The 4 Different Ways of Getting a Divorce

Posted by: Gerald A. Maggio, Esq.

Orange County divorce mediation attorneys; California Divorce MediatorsAre you planning to get divorced but do not know how to initiate the process? There is a common misconception that a divorce process is always a lengthy and complicated one, which may not be necessarily true. Here are some of the ways to get a divorce.

DIY divorce

It is possible that both you and your husband/wife have sorted out all the parenting, tax and financial issues already. So, you have time at your disposal to go through those detailed guidelines, draft and file documents in the court. A majority of the bar associations or states sell handbooks that are handy for filing the paperwork or a do-it-yourself divorce. Alternatively, one can also browse through the website of a state on uncontested divorces to get a hang of the things. Usually, it takes about two weeks to complete the documentation and procures notarized signatures. However, you need to wait for the court’s final divorce decree that may take anywhere between a fortnight to about six months based on the time taken by your court.

Mediated divorce

It is highly possible that both you and your partner failed to resolve the parenting, financial and tax-related issues.  However, if both of you can still be together in one too then a mediator with a neutral approach can guide both of you on the issues that could eventually sort out your differences. The basic aim of a neutral mediation is to assist you and your spouse to arrive at a settlement without the court’s intervention. It is not necessary that a mediator has to be an attorney.  However, if the mediator is one, the person can get all the legal documents ready and then file them in the court on your behalf. While mediation is a voluntary act, it becomes binding after an agreement is signed. The speed of a mediated divorce is reasonably fast and can be usually arrived within three months.

On-line DIY divorce

It is quite similar to a DIY divorce but the difference is that you need not procure blank court papers. Rather, the online program will ask you certain questions and you need to key in your responses. Thus the software program does the paperwork on your behalf. You just need to take a printout of the final documents and notarize them before filing in the court. It takes less time than a DIY divorce as the paperwork is simplified due to the online program.

Litigated divorce

Both the parties hire their respective attorneys who will represent them while the divorce proceedings are on.  It can be a time-consuming and costly procedure.

To learn more about the divorce process in California and why mediation is the best of these options for divorce, please visit our page, What is Divorce Mediation

Legal Separation Agreement Have These Financial Benefits

Posted by: Gerald A. Maggio, Esq.

orange county divorce mediation attorneys; California Divorce MediatorsAre you having problems in your marriage and considering separating legally from your spouse? If it is so then you should ask your attorney to prepare a document for legal separation where both you and your spouse should sign to make it effective. But, it is important to note that legal separation is not recognized in all the states. The process will be smooth in those States that recognize it. If you are residing in a state that does not allow legal separation you can speak with an attorney who specializes in the local family law about what will be your choices in case you want to legally separate from your spouse. While in doing e States both the spouses can sign a separation agreement, which then becomes binding and legal.  However, there are states where the court will only recognize an agreement after the beginning of the divorce process.

To put it simply, when your legal separation document is filed with a local court, it serves as your first line of defense while both of you are legally separated and when your spouse does not fulfill his or her obligations mentioned in that agreement.

To claim deduction for spousal support paid

When you are paying spousal support to your partner, you can only claim the amount for a tax deduction if such payments are mentioned in your legal separation agreement. When you live separately without any legal separation document, any money that you pay to your spouse will not get deducted while filing your returns. If your state does not recognize legal separation, you can get in touch with a good tax attorney in your locality to know how to safeguard yourself in tax-related matters and if the money paid as spousal support could be claimed during tax deduction.

Your legal separation agreement also allows you to retain some benefits that enjoyed while being married

Suppose you are a spouse whose name is included in the health insurance plan of your spouse. It can be mentioned in the legal separation document that such benefits are to continue even while you live separately. When the incomes of both the spouses are used for making bill payments during their marriage, the agreement can mention if such an arrangement will continue. In case it discontinues, the agreement can also outline who will pay those bills now.

When both of you own a home, the agreement can outline who will be accountable for paying what

There are various issues that come up while maintaining a home like maintenance lawn cars, mortgage payments, and utilities. A legal separation document can outline which spouse will pay for what?

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

How Should You Behave While Legally Separated?

Posted by: Gerald A. Maggio, Esq.

Divorce mediation attorneys Orange County; California Divorce MediatorsA legal separation is all about the end of one stage in a life and starting a new stage similar to a divorce. It also means creating a new space for you and to try to rejuvenate yourself emotionally and spiritually. Irrespective of your legal separation leasing to a divorce or not, your behavior during the period of separation should be such that you can get the most in whatever you could be doing. Like mentioned earlier, when you and your spouse live separately, you get the much-needed space to resolve your marital concerns, have a check on your emotions and feelings and perhaps start fresh, other alone or in the marriage once again. When you behave civilly towards your spouse during this crucial period, Your motives for separating are bound to be successful. Here are some of those behaviors that can definitely work for you while you live separately from your spouse.

Try to develop and keep a close bond with your kids

When you have kids from your marriage, have a proper parenting plan in place so that they get to spend ample time with both you and the other parent. Your kids’ lives should not get disrupted because of the break-up of your marriage. You should communicate with your children regularly, show your involvement in their daily activities and try to find out about their progress in school Follow a regular schedule for visiting them. After all, your kids should be your key priority always. Though you could be suffering emotionally due to the disharmony in your marriage, make sure to hide it while you interact with your kids.

You should be respectful and courteous to your spouse

Your lines of communication should be always open even though both of you are living separately.  Though you could be furious, handle your emotions in such a manner that you can be civil to your spouse. When both of you are respectful towards each other and communicate well, life will be less stressful for the kids, your spouse and of course for you.

Adhere to the responsibilities that have been outlined in your legal separation document

When certain promises were made by you and subsequently added in the agreement, you should have both moral as well as legal obligations to follow that agreement. When you fail to do that, you may end up being on the court and can even alienate your kids due to your rude behavior. Try to adhere to the support obligations made by you, visitation schedules and all other matters mentioned in the legal separation document. When you fail to do so, your position may become weak if you go to the divorce court later on.

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

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

Why Material Disclosure of Assets is Significant in Divorce Cases

Posted by: Gerald A. Maggio, Esq.

divorce mediators in Orange County; California Divorce MediatorsDivorcing parties have a natural tendency to conceal their material assets from their spouse and understate their income. Lawyers across California have faced this problem for many years now. However, disclosure of material assets, facts, income and information in a divorce case has great significance in financial settlements between the divorcing parties. The divorce law in California makes it mandatory for both parties.

The mandate to disclose financial and material information is based on the state’s policy, which aims to achieve the following:

  1. To preserve and protect the community assets and liabilities that are existing at the date of separation to avoid squandering of the assets before actual distribution.
  2. To ensure that sufficient and fair spousal and child support is provided.
  3. To achieve a proper division of community assets and liabilities on the legal separation of parties.

In order to achieve the aforementioned objectives, the family code under California divorce law requires accurate and full disclosure of all assets and liabilities in which the separating parties have interest, regardless of the property being characterized as either separate or community. The separating parties are also required to make a full disclosure of all income and expenses.

The divorcing parties also have a persisting duty to update and augment the disclosures. The purpose of this is to ensure that each party will make the final settlement with sufficient and full knowledge of all relevant facts underlying the divorce case. The separating parties make the disclosure by serving each other with a preliminary declaration and final declaration of disclosure.

The preliminary declaration should be served within 60 days of serving the divorce or separation petition. The declaration is not filed with the court but served only to each other. The declaration lays down the identity of all assets and liabilities, the share of the declaring person(s) in the asset or liability and the characterization of such assets and liabilities.

The final declaration of disclosure should be served at least 45 days before the first trial date. The final declaration includes all material facts and information regarding the characterization, valuation, amount, income and expenses of each party entering into the divorce case. Failure to comply with the disclosure requirements would be considered a breach of fiduciary obligation of the party. The court may sanction the party committing the breach by awarding sanctions and attorney’s fees to the other spouse as observed by section 271 under the California Family Code.

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

Modifying Spousal Support Orders

Posted by: Gerald A. Maggio, Esq.

Orange County spousal support; California Divorce MediatorsThere can be a number of reasons why both the domestic partners and spouses may require changing order post judgment.  In case this situation arises, you must show that there have been a change in the circumstances after the partner or spousal support was delivered. It means that something of significance have changed from the time the partner or spousal support order was delivered.

There could be a number of reasons as to why a support order should be changed. It can be that the partner or spouse which was getting the support no longer requires it. It could be also that the person paying the support has suffered considerable drop in his or her income and cannot support the quantum of money required for support. It may be that the partner or spouse who gets the support does not make the effort to be self-supporting- and the partner or spouse can request the court to end support order dependent on this premise. There could also be the cause of the partner or spouse remarrying and thus the support should be ended.

In case the domestic partners or spouses can reach the agreement for new amount of partner or spousal support, it can be possible to write this up as a kind of stipulation or agreement. The document can then be given to judge for the requisite signature and make it the new court order. If both the domestic partners and spouses cannot reach an agreement on this change, the partner or spouse who wants the change should file motion with court requesting a modification of the partner or spousal’s support amount.

Good reasons to ask for new court orders as soon as possible

In case there is a considerable change in factors which the judge regards as important when considering partner or spousal support, you must act quickly so that the partner or spousal support order can mirror the changes. Many people frequently wait when it comes to change this supporting order as they believe that the income drop or job loss is temporary. Other causes include stress and worry and their spousal support worries take a backseat. It may also occur that they are in a situation like prison where it can be extremely hard to file the court papers. It may also be that they believe it will be easy for them to change court orders later when they are less stressed or have plenty of time.

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

Shielding Your Child From Emotional Trauma During Divorce

Posted by: Gerald A. Maggio, Esq.

child custody mediation Orange County; California Divorce MediationParents are terrified of how divorce affects children. This is most acute during the process of divorce. In fact, the fear of something bad happening to the children is the reason most unhappy marriages persist longer than they should. It can be constant struggle to consider what is best for the kids. Both parents seek the optimal way to guide them through the navigation. For both the parents and the children, the whole process may appear like an unending struggle. However, there are ways to minimize the negative impacts a divorce could have on the kids. It is important to make the transition much more positive. 

Amicable alternatives

Selection of mediation or opting for a collaborative approach will result in decreased contentiousness. It will probably make the process quicker. It means that the children will not be exposed to more uncertainty and acrimony.  This is because the standard litigation system can only be described as adversarial. You will fight your spouse from the beginning. It is an excellent idea to hire a better lawyer so that you know your rights. However, when you opt to mediate with your ex, then it results in better co-parenting. A mutually agreed plan can be developed- and not left to the courts to make a decision.

The litigation system cannot be a good avenue to take revenge or punish your ex. If you want to litigate when there is no need to, expect some heavy expenses. Your children will also be much worse off. Be parents first and the mediation process will help children to enjoy a smoother and quicker transition to new reality.

Protect children from painful experiences

Children can find it extremely difficult to adjust to two separate homes. When the children are staying with you, help them by having fun and doing activities they love to do. Do not push for details on their ex and dwelling on divorce. Most importantly, your children should not see you two having a fight. Do not use them as kind of messengers between you and your ex. Do not speak badly about the other parent. If you do, your children will suffer from stress and the circumstances will not be beneficial to the relationship or the well-being of your child.

It is also an excellent idea to seek the help of a good therapist for the children. It can make a big difference in dealing with anger and resentment issues.

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

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