How Is Legal Separation Different From A Divorce?

Posted by: Gerald A. Maggio, Esq.

divorce mediation attorney Orange County; California Divorce MediatorsLegal separation is the formal process of confirming an actual separation of the parties, as opposed to filing for divorce.  Parties that chose legal separation do so for religious reasons, do not believe in divorce, or have concerns about medical insurance coverage, among other reasons.  If the parties proceed all the way to a final judgment in a legal separation case, they can obtain the same orders that they would have in a divorce case.  The biggest difference is that in the end, the parties are technically still married after a legal separation case and cannot get legally remarried.

Agreement for separation

An agreement on separation includes terms that are quite similar to those if the concerned couple was getting a divorce. This means there will be a distribution of their marital property, agreement on child visitation and custody if applicable. Not only this, the couple opting for a legal separation will also have to come to a decision on dividing any debts that were incurred by them after they got married.

Ideally, the above-mentioned terms should be binding in case the couple wants to get divorced. Moreover, both parties should hire their individual attorneys for negotiating all the details of the agreement on their legal separation. In case the spouses eventually make up their mind to go one step ahead and file for a divorce, it has been observed that the judge usually keeps the same terms as both the parties agreed to them earlier.

Differences between a legal separation and a divorce

Check out some of the following key differences between a divorce and a legal separation.

Name

While the spouse continues with the legal married name in the case of a separation, a wife may revert back to her maiden name after the divorce comes throughout the divorce be.

Child support

The conditions related to child support are ascertained when the legal separation takes place. When a couple decides to go for a divorce after being legally separated, ideally, the same terms are followed that were mentioned in the document for legal separation.

Marital status

A couple is still married even though there is a legal separation going on. But when the divorce is finalized, the marriage ends.

Child visits

Visitation rights of the child are decided when the legal separation takes place. If a divorce comes through after the legal separation, most of the times, the same terms are followed as mentioned in the document of their legal separation.

Alimony

The terms for alimony are ascertained during the legal separation. The conditions are typically kept same if the divorce gets finalized in the future.

Split of marital property

The couple agrees to the terms while going for a legal separation. When they do decide to finally divorce, the sane conditions that are mentioned in the document for legal separation are followed.

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

What To Consider About Kids and Finances After Divorce

Posted by: Gerald A. Maggio, Esq.

divorce mediation attorneys Orange County; California Divorce MediatorsThere are many people who go all numb when their divorce proceeding is underway. The reason for such an emotional state is because it could be too much to go through all sorts of chaos and painful feelings as the harsh reality is there for them.  However, things can be even more complicated where kids are involved in a divorce. Firstly, there is this emotional trauma. Above that, there is the important concern of money.

Breaking up is quite simple and straightforward for all those divorcing couples do not have kids from their marriages. If you fall into that category, simply divide your and your spouse’s assets and start life afresh after your divorce comes through. On the other hand, divorcing couples with children face a more complicated problem and if they are younger, things could be even trickier. In a nutshell, child support could be quite a complicated area.

Costs of child support

The cost of child support may be paid to either the mother or father. It actually depends on who is taking care if the kids. A parent who pays the maintenance cost can often be the “non-custodial parent.” In a majority of these cases, it is the father or the ex-husband, who plays this role or pays the maintenance costs.

The family house

One of the most important priorities for the divorcing couple is to ensure that the kids should continue having a proper home for them even after the finalization of the divorce. There are several such occasions where it has been observed that the ex-husbands have a tendency to sell if the house and go away with 50 percent of its value but it does not have to be so necessarily.  When too many assets are not there to split, assuming the wife is the primary career and the kids are usually permitted to continue staying in the same home. In case either of the partners behind a new relationship; matters could be even more complicated. When the mother gets married again or brings in a new partner, there are no alterations in the obligations of the father as he has to keep beating the maintenance costs as he was doing previously. However, he is no longer obliged to pay for the maintenance of his former wife any longer in case she cohabits in some cases or remarries.

However, if the father starts cohabiting with a new partner and the latter has kids from an earlier relationship but now live with them, he could be paying less money for child maintenance to his own biological children.

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

Does an Unemployed Parent Have to Pay Child Support?

Posted by: Gerald A. Maggio, Esq.

Top Orange County divorce mediators; California divorce mediatorsAccording to California law, it is the legal duty of both parents to provide financial support to their child/children, even if the parents are not married. The income earned by both parents plays a pivotal role in determining how much support the child/children in concern would need.

Sadly, a lot of parents end up fighting child support by willingly reducing their income. They do this by working fewer hours or by opting to be unemployed on purpose.  The motivating factor behind such an action is usually revenge against the spouse or the system. However, the actual victims here are usually the children.

An Overview

As far as California is concerned, child support is a legal obligation until children reach the age of 18 and are out of high school. Under certain conditions, they can be eligible till the age of 19.

It is possible for parents to agree on a certain amount as child support. However, for it to be enforced in the court of law, the case must be presented before a judge. Such a case is usually presented to the judge by either the parent or the California Department of Child Support Services on the child’s behalf.

The amount is usually settled by the court after seeking agreement from both parents.

The child support is paid to the custodial parent, as the law believes that he/she is already spending money on the child by providing care. So, the responsibility of child support falls on the non-custodial parent.

Child support is calculated by taking several factors into consideration such as child-related expenses and income earned by both parents.

Unemployment

Before we understand how unemployment affects a parent who has been ordered to pay child support, we must first look at how child support is determined. There is a formula that is used by the Californian government to calculate child support.  As we stated earlier, there are many factors at play here.

To put it simply, it is impossible to avoid child support even when unemployed. For example, Californian courts will look at other income sources such as dividends from bonds or stocks, rent, unemployment benefits and health insurance etc.

In other words, the court will impute income to the unemployed parent. They will consider the concerned parent’s ability and willingness to work, while also assessing available opportunities to work. If there are no valid reasons to support the unemployment, the parent will be forced to pay child support one way or another.  The parent can try modifying the child support order to avoid paying, but, that rarely works.

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

Am I Required to Pay Child Support For My New Spouse’s Prior Children?

Posted by: Gerald A. Maggio, Esq.

Divorce mediators in Orange County; California Divorce MediatorsDivorce proceedings can be quite tricky and each individual situation may demand looking into specific regulations in order to arrive at a fair decision for all. A lot of times, couples in second marriages or even third marriages wish to get divorced. In nearly all such cases, step-children (or non-biological children to one of the spouses) are involved. So do you need to pay child support for your spouse’s children from the previous marriage?

According to the current divorce law in the United States, you need to support all your biological children produced by you and your partner during time of the marriage. In addition to this, you also need to offer support to any adopted children between you and your partner (adoption has taken place during marriage).

The same rules may not apply to stepchildren and in cases when the child/children born during the marriage were not fathered by the husband, but some other man in a relationship with the woman.

When a step-parent needs to pay child support

It’s not always that only a biological parent has to pay child support with the ending of a marriage. According to the law, there are some exceptions to the rule. When a common law partner or step parent has been performing the parental role, also termed as ‘loco parentis’, the court might order the person to provide for child support, irrespective of whether or not they are biological parents of the child.

But the court will only order such child support when the person can be defined as a “parent” (as defined by the Family Relations Act).  So the court will only order a step-parent to pay child support if-

  • He was in a common-law/marriage-like relationship with his partner (the child’s parent) for a minimum of 2 years or was married to the parent of the child for any period of time and
  • Made a contribution to the maintenance or child support for a minimum of 1 year and
  • Made his last contribution to child support or maintenance within a year of the specific date when the filing of the child maintenance claim took place in the court.

It is also important to remember that if a person entered into a legal agreement with his spouse to offer child support to the stepchild in case of divorce, the court will usually force them to honor such a contract.

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

Repeal of Maximum Family Grant Rule and Its Effect on Child Support

Posted by: Gerald A. Maggio, Esq.

Orange County divorce mediation; California Divorce MediatorsOne of the most inhumane laws that loomed over the State of California was the Maximum Family Grant rule (MFG). According to this law, if anyone in the family is under the scheme of cash aid for 10 months in a row, a child born into the same family will be excluded from the Assistance Unit (A.U) bracket and is not eligible for child support. The MFG rule was added to CalWORKs program in August 1997 and is applicable for those children born after the same date.

The MFG law- a racist, sexist and discriminatory law 

From the time the MFG law was enforced, it discriminated against poor young woman against demanding basic aid for child support. This rule penalized mother’s enrolled in the state offered cash welfare program if they were to give birth. Monetary assistance included only those children born before the time the law came into practice or if the children were born prior to the mother receiving cash aid from the state. MFG was adopted as a measure of reformation and is largely viewed as enforcement of restricting the size of the family- mostly a curb on colored women.

Repeal of Maximum Family Grant rule and its effect on child support

The latest state budget included the repealing of the MFG rule with full support from Governor Jerry Brown. The motion to repeal the law was passed few months earlier. The dissolution of this law comes as a relief for over 90,000 families who were dealt with an iron hand by this biased law. The excluded families will now benefit from additional $138 for each child that was previously left out.

The repeal will increase the state’s budget by $220 million, annually. With the repeal, California joins 22 other states including Minnesota, Maryland, and Wyoming. Currently, there are only a dozen other states that refrain from supporting the family when an extra child is born if the family is enrolled in a cash aim program. The remaining two states follow an inflexible system wherein a certain amount is paid regardless of the number of children.

The enforcement of the MFG law was directed towards children born out of wedlock. The children also include those conceived from incest, rape and birth control fails forcing the woman to share unconformable personal details with the case worker.  Since there was no evidence to prove that MFG was successful in controlling the growth of population, its repeal comes as a restoration of faith in humanity.

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

Understanding The California Child Support Laws

Posted by: Gerald A. Maggio, Esq.

Top Orange County divorce mediators; California divorce mediatorsSection 4053 of the California Family Code lays down the intent and purpose of laws related to child support. These laws have evolved over the years to suit the needs of the time. Section 4053 of the Family Code has enabled fast resolving of child support cases and has also determined the calculation of support payments.

Scope of the law

The child support laws have been framed keeping in mind the best interests of the child involved in a child support case. The basic intentions of the child support laws are as follows –

  • It wants to remind the court and the parents that it is an obligation required by the law for the parents to support their child.
  • The most important role of the child support laws is to ensure that conflicts between the parents are minimized and litigations are reduced so that the child does not have to unnecessarily suffer because of his or her parents’ egos and differences of opinion.
  • A child should have the same standard of living as the parents.
  • The ability of the parents to support the child is taken into consideration. Both the parents are equally obligated to care for their child. Their income and time should be devoted reasonably to be look after the child.
  • The custodial parent’s standard of living can be improved by receiving child support which is also meant to improve the standard of living of the child.
  • It is wrong to presume that the parent who is the sole custodian of the child already has used enough of his or her resources to support the child. That is to say, the parent paying child support has the right to request the court to modify support payments.
  • Child support orders in California are generous because the city is quite expensive to live in.

California child support cases sometimes get delayed for a number of reasons. Parents sometimes withhold valuable information about their income hoping they will either receive more or have to pay less child support. Sometimes parents don’t show any interest in their child.

To learn more about child support and 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

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

Special Issues of Income in Child Support

Posted by: Gerald A. Maggio, Esq.

Divorce mediators in Orange County; California Divorce MediatorsThe income of both parents determines the amount of child support to be paid. Both parents will try and show lesser income than they actually earn so that the parent seeking child support can get more and the parent paying it has to pay less as support. Certain very tricky situations with regards to income come up that the California family court has to settle.

The court generally considers the annual gross income of both the parents before deciding on the final amount of child support. Bonuses, overtime and commissions also get calculated in this annual gross income. Some of the special issues that the court has to deal with include the following:

When the bonuses, overtime and commissions do not continue as before –

Such claims are very common. The spouse claiming that their income does not remain the same will have to prove to the court, with detailed documents and evidences from the employer, that this is indeed true. If the proofs and evidences are satisfactory to the court, the court will not include such additional earnings as part of the annual gross income.

When such additional earnings are irregular –

The court determines the average of the spouse’s income. The court considers the additional incomes of more than one or two years and calculates the average. So even if the earning is irregular it does not really matter.

When the support paying parent refuses to work overtime –

If a spouse refuses to work overtime it may be acceptable by the court but again the spouse will have to provide with sufficient and acceptable reason for that. A simple ‘I do not want to’ will not be accepted by the court. But the court recognizes the fact that it becomes difficult for separated parents to work overtime when they have to think about visiting or parenting time and the custodial parent taking care of the child full time.

When either parent gets a new spouse –

The parent with the new spouse will not want the new spouse’s income to be considered to determine any changes to the support payment. The custodial parent would want more in support amount because now the remarried parent has more income when that income is combined with the income of the new spouse.

Cases of child support can get very complicated. So you should enlist the help of a professional and experienced lawyer in California.

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

Retroactive Child Support in California

Posted by: Gerald A. Maggio, Esq.

Top Orange County divorce mediators; California divorce mediatorsThe child support that has to be paid for the period before the actual order for payment of child support was obtained is called retroactive child support in California. It just means that the child support paying parent will have to make the payments from an earlier date. Retroactive child support is not similar to unpaid or late payments of child support.

An example will make it easier to understand retroactive child support. Suppose you filed a divorce petition on July 1 and requested for a child support order on August 1. The date set for the hearing of your case is September 10. On the day of the hearing, the court decides to make the initial child support order a retroactive one. The court may make the order retroactive from July 1 or August 1. A paternity action or divorce proceeding commonly starts once a petition for temporary child support is filed.

Generally speaking, the California family court makes the temporary child support order a retroactive child support order. But if the initial petition for divorce notice was not served within 90 days of its filing, the court will make the child support retroactive from the day the petition was served. So, if the parent supposed to be paying the support did not avoid doing so intentionally, the payment of child support becomes effective from the date of serving the notice.

Retroactive child support is paid on four grounds –

  • The custodial parent and the child are in need of support and would benefit from payments of retroactive child support.
  • The non-custodial parent intentionally delayed the payment of child support by delaying the hearing of the case.
  • The non-custodial parent had deliberately avoided paying child support by withholding crucial information on assets and finances.
  • The court will also take into account other factors such as income of the parents, among other things, to determine if the support order should indeed be made retroactive.

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