How Long Does it Take to Get a Divorce in California?

Posted by: Gerald A. Maggio, Esq.

Orange County divorce mediation; California Divorce MediatorsThe state laws of California promote the concept of making the parties go through a specific waiting period before they can be awarded a final divorce or legal separation. The idea is to give time to the couples with marital conflicts, so that they can at least try to resolve their differences and finally make up their minds that they really want to separate and lead independent lives. But how much time does the entire litigation process actually take? Let’s have a look at the various factors and situations which might contribute towards deciding upon how long your divorce case will linger on before you can obtain the final verdict.

Filing the petition 

The residency requirements in the state of California for filing a divorce petition, is six months. In other words, for you to be even eligible for filing a divorce petition, you need to have lived in the state for at least six months. Once you have filed the divorce petition and served the other partner with a copy of your divorce action, the latter has a window of thirty days, within which he or she needs to respond to it. However, the deadline is flexible and can be waived off for providing a little more time to the other partner to respond. 

Waiting period 

The state of California makes it mandatory for the divorcing couples to go through a six-month waiting period within which they can decide upon whether or not they are fully ready to go through with the separation. The waiting period starts from the day an individual serves his or her partner with the divorce papers. The six month long waiting period is also a valuable time frame within which the partners can discuss the various aspects of the separation such as visitation, support, property division and alimony and reach a mutual settlement. All you need to do is ask your attorney to submit the agreement papers in the court, which will then be signed by the judge at the expiration of the waiting period, and become the original decree of divorce. In case you do not reach an agreement, you can go to trial at the end of the waiting period.

In California, if a divorce case lingers on for a period of five years from the day of filing the petition, the petition is automatically dismissed as per the state laws, and you need to file a fresh lawsuit again.

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

The Different Types of Divorce Mediation Concepts

Posted by: Gerald A. Maggio, Esq.

Orange County divorce mediators; California Divorce MediationA divorce mediation is a very practical, and sensible alternative to fighting out in the court. A divorce mediation can be successful as long both the parties involved remain reasonable. The different types of divorce mediation concepts are:

Evaluative divorce mediation

In evaluative divorce mediation, the mediator, who has specific and deep knowledge about divorce laws, would hear each parties arguments, and identify the weaknesses and strengths. He/she would then inform the parties about the possible outcomes should they take their case to the court. With both the parties consent, the mediator then would propose what he/she believes is a fair settlement. The parties can then accept it or reject it.

Comprehensive divorce mediation

In comprehensive divorce mediation, the mediator would cover all the aspects of the divorce. Both the parties would agree upon the division of the property, division of debt, child custody and support, spouse support, and so on. After that, both the parties would sign the comprehensive agreement. In order for the comprehensive divorce mediation to be a success, both the parties would have to agree on all the divorce issues.

Facilitative divorce mediation

In facilitative divorce mediation, the mediator would only facilitate the conversation between the parties involved. They will not evaluate the case or direct the parties to any specific settlement. The parties will decide what and all will be discussed and how the issues can be resolved. The mediator may outline the structure for the discussion and may offer informed suggestions based on his/her experience, however, that will be the extent to which he/she will get involved in the mediation process.

Virtual divorce mediation

In virtual divorce mediation, the entire mediation process is conducted online with the help of applications such as Skype, Facetime, and so on. The parties involved need not be present physically at the mediator’s office, they can just login from their home or office. Virtual divorce mediation is especially helpful for busy professionals, people with disabilities, and people who are out of the state/country. Virtual divorce mediation is cost-effective as well.

Transformative divorce mediation

In transformative divorce mediation, the mediator encourages the parties involved to have a constructive, and practical discussion. He/she encourages the parties who may be intimidated by their partner’s presence to speak out freely, and confidently. In this type of divorce mediation, importance is not given to reaching a settlement but to discuss all the issues involved practically and go about resolving them in a practical, and respectable manner.

The aim of mediation, no matter which type of mediation, is to avoid the nasty side of divorce, and reach a solution in a very civilized manner.

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

Why It’s Important To Choose Your Divorce Mediator Carefully

Posted by: Gerald A. Maggio, Esq.

divorce mediation attorney in orange county; California Divorce MediationDivorce mediation/family law mediation/child support mediation not only requires a thorough legal knowledge but also a certain level of sensitivity towards the issues and towards the parties involved as well. A mediator should be someone who should strive to keep the ‘ugliness’ out of even high conflict cases, and encourage the parties to be respectful towards each other, and guide them towards reaching a creative and practical resolution. It is always better to go with a mediator who has a clean and good reputation. It is also important to choose a mediator who is acceptable to both the parties equally as well.

Go with a certified (trained) mediator

It is important for the mediator to maintain the legal aspect of your divorce. The mediator should have good knowledge about the divorce/family laws specific to each state so that he/she can provide correct information to the parties involved. The mediator should be able to inform the parties what would happen if they take their case to the court. If the parties reach an agreement, then the mediator should proceed with the agreement formalities in the correct way so that it would not be disputed in the future. A certified mediator will be able to do all this the correct way. Mediation, in a way, is an art. A trained mediator will be more proficient in this art form. Negotiation and facilitation are skills that come with experience and training.

Choose a professional mediator

A mediation is a platform where the parties involved can talk about anything and everything. The mediator is a neutral party who would listen and offer suggestions. Until an agreement is signed, nothing is binding in the mediation process. Whatever transpired in the mediation room has to remain confidential. Nothing should ever come up in the court. Hence, it is incredibly important that you choose a mediator who is not biased, whom you can trust. Always go with a professional mediator, someone who will maintain confidentiality.

Now, most of the parties have a tendency to outright reject a mediator suggested by the other party. This is not a very practical approach. First of all, you do not have to agree on anything in the mediation process if you do not want to, no one can force you. Second, the mediator suggested by the other party may be a very competent person who could resolve the issues in a very cost-effective way, and in as little time as possible. So, do some research on your own, and if you find that the mediator is actually a good choice, who is not related to the other party in any way, then go with that mediator.

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

Advantages of Online Divorce Mediation

Posted by: Gerald A. Maggio, Esq.

divorce mediation attorneys in Orange County; California Divorce MediatorsOnline mediation or virtual mediation is the process of conducting mediation online, via the Internet, with the help of applications such as Skype, Facetime, and so on. The mediation process remains the same, the mediator and the two divorcing parties will be present, however, they will not be physically present at the mediator’s office, all will be communicating with each other via Skype or Facetime. While face-to-face mediation has its benefits such as a more meaningful communication between the parties, the mediator getting a better understanding of the couple by observing their tone, body language, and so on, online divorce mediation has its own advantages as well.

Online divorce mediation is perfect for busy professionals

Many a time in face-to-face mediation it just so happens that one of the parties fail to reach the mediator’s office on time because of their busy work schedule. With online mediation, both the parties can decide on a time that is suitable for them. They can then login from their office itself, and be present virtually for the mediation process. No rushing to the mediator’s office from their own office, no getting stuck in the traffic and reaching the mediation venue late. Also, if you need to travel extensively for work or if you are staying out of state, you do not have to take a day off to participate in the mediation process. You have the convenience of logging in from anywhere.

Online divorce mediation is cost-effective

Since it is possible to participate in the mediation process from home, you do not have to arrange for child care. Also, you will be able to save on all the traveling expenses.

Online divorce mediation is ideal for immobile individuals

For people who are unable to leave their home due to any medical condition or disability, online divorce mediation is very practical. They will be able to take part in the mediation process from their home. Also, in the case of older individuals, they will be spared the hassle of driving or finding someone to drive them to the venue.

Online divorce mediation can be empowering for certain parties

If one party is intimidated in the physical presence of the other party, then that party may not be able to speak openly and freely during a face-to-face mediation. Online mediation can empower such parties to speak their mind freely and confidently during the sessions. Online divorce mediation is ideal for couples who cannot stand each other as well.

Online mediation can be a learning experience for the couples as well. They will be able to communicate with each other online in the future to maintain their relationship after the divorce for discussing the needs of their children.

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

Practical Solutions to Keeping or Selling Your House In A Divorce

Posted by: Gerald A. Maggio, Esq.

Orange County divorce mediation; California Divorce MediatorsKeeping or selling the marital house can be a bone of contention with divorcing couples. One may want to sell it for financial gains and the other may want to retain it and live in it because it means financial security for him or her. In order to avoid such a situation, it is best that they have solutions in place.

If one person leaves the house, then the other person will have to worry about paying out the mortgage, insurance, tax, maintenance and so much more. Also, maintaining two households is expensive. But any financial gains made from the house by one party does not mean the gains will come to an end with them moving out of the house.

Certain other solutions may help you to sell or keep the house.

Buyouts – One spouse sells the house to the other spouse. An appraiser will determine the value of the property. After deducting the mortgage amount and any related encumbrances, the equity value of the house is determined. The spouse will pay half of the equity value in cash or via exchange of other assets or spousal support, and so on.

Tax consequences – Selling the house would mean having to pay capital gains tax. But if you retain the house, over time there will be depreciation of the property. It will mean that you will have lesser tax to pay.

Court order to sell the house – Situations may arise where neither of the spouses have the ability to buyout the house. The court can be asked to grant an order that would allow the house to be sold at the end of the divorce trial. It also happens when the spouses are unable to reach an agreement.

The court can also be asked to grant an order for selling the house before the divorce trial begins. If the spouses feel that they do not have the means to pay their attorneys or that the financial settlements such as child and spousal support will be difficult to meet. They may also fear about a foreclosure (inability to pay mortgage) of the property.

Getting a stipulation and order (agreement) – Selling a house while the divorce procedure is on can be quite complicated because certain restraining orders come into effect during this period. The complication can be avoided by asking the court to sanction a written agreement signed by both the spouses.

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

Special Issues of Income in Child Support

Posted by: Gerald A. Maggio, Esq.

Divorce mediators in Orange County; California Divorce MediatorsThe income of both parents determines the amount of child support to be paid. Both parents will try and show lesser income than they actually earn so that the parent seeking child support can get more and the parent paying it has to pay less as support. Certain very tricky situations with regards to income come up that the California family court has to settle.

The court generally considers the annual gross income of both the parents before deciding on the final amount of child support. Bonuses, overtime and commissions also get calculated in this annual gross income. Some of the special issues that the court has to deal with include the following:

When the bonuses, overtime and commissions do not continue as before –

Such claims are very common. The spouse claiming that their income does not remain the same will have to prove to the court, with detailed documents and evidences from the employer, that this is indeed true. If the proofs and evidences are satisfactory to the court, the court will not include such additional earnings as part of the annual gross income.

When such additional earnings are irregular –

The court determines the average of the spouse’s income. The court considers the additional incomes of more than one or two years and calculates the average. So even if the earning is irregular it does not really matter.

When the support paying parent refuses to work overtime –

If a spouse refuses to work overtime it may be acceptable by the court but again the spouse will have to provide with sufficient and acceptable reason for that. A simple ‘I do not want to’ will not be accepted by the court. But the court recognizes the fact that it becomes difficult for separated parents to work overtime when they have to think about visiting or parenting time and the custodial parent taking care of the child full time.

When either parent gets a new spouse –

The parent with the new spouse will not want the new spouse’s income to be considered to determine any changes to the support payment. The custodial parent would want more in support amount because now the remarried parent has more income when that income is combined with the income of the new spouse.

Cases of child support can get very complicated. So you should enlist the help of a professional and experienced lawyer in California.

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

Retroactive Child Support in California

Posted by: Gerald A. Maggio, Esq.

Top Orange County divorce mediators; California divorce mediatorsThe child support that has to be paid for the period before the actual order for payment of child support was obtained is called retroactive child support in California. It just means that the child support paying parent will have to make the payments from an earlier date. Retroactive child support is not similar to unpaid or late payments of child support.

An example will make it easier to understand retroactive child support. Suppose you filed a divorce petition on July 1 and requested for a child support order on August 1. The date set for the hearing of your case is September 10. On the day of the hearing, the court decides to make the initial child support order a retroactive one. The court may make the order retroactive from July 1 or August 1. A paternity action or divorce proceeding commonly starts once a petition for temporary child support is filed.

Generally speaking, the California family court makes the temporary child support order a retroactive child support order. But if the initial petition for divorce notice was not served within 90 days of its filing, the court will make the child support retroactive from the day the petition was served. So, if the parent supposed to be paying the support did not avoid doing so intentionally, the payment of child support becomes effective from the date of serving the notice.

Retroactive child support is paid on four grounds –

  • The custodial parent and the child are in need of support and would benefit from payments of retroactive child support.
  • The non-custodial parent intentionally delayed the payment of child support by delaying the hearing of the case.
  • The non-custodial parent had deliberately avoided paying child support by withholding crucial information on assets and finances.
  • The court will also take into account other factors such as income of the parents, among other things, to determine if the support order should indeed be made retroactive.

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

Understanding Termination of Alimony in California

Posted by: Gerald A. Maggio, Esq.

Orange County spousal support; California Divorce MediatorsTermination of alimony for the spouse paying it means financial freedom. But requests for termination of alimony have to be pleaded in California Family Courts and are only granted after going through evidence and persuasive arguments. Requests by the paying spouse for terminating alimony are very common in divorce cases.

Short term marriages

Termination of alimony in short term marriages is extremely common and the process is quite simple. Generally speaking, the period of paying alimony in a short term marriage is half the length of the marriage. The shorter the marriage, the shorter is the period for which you have to pay alimony. But the exact duration will be determined by the court. The alimony agreement should clearly state the duration and the date of termination of the alimony.

Long term marriages

Termination of alimony in long term marriages can be quite difficult. If the court wishes, it can terminate the payment of alimony if the marriage has lasted for almost 10 years or more. But the spouse receiving the alimony always has the right to contest such a decision. If the court has decided to terminate the alimony after a certain date, the contesting spouse should approach the court before the said date and appeal for a continuation of the alimony.

In marriages that have been for a much longer duration than 10 years, alimony can still be terminated in certain cases. If the court is produced with persuasive arguments and evidences, it can terminate the payment of alimony. You need to prove that your spouse can maintain their lifestyle and standard of living on their own even after you stop paying alimony. It can prove to be quite difficult.

The court will take a close look to determine that the supported spouse can support themselves financially in every possible way. You will need to show that your spouse has gained a significant amount as income through employment of some kind. The court will make a decision based on the nature and extent of employment and not the income of your spouse.

If your spouse has gained a significant amount in inheritance or has obtained a separate estate, alimony will, in most likelihood, be terminated. But again, the court will determine if the estate guarantees that the spouse will have enough financial support without the alimony. Termination of alimony is not that simple and is granted after much consideration.

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

Temporary Spousal Support in California

Posted by: Gerald A. Maggio, Esq.

Orange County divorce mediation attorneys; California Divorce MediatorsThe issue of spousal support can result in bitter contests in a divorce. The spouse having a higher income would not want to pay it and the spouse with a lower income or no income will insist on receiving it. In California Family Code, alimony is known as spousal support.

Temporary spousal support can be paid by one spouse to the other when their divorce case has been filed but a ruling is still pending. The amount to be paid should be sufficient to support the other spouse completely till a divorce is granted and the final amount of alimony is determined. The ability of one spouse to pay the amount of temporary alimony is also taken into consideration.

Purpose of temporary alimony

According to California spousal support laws, temporary spousal support is generally paid to maintain the status quo of the spouse. But this can prove to be quite difficult financially for the spouse paying the support. Temporary alimony is paid twice every month – on the first and 15th of every month.

To make matters a little bit easier, the court takes into consideration the net disposable income of each spouse. They then look at the unnecessary expenditures that each spouse can cut back on. The court will advise the alimony paying spouse to pay only for the essential needs of the requesting spouse and not for everything else.

Calculating temporary alimony

The amount of temporary alimony to be paid is determined the same way as child support.  If child support is being paid, the amount of alimony will be less and vice versa. The court uses the software programs X-spouse or Dissomaster or something similar to calculate the amount of temporary alimony to be paid.

The court will consider the income of the past one year of both the spouses before calculating the amount to be paid in temporary alimony. But this is not true for everyone. If any one or both the spouses are self employed, the court will go longer back than that. But the court will, most likely, never consider a period of income shorter than one year.

California alimony procedures and laws need to be considered carefully before filing for a divorce. You should get in touch with an experienced attorney for consultation.

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

Challenges in Determining Spousal Support

Posted by: Gerald A. Maggio, Esq.

Orange County spousal support; California Divorce MediatorsThe California Family Court uses computer software programs when determining temporary alimony. But when a final decision on the alimony is to be reached, it cannot use these programs any longer. The court then follows California Family Code 4320. It also has to take into consideration a number of factors before making a final decision on the alimony or spousal support to be paid.

The standard of living analysis of a spouse seeking alimony is done by following the sections mentioned in Family Code 4320. Even then, the court has to face quite a few challenges because each case is different from the other.

Standard of living beyond the financial means

If the spouses were used to maintaining a lifestyle that goes well beyond their income, it becomes quite difficult for the court to determine how their standard of living can be maintained. The court could ask the paying spouse to liquidate the assets for paying the alimony. But this could mean putting the payer in debt. So the court would not want to do something like this.

Frugal lifestyle

If the spouses led a very economic lifestyle during their marriage, it becomes quite difficult for the court to determine if they will continue to do so after the divorce. In such a situation, the court will try to determine the amount of alimony in such a way that savings can be made even after the essential expenditures.

Incomplete evidence 

The courts, more often than not, have to face significant challenges in determining alimony because neither of the spouses has provided complete and correct evidences of their incomes and expenditures. Skilful practitioners of family law can help spouses to not make such errors and save the court valuable time.

Time period of long term marriages

Determining alimony in long term marriages is quite difficult. The standard of living and the lifestyle lived changes throughout a long term marriage. Incomes and expenditures change over time. There is no way of determining what the standard of living would be after the divorce. But generally, the court takes into consideration the last 5 years of the marriage.

If you are someone going to file for a divorce, you should consider the issue of alimony whether you are going to pay it or seek it. All decisions should be made after consulting a professional attorney with proven experience in California family law.

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