Dividing Pension Plans In A Divorce

Posted by: Gerald A. Maggio, Esq.

divorce mediators Orange County; California Divorce MediatorsSimilar to the rest of your property and assets, your retirement plan requires proper division post a legal separation or divorce. Although you are entitled to reaping the benefits of your retirement plan only when you actually retire from your job, the division of the balance in the plan may be divided between you and your spouse in case of a divorce long before your retirement. The state laws of California have adequate provisions for dealing with the splitting of your pension plans, just like the property owned by you and your spouse.

Community versus separate property 

As per the family law of California, the property owned separately by a couple before they get married is considered as separate property which is not subject to any division in the event of a divorce. This implies that the monetary contributions you might have made to your pension plan before your marriage or after its dissolution will be considered as separate property which will not be split up in a divorce. However, the contributions that you made to your retirement fund during your marriage will be referred to as community property, which is considered to be jointly owned by you and your spouse and will be subject to division in the event of a divorce.

Usually, the division of pension plans is usually carried out by one of the two methods: by a Qualified Domestic Relations Order or by a buy-out.

Reservation of jurisdiction 

The most widely accepted method of pension plan division, the reservation of jurisdiction employs a court order which states that the other spouse will be granted a specific percentage of each installment of the pension received by the employed partner post his retirement. The percentage is generally obtained by dividing the married years by the number of years for which the employed spouse has been contributing to the pension plan. The figure obtained as a result is considered as the community property portion of the pension plan. 

Buy-Out  

A rarer alternative of pension plan division, the cash out approach incorporates actuarial evaluation of the retirement fund. An actuary is a financial expert who deals with statistical evaluations of pensions, annuities and insurance policies. Through this method, the actuary first reviews the terms and clauses of the pension plan and then determines the ‘present value’ of the community property portion of it. Through this method, the entire pension plan is granted to the employed spouse and the other spouse is entitled with the acquisition of other community assets which are of equivalent value.

The division of pension plan post a divorce can be a complex issue to deal with. It is advisable to consult a professional attorney who is well aware of the intricacies of such cases.

To learn more about the divorce process in California and how mediation can help, please visit our page, What is Divorce Mediation

When Parents Of Special Needs Children Divorce

Posted by: Gerald A. Maggio, Esq.

Orange County divorce mediators; California Divorce MediatorsWith millions of American couples filing for a legal separation or divorce every year, the number of children losing their happy families has been on a constant rise in the recent times. It is a no-brainer, that it is the children who are most intensely affected by divorce. And if the children involved have special needs, the trauma and stress of a divorce can reach unprecedented levels. In such cases, the court of law has to make extremely complex decisions of child custody and support to ensure the best interests of the children with special needs.

The best interest of children with special needs  

More often than not, the expression ‘best interests of a child’ comprises of several factors which the judge needs to take into account while making custody and visitation related settlements for divorce cases.  Your divorce attorney needs to get well acquainted with his or her characteristic traits such as age, adaptability to change, emotional maturity and ability to deal with stress that will arise as a result of a change in the family structure. Furthermore, it is the parents’ duty to acknowledge that their situation demands for adjustments beyond their legal responsibilities, and that they need to ensure that their child receives the ideal environment for maturity and growth. 

Visitation arrangements 

In some cases, the parents may have disagreements regarding the unique needs of their child with special needs or physical disability. It is utmost essential to understand and acknowledge the fact that the typical visitation arrangements that are usually apt for children with no special needs or disabilities may not work for your special needs child. Under normal circumstances, the judge may order for alternating weekend or midweek visits, inclusive of summer or festival visits. However, for children with special needs, it is far more difficult to adjust to the sudden transition from a happy family to a single parent home. It is therefore suggested to replace shorter frequent visits with longer and more stable visitation with each parent, in order to avoid disturbing the child’s routine. To cite an example, children with autism will be highly affected by a disruption in their daily routine, which will in turn affect their behavior and performance at school.

It is utmost essential for the separating parents to understand that their special needs child also has the right to lead a normal life, and should not be made to suffer the repercussions of their failed marriage.

To learn more about the divorce process in California and how mediation can help, please visit our page, What is Divorce Mediation

Child Custody for Self-Employed Fathers

Posted by: Gerald A. Maggio, Esq.

child custody mediators Orange County; California Divorce MediatorsSelf employed fathers, more often than not, have to face difficulties in obtaining child custody and visitation rights. It is the same in California also. Unlike salaried fathers, self employed fathers do not have regular hours of work. The courts always prefer that the child gets to spend quality time with a parent.

California courts lay emphasis on the father’s status quo (the current situation or state of things) when dealing with a case of child custody. They want to make sure that you can act in the best interests of your child. Whether you decide to move out of the house or not will not affect your rights of visiting or having custody of your child.

California Family Code 3046

The father may have moved out (for a short period of time) but is showing a keen interest in the life of his child. He is also making every effort to keep in regular touch and does not show any intensions of abandoning the child. The self employed father, then, stands a good chance of winning child custody and visitation rights.

But you should always be ready to spend more time with your child. You should discuss with your divorce lawyer before deciding if you should stay in the family home or move out.

Written agreement

It is best that you and your wife sign a written agreement. The agreement should detail out the schedule of your custody, visitation and any financial contributions you may be making. An existing agreement may stop the court from giving alternate ruling. It may accept the terms and conditions set out with minimal changes.

The agreement lets you have a certain amount of control over the ruling. The court is more likely to make a decision in your favor if it sees that you and your wife can agree and work together in the best interests of your child. But 2 things need to be kept in mind about the agreement.

  • The agreement will not be the ultimate decision regarding the issue of custody and other important aspects related to a divorce. You should sign post nuptial agreements and other settlements after the divorce.
  • The temporary agreement signed by you and your wife before the divorce should be prepared by an attorney. But it should not be too formal.

Child Custody in Uncontested Divorce Cases

Posted by: Gerald A. Maggio, Esq.

Orange County divorce mediation; California Divorce MediatorsUncontested divorces are quicker to settle and do not come with the stress and cost associated with a contested divorce. Uncontested divorces are ideal for spouses who do not have bitter battles to fight and settle in the court, are worried about the costs involved, and do not want to drag the procedure of divorce. The children, too, do not get affected as a result.

The State of California encourages such instances and helps to reach decisions on matters of child custody to let the parents raise the child by co-parenting and mutual decision making. Children can get quite affected by their parents’ divorce. The parents should follow certain guidelines to help decide on child custody.

Communication – The parents should decide on a schedule so that both parents get to spend sufficient time with the child. The family courts of California allow parents to have joint physical and joint legal custody of their child.

Issues to discuss – The parents should discuss what is best for their child. One parent should not try and restrict the visitation and custody rights of the other parent. All decisions made should be based on the following aspects –

  • Work and other related duties of each parent to decide who can spend the most time with the child and when.
  • The child’s school and other commitments so that the parents can plan their work around that.
  • Which parent is going to move out of the family home and how far away are they going to stay. The child should not have to travel a great deal to be with the other parent.
  • The status quo of the parents up until the divorce and how much of that is going to be maintained after the divorce.
  • Concerns regarding the child’s health.
  • Decisions regarding the education of the child.
  • Visitation rights on special occasions such as birthdays, parent teacher meetings, holidays and so on.
  • Willingness of the parents to bring in flexibility in their arrangements regarding the needs of their child.
  • Children aged above 14 years of age should be allowed to have a say in custody issues.

To learn more about the divorce process in California and how mediation can help, please visit our page, What is Divorce Mediation

Things to Know About California Child Support Laws

Posted by: Gerald A. Maggio, Esq.

Orange county divorce mediation; California Divorce MediatorsSection 4053 of the California Family Code lays down the intent and purpose of laws related to child support. These laws have evolved over the years to suit the needs of the time. Section 4053 of the Family Code has enabled fast resolving of child support cases and has also determined the calculation of support payments.

Scope of the law

The child support laws have been framed keeping in mind the best interests of the child involved in a child support case. The basic intentions of the child support laws are as follows –

  • It wants to remind the court and the parents that it is an obligation required by the law for the parents to support their child.
  • The most important role of the child support laws is to ensure that conflicts between the parents are minimized and litigations are reduced so that the child does not have to unnecessarily suffer because of his or her parents’ egos and differences of opinion.
  • A child should have the same standard of living as the parents.
  • The ability of the parents to support the child is taken into consideration. Both the parents are equally obligated to care for their child. Their income and time should be devoted reasonably to be look after the child.
  • The custodial parent’s standard of living can be improved by receiving child support which is also meant to improve the standard of living of the child.
  • It is wrong to presume that the parent who is the sole custodian of the child already has used enough of his or her resources to support the child. That is to say, the parent paying child support has the right to request the court to modify support payments.
  • Child support orders in California are generous because the city is quite expensive to live in.

California child support cases sometimes get delayed for a number of reasons. Parents sometimes withhold valuable information about their income hoping they will either receive more or have to pay less child support. Sometimes parents don’t show any interest in their child.

To learn more about the divorce process in California and how mediation can help, please visit our page, What is Divorce Mediation

Issues in California Child Custody and Visitation Cases

Posted by: Gerald A. Maggio, Esq.

Orange County child custody; California Divorce Mediators There are a number of issues that may crop up in child custody and visitation cases not only in California but also other places. Awareness of such issues or how to deal with them will make it a lot easier for any parent to tackle these problems that are bound to come up when a child custody case is being heard by the family law court.

The various issues that can come up range from the child’s preferences to counseling, criminal convictions to the threat of abducting or actually abducting the child, interfering with child parent relation and so on.

Child’s preferences

Under section 3042 of the California Family Code, the preferences of the child regarding decisions about custody are given much consideration.  But the Family Court takes into consideration the maturity of the child, any influencing from the parents, and possible alienation of one parent by the other parent before acting on the child’s preferences.

Counseling

The court evokes section 3190 of the California Family Code to ask for mandatory counseling of the child involved in a child custody case. It is up to the family law judge to ask both or either of the parents to accompany the child to the counseling sessions. The court may have statutory reasons to get the parents counseled as well, either together or separately. Any disputes between the parents have to be resolved for the best interests of the child. Counseling can last to up to a year.

Criminal convictions

Criminal convictions of either parent in crimes related to child abuse will have a significant influence in the outcome of a child custody and visitation case. The guilty parent will most certainly not get the custody, either sole or supervised, of the child in question unless it can be proven that the child will not come to any harm.

Any other criminal offence other than child abuse such as substance abuse or use of violence, will elicit the same response from the family court. The criminal history of the offender does not matter as much as the details of the present case. The matter of sole custody is out of the question but joint legal and physical custody may be granted.

To learn more about the divorce process in California and how mediation can help, please visit our page, What is Divorce Mediation

What Is Legal and Physical Custody In California?

Posted by: Gerald A. Maggio, Esq.

Top Orange County divorce mediators; California divorce mediatorsCalifornia child custody laws allow for both joint and sole physical and legal custody of the child. Both parents can seek these types of custody of their child. The family law judge hearing a child custody case cannot give preference to a parent depending on the gender of the parent or the child. Giving arbitrary sole custody is also not allowed. All decisions need to be based on the law and other related facts.

Joint physical custody

It means both parents have equal control and rights over the child. All decisions regarding the child are taken jointly. Generally speaking, the parenting time should be divided equally but this is not an absolute requirement. It can be 60-40 also as long as the child gets to spend quality time with each parent.

Joint legal custody

It means the parents have no other option but to take decisions jointly regarding the health, education, safety and welfare of the child. It includes religious and any extracurricular activities of the child. It is like a mandate for communicating and co-parenting. One parent cannot take any decision about the child without involving or getting the consent from the other parent.

But sometimes the family law judge can let one parent have the sole right to take decisions for the child regarding certain issues. Form 341(E) of the California judicial council states all rules regarding joint legal custody.

Sole physical custody

It means that only one parent has exclusive right over the custody of the child. He or she (the mother or the father) is the primary caretaker and custodial of the child. But it does not mean that the non-custodial parent does not get any parenting time or visitation rights. If one parent gets sole physical custody the other parent gets visitation.

Sole legal custody

It gives a parent the sole right to take decisions regarding the child’s education, health and welfare. But the parent with sole legal custody does not hold exclusive rights over the child. The parent with visitation rights has supervisory rights and responsibilities when he or she is with the child.

To learn more about the divorce process in California and how mediation can help, please visit our page, What is Divorce Mediation

Annulment As An Alternative To Divorce

Posted by: Gerald A. Maggio, Esq.

Orange County divorce mediation attorneys; California Divorce MediatorsMarriage annulment is a fairly misunderstood concept owing to the inaccurate projection of its legality by the popular religion and culture. Both annulment and divorce can be considered somewhat similar in their basic underlying principle of determining the status of wedlock. However, the major distinguishing factor that separates an annulment from a divorce is the implication of the marital status post a verdict in the court of law in the two cases.

What is the difference between a divorce and an annulment?

A divorce or a legal separation marks the end of a valid relationship and implies that the couple is no longer viewed by the court as man and wife. On the other hand, an annulment, colloquially termed as nullity of domestic partnership or marriage, is when the court declares the domestic partnership or marriage never really existed in the first place. Post a verdict of annulment, it is assumed that the marriage never really happened as it was not valid or legal to begin with.

What are the grounds for filing for an annulment?

  • A marriage is never considered valid by the Californian state law, if the two parties involved are related by blood.
  • Another situation wherein a marriage stands illegal or invalid is when one of the partners is already in an existing registered wedlock with someone else. The marriage is then termed as bigamous.
  • A person who was below the acceptable age of 18 years at the time of his/her marriage can also file for an annulment of the same.
  • Another situation which is somewhat similar to bigamy can be distinguished on the basis of the fact that a spouse, who was already married to someone else, gets into another wedlock on the premise that the former partner has been absent and assumed dead for the past five years.
  • If either of the partners has an unsound mind that prohibits them from understanding the true implication and obligations of a marriage, their spouse can request an annulment.
  • An annulment can also be requested in a situation where a marriage was a result of fraud. For example, if an individual deceives his partner into wedlock only for obtaining a green card, the marriage will be considered fraudulent and invalid.
  • In cases where a partner was forcefully made to consent for a marriage, an individual can file a petition for an annulment.
  • Finally, if one of the partners was physically incapacitated at the time of marriage which rendered him/her unable to consummate the relationship, and the incapacity continues to stay incurable, the healthy partner has the right to file for annulment.

In order to obtain an annulment, it is mandatory for an individual to be able to prove at least one of the aforementioned reasons, with authentic evidential proof in the court of law.

To learn more about the divorce process in California and how mediation can help, please visit our page, What is Divorce Mediation

Child Custody Mediation Explained

Posted by: Gerald A. Maggio, Esq.

divorce mediation attorneys Orange County; California Divorce MediatorsFor cases involving a lot of friction between the separating parties regarding the custody settlement of their children, child custody mediation is the most effective approach to deal with the issues. With the help of an outside third party, the divorced parents can peacefully resolve their disagreements and reach a final mutually acceptable solution. Also, if the parents have worked out a mutual agreement, the professional mediator can assist them in devising a parenting plan which can be converted into the official child custody and visitation order, after the consent of the court of law.

How is mediation beneficial for you? 

It is the mediator’s duty to play as a neutral third party in child custody related conflicts and try to resolve the issues by listening to the concerns of both the involved parties. Considering the bigger picture, the child custody mediation can be quite advantageous in reaching a mutually agreed upon settlement.

  • Child custody mediators help the separating parents in devising a parenting plan which ensures the best interests of the child.
  • Child custody mediators assist the separating parents in reaching a mutual settlement and creating a parenting plan that ensures that the child spends adequate time with both the parents.
  • Child custody mediators counsel you and help you effectively deal with your resentment and negativity towards your partner.

What exactly does the mediation process involve? 

Child custody mediation is an effective approach to settling your custody and visitation related disputes without having to go to the court.  Both the parents have the right to work out their conflicts and devise a customized agreement which would state what and how of taking care of their children. The court of law refers to this agreement as stipulation, parenting plan or a time share plan. More often than not, the mediator holds separate or coordinated meetings with both the parents with the aim of developing a sound understanding of the family’s history and concerns. He also has the obligation to share with the parents the important information regarding the needs and expectations of children in different developmental stages. The mediation process involves the discussion of several issues such as legal custody, vacation schedules, visitation and transportation related disputes.

If you and your partner think that you can reach a mutual agreement which ensures the best interests of your child, child custody mediation is probably the most effective approach for you.

To learn more about the divorce process in California and how mediation can help, please visit our page, What is Divorce Mediation

The Steps Involved in Property Division During Divorce

Posted by: Gerald A. Maggio, Esq.

Division of property lawyers Orange County; California Divorce MediatorsProperty division is one of the most crucial aspects related to divorce or legal separation settlements. California community property law states that all the property and debts acquired by the couple during marriage should be divided equally between the two in the event of a legal separation or divorce. Many times, the couple reaches a mutual agreement regarding the property and debt division, whereas in some cases, the couple needs to take the help of a court of law to decide upon a fair decision.Irrespective of whether you decide upon the division yourself or request a court judgment for it, the property division process comprises of three crucial steps.

Determining the property as community or separate 

As per the Californian law, it is presumed that all of the property and debt which is accumulated by the couple during their marriage is termed as community property and belongs to both of them equally. On the other hand, the property acquired by either of the spouses before the marriage or within the marriage in the form of a gift or inheritance is referred to as separate property. In addition to this, a property acquired by a partner after the date of separation up until the date of divorce will also be termed as separate property. There are several types of property such as a retirement account, or an operational business, which are regarded as partially community and partially separate.

Determining the value of the property 

In order to evaluate the actual worth of the property, either the couple or the court of law is attributed with the task of assigning a specific monetary value to each of the items. For establishing the present worth of antiques, artwork or real estate, appraisals can be performed by professionals. More complex property items such as retirement assets will need to be evaluated by more knowledgeable professionals such as a CPA or an actuary.

Division of the property 

The couple can proceed with the actual division by allotting the items to each partner, by buying out the other partner’s share of the property or by selling off the assets and equally sharing the proceeds. In some cases, the couple might even agree to jointly hold the possession of the property even after a legal separation. For example, a couple might wish to hold onto a family residence until their kids complete their school.

Property division can be an extremely complex process.  To learn more it, about the divorce process in California and how mediation can help, please visit our page, What is Divorce Mediation