Pros and Cons of Cohabitation Versus Marriage in California

Posted by: Gerald A. Maggio, Esq.

Orange County divorce mediation; California Divorce MediatorsThe subject of whether marriage better or cohabitation warrants a lot of debate based on people’s personal experiences and beliefs. There are some who believe nothing can replace a marriage in a loving relationship, while others beg to differ and believe that cohabitation is equally amazing without the legality of marriage. We discuss some of the benefits and disadvantages of cohabitation over marriage.

Pros of cohabitation over marriage 

  • One of the most obvious benefits is that you get to share your home and life with someone you love and like to be around because you love the person and not because of legality binding you.
  • Cohabiting has all the financial benefits of being in a marriage without the legal hassles that come with marriage. You get to split costs, manage finances, and invest together with your partner.
  • Cohabiting can be a great way to understand if you and your partner can sustain a marriage. It is a good way to know how well you both work together as a couple living together before taking the plunge and getting married.

Cons of cohabitation over marriage 

  • There is some research that shows that marriage may have physical and psychological benefits that are lacking in cohabitation. However, some results are still ambiguous about the reasons behind these differences.
  • There is no legal responsibility or hassle, making it easier to leave a cohabitation arrangement. Marriage demands more legal commitment and, therefore, there is more thought given before a spouse decides to leave.
  • If you have kids while cohabiting, custody rights can become complicated if you decide to go your separate ways, as there is no clear legality.

Cohabitation in California 

California does not recognize common law marriage except when a couple is considered married under common law marriage in a state that recognizes it and then moves to California. California recognizes cohabitation as a legal form of relationship, and there are some provisions for couples who wish to cohabit but not marry.

If you are cohabiting to test your relationship before getting married, you can enter a prenuptial or premarital agreement that lists rules and laws applicable to you as a couple once you get married.

If you simply wish to cohabit without the legal hassles of marriage, then the state has a provision of getting a cohabitation agreement, also known as a nonmarital agreement. This formal agreement lists out responsibilities and rights for the cohabiting couple and works as a contract that is outside of marriage laws.

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

What Can And Cannot Be Considered As Income For Child Support

Posted by: Gerald A. Maggio, Esq.

Divorce mediators in Orange County; California Divorce MediatorsDivorce is always a difficult period for the couple going through the procedure. The proceedings, however, are much harder if there are children involved. Children below the age of 18 are involved in the unpleasant business of divorce despite their unwillingness. Divorce settlements often do not proceed smoothly especially when there are issues revolving around child support. Debates often arise when it comes to calculating the percentage of an individual’s income that goes into child support. Confusions can also arise when it comes to determining the type of income that can and cannot be considered as child support.

Income considered as child support

Generally, income is a broad term that encompasses the monetary benefits an individual attains from work, pensions, dividends, rental properties, trust funds, and so on. When it comes to divorce settlements for individuals who own businesses in Orange County, California, income is calculated by subtracting the expenses incurred in the business from the gross revenue generated by the business. Courts may also extend the calculated income to include any monetary benefits that are instrumental in reducing the living expenses of an individual.

Recent laws also classify financial gifts received from an individual’s parents as income.

Details on how much of a person’s income actually goes into child support are explicitly stated under the California Family Code Section 4050. Usually, the amount that goes into child support is calculated by taking into account the incomes of both parents, the time the child spends with each of the parents, and any tax reductions that are applicable. An estimate for the amount to be paid can be calculated using the California Guideline Child Support Calculator that is based on California Child Support Guidelines.

Income that cannot be considered as child support

Deciding income that cannot be considered as child support is a difficult task. It varies according to state laws and sometimes according to what the court decides. Despite uncertainties, there are certain types of income that are not eligible to be considered as child support according to Orange County laws. Benefits arising from life insurance policies, any income that is speculative, stock options that cannot be liquidated, and settlements from disputes relating to personal injury cannot be considered as income for child support. Gifts like cars and household items that are not monetary in nature are not considered income. These are a few situations where the resulting monetary benefits are not considered an actual stable income. Each of these situations is subject to change depending on the final decision taken by the Court.

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

Divorcing A Spouse Who Does Not Want The Divorce

Posted by: Gerald A. Maggio, Esq.

Orange County divorce mediation attorneys; California Divorce MediatorsThere could be a time when you want to end your marriage but your spouse does not want it to continue. It is possible to get a divorce in such a case. Do note that such a contested divorce can take a lot of time. It could also involve a number of complexities.

Trial needed

In this instance, a contested divorce, unlike a divorce where both spouses agree to terminate a marriage, usually needs you to attend trial before a judge. You must provide the argument as to why you want to end the marriage. The first step is to draft a divorce petition. State law will provide you the requirements of a divorce petition. The document must list information concerning both you and your spouse. This must include both your names, marriage date and present residential address. If you have children, you must provide their names along with date of birth as well. You must also state all reasons as to why you wish to divorce, like irreconcilable differences.

The next step is to make the supporting paperwork. You must fill a child custody affidavit or financial affidavit in case you wish to apply for child custody, child support or alimony. These affidavits can be asked for at the office of the court clerk. The court clerk must receive the divorce petition from you. File them with the court clerk post completion of the divorce petition and any other affidavits. Pay the filing fee. It is essential that you file the divorce petition in the city or county where you live.

Tackling the unwilling spouse

The fourth step is to provide your unwilling spouse with all divorce papers post their court filings. You can serve court papers to your spouse by a law enforcement officer or private process server. You can also do it through registered mail. Do wait for the spouse’s response. When you spouse receives divorce papers, he or she is compulsorily needed to prepare the written response as to why the concerned spouse objects to this divorce. If your spouse fails to offer a response, you can ask for a default judgment. If this is done, you can start the rest of the divorce proceedings.

Present the case to judge. The clerk, after receiving both your spouse and yours’ divorce papers, will assign you a particular hearing date. Both of you will have the opportunity to present your case. The judge will then give his ruling on the court granting due divorce.

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

Creating A Divorce Safety Plan In Case Of Domestic Abuse

Posted by: Gerald A. Maggio, Esq.

Domestic violence Orange CountyIf you are in danger, call “911” immediately. You are solely responsible for keeping yourself and also your children away from any harm due to domestic violence. You must prepare a safety plan. A safety plan is a scheme which you can execute to keep yourself and your children safe from any kind of domestic violence. It is possible to ask for help to craft a safety plan. Assistance is generally provided free or you will be charged a nominal amount. Multiple language help is available. For more information, contact California Partnership to End Domestic Violence and National Domestic Violence Hotline.

Before an attack and after it

Try to escape when an attack is about to start. In case you are afraid of being mortally harmed, take your children and leave home. Do this even at deep night. Take shelter in a domestic violence center or in the house of a relative or a friend. If you cannot escape, defend yourself. Take photos of all injuries.

Do not hesitate to call for help. Scream loudly and long. There is nothing to feel embarrassed about. The abuser should feel ashamed for abusive behavior. Be close to any door or any practical sized window so that you can exit the house when you want. Stay away from weapons, kitchen and bathroom. If possible, practice your escape route. Know the stairs, elevators, doors and windows through which you can run away. Keep a bag packed at all times. Hide at a place where you can access it swiftly.

Do identify neighbors you can turn for help. Request them to call police when they hear domestic violence being carried out in your home. It is sensible to have “code words” which you can use with your neighbors, children, friends and family. Hearing the code word, they will call police. You should know the destination if you escape from your abusive partner. Trust your instincts and do anything to survive.

Living alone

Change door locks as fast as you can. Put the locks on all doors and windows. You can request your local cell phone provider to give you an unlisted number. Teach your children to be safe during those times when you are unavailable for them. Make sure that your child’s daycare provider or school knows who to allow to pick up your children.

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

Paying For Your Child’s Medical Care After Divorce

Posted by: Gerald A. Maggio, Esq.

Orange County divorce mediation; California Divorce MediatorsIn most cases, divorce means one parent generally provides child support. The payment is made to the other parent so that the child’s daily expenses are met, including food, cloth and housing. The problem is that courts cannot predict the future medical expenses of any child. It follows that the support amount every month for the child may not be sufficient to cover the future medical expenses of the child.

Covered medical expenses

Californian courts will take into account the expense of premiums payable for medical insurance into awarding the amount of money needed for child support. A part of a child’s health insurance premium acts as credit when it comes to contrast against the child support obligation of the parent. It can be determined how much money will be paid as health insurance premium in a number of different methods.

Future medical expenses

In case parents are aware of any particular medical expenses which must be paid in future, they can negotiate on how to pay such expenses as part of the settlement agreement. To give an example, if both the husband and the wife are aware of the fact that their child’s medical treatment is not covered by insurance, they can agree among themselves to divide that expense ahead of time. A few parents may consent to split those expenses equally, or in percentages which correspond to relative incomes. Alternatively, one parent may agree to shoulder all such expenses.

Uncovered medical expenses

The settlement agreement must explain how the husband and the wife will divide the extra medical expenses which cannot be reimbursed by insurance policies, like the co-pay expenses for medications and doctor visits. Spouses may either divide equally or in proportion to their income. In some cases, one parent may consent to pay all the extra medical expenses. This is factored into the child support amount paid by the other parent.

It makes excellent sense for both the parents to agree on the method for paying uncovered medical expenses. It is frequently seen that one parent will pay the medical costs and then submit the spent amount bills to the other parent for reimbursement. The second one will be provided a certain slab of time to meet such an obligation. A few parents set up a joint account and fund it equally every month. The parent using such an account must inform the other as soon as costs are incurred. Proof of payments like receipts must also be given.

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

What To Know About Dividing Antiques In A Divorce

Posted by: Gerald A. Maggio, Esq.

Orange County divorce mediation; California Divorce MediatorsOther than your home, considerable joint property exists in valuable items present in your home. Similar to the appraisal of the real estate before your divorce, it is a good idea to appraise the personal property as well. This is as the total value of your personal property can add up to a large amount. Only after you determine the total value, can you decide upon a fair property division. An appraisal of personal property can assist to insure items from future damage.

Antiques belonging to your spouse

It is likely that you do not personally own a multi-million dollar antiques collection but you want a fair share of all the marital assets. It is easy to know what is your fair share. This is usually the assets you and your spouse shopped together. It does not matter who paid for the goods. What matters is that you have helped your spouse to purchase them. Do understand that you require a thorough appraisal of the personal assets to arrive at a fair share.

Antiques and value appreciation

You should always think of your future when there is prospect of a divorce. If you are a woman, keep in mind that  women generally earns much less than men. Many women exhaust their money quickly post divorce. A few divorce experts recommend that you should take the antiques over the car. The rationale behind this advice is that antiques go up in value while the car’s value depreciates over time. It is also to be factored in that majority of divorce lawyers have minimal knowledge of appraising. They have zero knowledge of antique furniture or stamps which you and your spouse have bought when the marriage was on solid ground.

Formal appraisal procedures involve a number of sequential steps. A generic process starts with you reading and accepting the appraisal terms placed before you. This can be both physical paper and in online form. You must complete all fields present in the form. This helps to make a better appraisal. You will be asked to send a photograph of the item. You may be asked to send a portion of the payment in advance for appraisal services.

Orange County divorce attorneys in California can work with professional appraisers to critically examine the assets of their clients. They also protect them. Lawyers select only those appraisers who have proper educational background. Only the latter could provide current and correct values of collectibles, art and antiques.

Getting divorced in California can be complicated.  Download our free eBook, 18 Important Things to Know About California Divorce to educate yourself on the process.  

Understanding Domestic Violence Under California Law

Posted by: Gerald A. Maggio, Esq.

Domestic violence Orange CountyDisagreements are not something unusual in one’s life. After all, it is not possible to agree with someone every time. And yet, when someone constantly feels unsafe or has to continuously live in a state of fear, domestic violence could be a major contributor. Any emotional, mental or physical behavior or act, which can have a negative impact on people living in the house or family members to an extent where they feel afraid, furious or nervous can be regard as an act of domestic violence.

Codes in California defining domestic violence

However, the definition of domestic violence may not be same in all states. Yet, the state of California is somewhat progressive with respect to the treatment of domestic violence incidents. It is also more sensitive with respect to how the court and the police system are directed to handle such cases and the kind of treatments victims of such incidents should get. The law of California has defined an act of domestic violence as an abusive treatment against a minor or an adult who could be a cohabitant, ex-cohabitant, former spouse or spouse. a kid from the individual or a person with whom a victim dated or has been dating according to Penal Code 13700.

California has also defined domestic violence as per the Family Code 6211. Its definition is wider as compared to the penal code. The code makes distinctions between non-criminal and criminal situations of domestic violence.

The domestic violence laws in California attempts to put an end to violence in intimate or familial relationships. It identifies acts of domestic violence if a person commits any type of criminal act within the purview of any relationship defined by the state’s Penal Code as mentioned above. Domestic violence cases are often synonymous with child abuse or abuse of spouses.

If a prosecutor brings a charge of domestic violence against the defendant, multiple sections of the California Penal Code can apply. It is the discretion of a prosecutor to select the kind of criminal charges to follow on the basis of how severe the conduct is and the degree of harm caused to the victim.

Restraining Orders

State laws of California enable domestic violence victims to file for restraining orders and emergency protective orders in criminal as well as civil courts. Issuing a restraining or a protective order does not essentially signify on how much harm is caused to the victim physically. An individual who has gone through acts of emotional abuse or is apprehensive of imminent harm is also eligible for being protected under the legal system of California. For more clarification on California domestic violence, you should contact an Orange County divorce attorney.

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

The Most Asked Questions about California Child Support

Posted by: Gerald A. Maggio, Esq.

When there are kids from a marriage, their well being is the first thought that comes up in the minds of divorcing couples. Here are some of the most frequently asked questions as far as California child support is concerned.

  1. How is child support determined?

There is a statewide guideline in California based on which child support is ascertained. The formula used for determining is quite complex. Hence, calculations are usually done by an Orange County divorce attorney. These attorneys use some special computer programs that are licensed by organizations offering software on legal research. The calculation is carried out on the basis of factors such as income of both parents, their status on tax filing, and number of kids in the marriage, tax-deductible expenses of each parent, and the time span for which each parent has the child custody and so on.

  1. Is there a restriction on how much amount a court orders a parent to pay for child support in California?

There is no limit in California as far as the amount of child support is concerned, unlike some other States in the United States. The calculation mentioned in the guideline is the basis for legal calculation in a majority of divorce cases. There are a few exceptional situations where a court may digress from it.

  1. The calculation generated a figure that is much more than what is essential in bringing up a child. What is to be done then?

The amount to be granted by the “provider” parent to bring up a kid may not be same always. The Californian law states that a kid is eligible to lead a lifestyle that is similar to that of their parents. Hence, when the calculation for a child support enhances the lifestyle status of a parent with lower income, it is often upheld by a judge. However, in cases where the amount calculated for child support is exorbitant and does not match to the reasonable lifestyle of either of the parents, the court may decide to move away from the given guideline.

  1. What is the next course of action when the amount paid for child support is sufficient for supporting the other parent as well as the kid?

Such a scenario does occur on various occasions. The law enables the child to lead the lifestyle that is enjoyed by the parent with higher earnings. There are cases upheld by a superior court when a receiving parent petitioned for receiving housing as well as many other expenses as the amount paid for child support is not adequate. It is a common result when a parent is earning a very high income,

  1. Which incomes should be included while calculating child support?

Some of them are cash flows from a business, income from investment, recurring interest and salary from employment.

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

What To Do If You Can No Longer Afford Spousal Or Child Support

Posted by: Gerald A. Maggio, Esq.

Orange County divorce mediation; California Divorce MediatorsA common concern that often comes up after the declaration of a divorce judgment in the court is the spouse who has been asked to pay for spousal or child support declares his or her inability to do so any more. The aim of this article is to discuss the steps that should be taken if such an issue comes up.

Step 1: Go through the divorce decree thoroughly

While it is an obvious thing to do, there are several people who tend to overlook it. A divorce judgment is an extremely crucial document, which anyone such as the judge, litigant and attorney should examine carefully. It is a document that the basic framework to determine how to proceed.

There are some cases where the judgment was announced many years ago. In such cases, the support that is unaffordable can be already the unable. Hence, it is extremely crucial to read the language well especially in the section for spousal support or child support of the court judgment to find out the conditions, which could lead to an automatic censure of support. There could be also a particular end date to pay for support according to the judgment pronounced. When such conditions are specified, the spouse who has been paying may just stop paying for alimony or child support. You need to also conduct a proper review of the judgment for making sure whether your court has reserved its jurisdiction over matters related to spousal support or child support.

Step 2: Put your best foot forward to reach an agreement

Your next step should be to find out whether the issue can be settled informally without the knocking the doors of the court. In order to get it done, it makes sense to directly interact with recipient of your support and know whether they are comfortable with a possible reduction.

When you and the other party do not succeed in reaching an agreement, you may else take help from alternative resources of dispute resolution like family law judges who have retired or mediators specializing in family law. When you take such an initiative, there could be the formation of a confidential forum to resolve your disputes in a cost-effective and timely sinner instead of taking the matter to the court.

Step 3: Get set for your post-judgment litigation

In case you and the other party are unable to reach an agreement, the only choice left before you is to approach your Family Law Court to plead your case for a modification action on the judgment issued previously. The opposing party should receive a copy of such a motion.

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

Ways To Lower Your Divorce-Related Stress

Posted by: Gerald A. Maggio, Esq.

divorce mediators orange county; California Divorce MediatorsFrom the time you have filed a divorce petition, there are lots to worry about. You are still figuring out how to move your kids between two different households, trying to coordinate with your divorce lawyer or a mediator or both, handling your children’s emotional needs and coping up with the emotional stress you could be going through. Even experts say that divorce is one of the biggest stressors of life. Hence, it is imperative that you put your best foot forward to ensure that your stress is minimized. There are certain activities you should drop and certain others you should continue doing to deal with your stress.

Discard

Conventional dinners

Drop the practice of having traditional dinners. Instead, try to go for snack dinners. Take out your plate and fill them up with healthy food products such as peanut butter, rolls, peanuts, grapes, apple slices, applesauce, and cheese slices. There should be a proper ratio of carbs, vegetables/fruits and proteins in your diet. Thus, you now have a well-balanced but easy to gather dinner ready within a few minutes.

Electronic gadgets

It has been often proved that certain devices are not good to depend on as babysitters. However, at times when children are thoroughly bored, the stress level of the mom is maximum or there is a doctor’s appointment at the last moment, some devices may help. But over-dependence on electronic devices is not good for health in the long run. Try to avoid them just before your bedtime as the blue light being emitted from them may cause havoc to your kid’s sleep.

Continue

Chatting with your children

By this time your children are aware that you are going through a rough patch. When you validate their feelings and discuss issues with them openly in a loving and positive way, you will enjoy a healthy relationship with them during this tough time.

Bedtime routine with kids

The right kind of bedtime routine you follow with your kids can make them relaxed while being a great stress-buster for them. Maintaining a consistent schedule even while you are stressed can bring in comfort while minimizing stress-related insomnia. Researches have proved that it can alleviate the stress levels of the moms too.

Have dates with family at night

You can have family date nights with your children though there could be financial constraints now. However, many big cities offer plenty of free activities that you can indulge in with your children. The least you can do is go out for a picnic in the nearby park or take them out for a walk after completing dinner.

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