Common Misconceptions About Divorce Mediation in California

Posted by: Gerald A. Maggio, Esq.

Orange County divorce mediators; California Divorce MediationDivorce mediation is an attractive process for California couples that seek to resolve their disputes amicably without the need to have a public battle in court. However, there are still a lot of things that people do not know about divorce mediation and common misconceptions that exist about the topic.

Mediation is the best option

The whole point of an amicable settlement without the divorce going to court sounds attractive to most people, but divorce mediation is not always the best option for couples. This is especially true for couples in which one partner has a history of emotional abuse, and for couples that need to untangle and split a complex web of possessions between each other.

Pets cannot be a part of the mediation process

This is completely untrue as the California government recently passed a law concerning the division of pets in a divorce. The mediator can advise the couple on who is most likely to receive ownership of the pet or how they can work out a pet-sharing deal. This prevents people from stealing pets from their former partners and allows couples to settle the dispute amicably.

Mediation does not require individual lawyers

The mediator is typically a neutral party whose job it is to guide both parties in the divorce. However, it can be a complex process, and not seeking an attorney can be a very foolish thing to do unless you have complete knowledge of the law. You should definitely have an attorney who looks over the final mediation document before it becomes official. Both the parties are advised to have independent attorneys to safeguard their interests.

Mediation is not better than litigation for children

Most people assume that divorce is always going to be bad for their children no matter what. They assume that litigation and mediation are the same, but this could not be farther from the truth. By its very nature, litigation is an adversarial process that promotes a climate of tension, ill will, and stressful court appearances. On the other hand, mediation promotes a culture of cooperation and a desire to settle disputes amicably without excessive volatility. Mediators are trained to be concerned about the emotional and psychological well-being of the children involved, and it can be considered to be a first step to the future where the parents will no longer be together.

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

Child Custody In Paternity Cases: What You Need to Know

Posted by: Gerald A. Maggio, Esq.

child custody mediation attorneys Orange County; California Divorce MediatorsAs a Californian, you’re probably aware of the fact that our state is quite progressive. As a result, progressive policies are bound to affect every area of a Californian’s life and that includes family law.  In this blog, we are dealing with a very specific topic under family law – parentage.

California uses the term “parentage” interchangeably with terms such as “parental relationship” and “paternity”. Typically, paternity is established by the child’s parents or the courts. What that means is if a child is born in a marriage, the mother’s husband is automatically presumed to be the father under the law.

If a couple have had a child together but are not married, the law does not automatically assume that the father is the biological parent of the child, which may require a genetic DNA test to establish as well as a Declaration of Paternity signed by the father to establish parentage and then custody.

Establishing paternity 

To establish parentage or paternity, a court order must be obtained or a Declaration of Paternity must be signed to legally indicate who the child’s parents are. For instance, if a child is born out of wedlock, he/she is considered to not have a father unless parentage is legally established. This applies even when the father has evidence to show that he is the biological father.

The establishing of parentage is extremely important as it has a major impact on matters such as child support, visitation rights, and custody during divorce procedures.

If an individual refuses to establish paternity, the court will order them to undergo genetic testing.

Once parentage is established, the concerned man/woman will have to take up the role of a parent. He/she will have to pay child support, 50% of child care costs, and uninsured health care expenses. The same goes for individuals who are legally established as parents.

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

California Law on Extramarital Affairs and Alimony

Posted by: Gerald A. Maggio, Esq.

Orange County divorce mediation; California Divorce MediatorsThe worst thing that can happen to a marriage is infidelity. Most married people hope that something like this never happens. However, extramarital affairs occur more often than one could imagine. In fact, the American Association for Marriage and Family Therapy (AAMFT) reports that 40% of marriages fall prey to infidelity.

Now that we’ve accepted the reality of infidelity, the next big question in your mind likely has to do with divorce. Divorce is often the likely outcome of infidelity in a marriage and it can affect the results of the divorce.

So, let’s look at how infidelity affects divorce in California.

No-fault divorce 

California follows the no-fault divorce law.  So, there are only two primary reasons that can be used as grounds for divorce – incurable insanity or irreconcilable difference. The letter refers to issues between the spouses that have damaged the relationship beyond reconciliation.

In fact, one isn’t even required to testify as to why the marriage failed. The only thing needed to authorize the divorce is an agreement from both spouses supporting the divorce. The no-fault divorce law was implemented because it speeds up the divorce process and allows couples to go their way without bickering over every detail.

Another important point to note is that adultery is not a crime in California, and hence, there is no legal definition for it as far as the Californian law goes. However, adultery, in general, is defined as a sexual relationship that a married person indulges in with someone other than their spouse.

Californian courts will not consider adultery as a key factor in granting a divorce. No-fault divorce requires that courts simply grant the divorce based on the couple’s acceptance of marital failure.

Alimony and custody

Adultery does, however, affect alimony, but, not in the typical way one might imagine. Californian courts will award alimony based on the ability of the offending spouse’s ability to pay and the offended spouse’s financial needs.

So, it is possible for the offended spouse to receive less alimony than hoped for. For instance, if the offended spouse moves on and begins living with another partner, the courts may consider this spouse’s financial needs to be less significant.

As for custody, California prioritizes the child’s interests. So, adultery doesn’t affect custody in a big way. The only time it does is if the relationship has directly affected the children. For example, if the cheating spouse engaged in a sexual act with the paramour in the presence of the child/children.

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

5 Ways In Which Co-Parenting Can Be Effective

Posted by: Gerald A. Maggio, Esq.

divorce mediators in Orange County; California Divorce MediatorsCo-parenting is usually seen as a responsibility shared by divorced couples, but there is more to co-parenting than a simple responsibility. Co-parenting can also involve someone else other than the parents. When a parent and another person take care of the child, it is also known as co-parenting.

  1. Do what is best for the child

When it comes to child custody or any other laws where children are involved, the California court always rules in favor of the children. If you are at a crossroad where you need to take important decisions regarding your children remember to do what is best for the children. Because it is the children that you will be ultimately worried about.

  1. Don’t talk bad about your ex in front of the children

It’s natural to talk bad about your ex in front of your children especially when you have gone through a bad marriage. But always remember that in doing so it is your children who will get affected. Your ex will remain an important part of the responsibility towards your children. When you criticize your ex, a certain negativity develops in your children which can be dangerous in the long run.

  1. Never tell your ex you are the better parent

At times, you will feel the urge to show your children that you are better than your ex but it’s a good idea to stay away from that notion. Saying that the other parent is bad won’t make you look like the best parent in the world. Moreover, such things don’t work in a court of law in California.

  1. Establish rules and family values

Family rules and values are central to every parenting. Teaching your children the importance of family life can be a great way to keep things organized in life. Moreover, it will also help you and your ex maintain an amicable relationship. As a parent your main aim is to create a healthy environment for your children where they can grow and learn life’s important lessons. So what better place than their own home.

  1. Make plans for in-law and family visits

After getting a divorce, having the support of your in-law and family members is very important even though you may not want to see them. It’s good because the children should not feel alienated after you get your divorce.

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

5 Ways To Avoid A Divorce As Told By A Divorce Attorney

Posted by: Gerald A. Maggio, Esq.

orange county divorce mediation attorneys; California Divorce MediatorsDivorce proceedings can be very difficult and lengthy. It is advised to look for ways to save your marriage rather than go for a divorce. Take it from a divorce attorney and divorce mediator like me.  Here are 5 tips that you can follow to avoid a divorce:

  1. Don’t focus too much on property and assets

A recent study showed that couples who don’t rely on property and assets too much have a better marriage than their counterparts. Couples who focus too much on assets often lose focus of more important things that make the marriage work. Materialistic couples often exhibit signs of poor communication, low conflict resolution and low response to each other.

  1. Communicate with each other more often

Poor communication is a major cause of divorce. Couples who don’t interact properly often have a hard time understanding each other’s problem. The communication gap widens when couples don’t make any effort to have a conversation with each other. The distance destroys the unity and it leads to divorce.

  1. Spend some time apart

Too much closeness can be a bad thing sometimes. Take some time out for yourself and stay apart. Go for a vacation with friends or spend time with your own family. Distance plays a major role in keeping things interesting in a marriage. But don’t spend too much time apart. It can have the reverse consequence. Staying apart will give you more time to focus and yourself and less time to think about other problems.

  1. Be flexible and stay positive

Relationships don’t work based on one person’s likes and dislikes. It is a team effort and both of you must understand each other’s needs and preferences. It is very important to stay flexible in a relationship and realize that your partner’s problems are equally important.

It is also vital to stay positive about the relationship. There will be times when everything looks boring and different problems will arise but it is important to have a positive attitude. You need to focus on the bigger picture and concentrate on what’s really needed to save the relationship.

  1. Try to solve problems together

Whenever you face a problem try finding a solution as a team. Don’t dump the problem on your spouse while you sit back and enjoy. Whether the marriage will be successful or not depends on both of you and it is up to you to make things work.

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

Choosing Between Mediation vs Litigation vs Collaborative Divorce

Posted by: Gerald A. Maggio, Esq.

divorce mediation attorneys Orange County; California Divorce MediatorsDivorce is never easy, no matter how amicable it is. There are numerous assets and properties that need to be divided, not to mention custody of children and other aspects. In California, a person that files for divorce has 3 ways to proceed – mediation, litigation and a collaborative divorce. There is no universal best choice among the 3 and each method is suitable for certain circumstances.

Mediation

Mediation is the process where a divorcing couple sits with an impartial and neutral mediator to decide on the division of assets and properties. While both parties have to hire their own lawyers before a settlement is agreed, the mediator does not have to be a lawyer. Mediation allows for spouses to split rather peacefully and consequently benefit the children. Cost is reduced along with complete confidentiality of all matters discussed. Mediation is best for amicable divorces where the spouses aim to remain in touch and maintain a good relationship.

Litigation

Litigation is the most common and oldest divorce format used. This is because in over 80% of divorce cases, the decision is made by one of the parties and is not mutual. In this case, mediation and collaborative divorce might not work as both parties are working against each other. Despite common believes, litigation often ends with an out-of-court settlement. The couple works with lawyers to come to an agreement regarding custody, division of assets, along with alimony payments and liabilities. Once a settlement is formed both parties sign it and a judge also signs off on it.

If a litigated divorce does go to court, all final decisions are made by the judge including decisions regarding assets and custody. It is recommended in most cases to keep the divorce out of the court as it could have a negative impact on the children and lead to more animosity among the parties. Litigation is the most public and the slowest of all 3 options.

Collaborative Divorce

In a collaborative divorce, the decision to get a divorce is often mutual and there is no animosity. Both parties hire an attorney and decide on the terms of the divorce. Unlike litigation, the attorneys in a collaborative divorce try to help couples come to a mutual agreement. Collaborative divorcees can also hire financial planners that will help plan their lives through the divorce and after. Therapists and coaches may also sit with the spouses to helps them resolve issues. In a collaborative divorce, there is no chance of going to court. In fact, documents are signed before the proceedings stating that the attorneys must withdraw if court is threatened or the settlement fails.

Both mediation and collaborative divorce are only recommended when both parties are on equal footing and have a mutual understanding. Spouses that doubt their partner’s declarations or do not understand the various assets on hand (such as finances) should choose litigation. The same applies when substance abuse, physical or mental abuse is involved.

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

Handling Defaulting on Debts During a Divorce

Posted by: Gerald A. Maggio, Esq.

Orange County divorce mediator; California Divorce MediatorsDivorce can become a complicated subject, especially when debt becomes a part of it. If you are a married person, then you know what that means. There have been cases where one person walked away without paying a single cent while the other went bankrupt. It could be a nightmare for the one paying the debts.

How you handle debts after your split can have a major impact on your credit.

Debt on property

In states like California, both you and your spouse are liable for the debts incurred after you got married. It does not matter in whose name the account is. Both of you are responsible for the property purchased and the debt as to be shared. In other states, the debt is paid off by one person only. It might not sound fair but that is the law in those states.

Debt on credit accounts

The same goes for credit accounts as well. Since the credit was shared by you and your spouse, the debt too must be shared. Even if the divorce rules say that your spouse is responsible for paying the debt, you will still be a part of it. You miss the payments, and you become a defaulter. If you become a defaulter, then your credit score drops, making it harder to get credit in the future.

Handling joint debts

After you get divorced, make sure you close all joint accounts that are in your and your spouse’s name. Remove your spouse’s name from the authorized user list. Try getting the account converted into individual accounts if you can.

Try paying off as many debts as possible before the actual divorce. It will keep you prepared for any extra charges that might incur during your divorce proceedings.

Minimizing damage

When you close accounts, make sure that the credit accounts are in your name. Doing so will give you control over your money and you would not have to worry about any unknown debts.

It’s common among couples that one person borrows while the other spends. If you are one of them and you are on the spending side, then talk with your partner and work out a common ground. Understand that if your credit score is low, future lenders would not lend you money. Before you get divorced, try clearing as much debt as you can together.

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

The Use and Misuse of Subpoenas in Divorce Cases

Posted by: Gerald A. Maggio, Esq.

Orange County divorce mediation lawyers; California Divorce MediatorsBeing served a subpoena means you must appear in court and testify. The legal document also orders you to bring supporting documents on the date mentioned in the subpoena. In most cases, people don’t like subpoenas because they are forced to do something that they normally wouldn’t do. A subpoena can be misused depending on who is issuing it and to what extent.

Subpoena duces tecum literally means “bring it with you.”  If you get a subpoena, you must bring every material that might support or break a case. The materials include reports, tapes, files or specific records. You may also have to provide financial notes and appointment dates.

In a divorce proceeding, you might have to appear in court with evidence supporting child custody or any other evidence that you are ordered to bring.

Uses

Subpoenas are used by attorneys to obtain information that might strengthen or weaken a client’s case. It could lead to someone’s innocence or guilt depending on the subpoena. In divorce cases, a divorce attorney could issue a subpoena to the opposite party to settle custody issues. Subpoenas are issued under the criminal procedure laws and are taken very seriously. Failure to respond to a subpoena can attract heavy fine or even jail.

It is also used to settle property claims in a divorce case. If one spouse feels deprived of getting an equal property share, then a subpoena can order the other spouse to appear before the court and justify his/her actions.

The subpoena is usually signed by an attorney acting on behalf of the court in which the attorney practices. If the subpoena orders an important government official to be present in court, it must be signed and authorized by an administrative law judge.

Misuses

Subpoenas are often misused by one spouse to harass the other. A subpoena can be misused by an attorney when he/she issues it without providing a deposition notice. The subpoena is mailed or handed over directly to the other person.

Another way in which subpoenas are misused is the issue of a subpoena that is not justified in a criminal court. It can ask for absurd claims and documents. In a court of law, the subpoena needs to be authorized through the proper legal channel, but some attorneys use it to shake up the opposition. The moment someone receives a subpoena, he/she gets agitated and attorneys often take advantage of such situations.

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

Should You Change Your Name After a Divorce?

Posted by: Gerald A. Maggio, Esq.

Orange County divorce mediation attorneys; California Divorce MediatorsOverview

Divorce changes a lot of things including names. When you get married you change your title to the same as your husbands. Should you do the same thing with divorce? Should you change it back to your family title or should you keep it the way it is? The answer mostly depends on what you prefer, and the reasons differ from individual to individual.

If you want to change your name, then the process depends on the state you are currently residing in. In most states, it is an easy process, you can simply request your court judge to pass a formal order to get your name changed as part of your divorce judgment/decree.

Reasons to consider

You might think that having a different last name than that of your children might create problems. People might think differently towards you after you get your name changed, but that is not such a big issue. Talk with your family, and if no one makes any serious objection, then go ahead and get your name changed.

Some women want to retain their family name after they get divorced based on emotional grounds. They have had their last name until they got married and want to change it back because of the love they feel for their parents. It is perfectly fine to feel that way and quite natural after a divorce.

If you have worked in a company for a long time or you have a business where you use your husband’s name, then should you change your name? If you think changing your name might have a negative effect on your work, then it is probably a good idea to keep it the way it is. If not, then it is up to you.

Changing your name in California

So, you have decided to change your name. Then you should also know the procedure to do so in California.

  1. Visit the court and ask for two D-20 forms. These forms are titled “Ex-Parte Application for Restoration to Former Name After Entry of Judgment and Order.”
  2. Fill the form with relevant details. There will a column for New Name. Fill it carefully. You will be asked for it again in another column.
  3. Use your current signature while signing.
  4. Submit the document and wait. You might get your name changed that very day or in the following days. You will get a notification.

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

Am I Required to Pay Child Support For My New Spouse’s Prior Children?

Posted by: Gerald A. Maggio, Esq.

Divorce mediators in Orange County; California Divorce MediatorsDivorce proceedings can be quite tricky and each individual situation may demand looking into specific regulations in order to arrive at a fair decision for all. A lot of times, couples in second marriages or even third marriages wish to get divorced. In nearly all such cases, step-children (or non-biological children to one of the spouses) are involved. So do you need to pay child support for your spouse’s children from the previous marriage?

According to the current divorce law in the United States, you need to support all your biological children produced by you and your partner during time of the marriage. In addition to this, you also need to offer support to any adopted children between you and your partner (adoption has taken place during marriage).

The same rules may not apply to stepchildren and in cases when the child/children born during the marriage were not fathered by the husband, but some other man in a relationship with the woman.

When a step-parent needs to pay child support

It’s not always that only a biological parent has to pay child support with the ending of a marriage. According to the law, there are some exceptions to the rule. When a common law partner or step parent has been performing the parental role, also termed as ‘loco parentis’, the court might order the person to provide for child support, irrespective of whether or not they are biological parents of the child.

But the court will only order such child support when the person can be defined as a “parent” (as defined by the Family Relations Act).  So the court will only order a step-parent to pay child support if-

  • He was in a common-law/marriage-like relationship with his partner (the child’s parent) for a minimum of 2 years or was married to the parent of the child for any period of time and
  • Made a contribution to the maintenance or child support for a minimum of 1 year and
  • Made his last contribution to child support or maintenance within a year of the specific date when the filing of the child maintenance claim took place in the court.

It is also important to remember that if a person entered into a legal agreement with his spouse to offer child support to the stepchild in case of divorce, the court will usually force them to honor such a contract.

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