How to get a reluctant spouse to try mediation

Posted by: Gerald Maggio

14619487_mlSometimes, both partners in a divorcing couple agree that divorce mediation is the right choice. After all, it saves money, time and sanity.

But many times, one of the two spouses will resist mediation. It may be that the reluctant spouse is resisting the divorce in general. Or, one of the spouses may be highly emotional and feel like hiring a lawyer in order to create pain and difficulty for the other spouse.

The trouble with this last is that by the end of the long and expensive litigated divorce process, both parties will be feeling that pain and difficulty.

Here are a few steps that anyone can take to encourage a reluctant spouse to try mediation.

1. Give your spouse some time to digest the idea.
Often, the announcement that you want to try mediation is the first time that the divorce becomes real for your spouse. This can be true even if your spouse initiated the split. If your first attempt is met with rejection, give your spouse some time and space. Calmly try again later.

2. Provide some objective information.
Your spouse is more likely to agree to mediation if he or she feels that it is a choice, not a mandate. Gather basic information from several local mediators. Contact several lawyers and ask about retainer fees and the cost of litigated divorce. Talk to any friends who have been through litigated divorce or mediated divorce, and ask them about the cost and the duration of the process. The facts will speak for themselves. Mediation will seem less like your agenda and more like the logical choice.

3. Focus on the kids.
Numerous available resources explain the toll that litigated divorce can take on children. Your spouse may be angry and upset with you, but it is unlikely that he or she is mad at your children as well. By explaining the benefits of mediated divorce for your children, you may be able to shift your spouse’s attention away from his or her own emotions and toward the long-term realities of his or her choices.

Mediators can often provide extra resources and help for dealing with a reluctant spouse. Contact a divorce mediator to discuss the issues you are having. Find out if the mediator has information packets, seminars or other information that can help your spouse give mediation some objective consideration.

The 5 Stages of Divorce Mediation in California

Posted by: Gerald A. Maggio, Esq.

Divorce Mediators Orange County; California Divorce MediatorsWhat is all the hype surrounding divorce mediation and why should you consider it? The reason divorce mediation is encouraged because it doesn’t create animosity between the divorcing partners. What happens during divorce mediation?  Just refer to the five stages mentioned here and you will get an idea of what happens during divorce mediation:

First Stage: Introductory

The mediator will familiarize you with the process and so you should come with a list of questions in mind to ask. Discuss all the issues that you want resolved. If an issue needs more attention than others, convey that to the mediator. Moreover, the mediator will suggest different ways to optimize effective communication.

Second Stage:  Information-Gathering

Your first session may have brought up many different issues such as finances, children, debts, and loans, among others. If you haven’t brought the documents with you in the first meeting (it’s better to bring them in the first stage), the mediator will tell you to bring them when you visit again. During the second stage, finances are discussed, documents reviewed, and suggestions thrown around. Since division of assets is a critical issue, two or more meetings could be required to come to an agreement.

Third Stage:  Framing The Issues

The divorce mediator will ask the partners to write down reasons of what they want to see in the agreement. Their outline will consist of reasons such as concerns, goals, values, priorities, needs, and interests. After both parties have created the outline, they will discuss it between each other to see if they can come to a resolution. In order for this to be successful, don’t write off the suggestions that your partner gives, but listen to them even if what they are saying doesn’t sit well with you. Most importantly, keep in mind that in order for your partner to consider your interests, compromising on some is necessary. When you cooperate, they may as well.

Fourth Stage:  Negotiating The Issues

With the assistance of the mediator, partners will come up with a few options to solve the issue. They will evaluate each option to determine which one works better. At this stage, the partners will negotiate with each other until they can see eye to eye on a resolution. Towards the end of this stage, the options are decided.

Fifth Stage:  Written Agreement

The mediator will send a draft of the settlement agreement to both spouses to view. If both spouses agree, the mediator will write up the final version of the settlement agreement, which the mediator can submit to the court for filing.  As a precaution, it’s advised to have a lawyer review the agreement before submitting it to the court.  Sometimes, your mediator is a lawyer, but it is important to note that they are not representing either party as a legal advocate in that situation.

5 Things Every Person Should Know About Divorce and Taxes

Posted by: Gerald A. Maggio, Esq.

Divorce mediators Orange County; California Divorce MediatorsDid you just get a divorce? If your divorce was finalized a few months back, the headache of filing for taxes may have already fallen upon you. New divorcees will get to experience all of it for the first time, i.e. filing tax returns and dealing with new tax issues.  Here are five things to know to reduce the anxiety that comes with filing taxes:

1.     Figure Out Your Filing Status

Determine the date the judge finalized the divorce. If your divorce was finalized by midnight on December 31st, you will generally have to file your tax returns separately.  If your divorce judgment was entered after January 1st, you have the option of filing “married filing jointly” (if your spouse is agreeable and it makes sense to do so) or “married filing separately.”  If you share custody of your children, you will generally get to claim head of the household status.

2.     Child Support Payments vs. Spousal Support Payments

It is very important to know that people who pay alimony are entitled to write those payments off as a tax deduction, and those receiving spousal support must claim it as “income” on their tax returns.  Therefore, both parties should plan their tax obligations accordingly.  On the other hand, those paying child support cannot claim such payments on their taxes as a deduction, and those receiving child support do not need to report such payments on their tax returns.

3.     Determine Who Gets the Child Exemptions

During divorce proceedings, you and your partner can decide on who gets qualified to claim the child/children as tax exemptions. If you have joint custody (i.e. 50% each), then generally you should agree to alternate the right to claim the tax exemption each year.  Otherwise, the party who has over 50% custody gets to claim the child as a tax exemption pursuant to the IRS Code.

4.     Change Your Withholding on the W-4 Form

You can claim extra tax exemption on your W-4 form through your employer to offset the tax deduction for spousal support payments you are making, leaving you with more net income each month.  On the other hand, people who receive alimony payments can ask their employer to withhold additional taxes from their paycheck to cover their new tax liability.

5.     Review the Legal Fees

If you filed for divorce using the litigation method, you might have significant legal fees incurred.   Unfortunately, most legal fees are not tax-deductible, but fees that you paid for advice regarding taxes are.

The Basics of California Divorce Mediation

Posted by: Gerald A. Maggio, Esq.

Divorce mediation Orange County; California Divorce MediatorsDivorce mediation is a popular method used by divorcing partners to settle their differences amicably. The proceedings involve a mediator who sits down with the two parties to discuss and solve issues. A mediator isn’t supposed to support one party over the other.  The mediator is neutral and impartial.

What role does a mediator play then? They are more like facilitators helping you and your partner come up with a settlement agreement. To help you understand what mediation is exactly, read on.

Can Anyone Use Mediation?

Mostly everyone can use mediation to dissolve his or her marriage, except for those who are victims of physical or emotional abuse. If you aren’t a victim of extreme circumstances, you should contact a mediator if you want to avoid a messy divorce. If you are still unsure about mediation, you should know that this method has many benefits.

What are the Benefits of Mediation?

Divorce mediation can provide you and your partner with numerous benefits such as these:

  1. It’s cheaper than litigation
  2. Both parties, together, decide what goes into the settlement agreement
  3. Mediation is confidential, no record is kept of the sessions
  4. It’s a collaboration between both parties so both parties leave satisfied
  5. Both parties can still visit a lawyer for additional advice
  6. Instead of the court controlling the process, both of you control it
  7. Mediation improves communication between the two of you, which helps you avoid conflicts in the future

In addition, it’s important that they compromise and not stay rigid when deciding on a solution to resolve an issue. Also, remember that mediation will only be successful if both partners are equally willing to put their differences aside and discuss issues.

Tips to Make Your Mediation Sessions a Success

If your partner has suggested that you both should try mediation, don’t brush the suggestion off. Instead, research on what it is or talk to a mediator to find out more. Most sites will tell you that divorce mediation is a powerful process that actually works and they are right.

However, the process won’t work if you visit the mediator with a negative mindset to attack every suggestion your partner gives you. Use this time to discuss everything that’s on your mind such as property disputes, child support and child custody, among others. Hence, if you are seriously considering this option, follow these tips to make your sessions a success:

  1. Involve yourself in the discussion
  2. Don’t hold back, voice your concerns
  3. Compromise on certain issues
  4. Remember that the primary goal is to resolve issues, not create more
  5. Keep your tone pleasant
  6. Don’t lash out at your partner
  7. Be patient and listen

What are the Benefits of Divorce Mediation in Child Custody Cases?

Posted by: Gerald A. Maggio, Esq.

Top Divorce mediators in Orange County; California Divorce MediatorsThink about your children when you are in the midst of divorce proceedings. If you have children, they should be your primary concern. They are young and impressionable and may not handle divorce well. You don’t want to see them in tears, hurt, or act out in school or at home. If you both continue to argue in front of them, children are more likely to lash out at you, their siblings, teachers, or friends. When it comes to taking custody of the kids, their behavior may get worse. What can you do ease the situation? You can choose divorce mediation to settle your differences like mature adults, if not for you, then for the sake of your kids. Here is how choosing divorce mediation will help:

1.    Divorce Mediation is best for Your Kids

Divorce mediation lets you and your partner focus on the well-being of the kids rather than deciding who the better parent is. Fighting over your children in court or when around them is not going to help them. Day to day, your kids are going to be affected by the on-going situation developing between you and your partner. Divorce mediation will help bring closure to your children, as it will help develop a parenting plan that you both decided together during your sessions.

2.    Divorce Mediation is a Neutral Process

The mediator doesn’t pick sides when deciding on custody. The mediator is there just to listen and assist the parties in coming to agreement.  After hearing both of your arguments and solutions, the mediator along with you and your spouse will assist you and work out a solution.

3.    No One is Blamed

Divorce mediation doesn’t put the blame on one party, as in order for mediation to even work, both partners have to work with each other. Instead of assigning blame, you both will be saying what you both think is the right choice for your kids.

4.    Divorce Mediation Focuses on Your Children’s Future

As parents, you both deeply care for your children and wouldn’t want anything to harm them. The only way you would do that would be to create a friendly relationship with each other.  Only then are you able to create a stable and loving environment for your children to grow up in.

5.    Divorce Mediation Decreases Stress

Divorce for both spouses and a child is a stressful time. Divorce mediation works to reduce that stress by providing you with the proper tools to come to a resolution. Your children will be happy to see their parents going about the divorce with a clear head and less stress.

How is Child Support Determined in California?

Posted by: Gerald A. Maggio, Esq.

Orange county divorce mediation; California Divorce MediatorsChild support is ordered by the judge granting one partner the right to receive money from the other.  The partner who has more custodial time of the child(ren) usually seeks child support. However, child support laws differ from state to state so the divorcing parties need to ask their attorney about what the laws are in their state. If you live in California, then you need to have some understanding of the law.

Child Support Laws in California

Judges have to follow specific guidelines when deciding how much child support one party has to pay. They consider these factors when deciding on the amount payable:

  • Gross income of each parent
  • Number of kids
  • Percentage of time each parent spends with the kids
  • Where one party is paying mortgage interest and property taxes on a property
  • The medical insurance premiums paid each month and by whom
  • Whether one party is in a union and pays union dues and mandatory retirement each month

Courts use a computer program, such as Dissomaster or Xspouse, which are based on the California formula for child support to calculate monthly child support payments.

Determining Income

Each partner provides the court with their gross income, which the court uses to determine the gross annual income and divides it by 12 to get the monthly amount.  For your knowledge, gross income can consist of:

  • W-2 income (salary and bonuses/commissions)
  • Rental income
  • Interest
  • Pensions
  • Social Security benefits
  • Disability Insurance benefits
  • Workers Compensation benefits
  • Unemployment Insurance Benefits
  • Investment income
  • Trust income
  • Royalties
  • Dividends
  • Income from Owned Business(es)

What Actions does the Court Take if the Partner is Unemployed?

Some people may quit their job to show the court that they are unable to provide the ordered child support payments. If this scenario comes to the court’s attention, it will consider the amount the partner was earning prior to quitting their job and otherwise is able to earn and calculate child support using that. Before ordering that, the unemployed partner will have to provide the court with proof stating that there are available jobs that he/she is qualified to apply.

Determining Timeshare

The court looks at what the regular weekly custodial schedule is, along with the annual holiday and vacation schedule to determine the percentage of custodial timeshare for each parent.  The most accurate way to determine such percentages is to break down each party’s custodial time into hours and then divide by the number of hours in one year (8,760).

You should always consult with an experienced divorce mediator or attorney to fully understand what child support you can expect to pay or receive.

Considering Divorce Mediation When Finances are not Your Strong Suit

Posted by: Gerald Maggio

20847599_mlIt can be uncomfortable knowing that the spouse you are divorcing is better-informed about family finances or more financially savvy than you. Frequently, less-savvy spouses feel that they must hire an independent attorney to litigate the divorce in order to get a fair settlement. Unfortunately, the amount of that settlement is often significantly reduced or totally wiped out by the attorney’s fees that pile up during litigation.

Fortunately, less costly options exist for those who would like to save money and time by using mediation, but who also need help in assuring that they can get a fair financial agreement.

One option is to hire a Certified Divorce Financial Analyst (CDFA). A CDFA can help a divorcing party gain a clear understanding of present, short-term and long-term financial issues. Hiring a CDFA early in the process can help individuals feel more confident throughout the negotiation process.

Those who want to proceed without hiring a CDFA may find a simple discussion of concerns with the mediator to be highly effective. Divorce mediators are trained to handle highly complex financial situations and to explain those situations fully to divorcing parties. 

A good divorce mediator will not move forward with an agreement if he or she feels that both parties do not understand it fully. Alerting the mediator to a lack of financial knowledge is often all that is needed to ensure that all financial issues will be explained, explored and fairly settled.

How to Divide Assets during a Divorce

Posted by: Gerald A. Maggio, Esq.

Orange County divorce mediation; California Divorce MediatorsOver the years, you and your partner acquired many things together, but now that you are in the midst of a divorce, it’s time to divide the assets. Deciding on who gets what is a difficult task to tackle successfully. Depending on the number of years you were married, dividing the assets can become an even more complex process. Where there is property, there will be disputes.

How to Avoid Angry Partners? Play Nice

Disputes over assets have been going on for years between divorcing parties. The outcome of fighting over assets isn’t a satisfactory one, as by the end of it, both are bitter, exhausted, and may not have gotten what they really wanted. Their lawyers probably fought ferociously to get their client the best deal, but one person’s lawyer was just a better arguer. So, is there a better way to handle the division of assets? Of course, there is.

Both of you can sit together and make a list of all the assets in a good-natured way. Usually, partners use their attorneys to send the other partner a message, but that only makes things worse and may even delay the process. Instead, coming up with an agreement together will help speed up the divorce proceedings. When both parties refuse to meet up alone then they should go for divorce mediation.

Hire a Divorce Mediator

When both partners refuse to see eye to eye, they may need a push in the right direction. They need the assistance of a divorce mediator to facilitate communication amongst them. Through divorce mediation, both parties will be able to come to an agreeable resolution regarding the distribution of assets. Later, they can take it to a divorce lawyer for a second opinion. However, if you choose litigation, the process of dividing assets such as house and car will differ.

Dividing a House and a Car

In many circumstances, judges can award the house to the partner who has primary custody of the kids. If children are not involved, dividing the house is a major issue which most couples solve between themselves or by putting it on the market. The next issue that arises is dividing the cars.

Regardless of who owns the vehicle, in a marriage they become marital property. The first thing that people look at is to figure out the car’s market value, which can be determined by Kelly Blue Book or other online car valuation websites.  If you own a leased car, the car is more of a financial liability than an asset.  In addition to dividing cars and the house, you need to divide household items.

Dividing Retirement Benefits and Co-Owned Family Business

Working people often don’t believe that their partner is entitled to their retirement benefits. However, this is a common misconception because just like with vehicle ownership, retirement benefits are community marital property. With joint businesses, a person can buy their partner’s share or provide them with financial compensation.

Three Practical Ways to Prepare for Divorce Mediation

Posted by: Gerald Maggio

28416853_mlWhile it is true that divorce mediation can save time, money and heartache, mediation won’t skip over the details to get to a resolution. Mediation is a comprehensive process that examines all of the relevant facts of a couple’s situation thoroughly.

One of the best things that divorcing parties can do ensure that mediation moves forward smoothly is to devote some time to preparation. While it is ideal if both parties have taken steps to prepare, it still helps the process along if at least one of the parties comes well-prepared.

1. Begin gathering documents.
All divorce processes require a hefty amount of paperwork, and nothing creates a speed bump like missing information. Ask your mediator for a complete list of the documents required, identify those not in your possession and request them immediately. Obtaining records can be a lengthy process, and divorcing parties who don’t emphasize their collection can find themselves growing frustrated with the haphazard process that can result.

2. Find and use a co-parenting communication tool.
A number of online communication tools exist for planning and communicating about the practical details of family life, and some of them are uniquely designed for separated or divorced parents. Co-parenting tools like Our Family Wizard can reduce conflict and misunderstanding while helping keep communication drama-free. With effective, practical co-parenting tools in place, mediation can move forward smoothly.

3. Create a divorce mission statement.
Write down your goals for yourself and your family through the divorce. If you are having trouble doing this on your own, we suggest getting some context: talk to a therapist, watch a documentary about divorce or read a book. Outside references can help you articulate what you do and do not want. We have found that divorce mission statements help participants stay focused, making the process easier and the outcome more successful.

6 Factors That Will Make You Want To Pick Divorce Mediation Over Litigation

Posted by: Gerald A. Maggio, Esq.

Divorce mediators Orange County; California Divorce MediatorsIf your marriage is in trouble and you are thinking of separating permanently from each other, are you thinking of choosing litigation or divorce mediation? If your answer is litigation, after reading this article, you may change your mind. Read over the six reasons why divorce mediation reigns supreme over litigation:

1.    Why Divorce Mediation is the Right Option

Even though you are not on speaking terms, you both want something out of this divorce. Litigation will not do that for you. Litigation picks sides with lawyers warring with each other to provide what is best for their client. Fair enough, if you are ready to come out as a loser, one party may leave the courthouse distressed, in tears, or anger. So, what will satisfy you both? Divorce mediation. Through divorce mediation, couples can come up with their own terms and conditions regarding all the vital issues regarding the dissolution of their marriage.

2.    The Ball is in Your Court

You with your partners will sit down with the mediator to talk about the best ways to tackle issues plaguing your marriage. Everything from finances to the custody of kids (if you have any) is going to be discussed. Unlike in litigation where the lawyer is influencing your decision, the mediator will sit there to listen to both of your arguments, and then reach an agreement. You will have a say in the proceedings and what the mediator needs to omit.

3.    Your Bank Account is Going to be Preserved

Are you ready to put all your savings on the line? You probably are not, but if you choose litigation, expect to shell out a lot of money. On the other hand, there is divorce mediation, a simpler and less costly method to call a marriage off.

4.    The Length of the Sessions Are Flexible Based on Needs

With divorce mediation, the parties have flexibility with the mediation sessions.  If progress is being made in a particular session, then there is flexibility to keep the session going.  If the parties are emotional or the issues in a particular session are tough on the parties, then that session can be ended, to come back another day.

5.    The Divorce Process is Shorter

With litigation, you can expect the divorce proceedings to be lengthier. You want to move on with your new life as soon as possible, but that can be difficult if coming to an agreement or a litigated resolution takes months or years.  In mediation, the parties ultimately have the power to reach a resolution more quickly than a litigated divorce.

6.    Divorce Mediation Yields Good Results

Most importantly, each session will provide you with some closure with issues looming on your mind. Your partner and you will be able to come to an amicable agreement and will likely still be able to remain friendly and have some respect for the other.