The 3 Golden Rules of Divorce Mediation

Posted by: Gerald A. Maggio, Esq.

divorce mediation attorneys in Orange CountyMany couples do not want to go through divorce litigation. Instead, they want to try and resolve their divorce out of court. But in order for divorce mediation to work, the spouses have to forget their bitter differences and sit and discuss all issues related to their divorce. Not only is the process of mediation a lot shorter than a divorce, but it is also a lot cheaper.

There are 3 golden rules that are followed in a divorce mediation process:

  1. A divorce mediation is not a procedure where evidence is required to resolve conflicts. The professional mediator (neutral third party) will use his or her knowledge and experience to help you and your spouse to reach an understanding and an agreement. You will be encouraged to compromise on certain issues and reach a resolution.
  2. A divorce mediation cannot be expected to resolve every single conflict between the spouses. Mediators can successfully resolve most of the issues but sometimes there are certain issues that can be resolved only with the help of the family court. If you can resolve even some of the issues in the mediation, you will be saving a lot of money. Patience is a very crucial part of any mediation.
  3. In a divorce mediation, both the spouses have to be willing to listen to each other and to the mediator. Most importantly, you will have to be active participants. You can reach a settlement only if both of you are willing to participate and act.

You and your spouse should be ready to follow these 3 golden rules if you want a mediation. But how do you determine if you are ready for a mediation or not. You should be ready to do the following –

  • Disclose your and your spouse’s income through verifiable supporting documents.
  • Be willing to discuss issues related to your children. Visitation rights and co-parenting are some of the issues that need to be resolved.
  • Be honest with each other about separate and community property and assets.
  • Be willing to reach compromises and make mutual decisions and not leave it to the judge.

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

The Different Steps of the Divorce Mediation Process

Posted by: Gerald A. Maggio, Esq.

Orange County divorce mediators; California Divorce MediationIn California, as anywhere else in the USA, the divorce mediation process has 3 steps to it. The 3 steps include orientation, disclosure and resolution. All the steps have been discussed here.

Step 1 – Orientation

In the first step of the procedure, the mediator will familiarize you and your spouse with goals of the mediation process. It will also ensure that your mediator is aware of the various issues and facts that need to be resolved in your case. Both you and your spouse will have a say in all the matters that will be discussed. If the mediator can familiarize himself with your particular case, it would be easier for all of you to work towards a co-operative resolution.

Your mediator would want to know the following things –

  • The length of your marriage and the marital style of living.
  • The issues that are most important to you and your spouse, i.e. the issues that you would like to resolve. Also the issues where you and your spouse have an understanding.
  • You and your spouse’s income from every possible source. The present and the predicted future financial situation of both the spouses. Your assets, property, debts, liabilities, and expenditures.
  • Both your roles in the caring of your children.
  • Both your work schedules and any other commitments outside work.

Step 2 – Disclosure

The second step in the mediation process requires both spouses to declare or disclose their assets, income, debts, and expenses of the family estate to each other. The declaration of disclosure has to be absolutely correct and accurate. Revelations regarding all community and personal property have to be made. Your mediator will help both of you to fill declaration forms that provide the details of your marital property, debts, assets, income and expenditures. The declaration, as required by California law, will be exchanged with the other party and the mediator.

Step 3 – Resolution

The last step is possible only if you and your spouse have communicated effectively, have been successful in being honest with each other and have truthfully disclosed your finances to each other. It means that you are now ready to reach an agreement on the issues that are most important to each other. Once you have reached an agreement and resolved your issues, the mediator will prepare a final settlement document. It will be reviewed and the mediator will consider both your inputs.

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

Understanding Family Law Emergency Restraining Orders

Posted by: Gerald A. Maggio, Esq.

Restraining orders Orange County; California Divorce MediatorsNot all family law cases can be mediated and resolved amicably, particularly where domestic violence or child abuse is involved where emergency restraining orders may be necessary to obtain.  Emergency restraining orders are granted only on certain instances such as a threat or an incidence of domestic violence or child abuse, child support and custody disputes, alimony requests and so on. The California Family Court, though, does not term everything under Family Law as an ‘emergency’.

Domestic Violence

If you have been a victim of domestic violence, you should ask your lawyer to file a domestic violence restraining order petition on your behalf and request for a restraining order against your spouse immediately. You will be granted a temporary emergency order till the time of the hearing on the domestic violence case.

During the hearing, you and any other witness will have to testify. Your lawyer will provide the court with documentary evidences. The court will then give a verdict that will either revoke the temporary emergency restraining order or will make it a permanent one. Most attorneys ask for a restraining order of 3 years. If there have been multiple instances of domestic violence, the court can increase it to 5 years.

If you are contesting a restraining order for domestic violence, you need to respond within 24 hours or less of receiving the notification. You will be barred from contacting and communicating with your spouse and children. You may also have to pay a support amount. You need to provide the court with evidences and testimonies from witnesses that prove you have not carried out the alleged act of domestic violence. You should declare your innocence under oath before the hearing.

Child abuse

An emergency restraining order for child abuse will immediately withdraw all visitation rights of the accused parent. Allegations of child abuse include instances of physical, sexual and extreme emotional abuse. Cases of emotional abuse are difficult to prove. Any parent filing a restraining order for child abuse should enlist the help of the local police and the child protective services.

If you are contesting a restraining order for child abuse, you must respond immediately and with great caution. You must gather witnesses for testimony. You must ask the court to appoint a forensic psychological evaluator and ask the alleging parent to depose.

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

Post-Judgment Modifications of California Family Law Orders

Posted by: Gerald A. Maggio, Esq.

Orange County divorce mediation; California Divorce MediatorsIt usually means the end of visiting the court and interacting with lawyers once a divorce has been finalized. But if the divorced couple has children, it does not mean an end to an emotionally ugly divorce case. It is because after a divorce has been granted, the divorced parents will have to deal with the issues of child support, custody and alimony.

A number of rulings from the divorce can be modified post-judgment. Some of these have been discussed here.

Child custody and visitation

Any parent can seek a modification to the final custody ruling. But you will have to prove to the court any significant change in circumstances that may have happened since the judgment. Also, you need to show that the newly proposed order will be in the best interests of the child. If a parent misses visitations but makes up for it later, you cannot ask for modification in custody.

If you want a modification of the custody and visitation rights, you have to make a showing of a “substantial change of circumstances” since the judgment was entered.  Also, a parent who feels that the other parent is not spending sufficient time with the child or is causing physical and emotional abuse can request for post judgment modifications.

Child support

You can also modify child support after a judgment. It can be done at any time if there is a change in the incomes (increase or decrease) of both the parents. But you, the parent, should be able to determine if the change in your income is permanent or not. Also, a slight change in income should not be a reason for seeking post judgment modification. Your request will not be entertained if the judges feel the change in income is not significant.

Alimony

If the divorce ruling was agreed upon by the spouses, then a modification of alimony post judgment is not possible. The amount of alimony awarded, though, can be modified. But it is not a very straightforward or simple process. The Court considers the 13 factors stated in the Family Code section 4320 and other related aspects to reach a decision.

Always consult with experienced divorce lawyers in California before requesting for post-judgment modifications or defending such requests. They will help you to plan a strong strategy and approach the court with a solid case.

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

Guidelines For Peaceful Co-Parenting With Your Ex

Posted by: Gerald A. Maggio, Esq.

child custody mediation Orange County; California Divorce MediationIn a majority of divorce cases, both the parties involved are caught up in a perpetual cycle of resentment and retaliation. Both partners are willing to go to extremes in trying to avenge the psychological damage a divorce brings to them. However, if a child is involved in a parental separation, the situation becomes even worse. In order to create a peaceful transition from a happy family to a single parent upbringing for your child, you need to ensure that the co-parenting is carried out amicably with the other parent.  There are a few co-parenting guidelines which you may follow in order to achieve minimum stress for your child.

Understanding your divorce settlement

Most of the co-parenting issues stem from a misunderstanding of the divorce settlement, which often leads to skewed notions about how one needs to carry out co-parenting. Asking questions regarding the visitation arrangement and having a sound understanding of its instructions is critical to a smooth co parenting procedure. Fighting over who will take the kid out on Halloween or what is the duration of the visit will be highly detrimental to the mental well being of your child. Since separate states have separate laws for visitation and custody related settlements, you need to consult your attorney and obtain a thorough understanding of what your divorce decree entails.

Think practical

It is understandable that in a highly hostile situation such as a divorce, the parties involved find it extremely difficult and draining to fight back their overflowing emotions. However, if you really care about the best interests of your child, it is utmost essential to do away with all lies, manipulation and resentment that might fuel your battle further. While it might seem tempting to vent all your pent up anger at every chance you get, it is best advised to remove all extreme emotions from your communication with your spouse.

Prevent any outside influence

It is best to keep your new spouse or partner out of the co parenting process with your ex. Asking your new boyfriend to pick the kids up from a dance class, will do no good in subduing the hostility with your ex. A replacement for your ex might actually be viewed as a threat to them, and might provoke unsolicited arguments. It is best advised to keep your new involvements away from co-parenting, until both you and your ex are emotionally detached in an entirety.

It is only when both parties become indifferent of each other’s existence, that the co-parenting actually becomes peaceful. Although, till the time both parties get affected by each other’s actions, the process might require a lot of effort from both sides, yet it is definitely worth a shot.

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

Understanding Alimony in California

Posted by: Gerald A. Maggio, Esq.

Orange County divorce mediation attorneys; California Divorce MediatorsAlimony is referred to as “Spousal Support” in California.  When a divorce is under process, the court might require that the partner with the higher income has to pay the other partner a certain amount so that they can cope with their current lifestyle.

The duration of alimony

Spousal support is usually paid for a predetermined period of time. It could be spread over a period of time or paid in full during a one time payment. The duration of the support period usually depends on the length of the marriage. If the marriage has lasted over 10 years, then the court most probably will not set a specific termination date for the support to end and both partners can request modification or termination of support at later hearings.  These days, judges don’t order permanent support even for long term marriages, although it is sometimes referred to as permanent support by attorneys.

How is spousal support calculated?

In California, the court can request for spousal support for any amount, after taking the needs of the other partner into consideration. The aim of spousal support is to maintain the financial status that was present during the marriage while also making the supported spouse independent. Certain courts have their own formulas for calculating the support amount. If the supported spouse has dependent children then child support will be in addition to the spousal support payments.

Before deciding the amount of the payments, courts usually take various factors into consideration. These include the dependent spouse’s current financial status, his/her ability to get and hold a job, the current job market, support required for the dependent spouse to get a vocational education or improve existing skills in order to get a stable job. Other factors like age, health and legal issues like domestic violence during the course of the marriage are also considered.

For periodical payments, the recipient is taxed for the payment while the sender can list it as tax-deductibles. Spouses can also have predetermined agreements to make sure that the tax scenario is beneficial for both parties.

Termination or Modification

If the spouses have a pre-written agreement not to modify the spousal support terms, then they are required to follow the terms. Otherwise, either partner can request for changes or termination of support. If either of the divorcees die or if the supported spouse gets remarried, then the spousal support will end.

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

How To Get a Stress-Free, Amicable Divorce

Posted by: Gerald A. Maggio, Esq.

divorce mediators orange county; California Divorce MediatorsDivorce is never easy, regardless of the age and financial status of the couple. They can however, be amicable and end with suitable conditions for both parties. This might be hard to believe but it is a possibility. Couples go through a lot during their marriages and even after that. Here are a few key factors to focus on when going through a divorce:

Acknowledging the failure of the marriage

If there are any hopes of getting through a divorce amicably,  both partners have to acknowledge that things aren’t working. This is a very difficult fact to accept as couples are more likely to want to keep working on a marriage. Over 48% of American marriages end in divorce for different reasons.

Infidelity, past conflicts and financial situations all take a toll on the marriage and partners tend to drift apart. The problem is, even after years of trying, partners refuse to accept defeat. Moreover, acknowledging the fact that the marriage isn’t going to work will put both partners on the same page and make divorce proceedings easier.

Counseling

Just because both of you have admitted that the marriage is coming to an end, doesn’t mean that there are no issues. Counseling helps reduce the tension and both partners get a chance to air out their feelings, outside of a formal setting. Sometimes, counseling can even help couples reconnect and make them want to stay together. In other cases however, the counselor acts as an impartial party for conflict resolution. It helps both parties stay civil and sane throughout the long process of ending a marriage.

Have set rules

Once the divorce has come through, former partners have to see each other regularly. Children, mutual friends, family relations all mean that both partners have to meet after separation. The key to being amicable during this process is to have rules about the new people in each others lives, arguments and children. These are usually formed during therapy and stop partners from resenting each other for the rest of their lives.  Constant conflict often results in serious implications for everyone involved, especially children.

In the end, an amicable divorce is not about solving all arguments 100% and moving on, it’s about learning to have controlled arguments and focus on a mutual solution rather than being right.

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

Reconciliation After Filing For Divorce

Posted by: Gerald A. Maggio, Esq.

Orange-County-divorce-mediators; California Divorce MediatorsA decision of divorcing your spouse does not really imply that it is all downhill from there forward. Although, a majority of the separating couples do not reconcile after they file a divorce lawsuit, in some cases it does happen. After filing for a divorce, a couple may realize that they might be making a wrong decision by parting ways. However, there are several concerns which border around the decision of reconciling after filing for divorce from your partner.

The legal ramifications

In the event that you decide upon a mutual reconciliation during the lawsuit proceedings of your divorce, you would need to consult your attorney regarding the steps to be taken to put a stop to the trial. Since the family laws are different for different states, it is important to understand the procedural ramifications of withdrawing a divorce petition in accordance with the specific laws of your state. Usually, a couple needs to pay a non-refundable initial filing fee for their divorce petition. However, if after stopping the divorce trial and reconciling, the couple again decides to separate, they would need to pay a fresh filing fee for their new petition.

Is reconciliation the thing for you?

Before deciding upon reconciliation, both the partners need to understand the implication of it. It is a mutual decision that requires genuine efforts from both the parties in nurturing their relationship with renewed vigor. In some cases, however, reconciliation is absolutely a big no. For divorces that stem out of mental abuse or domestic violence, reconciliation might be the worst option for your kids and even yourself.

Stay connected

If you see any rays of hope that might lead you to reconciliation with your partner, it is always advisable to maintain a good line of connection with them. Counseling is an option worth considering in your specific case. You may even want to ask your spouse to attend the counseling sessions with you. A professional counselor can actually help widen your viewpoint on divorces and reconciliations and might considerably guide you on the ‘how to’ of maintaining healthy relationships. If you think your case is not yet a lost cause and there is a little bit of hope for reconciling with your spouse, it is best advised to maintain a standard of civility when communicating with him/her.  It is never too late to give your relationship a second chance.

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

Legal proceedings In A Fault Vs. No-Fault Divorce

Posted by: Gerald A. Maggio, Esq.

orange county divorce mediation attorneys; California Divorce MediatorsMost of the states in America follow the concept of no fault divorce, wherein an individual seeking a legal separation or a divorce from their spouse has no need to prove their partner’s fault leading to the dissolution of their marriage. In such cases, the individual has to merely state the reason for the separation as either ‘irreconcilable differences’ or ‘irreparable breakdown of the marriage’. The court of law would then accept the individual’s lawsuit, and proceed with the litigation as per the general legalities involved in a divorce. In the event of a no fault divorce lawsuit, the other spouse’s refusal to the petition of his partner is also viewed as an irreconcilable difference, by the court. The State of California too follows the concept of no fault divorce. 

What is a fault divorce?

The concept of fault divorce is hardly recognized by any state in the present times. However, the ones that do function accordingly require the spouse filing a petition for a divorce, to furnish an authentic legal fault of his partner. 

What are the grounds for getting a fault divorce?

The states recognize a few statutory grounds, on which a fault divorce can be granted to an individual. We are listing a few of the actions of a partner that might be viewed as the basis of procuring a divorce by the other partner.

  • Inhuman or cruel treatment.
  • Abandonment of the plaintiff by the defendant for a specific length of time.
  • Prison confinement of the defendant for a specific time period after the marriage.
  • A physical disability, of the defendant, that restrains him from having sexual intimacy with the plaintiff.

What are the legalities involved in a fault divorce?

In the event that both the partners are looking for a fault divorce, they both need to prove in the court of law, the incompetency of each other. In such case, the court decides the verdict through ‘comparative rectitude’, which implies that the court will determine the partner who is least at fault of the two.

The defendant of the fault divorce lawsuit has the right to either entirely condone the blame put on him by the plaintiff, or present a defense counsel to refute the charges on him. A few of the major defenses filed against a fault divorce are connivance, condonation, recrimination, provocation and collusion.

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

Differences between Separation and Divorce

Posted by: Gerald A. Maggio, Esq.

Orange County divorce mediation; California Divorce MediatorsMany people get confused between the terms ‘separation’ and ‘divorce’. In a divorce, the marriage has legally broken up and the married couple is separated. In a separation, the couple lives separately but they may or may not still be married. Separation is of different kinds.

The division of property and other assets depends on the kind of separation the couple has agreed on. Each state has its own rules regarding division of property. The various kinds of separation have been discussed here.

Trial separation – Couples living apart for a short period on a trial basis go through trial separation. It is during this period that they decide if they want to live separately on a permanent basis or not. Even if they decide not to start living together, their assets and debts from the trial period is considered as marital property. Such a separation is not recognized legally.

Living apart – Couples who do not live under the same roof anymore are living apart. Living apart (with no intention to get back together), in some states, changes the property rights of the couple. While some states will consider the assets and debts during the living apart period as separate, other states will consider the property as joint until a divorce has been legally filed in a court. Some states make it mandatory for couples to live separately for a certain period of time before they can file for a divorce.

Permanent separation – It is when the couple decides to separate permanently. A permanent separation may come after a trial separation or the couple may separate without any intention of reuniting. The assets or debts after a permanent separation are considered to be separate. But certain debts incurred may be considered as joint if they are related to expenditures for the children or for the maintenance of the marital home. A permanent separation may not be legal if nobody files for a legal separation.

Legal separation – It is somewhat like a divorce but not quite so. Many a times, couples do not want to divorce for financial, religious, or other reasons. But they approach a court to grant them a separation and divide their property as would be done in a divorce. The court also gives a ruling on alimony, child custody, child support, and visitation rights.

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