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.

5 Questions about Divorce Mediation—Answered!

Posted by: Gerald A. Maggio, Esq.

Orange County divorce mediators; California divorce mediatorsAre you and your partner planning to go your separate ways? If you are, do you want to end the relationship on good terms? If you answered yes again, divorce mediation is the perfect method for disputing couples to settle their issues.

However, not everyone prefers this method, as most are unaware of the benefits it provides. Moreover, they may have several questions regarding the practice. Here are the answers to the most-asked questions:

1.    Do both Partners Choose a Mediator together?

In order for mediation to successfully work, both partners need to approve the divorce mediator before beginning mediation sessions. Ask your partner if they have any one in mind that they would like to go to or give suggestion of your own. After acquiring the names of the mediators in your area, interview them. Remember that at any time during the sessions, you can cut ties with the mediator and move on to another one.

2.    Can You Make a Switch to Another Mediator?

If you don’t like your mediator or the way he/she conducts sessions, choose another one. It’s not mandatory to stick to the same mediator throughout the divorce process. Voice your concerns to your partners about the mediator telling them why you want to employ the services of another one. If your partner gives you a suggestion to go with this one, you may feel inclined to talk with the mediator in the absence of your partner. In order to solve issues, you need to feel at ease talking about them in front of the mediator.

3.    What Issues can Mediation Resolve?

Divorce mediation can solve numerous issues such as parenting time, child custody, visitation time, child support payments, amongst others. Although traditional divorce can solve these issues, compared to the traditional option, this is much cheaper and at times, more effective depending on the reason to divorce.

4.    Is Divorce Mediation Cost-Effective?

Not everyone is able to pay such a huge amount to get a divorce. Most people have to get loans from the banks to pay for all their legal fees, but this isn’t the case with divorce mediation. Divorce mediation is a cheap option to get out of a marriage. If you are a parent and getting a divorce, this option should be at the top of your list, as it charges you less than going to court.

5.    Is Divorce Mediation Cheaper then Court Fees?

As discussed in the previous point, divorce mediation is significantly cheaper than going in front of a judge to grant you a divorce. With divorce mediation, you won’t have to go to court or pay attorneys to make a case against your partner. In addition, divorce hearings can be quite cruel especially if the other partner is out to get you.

Top 5 Tips On How To Prepare For Divorce Mediation

Posted by: Gerald A. Maggio, Esq.

divorce mediators orange county; California Divorce MediatorsOnce you are determined that divorce is your only option in your situation, you should consider divorce mediation.  Divorce mediation is an amicable, cost-effective way to resolve your divorce without destroying the financial future of your family and avoids the stress and emotional turmoil of traditional divorce litigation.  Here are some important tips to effectively prepare for a successful mediation of your divorce case.

1.  Make The Decision To Mediate

Both you and your spouse should make a determination as to whether you can mediate your divorce case.  The only way that divorce mediation can be successful is with both spouses wanting to mediate.

2.  Get Your Financial Records Organized

Once you have decided to mediate your divorce, the next step is to get your financial organized.  That includes current bank account, mortgage, retirement account, and loan monthly statements.  Also, start taking an inventory of all of your household possessions and belongings, and all other assets and debts of the marriage.  Finally, pull together your pay receipts, income tax returns, and other documentation concerning the parties’ incomes.  If you or your spouse is self-employed, gather corporate tax returns and profit-loss statements.

All of these records will be necessary to complete the financial disclosures that are required to be done and served in all California divorce cases.  Such records also help determine the financial and property issues to be addressed in mediation.  The sooner those records are available, the sooner that mediation can proceed.

3.  Create a Mission Statement For Your Divorce Mediation

Create a “Divorce Mission Statement” about what your goals are for the resolution of your divorce case. It will help you focus on how to achieve the best resolution of your case in divorce mediation.  You and your spouse should really give some thought about such statement, which will help focus the purpose of the mediation and the issues that demand the most priority.

4.  Make Your Children Your Top Consideration

Be sure to be honest with your children about divorce, but talk with them and your spouse together about it.  Also, limit personal feelings and anger with your spouse in front of your children, to avoid any lasting negative impact on them.  Above all, make sure that you and your spouse show your children that they are loved and supported.  You and your spouse will always be parents to your children, and while they are still minors, you will both need to communicate and work together to co-parent effectively.

5. Research Divorce Mediators Before Choosing One

It is important to know that not all persons who do divorce mediation actually have training in mediation or in divorce mediation.  Moreover, many persons currently mediating divorce cases are not even lawyers.  Although it is currently not a requirement, you generally want the person who will mediate your divorce case to have the legal background in family law and divorce to be knowledgeable in this area of law and the experience to handle the issues to be addressed in mediation.

Why Choose Divorce Mediation over Divorce Court?

Posted by: Gerald A. Maggio, Esq.

Orange County divorce mediation; California Divorce MediatorsFor most divorce cases, divorce mediation can usually be the best way to resolve disputes amicably and out of court.  Here are several reasons why.

Time and Scheduling

Court sessions can be lengthy and time consuming, but the judge may only listen to what you have to say for sometimes less than 5 minutes and you may get only a few minutes to argue your position.

Divorce mediation, on the other hand, depends upon you.  You are in control of the schedule being followed and the issues being discussed.

Reduced Costs

Court appearances and traditional litigation can result in quite a hefty legal bill. Even if no progress is made, the attorney will usually bill you by the hour and this may make the entire affair a lot more expensive than your anticipation.

Divorce mediation lets you control the total costs of the process which is usually a fraction of what you would have paid in case of court proceedings.

Flexibility in Decision-Making 

In court proceedings, you may be required to make the decisions about everything from the settlement to child custody on the spot, often in front of a crowded audience and the outcome may be unpredictable as well.

On the other hand, divorce mediation lets you decide with a calm and relaxed approach as per your own schedule, because these are decisions that will affect you and your family for the rest of your life and a little rush can cost you in more than just dollars.

Privacy and Confidentiality

In courts, not only your family matters are exposed to a room full of strangers, but all court files are also public and available online and anyone can see them.

Divorce mediation can be fully confidential.

Avoid Emotional Turmoil

Divorces in courts are stressful in nature- there may be arguments, heated discussions and even personal attacks that may result in emotional wounds for the spouses as well as children that take years to heal.

Mediation is faster and a much better option for families as discussions are held in the presence of a skilled mediator and healthy communication is encouraged between both parties. Plus, if things don’t work out, there is always an option to go to court.

Are There Tax Implications When Selling The Marital Residence?

Posted by: Gerald A. Maggio, Esq.

Divorce mediators Orange County; California Divorce MediatorsUnder current Federal tax law, if you have lived in the same house for two of the last 5 years as your principal residence, individuals are exempt from capital gains taxes of up to $250,000 in taxable profits on the sale of your house, and $500,000 in taxable profits for married couples.

For any profits above these amounts, capital gains taxes are assessed of 20% would be assessed, which married couples would be equally liable for.

There are occasions where one of the spouses involved in a divorce wishes to “bifurcate marital status” while their divorce is pending, meaning that the Court can restore the parties to single persons while the rest of the dissolution case is still pending. For example, one of the spouses may wish to remarry, and they cannot legally do so without first terminating their marital status.

However, the parties must first determine the approximate amount that their residence has appreciated in value since they bought it, because if one spouse decides to keep the marital residence and marital status has previously been determined, that spouse would be considered a single person for purposes of state and Federal tax laws and thereby only be entitled to the $250,000 tax exemption instead of the $500,000 tax exemption. The tax implications are be substantial and should be considered in any settlement negotiations.

You should always consult with your tax professional before making any decisions in your divorce case.

What Are The Types of Property Divided In California Divorces?

Posted by: Gerald A. Maggio, Esq.

Orange County divorce mediation; California Divorce MediatorsUnder California law, most property and debts of the marriage will generally be characterized as either community property or separate property.

“Community Property”  is all real property (i.e. real estate) or personal property that you and your spouse acquired through labor or skill during the marriage (i.e. from date of marriage to date of separation).  Community Property means that each spouse has a one-half interest in such property, regardless of whether property is in only one of the spouses’ names or whether only one of the parties worked during the marriage.

In addition, debts incurred during the marriage are generally considered community obligations, even if the debt is in only one of the spouse’s names. There are some exceptions to this rule, such as student loans, which are considered the separate property debt of the spouse who incurred such student loans because they also get the benefit of the education obtained as a result of such student loans.

Pursuant to California law, Community Property assets and debts are generally divided equally between the parties. However, the parties can agree to a division of property that favors one spouse over the other.

It is highly advised that any marital debts be paid off from the proceeds of the property division so that both parties can start over with a “clean slate” and also so that there is no risk that the other party may default in paying a debt that they agreed to do in the divorce. However, this is not always an option in situations where the parties have more marital debts and obligations than assets.

“Separate Property”  is property and debt acquired prior to marriage, property acquired and income earned after date of separation, and any gifts or inheritances received before, during or after marriage. Such property is not divided in the divorce because separate property is not marital property.

In addition, Family Code Section 2640 entitles the reimbursement of a spouse’s separate property contribution of the down payment made on a community property home and any improvements made to such community property home, if you can prove such payments with sufficient documentation.

Unfortunately, property division can become complicated in situations where separate property has become commingled (i.e. mixed) with community property, such as bank accounts. Moreover, there can be situations where one spouse contends that an asset is their separate property asset while the other claims that there was a “transmutation” of the character of the property from separate into community property. Such determinations can be complicated and you are best advised to seek legal advice to deal with those issues.

Community Property and Debts Must Be Divided in A Final Divorce Judgment Order

Posted by: Gerald A. Maggio, Esq.

Divorce Mediators in Orange County; California Divorce MediatorsDividing community property and debts is one of the primary goals of a divorce settlement. California is a community property state, which means that most property and debts acquired during a marriage are considered to be community property by default.

When divorcing, it is important to remember that community property and debts are still owned jointly by the couple until a settlement agreement is reached and the judge issues a final order based on that agreement. This is true even if the couple has already come to a personal agreement on how property should be divided. Therefore, financial actions should be performed with caution until the final order is issued.

Date of Separation

Only property and debt acquired by the couple over the course of the marriage is considered community property; property and debts acquired before or after the marriage is separate property. Therefore, it is very important to establish the date of separation.

After the date of separation, it is best to keep new earnings and debt separate as much as possible. For example, each spouse should open their own bank account and credit card to handle their separately following the separation.

Dividing Assets and Debt

The distribution of assets and debt must be equal when divorcing. Ideally, the couple will be able to reach a settlement agreement that outlines who receives which assets and which debts. One spouse might receive the condo and the other all of the furniture and cars, or the divorcing couple may sell all property and split the proceeds.

Debt can be used to even out the division of property. For example, the spouse who gets the house may also take over more of the debt. It can take some creative thinking to distribute assets and debts evenly.

Debts should be divided carefully in order to ensure that only the spouse who is assigned the debt in the divorce settlement is legally responsible for that debt. For example, if the credit card debt is in both spouses’ names, it may be necessary to do a balance transfer to a credit card that only has the name of the spouse responsible for the debt.

Importance of Transparency

Each spouse must be transparent about their financial situation as the divorce proceeds, both for the sake of separation of property and for the sake of establishing spousal and child support if necessary.

Divorce requires full financial disclosure of the assets and debts owned by each spouse, under penalty of perjury. In more complex divorces, such as cases where one spouse owns a business, forensic accountants may be hired to gather the information for an accurate financial picture.

Dividing community property and debts can be a challenge even when both parties are committed to reaching a settlement agreement through divorce mediation.  For further information or to schedule a consultation with Orange County divorce mediator Gerald Maggio of California Divorce Mediators, please call (949) 553-0911 or visit www.cadivorcemediators.com.

Post-Divorce Mediation: A Collaborative Approach to Dealing With Conflict After Divorce

Posted by: Gerald Maggio

Divorce mediators in Orange County; California Divorce MediatorsFor many families, a divorce settlement is not only the end of one story, but also the beginning of several new ones. Children will get older, lives will change, and new circumstances and opportunities will arise.

With those changes, practical and legal issues will arise. What if a parent wants to move away while the children are still young? What if one of the parties’ financial situation changes substantially?

Change and conflict do not have to create family turmoil and stress. Divorced spouses can plan to collaboratively handle and resolve conflict. Returning to mediation can be a powerful tool in the process of keeping post-divorce life moving forward.

If one or both parents wishes to modify the custody agreement, the return to mediation should be automatic. If they arrive in court without a complete agreement about every aspect of the new arrangement, the court will mandate the parents to see a court-appointed mediator.

Mediation can protect children from emotional damage by providing a collaborative, rather than combative, context for working through disagreement and creating an acceptable arrangement.

Changes in support can also lead a family back to mediation. When employment or financial circumstances change, support issues can arise. Disagreements over money are unpleasant, but spending a lot more money in court fighting over money is worse for everyone — and often needless.

Private divorce mediators are trained to help divorced spouses work through financial arrangements productively. Post-divorce support mediation avoids the long court process and puts the spouses in control of the outcome.

For further information or to schedule a consultation with California Divorce Mediators, please call (949) 553-0911 or visit www.cadivorcemediators.com. California Divorce Mediators is an experienced Divorce Mediation and Family Law firm serving the Orange County and Riverside areas and neighboring counties, serving individuals, couples and families with legal issues including divorce, legal separation, spousal support, child support and child custody issues.

What To Know About Child Support In California

Posted by: Gerald A. Maggio, Esq.

Divorce mediators in Orange County; California Divorce MediatorsAlthough one party may have to pay child support to the other parent, it is important to understand that California law mandates that both parents have an equal obligation to support their child.

Furthermore, California law provides guidelines to courts to determine the appropriate amount of child support, based on a formula that is incorporated into a complicated child support calculator software program, such as Dissomaster or XSpouse.  The calculation factors in both parties’ gross monthly income (i.e. employment income, investment income, and rental income all constitute “income”) and the percentage timeshare each parent has with the child.  amount of time each parent spends with the child.  In order to be able to get an accurate child support calculation, you need to do your homework:

1.     Gather Your Financial Records: 

You will need all documents containing information on your income, deductions, and tax information, such as:

  • Tax returns
  • Pay receipts for the last 2 months
  • W2’s or 1099’s (Schedule Cs and profit-loss statements if self-employed)
  • Disability or unemployment benefits
  • Monthly childcare expenses
  • Monthly health insurance premiums
  • Mandatory retirement and union dues contributions (if in a union or state employee)
  • Necessary job-related expenses not reimbursed by your employer
  • Spousal support paid in other relationships
  • Extraordinary health care expense
  • Child support paid for children of other relationships

2.      Consult with an Experienced California Family Law Attorney.

Although there are free child support programs online, the calculations for child support can be complicated and the free programs are not always the most accurate.  Virtually all family law attorneys in Orange County and in California should have one of the main child support software programs that are used by the courts, while allows them to give you more accurate calculations.  Working with an experienced family law attorney will help better determine that you are paying or receiving the appropriate amount of child support.

3.     Determine If You Are Eligible To Claim A Hardship Deduction

Generally a parent can claim a child from a different relationship as a hardship to lower their child support obligation if  (1)  The child is the natural or adopted child (i.e. not a steparent) of the party, and (2) the child eligible for a hardship deduction must reside with the parent.

4.     Understand When You Can Seek a Modification of a Child Support Order

A  child support order in California can be changed if there has been a substantial “change of cirsumstances” since the original support order was made. A change in circumstances can include:

  • The involuntary loss of a job;
  • Incarceration of a parent;
  • Upward or downward change in income;
  • Significant change in the amount of custodial timeshare that the child spends with each parent.