange County operates with respect to single parents can be a bit different from the way it works when dealing with married couples. In most states, the rights of the single parents, especially of the father, are a bare minimum unless they decide to ask for them.

The basis of California law in terms of single parents is that a single parent, i.e. the father, needs to prove that he is the father, as opposed to the vice versa assumption in the couple’s cases. This article will highlight the key aspects of the California law with respect to single parents, thus highlighting the legal path they can adopt to seek legal protection and rights.

The Automatic Custody of the Child is with the Mother, Pending Establishment of Paternity

There is seldom a doubt regarding the identity of the child’s mother. This is because the mother is the one who gives birth and the hospital records etc. make it impossible to doubt that. In family law, a single parent mother will have what amounts to de facto physical and legal custody of the child from the day of the birth of the child, until the paternity is determined, i.e. that the father of the child is in fact the biological father, which is generally determined by genetic DNA testing.  What is important to understand is that when married couples have a child, there is a legal presumption that the husband and wife are the biological parents of the child.  When couples have a child but are not married, there is no legal presumption that the father is in fact the biological father of the child, and that can only be established by either genetic DNA testing or by stipulation of both parties that the father is in fact the biological father of the child.

The Father Must Prove He is the Father

Again, any child that is born out of wedlock means that the mother is the custodial parent, and the father has to take two major legal steps to have some degree of authority or control over his child’s life. The first step is that he needs to prove that he is the rightful father in terms of biology. The second aspect is to go to the court or an Orange County mediator to get custody or visitation of their child. Paternity can be proved by the father signing the acknowledgment form and the mother signing it too or by petitioning in the court and asking for a paternity test to settle the issue.

A Proven Father Generally Must Support The Child

Once the paternity is proven or acknowledged, the father now will have the same rights as a married father would have, but that also means that the father could be expected to pay child support depending on the income of the parties and percentage of custodial time that each party has as determined by the court.  These funds are going to be given to the mother and the amount can be decided mutually through Orange County divorce mediation or by Orange County family law proceedings.

Myths About ADR and Other Fictions

Posted by: Gerald A. Maggio, Esq.

divorce mediation lawyers Orange County; California Divorce MediatorsADR stands for “Alternative Dispute Resolution.” As the name suggests, these are the methods that different individuals and  parties use to solve their disputes. The use of the word alternative signifies that these methods of resolution are other than the most common way disputes are resolved i.e. court cases, the legal way that is controlled by the state.  Alternative dispute resolution has steadily gained ground in the past few decades, although people of the older generations are still used to traditional court litigation.

The most popular of these ADR methods is Orange County divorce mediation which is usually used to solve family law divorce cases, custody and visitation issues.  While mediation and other such methods of resolving cases continue to rise in importance, their growth is somewhat hindered by myths and fictions that are going on about them. In this blog, we will take a look at a handful of these myths and fictional discrepancies and highlight their true facts. A few of these are:

Myth #1: Mediation is not legal and therefore cannot be enforceable by court

This is one of the most common misconceptions that have been doing rounds with respect to divorce mediation. Despite of this being common public knowledge; it continues to remain very much a myth. Mediation is a legally recognized practice in the family laws and a testament of its legal recognition is the ability of the either of the parties involved in mediation to enforce the mediation decision through courts.

Myth #2: All ADR methods are extremely costly and their high expenses outweigh their benefits

This is another of those public perception influencing myths, as it stems from the places where ADR can be set. As opposed to litigation proceedings that are set in the family courts, ADR methods can be carried out in hotel lobbies, rooms or offices. Having said that, it is clear that ADR saves more money as opposed to litigation, since it involves no lawyers’ costs, no court fees, and the fees of the ADR are usually divided between the two parties.

Myth #3: Mediation proceedings are only made to deal with minor issues and claims

As mentioned in the initial paragraphs, divorce mediation is increasingly being used in divorce, child custody, child visitation and other family law disputes. These disputes are one of the most major and complex issues in Orange County family law courts, thereby dispensing the rumors of mediation being the only method to solve smaller or minor claims.

Myth #4: Attorneys are not permitted at ADRs

This is once again a common myth that lawyers and ADR methods have no contention whatsoever. In reality though, this is far from reality. While it is true that unlike the cases where the judge decides the case, ADR involve decision making more evenly distributed between the two individuals or parties. The role of attorney even then continues to be considerably strong, since attorneys are allowed to take part in the proceedings, discussions and negotiations as well as advice their respective aides.

How Child Custody Law Works In California

Posted by: Gerald A. Maggio, Esq.

divorce mediation attorneys Orange County; California Divorce MediatorsWhen couples decide to get divorced, the possession of the child (or children) is one of the most important and hotly contested matters. This is testament to the importance of children in one’s family.

The intention at the core of California child custody law has always been and continues to be the safeguarding of the best interest of the child. As mentioned in the introduction, the importance of a child cannot be forgotten, and that is exactly why the laws with regards to child custody set out to protect them and safeguard their rights. This aim to protect the child is once again at the core of the decision making by the judge in such cases. Primarily, the decision of the judge depends on the thing that is best for the child principle.

What Do the Courts Consider When Deciding Orange County Child Custody Cases?

  • The preference of the child considering they are of the age 14 or above
  • The gender, the stage of development the child is currently at, and the age of the child.
  • The needs of the child in terms of the educational, emotional and social aspects.
  • The traits of the parents, especially with regards to drug, sexual, child, emotional or alcohol abuse.
  • The psychological state of each parent and their ability for parenting
  • The cooperation and communication levels that exist between the parents.
  • The type of the relationship that exists between the parent and the child
  • Cultural considerations

How will the Temporary Orders be Decided?

There are three primary ways that an Orange County family law Judge can adopt to reach their temporary orders.

1.      Simply Agreeing On The Agreement Reached By The Parents

This is the most used way of deciding temporary orders. Both the child’s parents may have already come to an agreement before the court proceeding and drawn up an agreement. In such a case, the judge is likely to only endorse the agreement and make it legal.  Resolving child custody in divorce mediation or child custody mediation is often the best method compared to the cost, stress, and uncertainty of litigation.

2.      By Investigation

In some rare cases where the court wants to have further investigation done in matters related to the case, they are likely to ask the minor’s counsel and a private child custody evaluator, often referred to as a “730 Evaluation” to obtain up more information before the Judge makes the decision.

3.      By Formal Hearing

This is the common court route. The court is likely to hear out both the spouses and their counsel. It will also take into consideration each and every detail and evidence that they provide and it deemed relevant for the case before making a decision.

Is Mandated and Private Divorce Mediation Different?

Posted by: Gerald A. Maggio, Esq.

Divorce mediators Orange County; California Divorce MediatorsDivorce is not a decision couples take in the best of their times. Any decision of divorce involves loads of bitterness and hurt behind it. Divorce is one of the most important decisions in a person’s life and in addition to the importance of the decision, the way the couple separates is also an important consideration. Contrary to popular belief, the decision to separate leaves the couples with a host of options to choose their mode of a divorce other than simply retaining attorneys and fighting it out in court.  The parties can seek private divorce mediation, but the California family courts mandate child custody mediation prior to most custody court proceedings.

Mandated Child Custody Mediation

It is often misunderstood that when couples go through the family law courts, there is little or no chance of mediation. This, however, is far from the truth. In reality, when couples start to go through child custody court proceedings, irrespective of their legal positions, the first thing that courts require them to do is go through mandated custody mediation.

In mandated mediation, the couples are presented in front of a court assigned mediator who reviews the custody case, its facts, and questions the couple on their positions. The job of this mandated mediator is to allow the couples a chance to sort their custody issues.

Private Divorce Mediation

This form of mediation is the most-commonly used mediation. The key to this type of mediation is that it is flexible in terms of time, place, and the format of mediation. The lack of time bar on this type of mediation allows the couple to have a greater amount of time to effectively discuss their issues in depth and in detail to allow the issues to be ironed out.

The key to Orange County divorce mediation is the role of the mediator in this type of mediation. Unlike the role of the mediator in mandated mediation, an Orange County divorce mediator only facilitates the couples to try and sort their issues out and doesn’t really take part in questions and answers with the clients. One of the most important things that make this type of mediation more potent than mandated mediation is the legally binding authority it has. Divorce mediation agreements can be enforced through the use of courts.

The Best Interest of the Child and Divorce Mediation

Posted by: Gerald A. Maggio, Esq.

Orange County divorce mediation; California Divorce MediatorsThere are many reasons that make mediated divorce better than litigated divorce. One of the leading reasons is the fact that more often than not, divorce mediation has a number of ground rules set up between the spouses to help steer the process in the correct direction. These ground rules help the couples focus on the long term solutions instead of short term victories throughout the process. There can be a lot of ground rules, which may include having less amount of direct accusations, no use of foul language or derogatory remarks or maintaining the best interest of the child.

The Best Interest of the Child

This is one of the most commonly used phrases in the divorce world, especially in family law and child custody cases. Yet, do you know what this phrase really means? When you look at the legal side of things, this is a rather complex area of law, since it includes entitlements, parental rights, child visitation, custodial parent residency, etc. The family courts in California use the principle of child’s best interest in deciding a variety of cases and mediators also keep it at the top of their agenda in divorce mediations.

Yet before we talk about it more, let’s take a brief look at the standard of this best interest rule that needs to be considered before any decision is taken:

  • The type of contact that exists between the parents
  • Any history of child abuse either emotional, physical or mental
  • The levels of child safety, welfare and health
  • Any history of drug, alcohol or substance abuse by either parent
  • Criminal record of the parents

Mediated Divorce

While these legal definitions do form the basis of the concept, but it is important to realize that Orange County divorce mediators and spouses are not bounded by these legal definitions. For parents who take part in divorce mediations, the parents can look at the existing child-parent relation through the best interest canvas, but it is by no means mandatory.

In divorce and custody mediation, the standard of the child’s best interest is not only depends upon the legal considerations, it also includes ethical and moral considerations. More often than not, each child is different from the other; hence, divorce mediations allow the parents to mutually determine what’s best for the child considering his/her individual case.

According to recent studies on children, the child best flourishes in environments where their surroundings are peaceful and full of harmony. The key to harvesting the child’s best growth in addition to looking for his/her best interest is to have effective and frequent communications with them as well as keeping them away from the spousal bitterness of a divorce.

Divorce Mediation: What You Should Expect From Your Ex-Spouse

Posted by: Gerald A. Maggio, Esq.

Top Divorce mediation attorneys Orange County; California Divorce MediatorsDivorce is one of the hardest times for a person, with emotional traumas and mental setbacks being one of the few things that are usually encountered by spouses going through a divorce. Ending a relation that was started with the aim of it lasting a lifetime is hard. Different spouses react to this situation differently. Spouses can seem aggressive, aggrieved, restless or calm, and overtly funny, etc. The behavior of one’s spouse is important in the divorce resolution cases whether it be in courts or through divorce mediation.

In divorce mediation, the spouse’s behavior takes up a whole different level of importance. Mediation is a process that involves cooperation and coordination between the spouses to reach a conclusion. Ideally, mediation requires both the spouses at ease and willing to work towards a solution, to be effective. In reality though, different spouses tend to act differently in Orange County divorce mediation solutions.

Here, we are going to talk about the different situations and how spouses are seen to react in each.

The Financial Muscle

Was your spouse the one who was always under control of your marriage? Did he/she earn the most in the household? If the answer to either of those questions is in the affirmative, chances are that your spouse craves power and is accustomed to authority. Spouses with such tendencies are often resistant to any kind of change in their life without their approval, let alone divorce.

A divorce mediation is likely to result in a restless, dominant, and overpowering behavior from your spouse, trying to sustain their control over you. This is one of the most common situations and it should not deter your decisions. People with such behavior are likely to prefer litigation to death, but trying and talking to them may result in them trying mediation.

Instable Emotional State

Divorce as previously mentioned is a painful process in itself. Add an emotionally unstable spouse, and the divorce proceedings threaten to boil over and become dangerous. Divorce mediation is a process that depends on reasoning, logic, and immense resolve to try and seek resolution. Spouses that are emotionally unstable are likely to have a distinct sense of revenge, and lack of logic.

Emotional instability can result from several factors, which may include hate towards the other spouse, a feeling of un–fulfillment, or a sense of betrayal. When a person is in that state of mind, it is better to consult a psychiatrist before any kind of divorce proceedings whether they is divorce mediation or litigation can be started. The lack of mental incapacity at a later date can be sighted as a reason by the spouse’s lawyer to annul any agreements, resolutions, and decisions that are taken at this point.

A Sneak Peak At California Divorce Law: What You Should Know!

Posted by: Gerald A. Maggio, Esq.

divorce mediation attorney Orange County; California Divorce Mediators Divorce in California can be one of the easiest and one of the hardest processes within the family law jurisdiction.  Here are some answers to the most commonly asked questions with regards to California divorce law, so that you are able to know what you should about the rules that control in all counties of California, including an Orange County divorce case.

Q. I was married in a foreign country and now I am remarrying. Where do I have to do my divorce papers?

Getting a divorce in California is possible as long as you meet the residency requirements.  As long as you have lived in your county for three months and in California for six months prior to filing for divorce, you can apply for it.

Q. If I divorce my spouse and they get retirement from their job, am I entitled to half of it?

The answer to this question is dependent on the timing of the divorce and the retirement of the spouse. As long as the spouse earned all, most, or even some of the retirement pension during the time of the marriage, then you are entitled to some part of it. The percentage of amount you will get depends on the number of years he/she earned the retirement pension while being in a marriage with you.

For example, if the spouse worked for 15 years to earn the retirement benefits, and for all those 15 years they were married to you, you are likely entitled to one-half thereof.

Q. I own a property bought before my marriage, what is the status of that property at the time I get divorced?

Properties that are bought and owned by one or the other spouse before they enter wedlock are usually regarded as separate properties. However, it is important to note that your property will be regarded as a separate property only if no community funds were used to purchase it or any rights given over it to the spouse, such as by adding the other spouse to the title to the property. Separate properties are not counted as the divisible assets in a divorce and they will stay yours irrespective of the divorce results.  However, the other spouse might still have an interest in the property if the principal on the mortgage loan was paid down during the marriage.  These issues can be complex and it is advised that you speak with a qualified divorce attorney to understand your situation and your rights.