How Is Legal Separation Different From A Divorce?

Posted by: Gerald A. Maggio, Esq.

divorce mediation attorney Orange County; California Divorce MediatorsLegal separation is the formal process of confirming an actual separation of the parties, as opposed to filing for divorce.  Parties that chose legal separation do so for religious reasons, do not believe in divorce, or have concerns about medical insurance coverage, among other reasons.  If the parties proceed all the way to a final judgment in a legal separation case, they can obtain the same orders that they would have in a divorce case.  The biggest difference is that in the end, the parties are technically still married after a legal separation case and cannot get legally remarried.

Agreement for separation

An agreement on separation includes terms that are quite similar to those if the concerned couple was getting a divorce. This means there will be a distribution of their marital property, agreement on child visitation and custody if applicable. Not only this, the couple opting for a legal separation will also have to come to a decision on dividing any debts that were incurred by them after they got married.

Ideally, the above-mentioned terms should be binding in case the couple wants to get divorced. Moreover, both parties should hire their individual attorneys for negotiating all the details of the agreement on their legal separation. In case the spouses eventually make up their mind to go one step ahead and file for a divorce, it has been observed that the judge usually keeps the same terms as both the parties agreed to them earlier.

Differences between a legal separation and a divorce

Check out some of the following key differences between a divorce and a legal separation.

Name

While the spouse continues with the legal married name in the case of a separation, a wife may revert back to her maiden name after the divorce comes throughout the divorce be.

Child support

The conditions related to child support are ascertained when the legal separation takes place. When a couple decides to go for a divorce after being legally separated, ideally, the same terms are followed that were mentioned in the document for legal separation.

Marital status

A couple is still married even though there is a legal separation going on. But when the divorce is finalized, the marriage ends.

Child visits

Visitation rights of the child are decided when the legal separation takes place. If a divorce comes through after the legal separation, most of the times, the same terms are followed as mentioned in the document of their legal separation.

Alimony

The terms for alimony are ascertained during the legal separation. The conditions are typically kept same if the divorce gets finalized in the future.

Split of marital property

The couple agrees to the terms while going for a legal separation. When they do decide to finally divorce, the sane conditions that are mentioned in the document for legal separation are followed.

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

Understanding Divorce & Innocent Joint Tax Filer Relief

Posted by: Gerald A. Maggio, Esq.

Orange County divorce mediation attorneys; California Divorce MediatorsBoth you and your registered domestic partner or spouse assume tax paying responsibility when you file California joint tax return. Responsibility is also assumed for applicable interest and penalties. If you meet a few specific legal requirements, you could qualify for relief from payment of part or all of tax liability.

Traditional Innocent Joint Filer Relief

It is possible to qualify for relief from the assessed additional tax, interest and penalties when you satisfy the following conditions like filing joint tax return. You can enjoy additional relief also when your RDP or spouse’s error is caused by additional tax. Tax breaks can also be had if at the time of signing joint tax return, information was not available to you or you were unaware of those items which resulted in an additional tax. Money can be saved also if all circumstances and facts are taken into account and it would be not fair to hold you totally liable for tax liability. Other conditions of tax breaks include that you have submitted a completed “Request for Innocent Joint Filer Relief” or FTB 705, to the government earlier than two years post date of starting involuntary collection activities from you.

Relief through Separate Allocation of Liability

It is determined, under this kind of relief, which RDP or spouse is going to be liable for assessed additional interest, penalties and tax. In case you meet all the requirements, we assign the liability for the additional tax to liable RDP/spouse. This is treated as if taxpayers had filed two separate tax returns. This kind of relief can be had if the couple files joint tax return. It is important that both the spouses must meet all conditions. These include the case if you divorced and also legally separated from your RDP or spouse or terminated the registered domestic partnership. This is also applicable if the couple lived apart from each other for a period of 12 months before making the relief request.

Relief can also be had when additional tax assessed can be attributed in full or part to the RDP or spouse. It can also be enjoyed if the couple has no information of items which created this tax liability at the time you signed the joint tax return. Other causes include submitting the competed “Request for Innocent Joint Filer Relief” to the authorities earlier than two years post date of starting involuntary collection activities from you.

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

Helping Children Adjust to Two Homes After Divorce

Posted by: Gerald A. Maggio, Esq.

Orange County divorce mediation; California Divorce MediatorsWhile children are the most affected party in any divorced family, a major challenge for them is to adjust residing in two different homes after their parents go separate ways, Although, a kid may be visiting one of the parents only for some hours on a weekly basis, he or she should feel comfortable in their non-custodial house. A cordial arrangement will help in bridging the relationship with the other parent who does not have custody rights and will also help the kid to realize that though their parents got divorced from one another, they are still loved the same way.

When children of divorced parents feel like they belong at the homes of both their parents, it creates a healthy and smooth transition for them. Irrespective of their age-group, issues like abandonment and rejection matter to the kids a lot though many of them cannot express them properly through words. There are several kids who love to stay in both their homes since their parents shower them with attention and love.

The following are some of those ways that can help kids to adjust to living in two different homes.

A primary home should be designated for the children

Though kids of divorced parents may spend time in both parents’ homes, they should recognize only one of the houses as their “primary home”. There could be a lot of confusion if this is not done.  After all, when there is a designated primary home, all mails and other important communications will get delivered to that place only. It will be also helpful for the kids to feel secure and anchored. Though your house is treated as a secondary home for the children, you should not feel that the time they spend with you is less important. After all, do you not feel as happy and content at your holiday home as your main home?

Allocate a separate room for your child

It is imperative for your child to have their own personal room. In case that is not possible due to space constraints, they should be given space to keep their possessions like a toy bin, shelf space or an own drawer for dresses. They should also be permitted to store their things in the allocated space. Let them arrange the things according to their wish.

Freedom of carrying things

Your children should be permitted to carry their items between both the homes without any conflict or tension between the parents. The transition can be much smoother if this is followed.

Allow your kids to personalize their space

Permit your children to decorate their space the way they want to do. In fact, even you can help them out in this endeavor. Let them pick their own sheets and allow them to hang their favorite posters on the wall. Children love to personalize their space.

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

How to Save Money After Your Divorce

Posted by: Gerald A. Maggio, Esq.

divorce mediation orange county; California Divorce MediatorsWhile you are still trying to come out of the ramifications of your divorce, having a proper strategy for saving and budgeting may not be a top priority for you. However, the truth is that henceforth you alone will be responsible for protecting your future as far as the financial matters are concerned. Additionally, when you have some savings, you can enjoy a safety net for any type of unexpected expenses, which may come up frequently.

Start saving money once you are single again

The way marriage brings a big transformation in your life, there is a similar impact after your marriage is dissolved as well. It will take some time and adjustments on your part to start staying alone after living together as a couple for many years. The way you start managing your savings and finances after your divorce will have a big role in the coming months resulting in either financial security or days of struggle and poverty. If you act sensibly, you will not be short of funds, else you may experience a shortage of funds in the future years. Check out these easy tips that can help you to get started.

You should pay yourself at the earliest

While it is not as easy as it appears, it is crucial to develop a saving habit as soon as possible. It is tough to save when one has limited resources but not an impossible thing to do. Try to put aside a fixed sum of money in your savings account every time you receive your payment. It can create a safety cushion, which you can use in times of emergency.

Think and execute a saving strategy

It is not mandatory for you to be a financial expert in order to develop your saving strategy so that you can build up a nest egg for yourself.  However, you need to understand and know the fundamentals. Check with your human resource department what kind of retirement plans are provided by your company to make sure that you do not miss out on a great chance to save for your retirement.

Self-education is of prime importance

It has been often observed that in a majority of households, cutting across geographical boundaries, one spouse has got a greater sense of managing finances for the family like bill paying and budgeting. Were you that person who was taking care of the finance part while being married? In case the answer is affirmative, you may already have a strong grip over how to run the household. But, in case, you were not that person, you need to now focus on how to develop as well as follow the budget.

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

Divorcees Explain the 4 Things You Should Know About Marriage

Posted by: Gerald A. Maggio, Esq.

mediator divorce orange county; California Divorce MediatorsMarriage is a lifelong commitment to share your innermost self with your partner and stay together no matter how harsh the situations might be. However, there are a lot of people who prefer parting ways than living with someone who they cannot be happy with. Regardless of what your point of view regarding the nuptials might be, it will help to get a little insight from people who decided to call it quits with their partners.

  1. Love is not enough to sustain a marriage

While you might have heard about this quite a few times, it is actually quite pertinent to the subject at hand. Most of us think that all you need is love to thrive in a martial relationship. On the contrary, it is essential to ‘like’ your partner for what they really are and respect them for their values. He/she should be you best friend; a person you can blatantly share your innermost feelings with.

  1. Snap out of your reverie and smell the coffee

Believe it or not, but the annoying habits of your partner are still going to be there when you guys are married. In fact, they are going to multiply exponentially and seem absolutely insufferable once the initial attraction fizzles out and the monotony of married life settles in. While the haze of initial attraction will make you regard your man’s/lady’s idiosyncrasies as cute, you will start hating those very aspects of their personality once your tie the knot.

  1. You need space

Contrary to popular belief, you do not have to spend every single minute of your waking hours together! Your partner doesn’t have to like the same things as you and vice versa. Both of you will need your space and unnecessary nagging will get you nowhere. Getting married does not imply that you need to shut off everything and everyone except your partner. Both the spouses are different human beings and so will their lifestyle be.

  1. Communication is the key to resolving all disputes

If you feel that your partner is unhappy or upset about something, you need to make sure that you find out what it is. When you are married to someone who finds it difficult to open up, it might be hard to know what is on their mind. However, instead of giving up on them, you need to find a way to make them communicate. Instead of letting the problem fester in their minds, offer them a healthy release.

Remember that all marriages, no matter how perfect they appear, need work. It takes a lot of commitment, trust, and patience to nurture your relationship and make it stronger over the years.

To learn more about the divorce process in California and how mediation can help, 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

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

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

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

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