A father must first determine whether he is biological father of minor child if he is not married to the mother of the child. If it is conclusively proved that he is the biological father, he gets certain rights when it comes to the minor child. Almost under every circumstance, if a father has been declared legal father of the minor child, then the father’s name will be inked on the birth certificate of that child. This may occur even if the mother was already married to another person at conception or birth. The surname of the father, in addition, will be inserted in the certificate of birth as the surname of the child. A biological father, even if he is unmarried, has complete right to get custody of minor child. He also has equal rights as married fathers. The unmarried biological father can get a hearing so that the court can determine his fitness when it comes to the custody issue.
Authority as father
Once a father gets confirmed as the biological father of a child by a law court, then he becomes natural guardian of minor child. It may be, as under a few circumstances, he could have all authority to obtain legal action on the behalf of his minor child.
If it is seen that the minor child’s father has no wish to contest the custody of minor child, he will continue to enjoy other rights when it comes to that minor child. For example, the father continues to have custodial rights regarding the minor child. Circumstances in specific cases vary and will determine whether the father will have complete visitation rights or whether the court will restrict the visitation. In a few cases, it may be important for the father to develop relationship with minor child prior to have an unsupervised visitation. Another concerning factor is the minor child’s age and the experience of the father in the rearing of the child.
Parental responsibility
The biological father also enjoys right to have a shared parental responsibility when it comes to concerning minor child. It is important for the child’s mother to consult and then discuss the number of issues that concern their minor child, like religion, vacations, illnesses and doctors among others. A father has the right of information about the minor child’s activities and also the right to participate in such activities.
To learn more about the divorce process in California and how mediation can help, please visit our page, What is Divorce Mediation.
During the financial settlement of a divorce, the court considers many factors. One of the factors that the Court considers is the age of both partners and the second is the length of the relationship. Note, however, that the outcome of a divorce case highly depends on the facts of an individual case and the financial circumstances of both you and your partner.
Why the duration of marriage matters
Two facets of property division can be influenced by your marriage’s length. First, the duration your marriage can decide the precise distribution of property. Second, the longer you are married, the more complex will be the property division and vice-versa.
It is believed that couples who have been wedded for a longer time are likely to have more property and more various property holdings or interests. Property may comprise real estate and related investments, closely held businesses or professional practices, employee stock options and grants. It could also include various retirement as well as investment accounts.
California Family Code section 4320
California Family Code section 4320 states that the shorter the marriage, the shorter the duration of alimony (spousal support) in the State of California. It also means that you get a shorter amount of time as a spouse to become self-supporting. Similarly, the longer the marriage, the longer the time you have spent outside the workforce, and so the greater will the duration of alimony be. The court will also provide you more time to get back into the workforce.
You might have heard or read that a marriage of 10 years or more means automatic lifetime alimony. Not really. If you and your spouse are married for less than 10 years, it generally means the alimony will likely be for no more than one-half the duration of the marriage. In some cases, if your marriage lasts 10 years or more, the court may determine that your spouse can become self-supporting and cut down the alimony accordingly. In most cases, the closer your marriage is to the ten-year mark, the more likely you are to receive less support depending on the court’s order. If you are married for a longer period of the time over 10 years, it means that normally the court will have continuing jurisdiction over the issue of spousal support and that other than the remarriage of the spouse receiving the support or the death of either party, there is no automatic termination date.
To learn more about the divorce process in California and how mediation can help, please visit our page, What is Divorce Mediation.
Many of you would be well acquainted with the concept of common law marriages. However, for the individuals who are not so well versed in legal jargon, common law marriage is legal framework which stipulates that a couple will be considered as husband and wife in certain circumstances even if they do not get their wedding legally registered by the court of law. In other words, a couple that lives together for a specific number of years without being legally married, and present themselves as a wedded couple, will be considered as common law married across certain jurisdictions. Now coming to the actual point of whether or not such a law practice is recognized by the state of California. The answer is no. Here is a list of few popular myths regarding common law marriages in California.
Myth #1: All the 50 states of America recognize the common law marriage
The truth is that several states such as California, Rhode Island, Washington DC and Colorado do not acknowledge the practice as legal.
Myth #2: There is no way of getting common law marriage recognized within the state of California
The fact is that, if a couple that was living in another state that acknowledges the common law marriage, shifts to California and applies for a divorce, the court of law will accept the couple as married.
Myth #3: If a couple has lived together for seven years, they be considered common law married
The fact here is that there is no minimum time period which defines a couple’s eligibility for being common law married. Irrespective of whether a couple has been cohabitating for one year or twenty, the court of law requires them to qualify for very specific criteria to even consider it applicable for common law marriage.
Myth #4: Two individuals will be considered married if they claim it
As aforementioned, a court of law will not consider two individuals married merely on the fact that they say that they are married. There are several criteria which are taken into account while recognizing a couple as common law married. The couple should be a resident of the state where the practice is recognized. In addition to this, one of the partners has to display their intent to marry and recognize the other partner as their spouse by taking the latter’s surname.
To learn more about the divorce process in California and how mediation can help, please visit our page, What is Divorce Mediation.
There are several cases wherein a spouse has filed a petition for a divorce, but the other partner has not officially filed for a response to the petition yet, or defaulted. In addition to this, the two divorcing parties have created a written agreement which incorporates well defined instructions for the actual legal separation or divorce and other related issues such as division of property and debt, visitation and child support and custody. If the partner who has filed for a divorce does not receive any response from the other side within 30 days, the situation is termed as ‘default with agreement’. We are listing here a few steps to be followed by the petitioner to proceed with this situation.
Writing the agreement
The first and foremost step is to actually create an agreement in writing which clearly states the couple’s intent of getting separated or divorced. In addition to this, your agreement may also incorporate instructions for the division of your property and debt. Furthermore, you and your partner may agree upon whether either of you needs to pay for the support of the other partner. In case, there are any children involved, the couple can also reach an agreement regarding the custody, support and visitation of their kids. This written agreement is referred to as an MSA or marital settlement agreement and should be attested by a certified notary for legal validation.
Filling out the forms
It is the petitioner’s obligation to present the final forms in the court of law requesting the judge to announce a final verdict for their divorce or legal separation. In addition to this, you can also request the judge to announce the legal orders regarding other related issues such as division of your assets, custody, support or visitation. A petitioner cannot present the final forms in the court of law until 30 days have passed from the date of presenting the petition and summon to their spouse.
Completing the required financial disclosure
Usually, both the petitioner and his partner are required to create and serve a ‘Declaration of disclosure’ as part of the requirements in a divorce case, known as the “Preliminary Declaration of Disclosure.” A couple can waive the completion and service of a “Final Declaration of Disclosure” by stipulation at the end of the case.
To learn more about the divorce process in California and how mediation can help, please visit our page, What is Divorce Mediation.
Despite your efforts to devote several hours a day in building your empire, you might end up witnessing your enterprise crumbling down to pieces as an aftermath of a divorce. If you have an angry and resentful partner, the chances of losing out on your well-established business becomes even higher. However, if you are well aware of your rights and know how to get them enforced, you can ensure that your spouse does not end up taking a massive bite of what is rightfully yours. Here are a few ways in which you can protect your business from becoming a controversial issue in a divorce lawsuit.
Sign up a premarital agreement
The best way to protect your business from an unwarranted division is to get your spouse to sign a prenuptial agreement that would stipulate the instructions for the evaluation and distribution of your business finances in the event of a divorce. However, if your spouse refuses to agree upon a prenup, you must at least take the assistance of an appraiser to determine the initial value of your business at the beginning of your marriage and make it easier to identify any appreciation or depreciation in due course of time.
Avoid involving your spouse as an employee
Although for several reasons such as tax benefits, most of the business owners end up appointing their spouses as employees in their company, it is advisable to refrain from this habit. The reason is that if you decide to separate from your spouse, he or she might end up making a claim to a portion of your business assets on the pretext that they too have actively contributed towards its growth and profits. However, if you already have your spouse working for your business, you must make it a point to fire them right away and save yourself from undue claims.
Trade off other assets
For the division of property in the event of a divorce, the court adds up the total assets of a couple and carries out an equitable distribution between both the parties. It is always advisable to try and retain complete ownership of your business by paying the buyout price in the form of other marital assets such as your family home, car or retirement accounts.
To learn more about the divorce process in California and how mediation can help, please visit our page, What is Divorce Mediation.
Every state in the country has a different set of laws when it comes to the matters of family law, especially divorce. However, there are certain aspects of a woman’s rights as a wife and a mother in a divorce lawsuit that stay fairly typical across all states. So if you have decided to divorce your husband, you must consult an attorney before filing your petition in the court. An experienced attorney can not only assist you with the proceedings of the litigation but also help you understand and preserve your rights as a woman.
Spousal support
In many cases, where the husband is the primary breadwinner of the family and the couple is no longer cohabiting, the wife has the right to demand temporary financial support even during the period of litigation before the final verdict is announced. The temporary spousal support is referred to as ‘pendente lite’ and stays in effect only until the final decree of divorce is announced by the judge. The pendent lite does not imply that the court will award you permanent alimony provision even after the case is dismissed. However, the temporary support can be extremely useful in making ends meet while the expensive litigation goes on.
Restraining orders
If your husband tries to harm, threaten, harass or abuse you in any way, you can immediately seek the assistance of the law enforcement officials and request a restraining order against your spouse from the court of law. A restraining order specifies guidelines to restrict the communication from your husband and can even go to the extent of asking him to move out of the marital residence and live elsewhere. In addition to this, if your husband tries to move the children out of the state before the final verdict is announced, you have the right to inform the legal authorities and get him to stop.
Household expenses
Regardless of whether your husband chooses to stay with you or moves out of your marital home, it is your right to demand his share in the mortgage or rental payments. The court of law makes it mandatory for both the spouses to make an equal contribution towards the payment installments of their marital home. However, such an order is mostly temporary in nature and is issued on ‘pendente lite’ basis as an alternative for spousal support until the final decree of divorce is ordered.
Although it is natural to feel emotionally vulnerable in a grave situation such as a broken marriage, it is advisable to stay put and deal with the situation in a logical way.
To learn more about the divorce process in California and how mediation can help, please visit our page, What is Divorce Mediation.
Although you might not be comfortable with taking relationship advice from hot shot celebs and famous personalities, it goes without saying that they do have a better understanding of how divorce litigation works. Since a majority of celeb divorces involve enormous assets and property, and also several intricate details such as kids from another marriage or extra marital affairs, we have a lot to learn from the way they handle their separations. Let us have a look at some of the lessons that we can learn from high profile divorce cases.
Prepare yourself for a divorce
If there is one thing that we can learn from Tom Cruise and Katie Holmes divorce is avoiding impulsive decisions and cautiously planning out a strategy before taking the huge plunge. Although the news might have come as a surprise for Tom, Katie had planned out every single detail of her litigation well in advance. She knew what she wanted out of the divorce and consulted professional attorneys to help her achieve her goal. Instead of rushing things, she took her time in deciding New York as the place to file for a divorce, since the family laws in the city were likely to be more favorable for her. So if you are thinking of divorcing your spouse, it is advisable to sleep over it, take your time and do your homework before filing a petition in the court of law.
Try to reach a mutual agreement
The recent Chris Martin and Gwyneth Paltrow split brought forth their intention of living apart but continuing to co-parent their children in their best interests. The case reiterates the importance of having amicable discussions with your spouse and obtaining mutual agreements over the various significant aspects of a divorce such as child custody and visitation. It is advisable to keep your disputes aside for a bit and actually focus on the needs and expectations of your kids as more important than your split.
Sign a prenup
Signing a prenup with your spouse-to-be is a great way of eliminating the chances of any additional conflicts and disagreements in the event of a divorce. They are designed not only to protect the interests of both parties but also carry out a fair and square division of separate and marital property. There have been several high profile divorce cases such as that of Mel Gibson, wherein a lack of a prenup led one of the spouses to pay millions of dollars as alimony to the other party.
The take away here is, that no matter how eager you might be to start a life away from your spouse, it is always best to use your logic and patience in planning for a divorce.
To learn more about the divorce process in California and how mediation can help, please visit our page, What is Divorce Mediation.
A divorce mediation is a very practical, and sensible alternative to fighting out in the court. A divorce mediation can be successful as long both the parties involved remain reasonable. The different types of divorce mediation concepts are:
Evaluative divorce mediation
In evaluative divorce mediation, the mediator, who has specific and deep knowledge about divorce laws, would hear each parties arguments, and identify the weaknesses and strengths. He/she would then inform the parties about the possible outcomes should they take their case to the court. With both the parties consent, the mediator then would propose what he/she believes is a fair settlement. The parties can then accept it or reject it.
Comprehensive divorce mediation
In comprehensive divorce mediation, the mediator would cover all the aspects of the divorce. Both the parties would agree upon the division of the property, division of debt, child custody and support, spouse support, and so on. After that, both the parties would sign the comprehensive agreement. In order for the comprehensive divorce mediation to be a success, both the parties would have to agree on all the divorce issues.
Facilitative divorce mediation
In facilitative divorce mediation, the mediator would only facilitate the conversation between the parties involved. They will not evaluate the case or direct the parties to any specific settlement. The parties will decide what and all will be discussed and how the issues can be resolved. The mediator may outline the structure for the discussion and may offer informed suggestions based on his/her experience, however, that will be the extent to which he/she will get involved in the mediation process.
Virtual divorce mediation
In virtual divorce mediation, the entire mediation process is conducted online with the help of applications such as Skype, Facetime, and so on. The parties involved need not be present physically at the mediator’s office, they can just login from their home or office. Virtual divorce mediation is especially helpful for busy professionals, people with disabilities, and people who are out of the state/country. Virtual divorce mediation is cost-effective as well.
Transformative divorce mediation
In transformative divorce mediation, the mediator encourages the parties involved to have a constructive, and practical discussion. He/she encourages the parties who may be intimidated by their partner’s presence to speak out freely, and confidently. In this type of divorce mediation, importance is not given to reaching a settlement but to discuss all the issues involved practically and go about resolving them in a practical, and respectable manner.
The aim of mediation, no matter which type of mediation, is to avoid the nasty side of divorce, and reach a solution in a very civilized manner.
To learn more about the divorce process in California and how mediation can help, please visit our page, What is Divorce Mediation.
Online mediation or virtual mediation is the process of conducting mediation online, via the Internet, with the help of applications such as Skype, Facetime, and so on. The mediation process remains the same, the mediator and the two divorcing parties will be present, however, they will not be physically present at the mediator’s office, all will be communicating with each other via Skype or Facetime. While face-to-face mediation has its benefits such as a more meaningful communication between the parties, the mediator getting a better understanding of the couple by observing their tone, body language, and so on, online divorce mediation has its own advantages as well.
Online divorce mediation is perfect for busy professionals
Many a time in face-to-face mediation it just so happens that one of the parties fail to reach the mediator’s office on time because of their busy work schedule. With online mediation, both the parties can decide on a time that is suitable for them. They can then login from their office itself, and be present virtually for the mediation process. No rushing to the mediator’s office from their own office, no getting stuck in the traffic and reaching the mediation venue late. Also, if you need to travel extensively for work or if you are staying out of state, you do not have to take a day off to participate in the mediation process. You have the convenience of logging in from anywhere.
Online divorce mediation is cost-effective
Since it is possible to participate in the mediation process from home, you do not have to arrange for child care. Also, you will be able to save on all the traveling expenses.
Online divorce mediation is ideal for immobile individuals
For people who are unable to leave their home due to any medical condition or disability, online divorce mediation is very practical. They will be able to take part in the mediation process from their home. Also, in the case of older individuals, they will be spared the hassle of driving or finding someone to drive them to the venue.
Online divorce mediation can be empowering for certain parties
If one party is intimidated in the physical presence of the other party, then that party may not be able to speak openly and freely during a face-to-face mediation. Online mediation can empower such parties to speak their mind freely and confidently during the sessions. Online divorce mediation is ideal for couples who cannot stand each other as well.
Online mediation can be a learning experience for the couples as well. They will be able to communicate with each other online in the future to maintain their relationship after the divorce for discussing the needs of their children.
To learn more about the divorce process in California and how mediation can help, please visit our page, What is Divorce Mediation.
Keeping or selling the marital house can be a bone of contention with divorcing couples. One may want to sell it for financial gains and the other may want to retain it and live in it because it means financial security for him or her. In order to avoid such a situation, it is best that they have solutions in place.
If one person leaves the house, then the other person will have to worry about paying out the mortgage, insurance, tax, maintenance and so much more. Also, maintaining two households is expensive. But any financial gains made from the house by one party does not mean the gains will come to an end with them moving out of the house.
Certain other solutions may help you to sell or keep the house.
Buyouts – One spouse sells the house to the other spouse. An appraiser will determine the value of the property. After deducting the mortgage amount and any related encumbrances, the equity value of the house is determined. The spouse will pay half of the equity value in cash or via exchange of other assets or spousal support, and so on.
Tax consequences – Selling the house would mean having to pay capital gains tax. But if you retain the house, over time there will be depreciation of the property. It will mean that you will have lesser tax to pay.
Court order to sell the house – Situations may arise where neither of the spouses have the ability to buyout the house. The court can be asked to grant an order that would allow the house to be sold at the end of the divorce trial. It also happens when the spouses are unable to reach an agreement.
The court can also be asked to grant an order for selling the house before the divorce trial begins. If the spouses feel that they do not have the means to pay their attorneys or that the financial settlements such as child and spousal support will be difficult to meet. They may also fear about a foreclosure (inability to pay mortgage) of the property.
Getting a stipulation and order (agreement) – Selling a house while the divorce procedure is on can be quite complicated because certain restraining orders come into effect during this period. The complication can be avoided by asking the court to sanction a written agreement signed by both the spouses.
To learn more about the divorce process in California and how mediation can help, please visit our page, What is Divorce Mediation.
A father must first determine whether he is biological father of minor child if he is not married to the mother of the child. If it is conclusively proved that he is the biological father, he gets certain rights when it comes to the minor child. Almost under every circumstance, if a father has been declared legal father of the minor child, then the father’s name will be inked on the birth certificate of that child. This may occur even if the mother was already married to another person at conception or birth. The surname of the father, in addition, will be inserted in the certificate of birth as the surname of the child. A biological father, even if he is unmarried, has complete right to get custody of minor child. He also has equal rights as married fathers. The unmarried biological father can get a hearing so that the court can determine his fitness when it comes to the custody issue.
Gerald A. Maggio is a trained Orange County divorce mediator who has amicably resolved cases many cases out of court, as well as an experienced divorce and family law attorney. Mr. Maggio founded California Divorce Mediators in 2012 with the belief that although “not every marriage can be saved, every family can” and a mission to save families from the financial and emotional distress associated with traditional divorce litigation. California Divorce Mediators is located in Irvine, California, and serves the Orange County area and other counties in California offering divorce mediation, child custody mediation and mediation of other family law matters. 
