Can A Divorce Be Granted Without Consent?

Posted by: Gerald A. Maggio, Esq.

divorce mediation attorney Orange County; California Divorce MediatorsEarlier, there were many circumstances when both the spouses needed to agree for divorcing each other. There were demerits in this system since the divorce used to get delayed or became a complicated process. However, there are many people that still believe the same conditions prevail even today.

In reality this is not the case.  It is possible to get divorced even when your spouse does not agree to divorce you. Contrary to the common myth a divorce is no longer stalled or delayed when consent is not given by one of the spouses.

A marriage can be considered to have collapsed when one of the partners desires to go through with a divorce despite the other spouse not giving his or her consent to it. So, what are those specific scenarios that enable a spouse to do so? The spouse needs to establish that the marriage has broken down by providing evidence of mental or physical cruelty or adultery against the other spouse.

When such a scenario prevails, the spouse who desires to get divorced can begin proceedings with or without the consent of the other party. If such an act can be proved by a spouse, a court can hear the plea of the plaintiff and grant him or her divorce. But when you have applied for the divorce and are the party responsible for being cruel to your spouse or having committed the adultery yourself, and are responsible for the marriage breakdown, it is required by the court to live separately for one year minimum before you can apply for your divorce. The reason for doing so is that your own mistakes cannot be used as the cause for your divorce.

It could also be possible that you are unaware of your partner or spouse’s whereabouts, but can still apply for a divorce and obtain it.

But before doing so, you need to demonstrate that you have tried to the best of your abilities to find your spouse or partner. When you could not find your spouse, it is possible for you to ask the judge to issue a substituted service order. This court order means you are told what should be done by you to make sure that the missing partner gets to know that you are applying for a divorce, But a judge would only allow you to go ahead with the divorce provided he or she is satisfied that all possible efforts have been by made by you to track your spouse.

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

Is a Subpoena Required in a California Divorce?

Posted by: Gerald A. Maggio, Esq.

Orange County divorce mediation; California Divorce MediatorsSubpoenas might sometimes be required in some California divorce cases, but for such cases, that likely means that divorce mediation is not a viable option because at least one of the parties is not being open and transparent concerning finances. During divorce proceedings, either party or both might want to find evidence to prepare for the proceedings. Most of the time, these evidences relate to the financial information of the other party. Cases of hiding assets or getting paid under the table and declaring lesser income are not so hard to find in divorce cases. There are cases of the spouse being perfectly healthy but announcing in court that they are too sick to work. It is in cases like this, the subpoena helps locate necessary information and documentation.  Here is what a subpoena is and what it can do for your case.

A California subpoena is a document that serves the receiver with a mandatory request. Which means to whomever a subpoena is served is bound by law to oblige the acts mentioned in it. There is no way anyone can deny a subpoena unless and until they have a very good and legal reason to do so.

A subpoena is generally issued by an “attorney of record” or by the clerk of the court. Subpoena is an umbrella term which includes various types of subpoenas in it. Following are the three subpoenas that are most used in California divorce cases.

Civil Subpoena that requires personal appearance at hearing

This is the subpoena that is used to make a person, otherwise not willing to appear at the trial, be present at an evidentiary trial. This is often used for witnesses unwilling to be at the hearing.

Civil Subpoena for production of documents and objects at trial

This subpoena, also known as the Duces Tecum, also requires a person to be at the trial. However, in this particular subpoena, the said individual is also required to bring certain objects or things with them at the trial. Financial records are often asked to be presented under such subpoenas.

Deposition Subpoena for presenting business records

In the cases where the other party is hiding their income or assets, this subpoena can be very helpful. It is used to acquire business records only. For example, credit card statements, bank statements, police records, hospital records etc.

Subpoenas can help you in getting accurate and complete documents which might have been hidden otherwise. These documents apart from being complete are certified as well, ensuring accuracy. In case, you can prove that the other party had refused to comply with your initial informal request for disclosure of assets or documents then you can ask the court to punish the other party with court sanctions.

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

The Unexpected Death Of A Spouse During Divorce

Posted by: Gerald A. Maggio, Esq.

Orange County divorce; California Divorce MediatorsIf one party to divorce unexpectedly dies during proceedings, and by legitimate means, the other spouse may have all the assets in his or her favor. In such cases, if the deceased spouse has a previous marriage, and has children from that former marriage, then those children will not get anything at all. The result will be that a lot of people will become extremely disgruntled.

Complicated proceedings

It is thus recommended that couples on the cusp of divorce should consult a specialist estate planning attorney as quickly as possible. This must be done after the petition is filed. It should also be found out whether a divorce should be executed so that the loved ones get protected even if there is an untimely death.

Death at the time of divorce proceedings can be extremely complicated. The subject is a convoluted one and it is a lengthy process to solve every twists and turns. Usually, in Orange County, California, if one of the spouses in a divorce proceeding dies prior to their status being resolved, then the estate gets handed down as if there has been no petition filed.  In other words, the divorce case becomes moot and cannot be completed, because you cannot divorce a deceased person. In case a spouse dies after entry of their judgment and the dissolution of marital status, then there will be a termination of non-probate transfers. Life insurance, however, is not terminated.

Restraining orders

In California, automatic restraining orders are embedded with family law summons. This goes into effect immediately against the party who has filed the case after the petition is filed. The responding party gets restricted the moment the papers are served to them. Such automatic restraining orders prevent both the parties from taking any action during divorce proceedings which would alter the beneficiaries’ designation and the other specified actions. Any divorce will not lead to violation of such restraining orders and thus it remains a valid way to make sure that the individual you divorce from would not inherit any more wealth from you if you die during the process.

In case of a will, it is possible for you to revoke pour-over will. You can then create new will. It is possible to revoke RLT with notice to other spouse. You can also fund new RLT with your spouse’s consent. Do keep in mind that it is not possible to remove the spouse as a life insurance beneficiary sans a court order. In case you have listed the spouse as beneficiary on 401(k), then it is important that you should obtain from your spouse his or her informed consent.  However, you should always consult with a probate attorney to understand your complete rights and the law in the event of the death of your spouse before taking any action.

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

What is a Marital Settlement Agreement (MSA)?

Posted by: Gerald A. Maggio, Esq.

orange county divorce mediation attorneys; California Divorce MediatorsMSA stands for Marital Settlement Agreement, and is the product of divorce settlement negotiations between the spouses.   If an agreement is done right, the agreements work excellently.

Successful MSA

Ensuring a successful MSA needs a few basic steps. You must find a third party who can be trusted. This party must also know the art of facilitating a negotiation. This role frequently falls to the mediator. However, if you want to make this process productive, it is important for you to know how the process works of negotiation works. The preparation should include the trying and identification of what matters the most in the larger scheme of things. This includes ensuring that the children do not get traumatized by the divorce, the matter of both spouses actively participating in raising children. It also includes one spouse wanting to know whether a secure financial future awaits and ensuring that both spouses remain as “friends”. You must have a complete knowledge of all rights and obligations enjoyed by you. This includes a part where the court has the discretion in making the orders.

You should carefully study the manner the children are cared for. Make all general, tentative and flexible plans for the future care of children. You can prepare by thoroughly identifying and then disclosing all debts and properties. Do take time to comprehend fully the present financial situation enjoyed by you. This includes both money flowing in and money flowing out. You should project the financial requirements when the divorce becomes final.

Important topics

In general, five particular topics come under discussion during the divorce mediation. They are then incorporated into Parenting and MSA plan. Such topics are frequently presented and then explained using P.E.A.C.E acronym: Parenting and Equitable Distribution followed by Alimony and Child Support. Last comes Everything Else. Do note that equitable distribution is a fair but may not be equal division of all assets, debts and marital property. The alimony is defined as money which is paid as fulfillment of duty to support a spouse post-divorce or separation.

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

The Effect of Divorce on Immigration Status

Posted by: Gerald A. Maggio, Esq.

Riverside divorce lawyers; California Divorce MediatorsSo, you are not from the U.S. but getting divorced? It could be a big problem because it could affect your immigration status unless you are already an U.S. citizen.

There are many questions which people ask during a divorce. One important question is the question of green card and immigration status. If you are in the process of getting your green card but are also getting divorced, what then? Will your application be rejected?

Divorce effect on conditional permanent residence

You receive a conditional permanent residence when, the time of admission, you have been married for not more than two years. If you want to attain permanent residency, then you have to apply to the U.S. Citizenship and Immigration Services (USCIS) before the second year of your immigration admission. If, at the time of application, you are still married then you will become a permanent resident. But if your marriage fails then you can be liable for deportation.

Immigration applications after a divorce

There are strong laws that govern the status of an immigrant during a divorce proceeding. If you or your spouse are both immigrants, then you need to first get permanent residential status before you can get married on U.S. soil. If one of you is a U.S. citizen, then it becomes easier for the other to become a permanent resident.  In the case of a divorce, if you are still an immigrant when you filed for your divorce, chances are your residency status will be terminated and you will be sent back to your home country. But if you are separated and not yet divorced then the situation is not that grim. Because you are still legally married to one another, the court will strongly consider this fact.

Staying in the U.S. after a divorce

In case you choose not to withdraw your immigration application, you can be granted conditional residency. But it all depends on which state you are in and what the state laws say. The conditional residency is possible through a waiver.

If your marriage was based on good faith, you might not get that green card you applied for but you might get a conditional residency. For getting a green you must have stayed in the U.S. for a certain amount of time or have married an U.S. citizen. Situations are not always bad. It depends partly on your luck and partly on state laws.

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 Getting Back Together After Divorce

Posted by: Gerald A. Maggio, Esq.

orange county divorce mediators; California Divorce MediatorsMost couples who have made the tough decision of getting a divorce are most likely to not get back together or give their marriage another shot. However, for a few couples, they might realize post-divorce that they have in fact made a huge mistake and want to give their relationship another chance. Couples who would like to give their marriage another shot must realize that there will be a lot of hard work involved as well as therapy and marriage or relationship counseling. The couple will have to work out their issues amicably and forgive one another and forget the past in order to move on.

Legal proceedings to be followed if the couple are unsure about getting divorced

It’s always great new when a couple who has divorced wants to reconcile and get back together however as per the law there are certain legal proceedings that will have to be followed as per the norms. That is if the court has already granted or passed a divorce decree in favor of the parties.

If the couple are mutually interested in trying to work things out they will have to enter into a written agreement with each other stating that they are interested in putting their divorce case and all other hearings, orders, and other legal proceedings on hold for the time being till they figure out where they stand in their relationship. In this case, the court will put all divorce proceedings on hold and stop all temporary legal proceedings in order for the couple to work out their issues. All personal hearings will be pushed if the court is satisfied that the couple is genuinely interested in working things out and are not trying to resort to malicious activities or malpractice.

If the couple definitely does not want to get a divorce

However, if the couple is a 100% sure that they do not want to get divorced and in fact want to get back together again they can apply to the court to dismiss their divorce proceedings entirely without any prejudice. This means that the current divorce case would be canceled altogether and they can always file for another divorce at a later stage if the reconciliation was a failure.

If a second divorce is filed later on the date of separation would be the date of filing the second or latest divorce and would not be retrospective. Therefore, the division of assets and liabilities, alimony payments, child support conditions, etc. would be calculated as on the second date of separation.

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

Division of Debts in The State of California During a Divorce

Posted by: Gerald A. Maggio, Esq.

Orange-County-divorce-mediators; California Divorce MediatorsWhat are community debts and separate debts?

In the state of California debts between a couple are divided into two types – community debts and separate debts. Community debts are those debts that are accumulated by both parties to the marriage during the marriage until the date of separation. These debts are to be equally divided between both the parties even if only one spouse was responsible for incurring these debts. Separate debts are those debts that were incurred separately by the parties before the marriage or after separation and belong to the individual spouses who were responsible for incurring them.

Treatment of debts in California between a divorced couple

All debts in the state of California are to be treated as community debts as California is regarded as a “community property” state. This is of course unless the parties to the marriage had entered into a prenuptial agreement before the marriage regarding the division of assets and debts between them in the event that they decided to get divorced. If there is no prenup, then the court equally divides all debts between both spouses equally.

However, there is one exception to this rule and that is when the total value of the community debts exceeds the total value of the community assets jointly held between the two spouses. In this case, the court will order for a higher portion of the debts to be borne by the spouse who earns a higher income or who is in a better financial position to pay off these debts.

Importance of the date of separation

In the division of community debts in the state of California during a divorce, the date of separation of the couple is extremely important as only those debts that were incurred before the date of separation will be included in the community debts and all other debts incurred post the separation date will be assigned to the spouse who individually incurred them and the burden of paying those debts post-separation will not be borne or shared by both spouses.

Deciding the date of separation is sometimes a difficult task especially when the couple is in total disagreement with each other. Two tests can help confirm the actual and legal date of separation between a divorcing couple in the state of California:

  • The first test is to determine the date of physical separation between the spouse, that is the date on which they began living or sleeping separately or the date on which one of either spouse moved out of the house.
  • The second test is to determine when either spouse expressed their clear intention to end their marriage. This does not include a trial separation.

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

How Does Having a Criminal Record Affect Child Custody During Divorce?

Posted by: Gerald A. Maggio, Esq.

Orange County divorce mediators; California Divorce MediatorsIf there are children involved in a divorce and there is a battle over which spouse gets custody of the child or children, then either spouse having a criminal past or record can lower or even completely eliminate their chances of getting joint/shared or sole custody of the child. Also, one spouse can use the past criminal record or history of the other spouse to eliminate their chances of child custody and even rights of visitation. This is permitted by state laws in California under certain legal provisions, hence it is vital that the spouse with the criminal past hire a professional divorce lawyer to help fight his/her case.

Best interests of the child

Section 3011 of the California Family Code deals with the best interest standard. This section basically deals with what the family or civil courts take into consideration while determining the terms of child custody. One of the main factors that the courts consider is what is in the best interest of the child. So if one spouse has been engaged in criminal activities or conduct in the past this would be a major detrimental factor to the courts while determining which spouse should get custody of the child. The family courts will consider the following factors while determining child custody:

  • Whether either spouse has had a history of domestic abuse or violence towards any child that he is related to by blood, or an adopted child or any other child that is under their care and supervision.
  • Whether the spouse has been violent with or has shown violent behavior towards the other spouse.
  • Whether the spouse has a history of alcohol abuse or any kind of substance abuse.
  • Whether the spouse has a history of criminal activities or malpractices or any kind of criminal conduct or behavior in the past.

The court will carefully consider all these factors while determining which spouse will be granted custody of the child. The above factors also help to determine what would be best for the child and the child’s best interests are always put first to ensure his safety, happiness and good future.

A past history of criminal conduct would include any felonies and misdemeanors that fall under any of the categories mentioned in section 3011 of the Family Code. Custody and visitation rights would be affected based on the type and severity of the offense, time elapsed since the commission of the offense and expungement of the offense. These offenses include sex and hate crimes, child abuse, etc. The more serious or violent the offense the higher the likelihood of the spouse losing all custody or visitation rights.

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

How Does The Length Of A Marriage Affect A Divorce?

Posted by: Gerald A. Maggio, Esq.

divorce mediation attorneys Orange County; California Divorce MediatorsDuring 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

How to Calculate and Modify Your Child Support

Posted by: Gerald A. Maggio, Esq.

Top Orange County divorce mediators; California divorce mediatorsChild support is one the major factors which can be held responsible for directly influencing the quality of your child’s upbringing and well being. The financial aid obtained from either parent in lieu of child support can contribute towards the schooling, healthcare and other general needs and requirements of the child. However, the basis for evaluating the financial status of each parent and calculating the child support to be paid each month is different for the different states.

How do they calculate the child support in California?

The state laws of California require the judge to calculate the child support on the basis of the individual income of each of the parents, and also the time which each of the parent spends with the child. In addition to this, there are several other factors such as the house mortgage, tax slabs and child care expenditures, which the court of law needs to take into consideration while calculating the child support in several divorce cases. Owing to the complicated nature of evaluating a wide of range of factors for determining the support payments, most of the California courts and judges take the assistance of a software program referred to as Dissomaster. The inputs to this program are to be provided by the separating partners and the software then calculates the monthly installments to be paid as support for the child.

When can you modify your support payments?

The law requires the child support to be carried on for as long as the child stays a minor and does not reach the age of 18. However, if during this time you think that you are receiving too little or paying too much support, you can request the California court for a modifications. There can be certain situations wherein you can appeal for a modification in the amount of child support you receive or pay.

  • You have more than one new child in addition to the existing ones.
  • You lose a job, or your income lowers.
  • Your custodial percentage is increased by the court of law
  • The original calculation of support was erroneous.

Despite the fact that you will probably be granted a change in your child support, the modification will not be taken into consideration from any date in the past. This implies that the alterations will not be retroactive, and will be taken into effect only from the day the change has been made.

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