Tips for Splitting Marital Property During a Divorce

Posted by: Gerald A. Maggio, Esq.

divorce mediation attorneys in orange countyBefore understanding how your marital pretty should be split during a divorce, it is important to recognize what a marital property means. Any property owned by you or your spouse during the course of your marriage is counted as a marital property. The properties you owned prior to getting married or any property that you inherit while being married is not considered as your marital property. Some spouses are under the impression that they can escape the process of splitting their marital assets; however, a divorce lawyer is a smart professional. Hunting for hidden assets is one of their top priorities when they fight cases for their clients. If you do not want to get penalized by the court for tucking your marital asset, later on, it is better to disclose such properties in the beginning. Check out the following tips for splitting your marital properties while your divorce proceeding is pending.

Take help of a mediator

It is a good decision that you hire a mediator who will help you by working on sticky issues, which may pop up while the marital properties are being split. While it is a requirement in some States to have mediation while the divorce process is on, other States do not have such a requirement. It is better to save your money and time by hiring a reputable mediator who will help you in this process prior to the involvement of the courts.

Stop fighting on small issues

When you let emotions rule over your good sense, your objectives may not be fulfilled. For instance, there could be a portrait in your bedroom, which you are emotionally attached to and want to take it with you by any means and you do not agree with your spouse that he or she should have it. In case you fail to arrive at an amicable settlement on such trivial issues, your judge may not care about your emotional attachment to certain objects. A court’s job is to find out the assets acquired by you during your marriage, As such, it will instruct the property to be split according to the laws of your state and not according to what you want. To put it simply, it is you and not the judge who has made an emotional and financial investment in your marital property. A judge cannot and is not in a position to order for the split of marital properties in a manner that will satisfy both the parties involved. If the couples can mutually sort out those issues, then only both of them can be satisfied. Any attempt made to hide marital assets is a legal offense, which means you are violating the law.

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

Posted on Monday, September 18th, 2017. Filed under California divorce, California Family Law, Division of Property, Division of retirement plans, Divorce, Divorce & Debts, Divorce & Division of Property, Divorce & Family Businesses, Divorce advice, Divorce court proceedings, Divorce Mediation, Family Law, Frequently asked questions, Orange County divorce, Orange County divorce mediation, Orange County divorce mediators.
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How to Determine Your Financial Needs After Divorce

Posted by: Gerald A. Maggio, Esq.

divorce mediation attorneys in Orange County; California Divorce MediatorsYou may think that estimating your expenses after the divorce is an easy task but in reality it may not be true. In fact many people are unable to name a proper estimate of their current lifestyle expenses. Majority of the people are practically clueless about where their money is going. Even if they have a tough idea, they are unable to articulate it properly when queried about it. When someone prompts them about what their expenses and requirements could be at present, they may agree to that.

What could be a big mistake?

Usually, your attorney may request you to prepare a budget based on their expenses. You may not down the obvious expense heads such as phone bills, Internet bills, cable TV/ satellite TV charges, cat insurance, loan payment for car, utilities, rent and mortgage. However, you may still feel that something is still amiss. Since you are well e not certain, you do not hand your budget to the attorney. Although your attorney may be constantly after you, you cannot be specific though your time could be running out.

In fact may find that the process has a strong likelihood with done or being asked the sand question repeatedly in a torture like situation.

While you may not have a sure shot answer to their question, you may eventually give your attorney something so that they do not pester you again. You should remember the figures you hand them over will be used for ascertaining some major monetary issues in your divorce case.

A financial consultant specialized in divorce cases suggests their clients that in case they want spousal support but do not know what their exact requirements are and what they should ask for, there are high chances of not getting it. On the other hand, when you are supposed to provide for spousal support but are ignorant on what are your needs. It is a tough job to hang to it. Plus it may not be there if you require it.

Merits of consulting a good divorce financial professional

When you work closely with a reputable divorce financial professional, the financial aspects of a divorce can be smoother. Additionally, it will also be more financially sound. Remember that it is the most crucial financial decision in anyone’s life. A divorce financial expert is well-equipped with the knowledge of a detailed list of all possible costs that could either be applicable to you or may help in reminding you to add it to your expense list. A well-prepared statement of expenses as well as a proper understanding on how up use your money can be the foundation of your financially secure future.

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

Issues Related To Retirement Benefits and Divorce

Posted by: Gerald A. Maggio, Esq.

divorce mediators Orange County; California Divorce MediatorsThe entire divorce process is quite a complicated one as there are various issues to be handled and sorted out such as distributing marital assets, parenting plans, custody issues along with the emotional trauma a spouse may go through during this period. Moreover, there could be a million other things hovering around in your mind. One of the most crucial issues to be sorted out at this juncture is how to treat the retirement assets since distributing them could be a time-taking process. In case you have recently filed your divorce petition and contemplating about the retirement benefit solution that you should get, you need to keep the following factors in your mind so that the process operates in a smooth manner.

Equal distribution of marital assets

Since all divorces are not sane, a single solution cannot fit all of them. There are many couples who are in agreement regarding maintaining their individual personal retirement benefits. They also decide to take leverage of the other assets so that the distribution of the property can be balanced out. Ideally, each asset is not split in a divorce. Rather piles are made on both sides so that there is a more or less equal distribution of assets at the end. But the real issue is that all couples do not have sufficient retirement plans with them. There are many cases where one of the parties has been relying on the other spouse for the retirement benefits. Where sorting out of retirement benefits is concerned during a divorce, when one spouse does do not have any kind of a retirement plan or the plan is not sufficient, there are several ways to make sure that the person gets something to depend on after his or her retirement. But there could be scenarios where each party getting their assets and individual retirement plan equitably distributed fails to work there could be other options like social security benefits discussed below.

Treatment of social security benefits

This is another kind of retirement financing. But, it is distinct from an arrangement like QDRO. According to the Federal Law, these benefits cannot be distributed among the two parties. There are certain cases where one party is legible for the social security benefits, which is based on the employment of their ex-spouse. In case, it is so, the said spouse may agree to that benefit provided it is more than what they would have got in accordance with their individual work history.

Moreover, in some cases, one of the two parties can instruct the payment of the spousal support for the other party from his or her individual social security. However, regulations vary on the basis of circumstances and regions.

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

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

Division of Pension Plans In A Divorce

Posted by: Gerald A. Maggio, Esq.

orange county divorce mediation; California Divorce MediatorsPension plans are usually divided in one of only two ways: “cash out” or by Qualified Domestic Relations orders (QDROs).  The latter is the most common way through which pension plans get handled. Under this scheme, it is ordered by the court that at the time of retirement of the employed spouse, the other one will be the recipient of a percentage of every pension check. This percentage is arrived at by dividing years when the spouses spent together in their once home as wife and husband by total number of all years when the spouse who is employed had participated in pension plan. The result amount of that division is community property percentage of pension plan. To give an example, if a husband has put in 20 years of his monetary contributions to a pension plan, and 10 of the coinciding years he lived with the wife, the share of the pension plan will be about 50 percent. In such a case, the wife will have 25 percent of the pension checks of the husband. 

Money plan 

As per reservation of jurisdiction, the spouse considered a non-employee could elect to receive her or his share of the pension benefits of the employee spouse at earliest time when the employed spouse will retire. It means that in the case of the employed spouse electing not to retire at earliest opportunity, that spouse must pay the non-employed spouse what the latter would have got in case the employed spouse would have retired. To give an example, if the husband becomes eligible to retire at 55, but elects not to retire in that age, his ex-wife could demand that he provides her the amount of money she would have received if he retired during that age. It is to be mentioned that in case the wife selects this option, she will not receive any increases due to higher cost of living after that date.

QDRO

The 1984 made Federal Retirement Equity Act created “Qualified Domestic Relations Order”. In this system, the court gives orders regarding the retirement plan of the spouse. The Federal law states that the employer must comply with the order terms.  The QDRO preparation is complicated and time consuming. It is also expensive. However, the QDRO is an essential step in dissolution process. A number of companies have been created for the sole aim of making them.

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

Division of Debts in The State of California During a Divorce

Posted by: Gerald A. Maggio, Esq.

Orange-County-divorce-mediators; California Divorce MediatorsWhat are community debts and separate debts?

In the state of California debts between a couple are divided into two types – community debts and separate debts. Community debts are those debts that are accumulated by both parties to the marriage during the marriage until the date of separation. These debts are to be equally divided between both the parties even if only one spouse was responsible for incurring these debts. Separate debts are those debts that were incurred separately by the parties before the marriage or after separation and belong to the individual spouses who were responsible for incurring them.

Treatment of debts in California between a divorced couple

All debts in the state of California are to be treated as community debts as California is regarded as a “community property” state. This is of course unless the parties to the marriage had entered into a prenuptial agreement before the marriage regarding the division of assets and debts between them in the event that they decided to get divorced. If there is no prenup, then the court equally divides all debts between both spouses equally.

However, there is one exception to this rule and that is when the total value of the community debts exceeds the total value of the community assets jointly held between the two spouses. In this case, the court will order for a higher portion of the debts to be borne by the spouse who earns a higher income or who is in a better financial position to pay off these debts.

Importance of the date of separation

In the division of community debts in the state of California during a divorce, the date of separation of the couple is extremely important as only those debts that were incurred before the date of separation will be included in the community debts and all other debts incurred post the separation date will be assigned to the spouse who individually incurred them and the burden of paying those debts post-separation will not be borne or shared by both spouses.

Deciding the date of separation is sometimes a difficult task especially when the couple is in total disagreement with each other. Two tests can help confirm the actual and legal date of separation between a divorcing couple in the state of California:

  • The first test is to determine the date of physical separation between the spouse, that is the date on which they began living or sleeping separately or the date on which one of either spouse moved out of the house.
  • The second test is to determine when either spouse expressed their clear intention to end their marriage. This does not include a trial separation.

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

Dividing Pension Plans In A Divorce

Posted by: Gerald A. Maggio, Esq.

divorce mediators Orange County; California Divorce MediatorsSimilar to the rest of your property and assets, your retirement plan requires proper division post a legal separation or divorce. Although you are entitled to reaping the benefits of your retirement plan only when you actually retire from your job, the division of the balance in the plan may be divided between you and your spouse in case of a divorce long before your retirement. The state laws of California have adequate provisions for dealing with the splitting of your pension plans, just like the property owned by you and your spouse.

Community versus separate property 

As per the family law of California, the property owned separately by a couple before they get married is considered as separate property which is not subject to any division in the event of a divorce. This implies that the monetary contributions you might have made to your pension plan before your marriage or after its dissolution will be considered as separate property which will not be split up in a divorce. However, the contributions that you made to your retirement fund during your marriage will be referred to as community property, which is considered to be jointly owned by you and your spouse and will be subject to division in the event of a divorce.

Usually, the division of pension plans is usually carried out by one of the two methods: by a Qualified Domestic Relations Order or by a buy-out.

Reservation of jurisdiction 

The most widely accepted method of pension plan division, the reservation of jurisdiction employs a court order which states that the other spouse will be granted a specific percentage of each installment of the pension received by the employed partner post his retirement. The percentage is generally obtained by dividing the married years by the number of years for which the employed spouse has been contributing to the pension plan. The figure obtained as a result is considered as the community property portion of the pension plan. 

Buy-Out  

A rarer alternative of pension plan division, the cash out approach incorporates actuarial evaluation of the retirement fund. An actuary is a financial expert who deals with statistical evaluations of pensions, annuities and insurance policies. Through this method, the actuary first reviews the terms and clauses of the pension plan and then determines the ‘present value’ of the community property portion of it. Through this method, the entire pension plan is granted to the employed spouse and the other spouse is entitled with the acquisition of other community assets which are of equivalent value.

The division of pension plan post a divorce can be a complex issue to deal with. It is advisable to consult a professional attorney who is well aware of the intricacies of such cases.

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