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.


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.


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

Helping Children Adjust to Two Homes After Divorce

Posted by: Gerald A. Maggio, Esq.

Orange County divorce mediation; California Divorce MediatorsWhile children are the most affected party in any divorced family, a major challenge for them is to adjust residing in two different homes after their parents go separate ways, Although, a kid may be visiting one of the parents only for some hours on a weekly basis, he or she should feel comfortable in their non-custodial house. A cordial arrangement will help in bridging the relationship with the other parent who does not have custody rights and will also help the kid to realize that though their parents got divorced from one another, they are still loved the same way.

When children of divorced parents feel like they belong at the homes of both their parents, it creates a healthy and smooth transition for them. Irrespective of their age-group, issues like abandonment and rejection matter to the kids a lot though many of them cannot express them properly through words. There are several kids who love to stay in both their homes since their parents shower them with attention and love.

The following are some of those ways that can help kids to adjust to living in two different homes.

A primary home should be designated for the children

Though kids of divorced parents may spend time in both parents’ homes, they should recognize only one of the houses as their “primary home”. There could be a lot of confusion if this is not done.  After all, when there is a designated primary home, all mails and other important communications will get delivered to that place only. It will be also helpful for the kids to feel secure and anchored. Though your house is treated as a secondary home for the children, you should not feel that the time they spend with you is less important. After all, do you not feel as happy and content at your holiday home as your main home?

Allocate a separate room for your child

It is imperative for your child to have their own personal room. In case that is not possible due to space constraints, they should be given space to keep their possessions like a toy bin, shelf space or an own drawer for dresses. They should also be permitted to store their things in the allocated space. Let them arrange the things according to their wish.

Freedom of carrying things

Your children should be permitted to carry their items between both the homes without any conflict or tension between the parents. The transition can be much smoother if this is followed.

Allow your kids to personalize their space

Permit your children to decorate their space the way they want to do. In fact, even you can help them out in this endeavor. Let them pick their own sheets and allow them to hang their favorite posters on the wall. Children love to personalize their space.

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

How to Help Your Kid through Divorce

Posted by: Gerald A. Maggio, Esq.

Orange County divorce mediators; California Divorce MediatorsAs thousands of couples decide to end their marriages every year, their kids are also affected in the process. But their reactions will depend to a large extent on their personality, the circumstances under which the parents decided to separate and their age. Kids often get affected when their parent’s divorce. Often, the first reaction these children go through is that of sorry, anger, frustration, sadness, and shock. However, these children can deal these feelings in a better way as they know how to cope up with stress. As an end result, many of them are more tolerant and flexible when they become young adults. At such trying times, the most crucial things both the parents can do are to help their children steer through it by taking the following steps:

Important steps

  • Try to minimize disruptions in the daily routines of their children.
  • Make sure that legal talks, heated arguments, and visible conflicts happen away from the kids.
  • Do not be negative in front of them. Conversation with close friends and private therapy sessions should not take place inside the house.
  • Both the parents should be involved in the lives of their kids. Indifference will hurt them more.

People going through divorce or separation require lots of emotional support from their families, clergy, professionals and friends. However, these adults should never seek support and help from their children though they may appear ready to do so.

Break the news gently

The moment you are completely sure of your divorce plans, you should speak to your children about the decision to separate. Yes, it will be not an easy task to break this news. In case it is possible, it is better if both the parents are present while the news is shared. Make sure that you adopt a neutral and unbiased tone and do not express your emotions of guilt, anger or disillusionment while telling them about your separation. Of possible rehearse how you are going to break the news from beforehand so that you go not lose your temper or become upset during the discussion.

You should discuss the matter in accordance with the temperament, maturity, and age of your kids. But one statement should be common. Whatever took place between both of you; your kids are not responsible for that. This is because a majority of the children feel that they should be blamed when things did not work out between their parents. So, it is extremely crucial that the parents reassure their kids about this.

Rather tell your children that at times the adults do not agree on things or their love for one another change and so they decide to live separately. But also tell them that children will tie the parents forever no matter what happens.

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

Child Custody In Paternity Cases: What You Need to Know

Posted by: Gerald A. Maggio, Esq.

child custody mediation attorneys Orange County; California Divorce MediatorsAs a Californian, you’re probably aware of the fact that our state is quite progressive. As a result, progressive policies are bound to affect every area of a Californian’s life and that includes family law.  In this blog, we are dealing with a very specific topic under family law – parentage.

California uses the term “parentage” interchangeably with terms such as “parental relationship” and “paternity”. Typically, paternity is established by the child’s parents or the courts. What that means is if a child is born in a marriage, the mother’s husband is automatically presumed to be the father under the law.

If a couple have had a child together but are not married, the law does not automatically assume that the father is the biological parent of the child, which may require a genetic DNA test to establish as well as a Declaration of Paternity signed by the father to establish parentage and then custody.

Establishing paternity 

To establish parentage or paternity, a court order must be obtained or a Declaration of Paternity must be signed to legally indicate who the child’s parents are. For instance, if a child is born out of wedlock, he/she is considered to not have a father unless parentage is legally established. This applies even when the father has evidence to show that he is the biological father.

The establishing of parentage is extremely important as it has a major impact on matters such as child support, visitation rights, and custody during divorce procedures.

If an individual refuses to establish paternity, the court will order them to undergo genetic testing.

Once parentage is established, the concerned man/woman will have to take up the role of a parent. He/she will have to pay child support, 50% of child care costs, and uninsured health care expenses. The same goes for individuals who are legally established as parents.

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

How Can Non-Custodial Parents Reestablish/Improve Visitation?

Posted by: Gerald A. Maggio, Esq.

Orange County child custody; California Divorce MediatorsIt is the wish of every parent to be with his/her child after a divorce. But one of the worst consequences of divorce is that one parent must sacrifice his/her custodial rights for the other. According to state laws, non-custodial parents in California get visiting hours as set by the custody agreements. But parents often remain unsatisfied with such agreements. They want to spend more time with their children.

Consult an attorney

The best way to assess the agreement plan and work accordingly is by consulting an attorney. Non-custodial parents should seek the advice of an experienced lawyer and decide what works best for them. There are many good lawyers available in California and each offer their own set of expertise.

Always remember that every system has loopholes and a good lawyer knows where those exist and how they can be used for his/her client’s benefits.

Avoid visiting the court 

One of the best ways to increase visiting hours or even get custody of your child is by finding contempt against your spouse and filing them in a court. However, in all likelihood, the judge dealing with your case might be burdened with work and may get irritated having to deal with a case that was supposed to be finished. It is possible for your plan to backfire if the judge feels you are deliberately trying to increase visiting hours.

It is therefore advised to avoid going to the court as much as possible after a judgement has been passed. Go only if the case is serious and requires a second hearing. Otherwise, simply stick to the advice of a divorce lawyer.

Take advantage of the system

As mentioned before, the system is full of loopholes. There are problems and identifying those problems should be your main aim. A non-custodial parent may request for a change in custodial plans when there is a substantial change in the situation. Substantial change includes emergencies, health, employment or denial of visitation.

If the California court believes the changes are negatively affecting a child, it may change the visiting hours and reestablish new plans for the non-custodial parents.


Changing custodial plans and visiting hours once they have been established can be tough but not impossible. The judicial system has weak spots which can be used in one’s favor. Courts can change custodial plans for non-custodial parents if it finds it in the child’s best interests.

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

The “Right of First Refusal” Concept in California Divorce

Posted by: Gerald A. Maggio, Esq.

Orange County child custody; California Divorce MediatorsThe “Right of First Refusal” concept in California divorce and custody cases awards one parent the first option to undertake the responsibility of the child in the absence of the other parent. What this means is that after a legal custody battle, one parent can take care of the child during the time that has been allotted for the other parent. The right of first refusal allows parents to take responsibility for child care instead of awarding it to a third party.

The right of first refusal has two advantages. First, the child is not put into the hands of a third party. Second, the costs for paying the third-party care provider is also avoided.

When can the right be exercised

Parents who are unavailable to take care of their children for more than 12 hours must notify the other parent prior to the unavailability. It gives the other parent plenty of time to consider the decision. If the other parent refuses to be present at the mentioned time, it becomes the custodial parent’s duty to look for an alternative care for his/her child.

For the right of first refusal to become actionable, deciding the period of time is very important. However, since there is no perfect timeframe which decides the right, it depends on case to case. It’s a good idea to include a divorce lawyer during such matters.

One of the most important factors for exercising the right of first refusal is geography. For the right to take place, parents need to stay close to each other. If the distance is too long, the right may not be of too much help.

When can it be misused

There have been instances where the right of first refusal has been misused. If you have not enjoyed a good relationship with your spouse, then he/she may not agree to your offer. During tight-knit custody battles, such rights can make a lot of difference in custody preferences.

A divorce affects children badly. It has negative psychological effects which can become physical if ignored. Custody battles are tough and the state of California has laws to make sure the child spends an equal amount of time with each parent. The right of first refusal was created to provide temporary custody to the other parent in the absence of the first one. It helps avoid the involvement of third parties and keeps the matter between the two parents.

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

Understanding the Difference between Child Custody and Parenting Time

Posted by: Gerald A. Maggio, Esq.

Orange County divorce mediation; California Divorce MediatorsA divorce is more than two people separating; it is the disintegration of a family’s structure. Legal separations get messy when there are children involved. Unless it is an extreme case of abuse, it is unfair to separate the child/ children from the parent because the adults have issues. Proper parenting starts with the combined effort of both parents.

Custody and parenting hours are two terms that pop up during divorce settlement. Custody is the responsibility and the rights the parents have among them to support and care for their children. When custody is decided, visitation hours are also specified. Visitation is the how’s and when’s of a parent visiting a child.

The State of California allows the decision of joint or individual custody to be made by the parents. The final decision is however made by the judge.

Custody types 

In general, there are two types of custody-

  • Legal custody which permits the parent to decide the best for the child like welfare, education and healthcare
  • Physical custody where the choice to live with which parent is made.

Both can be joint custody when the parents come together as a team to make decisions that is in the child’s best interest. Alternatively, one parent can take sole responsibility for the child. The legal responsibilities include residence, religion, child care, school, sports, travel etc.

Parenting schedule orders  

Visitation or parenting time is the plan which the parents devise to distribute time between themselves with the child. When a parent is allotted less than half time with the child, visitation hours are allotted. The frequency of visitation is case specific.

There are four variations of visitation:

  1. Scheduled visits– Think of this as a time table like the one most of us had in school. There is a specific pre-determined schedule. The flexibility of the hours depends on the equation and understanding between the parents. This schedule ensures that there is no conflict or confusion in the visitation hours.
  1. Reasonable visits: These are open ended and there is no specific time which is allotted to each parent.
  1. Supervised visits: When the child’s safety and wellbeing is in question, all visits are supervised either by the other parent, or an adult chosen by the parent or a professional agency.
  1. No visits: In extreme cases, if any visit from a parent is stressful or unsafe for the child, the parent does not receive visitation rights.

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

Custody Issues for Military Personnel in Divorce Cases

Posted by: Gerald A. Maggio, Esq.

Orange County child custody attorneys: California Divorce MediatorsChild custody can be a big issue if you are in the military. Deployments and relocations are frequent and when you’re constantly on the move, it becomes obvious that you cannot spent time with your children. It leads to custody battles and you may have to temporarily give up your custody. Military parents have faced this issue for a long time now and the State of California have developed laws that help such parents.

Making a family care plan

Making a family care plan is very important in divorce cases involving children. If you know someone who is in the military or if yourselves are in the military, then you know the importance of a family plan. A family care plan creates a set of guidelines to take care of your children. It describes the care provider and the roles he/she needs to play. It includes food, education, healthcare, clothing and other emotional support that will be provided to your children during your absence. It also includes short-term and long-term custody and the name of the person(s) who will provide it.

Another important aspect of creating a family care plan is keeping things transparent between you, your children, and the court.

Custody issues during relocation

Child custody is not a subject of federal laws but depends on state laws. Every state has their own set of laws to answer child custody issues. When you get deported or relocated, courts make decision based on these laws. In California, before you leave you must show the amount of support you can provide for your children. The family care plan plays an important role because you are already prepared. In case you fail to provide any proof, your leave might get delayed.

In case your relocation is not pre-planned then the court might take it into consideration and modify the court order.

Senate Bill 1082

The Senate Bill 1082 was passed in 2005 by then Governor, Arnold Schwarzenegger. The Bill was passed to ensure that parents who serve in the military are protected from child custody battles. It provides certain benefits and helps children of military personnel from legal problems.

This Bill was one of the first solutions provided to military parents who otherwise face huge problems. If you are in the military you are entitled to such protects.

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

Can Non-Biological Parents Be Awarded Custody?

Posted by: Gerald A. Maggio, Esq.

child custody mediation attorneys Orange County; California Divorce MediatorsChild custody for legal guardianship can be tricky. 90% of the time, biological parents have the upper hand in a child custody case. But in certain cases, non-biological parents may be given custody rights of the children. There are many factors which the court takes into consideration and then decides. If you are a non-biological parent looking for a way to win a custody battle, then keep reading. At the end of it you will understand what you need in order to win the custody battle.

Under what grounds

One of the grounds under which non-biological parents can get child custody is the court finding biological parents to be unfit. In cases where the court finds that biological parents are not good parents, the custody is awarded to non-biological parents. The court looks at what’s best for the child and then declares who should take custody. Other grounds include accident cases or instances where the biological parents go missing. In such cases, the court hands over the custody of children to non-biological parents.

To be considered as a non-biological parent, you must have spent a certain amount of time with the child. You need to be considered as “family” by both the child and the court.

Non-biological parental rights for fathers

If you are close to a child and the child considers you as a father, then the court may give you custody rights even though you are not the biological parent.

It is often presumed that biological parents are natural custody holders and in a number of cases parents win custody battles because of it. But a court of law looks upon parents as someone who can take care of the child and who the child is comfortable with. If you are a non-biological father battling for the custody of a child, then remember that your relationship with the child is the most important factor.

More than two legal parents in California

Recently, in California, a law was made that allowed a child to have two or more legal parents. The law is unique to the state of California because having three parents is very uncommon.

The bill was passed after three people – a man and two women, all met the criteria to become legal parents. At first, it was thought to be a weird idea but then the court re-considered and accepted the “rule of two”.

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