Going for A Collaborative Or Mediated Divorce

Posted by: Gerald A. Maggio, Esq.

divorce mediation attorneys Orange County; California Divorce MediatorsDivorce courts in California work under the same rules used to courts to tackle other disputes. It is seen  frequently that such courts are unable to function properly in solving disputes related to divorce. Collaborative or mediation law can turn out to be better in such cases.

Court alternatives

Divorce issues can be resolved by three ways. All of them are regarded as much superior to the court methods.

Work out solutions together

Both you and your partner or spouse may sit down and then reach agreements on how the possessions and debts be divided. You two should also decide whether you or your spouse will pay support to the other and the amount of money. In case you two have children, how they will be raised. To some couples, these can be easily solved and could be done in a single meeting. Many couples may find the proceedings difficult and may complete this task over a number of meetings.

Mediation

In such a case, the couple meets with another neutral person. This third person is termed a mediator. This person will help the both of you through the complete process of reaching a particular agreement on possessions, child custody, debts and support.

Collaborative law

Both your spouse and you choose a specially trained attorney who is proficient in collaborative law. This divorce method is growing in popularity. This process is dependent on a pledge made in writing by both spouses where they reach the agreement on divorce terms without visiting a court. It will be agreed that in case either party disrupts the agreement, and moves towards a court proceeding, both the attorneys should withdraw from that case and the spouses should hire new lawyers to restart the process.

When court is the best option

There can be situations where these alternatives may not work. In such cases, taking the matter to court could be the only way out. This especially happens if there is a combative counsel. This involves one of the spouses to act upon directions dictated by an aggressive lawyer. The latter has in all probability convinced the client that collaborative law will not generate a good outcome- and judges are the best way forward. In case your spouse has such a lawyer, then prepare for expensive and unproductive days at court.

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

What To Do About Hidden Assets In Divorce

Posted by: Gerald A. Maggio, Esq.

orange county divorce mediator; California Divorce MediatorsIt is a common occurrence for warring spouses to hide assets when in the course of a contentious divorce. There are a number of ways a spouse may disguise or at least undervalue assets. One of the most common ways is to overlook or undervalue antiques, gun collections, hobby equipment, tools and artwork. Most of them come in the form of original paintings, collectible carpets or antique furnishings at the office of the spouse. There could also be unreported income on financial statements and tax returns.

Hiding methods

Undisclosed cash is frequently kept as travelers’ checks. These can be found by tracing the bank account withdrawals and deposits. There could also be custodial accounts set up in a child’s name using the Social Security Number of that child. Investments in the form of certificate municipal bonds or the Series EE Savings Bonds which do not show in the statement of accounts as they are not IRS registered.

Assets may also be hidden by colluding with the employer. Bonuses could be delayed; stock options given later than usual. The spouse may also request the employer not to give a raise until a time when the income or asset will be regarded as separate property. There could also be a phony debt to a friend or sudden repayment of money as debt. The assets could be hidden as expenses paid for boyfriend or girlfriends, like gifts, rent, or travel. Expenses may also be seen as tuition paid for classes or college. There could also be hidden retirement accounts. 

Business persons

Other than the above, business persons may hide assets in a number of ways like stealing cash from their own businesses. Salary payments can also be made to non-existent employees. These are made with cheques which are made void post-divorce. Money could also be paid to a person close to the spouse, like mother, boyfriend, girlfriend or father for fictional services. Such money is then given back to the spouse post finalization of the divorce. There could also be delays in the signing of longer term business contracts. These are typically done post-divorce.

It is extremely hard to find evidence of such activities. Litigation may help to unearth such deals. To give an example, you can take a legal interview or deposition of the boss of the spouse or the payroll supervisor and then query them about your spouse’s income and the bonuses. You can also hire a private investigator or a forensic accountant.

However, if any of this is a valid concern in a divorce case, then the likelihood of being able to mediate the divorce is very limited, and litigation of the case is the more realistic option.

To learn more about the divorce process in California and how mediation can help where you and your spouse seek to be transparent in providing all information and documentation concerning assets and finances, please visit our page, What is Divorce Mediation

Religion & The Issue of Child Custody

Posted by: Gerald A. Maggio, Esq.

Orange County child custody; California Divorce MediatorsIf the parents of a child are of different faiths, and they separate, there may not be agreement on the religion the child will follow. This is increasingly common as the number of interfaith marriages are on the rise. High divorce rate can also follow.

Child welfare

The courts when called to resolve disputes between divorced or separated parents disagreeing about matters that concern about religious upbringing of the children try to balance the competing concerns.  The courts will protect the First Amendment rights of the individual parent when it comes to freely choosing the preferred religion and also the right to raise a child as a parent sees fit. These can be followed as long the choices of parenting does not put in jeopardy the concerned child’s welfare. On the flip side, the courts, when taking decisions about visitation arrangements and custody, must protect the child’s best interests.

If the courts hear that one parent has complained about the religious activity of the other parent and that they are not in the child’s best interests, they have the hard task to decide whether it is needed to encroach on the First Amendment of the other parent and his or her parenting rights by the restriction of religious activities. In a number of cases, courts will take the child’s wishes into account. In one particular case, the Supreme Court in a state sent back a case to the trial court. They instructed the trial judge to accept evidence concerning opinions of the child-in this case, a 12 year old boy, about whether the latter should be circumcised. The parents have disagreed on this for a number of religious reasons. In normal cases, courts will consider views of any child over 12 years of age on issues concerning religion and also on issues of visitation or custody.

Law in custody cases and religion

As the Supreme Court in the United States has not yet made a decision in a case which involves custody or religious upbringing, no uniform national law exists. The law changes from one state to another. A majority of state courts will apply any of the three legal standards like substantial or actual harm, risk of harm or no harm needed. It must be remembered these decisions may not be followed by the courts locate in other states.

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

Grandparent Visitation Rights In California

Posted by: Gerald A. Maggio, Esq.

Grandparent Rights California; California Divorce MediatorsGrandparents and other caretakers frequently form deep and caring attachments with children. However, when families are torn apart by death, estrangement or divorce, these caretakers could suddenly find themselves without any sort of legal right to maintain any contact with children they fervently adore.

Laws related to child visitation

California has a kind of statute related to “grandparent visitation”. It is through which grandparents-and occasionally foster parents or step-parents- may request the court to provide them legal rights for maintaining relationships with their loved children. State laws may substantially vary when it boils down to the important details, like who has the authority to visit and the circumstances of that visit.

A “restrictive” visitation statute means that only grandparents will obtain a court order through which they can visit. This is granted if the parents of the child are getting divorced or if one parent or both of them have died. However, permissive visitation laws allow the courts to consider a request for visitation even if no parent has died. They can visit even if there was no dissolution in the family. The court permits such visitation keeping in mind the child’s emotional needs. If the courts “restrict” such visits, the divorced parents could agree about preventing the visitation of grandparents. Other than grandparents, even care-taking adults can make such kind of petitions. This requires the caretaker to live in the home of the child for a particular time period so that a visitation request can be filed. Do understand that both permissive and restrictive visitation statutes were challenged in a number of California courts by parents. They give the argument that such laws infringe on the rights of parents to raise children as they want. A number of courts have made rulings which are contradictory to one another.

Decision of the US Supreme Court

The US Supreme Court in 2000 tackled this thorny problem related to grandparent visitation rights. It was agreed by the Supreme Court that parents have the fundamental right of making decisions concerning how to raise their children. The court, however, did not agree that permissive visitation statute could be regarded as unconstitutional or that permitting any person who is not a parent to petition for the visitation rights will amount to any assault on family integrity. The Supreme Court however admitted that the statute was applied in an incorrect manner by the lower court, as it presumed that the request of grandparents for extra visitation was in the best interests of the children and not that the parent was functioning in the child’s best interests when he or she refused the grandparents more than short visits. According to the Supreme Court, this approach did not totally protect the fundamental right of a parent to make the decisions for the children.

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

The Correlation Between Child Support and Parenting Time

Posted by: Gerald A. Maggio, Esq.

Divorce mediators in Orange County; California Divorce MediatorsAs per child support laws in California, a direct correlation exists between visitation or parenting time and child support. Many lawyers consider it as a kind of double edged sword. A parent who enjoys more time with the child will have a more compelling requirement of child support. This is good in theory. In practicality, connecting child support and parenting time means giving parents with dubious motives the use of parenting time and custody as a kind of leverage in the child support scheme.

Termination of child support

There will be a termination of child support when that child becomes 18 years of age. There can be exceptions to this rule. This rule cannot be applied if the 18 year old continues to study in high school and lives with his or her parent. For this kind of situation, support of the child will terminate with him or her turning 19 years of age or the person being a high school graduate- whichever comes first. The laws in California also state that support of the child will also be terminated in case the child gets married or joins the military or is emancipated. Child support will also end if the recipient dies. Parents, however, may agree on continuing to provide child support even beyond that age if both of them agrees to do so. 

Guideline child support

In California, a computer program informs the judge what the child support will be. It must be mentioned that the correct information must be inputted into the program. The Family Court has no compulsion to follow the child support guideline of California. There must be a proper reason, however, to deviate from it. It is not permissible for the California Courts to simply fail when it comes to order the amount of child support as stated by the guideline for reasons not applicable by law. The reason for this is that the child support number as stated by the guideline is presumed to be correct. This presumption of being correct could be rebutted both up and down. It is required by the court to have the needed admissible evidence which shows that the formula for guideline will be inappropriate or unjust in that case. It is to be kept in mind that the person who wants the California court to deviate from guideline formula must be the one to plea the court that it is needed.

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

Father’s Rights Under California Law

Posted by: Gerald A. Maggio, Esq.

Father's Rights attorneys; California Divorce MediatorsA father must first determine whether he is biological father of minor child if he is not married to the mother of the child. If it is conclusively proved that he is the biological father, he gets certain rights when it comes to the minor child. Almost under every circumstance, if a father has been declared legal father of the minor child, then the father’s name will be inked on the birth certificate of that child. This may occur even if the mother was already married to another person at conception or birth. The surname of the father, in addition, will be inserted in the certificate of birth as the surname of the child. A biological father, even if he is unmarried, has complete right to get custody of minor child. He also has equal rights as married fathers. The unmarried biological father can get a hearing so that the court can determine his fitness when it comes to the custody issue.

Authority as father

Once a father gets confirmed as the biological father of a child by a law court, then he becomes natural guardian of minor child. It may be, as under a few circumstances, he could have all authority to obtain legal action on the behalf of his minor child.

If it is seen that the minor child’s father has no wish to contest the custody of minor child, he will continue to enjoy other rights when it comes to that minor child. For example, the father continues to have custodial rights regarding the minor child. Circumstances in specific cases vary and will determine whether the father will have complete visitation rights or whether the court will restrict the visitation. In a few cases, it may be important for the father to develop relationship with minor child prior to have an unsupervised visitation. Another concerning factor is the minor child’s age and the experience of the father in the rearing of the child.

Parental responsibility

The biological father also enjoys right to have a shared parental responsibility when it comes to concerning minor child. It is important for the child’s mother to consult and then discuss the number of issues that concern their minor child, like religion, vacations, illnesses and doctors among others. A father has the right of information about the minor child’s activities and also the right to participate in such activities.

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

How Does The Length Of A Marriage Affect A Divorce?

Posted by: Gerald A. Maggio, Esq.

divorce mediation attorneys Orange County; California Divorce MediatorsDuring the financial settlement of a divorce, the court considers many factors. One of the factors that the Court considers is the age of both partners and the second is the length of the relationship. Note, however, that the outcome of a divorce case highly depends on the facts of an individual case and the financial circumstances of both you and your partner.

Why the duration of marriage matters

Two facets of property division can be influenced by your marriage’s length. First, the duration your marriage can decide the precise distribution of property. Second, the longer you are married, the more complex will be the property division and vice-versa.

It is believed that couples who have been wedded for a longer time are likely to have more property and more various property holdings or interests. Property may comprise real estate and related investments, closely held businesses or professional practices, employee stock options and grants. It could also include various retirement as well as investment accounts.

California Family Code section 4320

California Family Code section 4320 states that the shorter the marriage, the shorter the duration of alimony (spousal support) in the State of California.  It also means that you get a shorter amount of time as a spouse to become self-supporting. Similarly, the longer the marriage, the longer the time you have spent outside the workforce, and so the greater will the duration of alimony be. The court will also provide you more time to get back into the workforce.

You might have heard or read that a marriage of 10 years or more means automatic lifetime alimony. Not really. If you and your spouse are married for less than 10 years, it generally means the alimony will likely be for no more than one-half the duration of the marriage. In some cases, if your marriage lasts 10 years or more, the court may determine that your spouse can become self-supporting and cut down the alimony accordingly. In most cases, the closer your marriage is to the ten-year mark, the more likely you are to receive less support depending on the court’s order. If you are married for a longer period of the time over 10 years, it means that normally the court will have continuing jurisdiction over the issue of spousal support and that other than the remarriage of the spouse receiving the support or the death of either party, there is no automatic termination date.

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

How Much Does An Average Divorce Cost?

Posted by: Gerald A. Maggio, Esq.

divorce mediation orange county; California Divorce MediatorsSo you have finally decided to divorce your spouse and start a new life without him or her by your side.  However, have you ever contemplated how big a hole, a divorce could punch in your pocket? It is quite difficult to evaluate how much a divorce can actually cost you, unless you are in the middle of the process. However, you should be predisposed about the ensuing cost of a divorce and analyze whether or not you would be in a position to afford it, before you take the plunge. Let’s try to figure out the various financial aspects of a divorce.

The level of conflict

The first and foremost aspect of a divorce that can significantly influence its cost is the level of understanding between the two parties involved. The more the conflicts, the less the chances of negotiation will be. Court proceedings will require regular payments to your lawyer. This implies that the more disputes you have, the longer a court of law would take to reach a final verdict. And for all we know, you will be spending more money on the trial. 

The type of divorce

A divorce that involves no property and asset division can be resolved by out of court settlements without the help of a legal attorney. In addition to this, if your divorce is mutually agreed upon and uncontested with your spouse, you can settle the matter with the help of a single attorney who will cater to the respective needs of both the parties, at lesser charges. 

The complexity of the specific case

Divorce cases which have several other related issues such as child custody, visitation, support, property and debt division and the like are bound to be more expensive than the ones that are relatively simpler. In addition to an adversarial attorney, such complex affairs often require you to take the assistance of several outside professionals such as business valuator, financial advisor, CPA and even a psychologist, all of whom will add on to the costs of the lawsuit.

The level of control you have over your emotions

You need to understand the importance of keeping your emotions separate from the legal and financial aspects of a divorce. Exhibiting unsolicited anger over petty issues will probably give your attorney the idea of dragging the case for a prolonged period of time by fanning the flames of your resentment against your spouse, to feed his own personal hunger for money.

Divorce mediation is a more cost-effective way to get divorced.  To learn more about the divorce process in California and how mediation can help, please visit our page, What is Divorce Mediation

Myths For Common Law Marriages Busted

Posted by: Gerald A. Maggio, Esq.

Orange County divorce mediation; California Divorce MediatorsMany of you would be well acquainted with the concept of common law marriages. However, for the individuals who are not so well versed in legal jargon, common law marriage is legal framework which stipulates that a couple will be considered as husband and wife in certain circumstances even if they do not get their wedding legally registered by the court of law. In other words, a couple that lives together for a specific number of years without being legally married, and present themselves as a wedded couple, will be considered as common law married across certain jurisdictions. Now coming to the actual point of whether or not such a law practice is recognized by the state of California. The answer is no. Here is a list of few popular myths regarding common law marriages in California.

Myth #1:  All the 50 states of America recognize the common law marriage

The truth is that several states such as California, Rhode Island, Washington DC and Colorado do not acknowledge the practice as legal.

Myth #2:  There is no way of getting common law marriage recognized within the state of California

The fact is that, if a couple that was living in another state that acknowledges the common law marriage, shifts to California and applies for a divorce, the court of law will accept the couple as married. 

Myth #3:  If a couple has lived together for seven years, they be considered common law married

The fact here is that there is no minimum time period which defines a couple’s eligibility for being common law married. Irrespective of whether a couple has been cohabitating for one year or twenty, the court of law requires them to qualify for very specific criteria to even consider it applicable for common law marriage. 

Myth #4:  Two individuals will be considered married if they claim it

As aforementioned, a court of law will not consider two individuals married merely on the fact that they say that they are married. There are several criteria which are taken into account while recognizing a couple as common law married. The couple should be a resident of the state where the practice is recognized. In addition to this, one of the partners has to display their intent to marry and recognize the other partner as their spouse by taking the latter’s surname. 

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

How to Calculate and Modify Your Child Support

Posted by: Gerald A. Maggio, Esq.

Top Orange County divorce mediators; California divorce mediatorsChild support is one the major factors which can be held responsible for directly influencing the quality of your child’s upbringing and well being. The financial aid obtained from either parent in lieu of child support can contribute towards the schooling, healthcare and other general needs and requirements of the child. However, the basis for evaluating the financial status of each parent and calculating the child support to be paid each month is different for the different states.

How do they calculate the child support in California?

The state laws of California require the judge to calculate the child support on the basis of the individual income of each of the parents, and also the time which each of the parent spends with the child. In addition to this, there are several other factors such as the house mortgage, tax slabs and child care expenditures, which the court of law needs to take into consideration while calculating the child support in several divorce cases. Owing to the complicated nature of evaluating a wide of range of factors for determining the support payments, most of the California courts and judges take the assistance of a software program referred to as Dissomaster. The inputs to this program are to be provided by the separating partners and the software then calculates the monthly installments to be paid as support for the child.

When can you modify your support payments?

The law requires the child support to be carried on for as long as the child stays a minor and does not reach the age of 18. However, if during this time you think that you are receiving too little or paying too much support, you can request the California court for a modifications. There can be certain situations wherein you can appeal for a modification in the amount of child support you receive or pay.

  • You have more than one new child in addition to the existing ones.
  • You lose a job, or your income lowers.
  • Your custodial percentage is increased by the court of law
  • The original calculation of support was erroneous.

Despite the fact that you will probably be granted a change in your child support, the modification will not be taken into consideration from any date in the past. This implies that the alterations will not be retroactive, and will be taken into effect only from the day the change has been made.

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