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.

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.