Child Custody When One Parent is a Non-U.S. Citizen

Posted by: Gerald A. Maggio, Esq.

Orange County divorce mediation; California Divorce MediatorsIt is common knowledge that nearly thousands of foreign citizens migrate to the US every year in search of a better livelihood. Even though the process helps in uplifting the social, political and economic status of these immigrants, problems can arise when complicated issues of domestic violence, divorce and child custody come into play.

Dealing with International Clients

It is common for foreign clients of American lawyers to be faced with numerous strange predicaments. However, the common ones may include dilemmas such as the parent wanting to shift base to a foreign country and taking the child along either at the time of separation or after divorce. Alternatively, the parent may have already taken the child with him/her and the spouse is demanding for the child to be sent back. Sometimes, one parent is unwilling to trust the law and order of the foreign country with regards to custody cases.  So it is important to first know whether the country that the other parent is from recognizes the “Hague Convention” with respect to the international law for child abductions.

What is the essence of child abduction law and custody jurisdiction in such cases? A parent is barred from gaining any practical or legal advantage by moving the child’s base to a new country or state. It is imperative for the couple seeking separation or divorce to register the case in the court located in the habitual residence of the child prior to moving.

General Principe for Child Custody

In case where a US citizen marries an immigrant, child custody cases can get quite complicated. But the general principle with regards to child custody as spelt out by the U.S. Supreme Court in one of its notable cases is this:

The interest of the parent in the kid’s upbringing is of highest importance. Therefore, a person’s immigration status is never the only factor which is taken into account when deciding whether or not he/she cane get child custody.

The custody of the child is determined by the overall best interests of the child. This typically includes his/her medical, educational and financial situation.

Consider a hypothetical case wherein a couple is fighting for child custody and the father is originally from Russia whereas the mother is US citizen. The father, despite being a Russian citizen has every right to try and obtain the custody of his child. He may do so by proving to the court that he is capable of providing the child with education, financial support as well as good health. He can find a way to show to the court that is he would be able to make a certain amount of money once back in his own country and also highlight the resources that would be made available to ensure the child’s overall well being in Russia.

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

The One Day Divorce Program In California

Posted by: Gerald A. Maggio, Esq.

Orange County divorce mediation; California Divorce MediatorsProtracted divorce proceedings may soon be another footnote in legal history. James Mize, a Judge in Sacramento has created a program which makes it easy and swift to divorce in a day. The newly launched program is made to cater to individuals who are unable to afford a proper divorce lawyer. According to Mize, the program pulls in folks who languish at the bottom and who have no help and does not have any kind of representative assistance.

Needed services for such an initiative are catered by 80 attorneys, miscellaneous staff and a number of law students. They will volunteer the needed services to assist couples discuss all terms related to divorce agreements. They will also prepare the necessary paperwork needed to obtain final judgment. When all the steps are completed, the relevant parties will approach the judge in the same day. The once couples will subsequently exit the courthouse carrying a final judgment of marriage dissolution.

Participation

This One Day Divorce Program is best for litigants who want to represent themselves. They should have filed a divorce or dissolution of marriage case within Sacramento County, California. They also must show themselves ready for judgment. To figure out whether the case is ready for judgment, the answer must be positive for questions like whether the Respondent were served summons and also petition. There should a Proof of Service of Summons. Alternatively, a response should have been filed with Court.  The final question is whether the individual and spouse would have completed an agreement on all the orders which will be included in the judgment, like property division, spousal support and debts. In case the couple has children, child support and a parenting plan should have been included as well.

Do note that any action leading to dissolution in Sacramento County is possible only if one spouse or both have lived in the county for the last three months. They should be California residents for a minimum of six months. Other than the residency requirements, a few extra rules must also be considered in case one spouse lives outside California State. To be more specific, a spouse who resides in any other state or even in another country could make an objection to a California court jurisdiction. If this happens, a California Court could be stopped from taking important orders.

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

What Happens If You Fail To Disclose All Your Assets In A Divorce?

Posted by: Gerald A. Maggio, Esq.

Orange County divorce mediation lawyers; California Divorce MediatorsWhile you might find it tempting to conceal a certain part of your assets from your divorcing spouse, it is not really a good idea when it comes to legal implications of the same. Similarly, if in case you suspect that your partner is not providing complete disclosure of his or her assets for the purpose of distribution in a divorce, you must understand that the state laws of California stipulate stringent legal actions against such an act. When it comes to rectifying the omission of an asset disclosure, there are typically two aspects that are taken into consideration: the time of discovery and whether the omission was intentional or a mistake.

Asset omission through a mistake and discovered after the final court order

In case a spouse has inadvertently failed to make a complete disclosure of his/her assets, and it is discovered after the final judgment has been announced, the court has the right to alter the order and divide the asset as per the stipulates of the Californian State laws.

Intentional omission discovered before the final court order

Speaking of the obvious, an intentional concealment of an asset by a divorcing party is treated quite differently as in the case where the omission was an honest mistake. According to the Californian law, both the divorcing parties have the ‘fiduciary duty’ of serving a declaration of disclosure that contains all the information about their assets and debts to each other, failing which the guilty party will be faced with stringent corrective actions from the court of law. In some cases, an incomplete disclosure of an asset may also lead to the court ordering 100% ownership of the said asset to the other party involved.

Intentional omission discovered after the final court order

In the event that you discover an intentional un-disclosure of your spouse’s assets after the court has announced the judgment, the Californian law offers you the right to set aside the court order as ‘based on fraud’. In addition to this, you also have the right to file a tort action or the infringement of your rights, against your guilty partner.

The bottom line is that it is prudent to follow the laws of your state and provide proper disclosures of your assets and liabilities, in order to facilitate smooth and trouble free divorce proceedings. It is always advisable to be as transparent as possible in your case.

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

How To Withdraw Divorce Filings And Cancel Your Case

Posted by: Gerald A. Maggio, Esq.

Orange County divorce mediation; California Divorce MediatorsIt is not uncommon for parties to a divorce or termination of domestic partnership to subsequently reconcile before their case is done.  In that event, you would need to file a “Request for Dismissal” with the court (California Judicial Council Form CIV-110). This will dismiss the case, if the legal separation or divorce is not finalized.  Remember that if you later wish to proceed down this path of reconciliation and then later you change your mind (you want to be divorced), you must begin from the start. You have to pay the court filing fee again and also qualify for any fee waiver.

In case you are not the spouse who have initiated the divorce case, it will not be possible to stop the process by your own. There is a need for the other spouse to file Request for Dismissa if they filed a Response in the case.  This is required to dismiss the case.

In case both the spouses or the domestic partners have filed for joint summary dissolution, and judgment has not reached the final stage, any one of the spouses can terminate the case by the filing of “Notice of Revocation of Petition for Summary Dissolution” (Judicial Counsel Form FL-830.) The other form is “Revocation of Termination of Domestic Partnership”. Both of them can be done with Secretary of State (domestic partners).

Registrations for domestic partnerships are different from the marriage licenses. The office of California Secretary of State continues to process the Declarations of Domestic Partnership and Notices of Termination of Domestic Partnership  along with other related filings which are permissible by the state laws. Marriage licenses are processed by County governments.

Provisions which govern the domestic partnerships can be located in California Family Code. It begins with section 297.  There is an establishment of domestic partnership when persons who satisfy criteria stated by section 297 of California Family Code file either Confidential Declaration of Domestic Partnership or Declaration of Domestic Partnership with California Secretary of State. The copy of declaration and Certificate of Registration of Domestic Partnership can be returned to partners post filing the declaration.

Two individuals who have lived together in a state that can be regarded as domestic partners and if those two meet criteria as laid out by the section 297 of California Family Code could file Confidential Declaration of Domestic Partnership with California Secretary of State.

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

All You Need to Know About California Child Custody Mediation

Posted by: Gerald A. Maggio, Esq.

Orange County divorce mediation; California Divorce MediatorsThe Orange County Family Law local rules as well as the broader California laws require a mandatory child custody mediation to be set before a court hearing at which a court order or modification to an earlier court order pertaining to child custody and visitation take place.

Moreover, if a parent fails to turn up for a child custody mediation session without having valid reasons for his or her absence once or repeatedly, he or she may be prevented from being heard further on the issues of child custody and visitation. If it goes to the hearing stage, it may become extremely difficult for the absentee parent to explain their stand.

Custody issues are often the hardest to settle and can’t be settled under premarital agreement settlements since the right of a child belongs exclusively to the child themselves and their best interests would be held paramount by all courts.

Although a mediator can’t be decisions like a judge or an arbitrator, they can definitely propel the discussion between the two parties forward and create a peaceful environment under which discussions can be held, even for such spouses who have come out of an acrimonious relationship and don’t see eye to eye. A mediator plays a vital role and his intervention is often the only reason why a discussion goes forward.

How to prepare for child custody mediation 

In order to prepare for child custody mediation, try to gather as much evidence or relevant information about your child that would help you while presenting your side of the argument or making your proposals.

One important step is to understand your custody rights and obligations from an experienced and licensed attorney. You can also prepare and present a list of daily schedules for yourself and your child that would convey how emotionally and personally invested you are in the growth and welfare of your child.  You should also present your child custody and visitation proposal during the mediation process after taking advice from your attorney.

You will also need to come to an agreement with the other parent for deciding the scheduled visits and where to drop and pick up the child from and also special occasions or moments in the child’s life when they would expect both their parents to gather.

You may also do well to get an understanding of some commonly used legal phraseology or jargon that may be thrown around during the mediation discussions. Consult your attorney and prepare yourself accordingly.

In order to prepare for the child custody meetings, be honest and think, if you are really capable of taking care of your child. At all points, their interests will be to be kept in mind. Be compassionate towards the other party and you may be able to reach a mediation agreement regarding to your child easily.

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

What To Know About the Initial Divorce Paperwork

Posted by: Gerald A. Maggio, Esq.

orange county divorce mediation; California Divorce MediatorsThe instructions and forms used by you to end your case is dependent on whether case respondents have filed the necessary response and whether you and your domestic partner or spouse have an agreement concerning the ending of marriage, support issues, dividing property and debt, and also visitation and child custody.

You have to complete a number of forms, and it can turn out to be extremely complicated in the case of inclusion of child custody and child support orders. It is possible to get help in Orange County, CA in this process from The Maggio Law Firm in such cases.

If you file the case

Do understand that you have to fill a number of forms to complete all through the court process. This could turn out to be extremely complicated. The level of complexity increases if you want the inclusion of support orders, property division orders and child custody orders.

The first step is to fill out the court forms. What you fill in can affect the case outcome. It is thus important to be complete and accurate. This can be important if you believe that there can be disagreements between you and your partner concerning issues which the court forms ask you to fill in. Have the forms reviewed after you complete them. You may have to fill out local forms if needed.

The second step is to file the forms with Court Clerk. Turn in both originals and copies. In case they have no obvious errors, the original forms will be taken by the clerk and the copies returned to you. There will be a “filed” stamp.   You will also have to pay a certain filing fee. In case you find the fee unaffordable, it is possible to have a fee waiver.

The third step is serving the first set of all the court forms. As per the law, your domestic partner or spouse must be told that you have initiated legal process for annulment, legal separation or a divorce. To make this possible, it is compulsory for you to serve your domestic partner or spouse with the copies of all court papers. The fourth step and subsequent steps involves you filling out and serving the financial disclosure forms. Then you have to wait on whether your partner or spouse responds to your petition.

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

Responding to Divorce or Legal Separation Papers

Posted by: Gerald A. Maggio, Esq.

Divorce mediation attorneys in Orange County; California Divorce MediatorsAnyone of the spouses in marriage or as a partner in registered domestic partnership has the right to request the court to terminate their legal relationship. Your domestic partner or spouse has requested the court to end the relationship in case you received a summons and petition for legal separation or dissolution (divorce). In Orange County, CA, the court has the power to end domestic partnership or marriage even if the other partner is unwilling to be legally separated or divorced.

Response options

In case you are served with summons and petition, then you are regarded as the respondent in the court case for legal separation or divorce. You must carefully read papers served on you. The Petition informs you what your domestic partner or spouse (the petitioner) has asked for. You can get important information concerning your rights from The Summons and about the process of separation or divorce. There will be standard restraining orders which will restrict what you can do with the property, assets or debts. You or your partner or spouse can be prohibited to move out of state with children borne from the partnership or marriage. You may also be stopped from applying or renewal of passport for the children, without prior written consent. A court order could be required.

Options after personal service has been done

You have a number of options after being served. The easiest thing to do is to do absolutely nothing. If you take this path, then demands of your partner will be granted in its entirety. This situation is termed a “default judgment.” If your agreement is written and notarized and where you and your domestic partner or spouse has agreed to end the partnership or marriage, then also you have to do nothing. If you and your spouse agree about other things like property division, partner or spousal support, then it is also termed as “default with agreement”. This is due to the fact that you have not filed for any response.

Other ways of responding include filing a response with court but also reaching agreement with your domestic partner or spouse about all issues. This option is regarded as an “uncontested” divorce case as you and your domestic partner or spouse is not battling over issues. If you file a response with court, and also disagree with domestic partner or spouse, then it is regarded as a “contested divorce.”

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

The Use and Misuse of Subpoenas in Divorce Cases

Posted by: Gerald A. Maggio, Esq.

Orange County divorce mediation lawyers; California Divorce MediatorsBeing served a subpoena means you must appear in court and testify. The legal document also orders you to bring supporting documents on the date mentioned in the subpoena. In most cases, people don’t like subpoenas because they are forced to do something that they normally wouldn’t do. A subpoena can be misused depending on who is issuing it and to what extent.

Subpoena duces tecum literally means “bring it with you.”  If you get a subpoena, you must bring every material that might support or break a case. The materials include reports, tapes, files or specific records. You may also have to provide financial notes and appointment dates.

In a divorce proceeding, you might have to appear in court with evidence supporting child custody or any other evidence that you are ordered to bring.

Uses

Subpoenas are used by attorneys to obtain information that might strengthen or weaken a client’s case. It could lead to someone’s innocence or guilt depending on the subpoena. In divorce cases, a divorce attorney could issue a subpoena to the opposite party to settle custody issues. Subpoenas are issued under the criminal procedure laws and are taken very seriously. Failure to respond to a subpoena can attract heavy fine or even jail.

It is also used to settle property claims in a divorce case. If one spouse feels deprived of getting an equal property share, then a subpoena can order the other spouse to appear before the court and justify his/her actions.

The subpoena is usually signed by an attorney acting on behalf of the court in which the attorney practices. If the subpoena orders an important government official to be present in court, it must be signed and authorized by an administrative law judge.

Misuses

Subpoenas are often misused by one spouse to harass the other. A subpoena can be misused by an attorney when he/she issues it without providing a deposition notice. The subpoena is mailed or handed over directly to the other person.

Another way in which subpoenas are misused is the issue of a subpoena that is not justified in a criminal court. It can ask for absurd claims and documents. In a court of law, the subpoena needs to be authorized through the proper legal channel, but some attorneys use it to shake up the opposition. The moment someone receives a subpoena, he/she gets agitated and attorneys often take advantage of such situations.

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

Can A Divorce Be Granted Without Consent?

Posted by: Gerald A. Maggio, Esq.

divorce mediation attorney Orange County; California Divorce MediatorsEarlier, there were many circumstances when both the spouses needed to agree for divorcing each other. There were demerits in this system since the divorce used to get delayed or became a complicated process. However, there are many people that still believe the same conditions prevail even today.

In reality this is not the case.  It is possible to get divorced even when your spouse does not agree to divorce you. Contrary to the common myth a divorce is no longer stalled or delayed when consent is not given by one of the spouses.

A marriage can be considered to have collapsed when one of the partners desires to go through with a divorce despite the other spouse not giving his or her consent to it. So, what are those specific scenarios that enable a spouse to do so? The spouse needs to establish that the marriage has broken down by providing evidence of mental or physical cruelty or adultery against the other spouse.

When such a scenario prevails, the spouse who desires to get divorced can begin proceedings with or without the consent of the other party. If such an act can be proved by a spouse, a court can hear the plea of the plaintiff and grant him or her divorce. But when you have applied for the divorce and are the party responsible for being cruel to your spouse or having committed the adultery yourself, and are responsible for the marriage breakdown, it is required by the court to live separately for one year minimum before you can apply for your divorce. The reason for doing so is that your own mistakes cannot be used as the cause for your divorce.

It could also be possible that you are unaware of your partner or spouse’s whereabouts, but can still apply for a divorce and obtain it.

But before doing so, you need to demonstrate that you have tried to the best of your abilities to find your spouse or partner. When you could not find your spouse, it is possible for you to ask the judge to issue a substituted service order. This court order means you are told what should be done by you to make sure that the missing partner gets to know that you are applying for a divorce, But a judge would only allow you to go ahead with the divorce provided he or she is satisfied that all possible efforts have been by made by you to track your spouse.

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

Is a Subpoena Required in a California Divorce?

Posted by: Gerald A. Maggio, Esq.

Orange County divorce mediation; California Divorce MediatorsSubpoenas might sometimes be required in some California divorce cases, but for such cases, that likely means that divorce mediation is not a viable option because at least one of the parties is not being open and transparent concerning finances. During divorce proceedings, either party or both might want to find evidence to prepare for the proceedings. Most of the time, these evidences relate to the financial information of the other party. Cases of hiding assets or getting paid under the table and declaring lesser income are not so hard to find in divorce cases. There are cases of the spouse being perfectly healthy but announcing in court that they are too sick to work. It is in cases like this, the subpoena helps locate necessary information and documentation.  Here is what a subpoena is and what it can do for your case.

A California subpoena is a document that serves the receiver with a mandatory request. Which means to whomever a subpoena is served is bound by law to oblige the acts mentioned in it. There is no way anyone can deny a subpoena unless and until they have a very good and legal reason to do so.

A subpoena is generally issued by an “attorney of record” or by the clerk of the court. Subpoena is an umbrella term which includes various types of subpoenas in it. Following are the three subpoenas that are most used in California divorce cases.

Civil Subpoena that requires personal appearance at hearing

This is the subpoena that is used to make a person, otherwise not willing to appear at the trial, be present at an evidentiary trial. This is often used for witnesses unwilling to be at the hearing.

Civil Subpoena for production of documents and objects at trial

This subpoena, also known as the Duces Tecum, also requires a person to be at the trial. However, in this particular subpoena, the said individual is also required to bring certain objects or things with them at the trial. Financial records are often asked to be presented under such subpoenas.

Deposition Subpoena for presenting business records

In the cases where the other party is hiding their income or assets, this subpoena can be very helpful. It is used to acquire business records only. For example, credit card statements, bank statements, police records, hospital records etc.

Subpoenas can help you in getting accurate and complete documents which might have been hidden otherwise. These documents apart from being complete are certified as well, ensuring accuracy. In case, you can prove that the other party had refused to comply with your initial informal request for disclosure of assets or documents then you can ask the court to punish the other party with court sanctions.

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