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

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

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

How To Withdraw Divorce Filings And Cancel Your Case

Posted by: Gerald A. Maggio, Esq.

Orange County divorce mediation; California Divorce MediatorsIt is not uncommon for parties to a divorce or termination of domestic partnership to subsequently reconcile before their case is done.  In that event, you would need to file a “Request for Dismissal” with the court (California Judicial Council Form CIV-110). This will dismiss the case, if the legal separation or divorce is not finalized.  Remember that if you later wish to proceed down this path of reconciliation and then later you change your mind (you want to be divorced), you must begin from the start. You have to pay the court filing fee again and also qualify for any fee waiver.

In case you are not the spouse who have initiated the divorce case, it will not be possible to stop the process by your own. There is a need for the other spouse to file Request for Dismissa if they filed a Response in the case.  This is required to dismiss the case.

In case both the spouses or the domestic partners have filed for joint summary dissolution, and judgment has not reached the final stage, any one of the spouses can terminate the case by the filing of “Notice of Revocation of Petition for Summary Dissolution” (Judicial Counsel Form FL-830.) The other form is “Revocation of Termination of Domestic Partnership”. Both of them can be done with Secretary of State (domestic partners).

Registrations for domestic partnerships are different from the marriage licenses. The office of California Secretary of State continues to process the Declarations of Domestic Partnership and Notices of Termination of Domestic Partnership  along with other related filings which are permissible by the state laws. Marriage licenses are processed by County governments.

Provisions which govern the domestic partnerships can be located in California Family Code. It begins with section 297.  There is an establishment of domestic partnership when persons who satisfy criteria stated by section 297 of California Family Code file either Confidential Declaration of Domestic Partnership or Declaration of Domestic Partnership with California Secretary of State. The copy of declaration and Certificate of Registration of Domestic Partnership can be returned to partners post filing the declaration.

Two individuals who have lived together in a state that can be regarded as domestic partners and if those two meet criteria as laid out by the section 297 of California Family Code could file Confidential Declaration of Domestic Partnership with California Secretary of State.

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

What To Consider About Kids and Finances After Divorce

Posted by: Gerald A. Maggio, Esq.

divorce mediation attorneys Orange County; California Divorce MediatorsThere are many people who go all numb when their divorce proceeding is underway. The reason for such an emotional state is because it could be too much to go through all sorts of chaos and painful feelings as the harsh reality is there for them.  However, things can be even more complicated where kids are involved in a divorce. Firstly, there is this emotional trauma. Above that, there is the important concern of money.

Breaking up is quite simple and straightforward for all those divorcing couples do not have kids from their marriages. If you fall into that category, simply divide your and your spouse’s assets and start life afresh after your divorce comes through. On the other hand, divorcing couples with children face a more complicated problem and if they are younger, things could be even trickier. In a nutshell, child support could be quite a complicated area.

Costs of child support

The cost of child support may be paid to either the mother or father. It actually depends on who is taking care if the kids. A parent who pays the maintenance cost can often be the “non-custodial parent.” In a majority of these cases, it is the father or the ex-husband, who plays this role or pays the maintenance costs.

The family house

One of the most important priorities for the divorcing couple is to ensure that the kids should continue having a proper home for them even after the finalization of the divorce. There are several such occasions where it has been observed that the ex-husbands have a tendency to sell if the house and go away with 50 percent of its value but it does not have to be so necessarily.  When too many assets are not there to split, assuming the wife is the primary career and the kids are usually permitted to continue staying in the same home. In case either of the partners behind a new relationship; matters could be even more complicated. When the mother gets married again or brings in a new partner, there are no alterations in the obligations of the father as he has to keep beating the maintenance costs as he was doing previously. However, he is no longer obliged to pay for the maintenance of his former wife any longer in case she cohabits in some cases or remarries.

However, if the father starts cohabiting with a new partner and the latter has kids from an earlier relationship but now live with them, he could be paying less money for child maintenance to his own biological children.

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

Can A Person Date While A Divorce Is Going On?

Posted by: Gerald A. Maggio, Esq.

orange county divorce mediation attorneys; California Divorce MediatorsMany couples often wonder whether they can date someone else while their divorce proceeding is still going on or not. This is quite an interesting question. As per the law, there is no reason why a person should not be able to start dating prior to the finalization of their divorce. Moreover, the person who is being dated should not feel worried that his/her name will feature in the divorce proceeding and the matter is not regarded as an adultery.

Divorce can take an emotional toll

There are many such instances when a person who just ended his or her marriage felt like going out for dates, perhaps to prove their appeal and attractiveness even after the breakup of their marriages. However, it is a good idea to get involved with someone else only after taking some breathing space. Until the time the divorced or separated person can feel unhappy about the end of their marriage, irrespective of being responsible for ending the same if not, they should sort out the unresolved matters before entering into a new relationship.

It is easier for an estranged couple to accept the fact that their marriage has ended when they come to terms with appreciating the roles played by each of them that resulted in their breakup. After all, it is an easier way out to blame the partner for the divorce. Only when the affected persons are able to put their anger, hurt and disappointment behind them, can they start their lives fresh with a new relationship with a relaxed state of mind. It is quite likely that they will continue nurturing their negative emotions from their past marriage to their new relationship.

There could be problems in reaching a divorce settlement when a person starts dating before the divorce comes through.

When one of the spouses begins dating prior to the divorce coming through, reaching a satisfactory divorce settlement could be a tough proposition. When the other spouse gets the information that his/her partner has already started seeing someone else may start following them closely and can become less amicable while reaching a divorce settlement.

There are several couples who negotiate matters related to child custody, marital properties and other pertinent issues with the assistance of their lawyers while they are going through a divorce.

The final takeaway is what you eventually plan to do will depend on your specific situation and mental condition. However, it may be a good decision to be involved with another person until the time your divorce comes through.

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

How to Help Your Kid through Divorce

Posted by: Gerald A. Maggio, Esq.

Orange County divorce mediators; California Divorce MediatorsAs thousands of couples decide to end their marriages every year, their kids are also affected in the process. But their reactions will depend to a large extent on their personality, the circumstances under which the parents decided to separate and their age. Kids often get affected when their parent’s divorce. Often, the first reaction these children go through is that of sorry, anger, frustration, sadness, and shock. However, these children can deal these feelings in a better way as they know how to cope up with stress. As an end result, many of them are more tolerant and flexible when they become young adults. At such trying times, the most crucial things both the parents can do are to help their children steer through it by taking the following steps:

Important steps

  • Try to minimize disruptions in the daily routines of their children.
  • Make sure that legal talks, heated arguments, and visible conflicts happen away from the kids.
  • Do not be negative in front of them. Conversation with close friends and private therapy sessions should not take place inside the house.
  • Both the parents should be involved in the lives of their kids. Indifference will hurt them more.

People going through divorce or separation require lots of emotional support from their families, clergy, professionals and friends. However, these adults should never seek support and help from their children though they may appear ready to do so.

Break the news gently

The moment you are completely sure of your divorce plans, you should speak to your children about the decision to separate. Yes, it will be not an easy task to break this news. In case it is possible, it is better if both the parents are present while the news is shared. Make sure that you adopt a neutral and unbiased tone and do not express your emotions of guilt, anger or disillusionment while telling them about your separation. Of possible rehearse how you are going to break the news from beforehand so that you go not lose your temper or become upset during the discussion.

You should discuss the matter in accordance with the temperament, maturity, and age of your kids. But one statement should be common. Whatever took place between both of you; your kids are not responsible for that. This is because a majority of the children feel that they should be blamed when things did not work out between their parents. So, it is extremely crucial that the parents reassure their kids about this.

Rather tell your children that at times the adults do not agree on things or their love for one another change and so they decide to live separately. But also tell them that children will tie the parents forever no matter what happens.

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

Having More Than 2 Legal Parents: How California is Different

Posted by: Gerald A. Maggio, Esq.

Orange County divorce mediation; California Divorce MediatorsCalifornia is the only state which legally recognizes the right of a child to have more than two parents.

This holds a lot of implications.

Let us say A and B were in a happy marriage, and together, they had a daughter, whom they named C. But A and B began drifting apart and decide to call things off. Following their divorce, the court awards custody of C to A.

A decides to test the waters again, and marries D this time.

To C, B remains a legal parent. In short, she now has three parents – A, B and D. All three have equal claim to her.

When C grows up, she will have a claim to B’s fortune if the latter dies without leaving a will.

Another scenario is when A and B cannot have a child together. They go in for the IVF method, and the embryo is implanted into the womb of a surrogate mother, say S. While A and B are the biological parents, S is the natural mother, according to California law. So all three – A, B and S – are parents of the child.

A near-combination of these two instances occurred recently when Hollywood actor Jason Patric (you might recognize him as the male lead in Speed 2: Cruise Control) was named parent of his biological son, who was conceived through IVF.

Patric was involved with Danielle Schreiber in the late 2000s, but the two called it off in 2008. However, Schreiber desperately wanted to be a mother, and Patric convinced her that she should choose his sperm.

Their son, Gus, was born through In-Vitro Fertilization in 2012.

A family court awarded Patric custody of Gus for six months in a year, with Schreiber having custody for the remaining six months.

Schreiber is unmarried at present, but should she choose to marry someone other than Patric, Gus would have three legal parents.

What this means for you

If you are considering using the services of a surrogate mom, make sure the contract is iron-clad. If not, the surrogate mother could very well claim parentage over your child, citing her rights as the natural mother.

If you are trying to have a child through IVF, have an attorney review the contract that you sign with the clinic. In case of any mix-up, i.e. they use someone else’s sperm or eggs, you don’t want to lose your child to a stranger.

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