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

Property Rights for Unmarried Couples

Posted by: Gerald A. Maggio, Esq.

Orange County divorce mediators; California Divorce MediatorsIt is easier for unmarried couples to separate or breakup mutually rather than go through a divorce. If both the parties can agree on the division of their assets, there is no need to approach a court of law. At most, you may need to employ the professional help of a legal mediator.

If you and your partner cannot reach an agreement and have to go through a divorce procedure, here are some of the legal rules pertaining to property division that you need to be aware of:

  • Divorce laws governing married couples are not applicable to unmarried couples who are separating – Only those couples recognized under a legal marriage or registered as domestic partners get to divide their property following the family law available to married couples.
  • Each unmarried partner has right to their own property – If the unmarried partners have not signed a deed establishing joint ownership of the house or do not have joint accounts in the banks, each partner is the owner of their own property. All debts and assets remain with the original owner unless the partners have signed any agreement.
  • Partners have signed a written agreement – If written agreements have been signed, the partners will get shares as stated in the agreement even if they approach a court for a separation.
  • If everything is jointly owned – If the unmarried couple jointly own any property or assets or debts, everything gets divided 50 -50. An exception can be made if an agreement stating otherwise has been signed.

If a situation arises where you have to approach the court for a settlement on matters related to property, it would be considered similar to the dissolution of a business. The ordinary business section of the state’s civil court will settle the matter.

To avoid such confusing and difficult situations related to unmarried separation, unmarried partners are encouraged to prepare and sign a written ‘living together agreement’. The agreement should cover matters related to property, house, and other assets.

Written agreements are legally enforceable in all courts of law. A written document can, in most instances, do away with the need of going to the court. It makes the separation a lot less difficult.     

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

Legal Rights of Unmarried Couples Living Together

Posted by: Gerald A. Maggio, Esq.

mediator divorce orange county; California Divorce MediatorsMore and more couples are living together in long term committed relationships without getting married. Such partnerships or relationships fall under the category of cohabitation. The legal rights of unmarried couples living together are very different from those of married couples.

Given below are the rights of cohabiting couples:

Rules related to finances

In the eyes of the law, two unmarried people are two separate individuals. So bank accounts, savings, and investments will not be jointly owned. It would remain in the ownership of the named individual. Anything held jointly will be divided equally unless there is a legally recognized agreement signed by the couple.

Unlike spousal maintenance, the partners are not entitled to any kind of financial support. But if there is a child from this relationship, the partner is entitled to child support.

Rules related to child issues

If unmarried couples living together separate, there will be different laws for the custody of the children resulting from this cohabitation. Both parents have equal rights over their children. But it needs to be decided who the children are going to stay with and what the visitation rights would be.

The unmarried couple may voluntarily sign a written agreement or notarized separation agreement stating the rights regarding the custody of the children, visitation and other rights. The agreement will then become the basis of all decisions made regarding the custody of children.

Rules related to property

If an unmarried couple owns a house together, the property will get divided equally between the two partners on separation. One person usually buys out the other’s share of the property. If there is an outstanding mortgage, the partner pays for that too. If this is not possible, the property is sold and then the share of each person is calculated.

If the property is in the name of an individual, the person in whose name the property is retains full ownership. A complication may arise if the person who is not a registered owner has made financial contributions towards the property. If that partner has made payments towards the mortgage, paid for repairs and other improvements, that partner can claim part ownership in the property. You will then have to approach a court of law.

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

Same-Sex Divorce Laws in California

Posted by: Gerald A. Maggio, Esq.

same sex divorce; California Divorce MediatorsSame-sex marriages like hetero-sexual marriage have the potential to head for a divorce. The divorce laws differ from state to state and the laws in the State of California is much more relaxed. In California, you don’t have to give reasons for a divorce. If you feel you need a divorce from your partner you can get one without showing any proof of why you need one. In California, it is all about giving a chance to both you and your partner to lead separate lives.

Like in any other marriage, same-sex marriages also have certain considerations. If you and your partner are heading for one, read through the following points to gain a better understanding of things you need to consider.

  1. Dissolving domestic partnerships

In California, domestic partnerships are viewed as marriages. If you plan to divorce your partner, you must end your domestic partnership as well. Only after you have done this will the state declare you single and eligible for re-marriage. This is one important difference between a hetero-sexual marriage and a same-sex marriage.

  1. Residency requirements

If you and your partner are getting a divorce in California but belong from a different state, then there’s lot to cheer about. In California, you don’t need to be a resident of the state to get a divorce. In other states, usually, you need to provide residency proof of at least 6 months before you can head for a divorce.

  1. Custody rights

Custody rights are a big issue in America. The U.S. Justice Department take it very seriously and same-sex couples face the same issue. If you can resolve the issue amicably with your partner, then things become much easier. But if you can’t then the state courts will take weigh every information about the child and then come to a conclusion. Custody battles can be tough and it’s one of the reasons why divorces become difficult.

  1. Dividing assets

Assets are divided based on who owns what. Most times, this can be difficult due t the length of marriage. Again, if you and your partner can decide on which asset belongs to whom, it becomes easy. But in case you can’t decide then the court looks at the duration of marriage and then comes to a conclusion. But mind you, Marriage and living together is not the same thing. It all depends on how the court views your marriage.

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

Ending Same Sex Marriages And Domestic Partnerships in California

Posted by: Gerald A. Maggio, Esq.

same sex divorce; California Divorce MediatorsPrior to June 27, 2015, there were only several states in the U.S. that allowed for same sex couples to get married. Now, the United States Supreme Court has ruled that same sex marriages are legal and recognized in all of the states, meaning that same sex couples now have equal rights to get married as all other Americans.  This is a huge development and advancement of rights for same sex couples and one that will likely lead to a wave of same sex couples entering into marriage over the next few years.

So what does that mean for existing domestic partnerships and for same sex married couples that seek to get divorced in the future in California?  Because although same sex couples will appreciate their right to get married and will value the institution of marriage perhaps more than heterosexual couples who have always taken their right to get married for granted, same sex couples have the same relationship issues and problems that everyone else has that can lead to the deterioration and end of relationships.  Inevitably, some same sex married couples will seek divorce, although no one knows what such rate of divorce will be for that segment of the population.

Also, those same sex couples that are part of a registered domestic partnership in California will now have the option of getting married and the length of their domestic partnership will be added to the length of the marriage for purposes of spousal support and division of assets, although the case law in California has not caught up to this situation quite yet, but undoubtedly will.

Furthermore, domestic partners and married same sex couples will now be under the jurisdiction of the California Family Code and case law just like heterosexual married couples are, which will apply to them when they seek to terminate their partnership or marriage.  In other words, if parties look to end their registered domestic partnership or same sex marriage, they are in for much the same process as traditional divorce cases and involve most of the same issues, especially if same sex couples decide to legally adopt a child, as follows:

  • Child custody
  • Child visitation
  • Spousal support
  • Division of assets and property

It is a new world for same sex couples as they embrace their new rights and the final wall of inequality has been broken down.  It will also lead to a new world for divorce and family in California and the other states.  But in the end, it is important to recognize that we are all the same and we all have our faults and problems, which can ultimately lead to divorce.  Same sex couples will not be immune to marital problems or to divorce any more than heterosexual couples, because a successful marriage is hard work for everyone.

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

Same-Sex Prenuptial Agreements: Special Considerations?

Posted by: Gerald A. Maggio, Esq.

Top divorce mediators Orange County; California Divorce MediatorsIn California, same-sex couples can benefit from all of the legal rights and protections that the state offers to married couples.  As a result, many same-sex couples in California believe that the creation of a prenuptial agreement involves generally the same issues and considerations as it would for any other couple.

But there are many critical reasons that same-sex couples – even those without children – should take the time to consult with a family law attorney before the marriage.  In a national context, married same-sex couples still face a number of legal complexities that other married couples do not face.  Carefully-drafted premarital agreements can help guard against those complexities.

Many U.S. states still do not recognize same-sex marriage.  And just one of those states, Missouri, recognizes same-sex marriages legally performed in other states*  (*as of the time that this article was written).  The other states that do not recognize same-sex marriage also refuse to recognize many of the legal rights of married same-sex couples, including the right to divorce.

Same-sex couples married in California may obtain a divorce from the California courts if they reside in a state that does not recognize same-sex marriage.  But the enforcement of a prenuptial agreement for same-sex couples residing in those states can be problematic, especially if the enforceability of the agreement rests on the recognition of a marriage or a divorce.

Fortunately, this issue can be put to rest at the outset through an alternate method of drafting the premarital agreement.  The American Bar Association (ABA) recommends that the agreement be drafted as a contract that is enforceable regardless of whether the marriage is recognized or not. The result would be a contract recognized in all fifty states. This alternative way of drafting a prenuptial agreement should be discussed with a family law attorney experienced in addressing legal issues facing same-sex couples.

Same-sex couples who have children or who are planning a family should also consult an attorney prior to the marriage in order to understand how the family can be protected through provisions in the prenuptial agreement in case the family moves or travels extensively out-of-state.

Same-sex couples may also want to take the time to create additional legal protections before the marriage, beyond the prenuptial agreement.  The creation of a health care proxy may be especially important for same-sex couples, as the ABA also notes.  A married same-sex couple traveling to or residing in a state that does not recognize the marriage may face difficulties in a medical emergency – family visitation rights and decision-making rights may not be afforded to the spouse by hospital staff. A pre-existing health care proxy may help afford many of these rights.

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

Same Sex Divorce and Domestic Partnership Mediation

Posted by: Gerald A. Maggio, Esq.

divorce mediation lawyers; California Divorce MediatorsSame sex divorce and dissolution of domestic partnership mediation can help your partner and you end your marriage or domestic partnership on amicable terms. If things aren’t working out between the two of you, both of you can seek a divorce mediator. However, before you do, you should know that same sex marriage is not legal in every state and the laws to grant a divorce are different from straight couples. Following are some differences that same sex couples should know:

1.     Location of Marriage

Same sex couples that married in a state that legalized same sex marriage, but live in a state that has yet to, need to file in the state that recognized their union in order to get a divorce. Additionally, the same sex couples need to be a resident of the state that they are filing.  For instance, California, which allows same sex couples to get married, requires them to live there for six months.

2.     Living in Two Different States

Same sex couples that no longer live with each other, but are separated and living in different states will come across certain challenges. For instance, you live in Ohio where same sex marriage is recognized while your partner moved to Iowa that doesn’t recognize the union. For all medical decisions, your ex in Iowa will be in-charge of making medical decisions. Even if Iowa doesn’t recognize the union, it recognizes medical decisions.

3.     You Cannot Remarry, Unless Divorced

Same sex couples need to take extra care when moving on to the next relationship, especially if they haven’t filed for divorce. If they become married again, they will face a bigamy charge. You will have to get a divorce in the state you got married, before moving on.

4.     Laws Are Always Changing

Laws change constantly, which means that the laws of a particular state that doesn’t allow same sex marriages can change as well. If they do change while the same sex couple is still living there, they will get all the rights of a married couple. This means that both of you will now be eligible for divorce.

5.     Child Custody Problems

If you and your partner adopted a child together, you will not be treated any differently in the court of law than other married couples. The proceedings of who gets custody of the child are the same for them as they are for everyone else. Just as every other soon to be divorced couple, you and your partner will have to sit down with a divorce mediator to decide who gets custody on what days.

6.     Pre-Nuptial Agreement

Although most straight couples may seek a pre-nuptial agreement, if they have anything to lose if a divorce occurs, most same sex couples do not. Since same sex marriages are fairly new, most of them do not have a pre-nuptial agreement.

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