California has a child support guideline formula that is used in all cases to determine the proper amount of child support. Generally, the courts and all attorneys in California use one of 2 recognized computer programs based on the child support guideline formula called “Dissomaster” and “X-spouse.”
The factors considered in making child support orders are primarily the gross income of the parties and the amount of time each parent spends with the minor child. However, other factors that can be considered include any itemized deductions the parties can claim on their taxes, medical insurance premiums paid each month, and any mandatory retirement payments and union dues for individuals whose employment requires them to be part of a union and to contribute to a deferred compensation retirement plan (i.e. a pension).
In addition to the basic monthly child support, the court will generally also order that the parents equally share the costs of childcare expenses necessary for the custodial parent or both parents to work, as well as any medical, dental, and vision expenses for the minor child not covered or reimbursed by medical/dental/vision insurance.
Child support can also include expenses for the special needs of a child, such as tutors or other services, as well as the transportation costs for visitation of a parent.
Finally, the Court generally orders that both parents keep their child medically insured with medical insurance if it is available at no cost or at reasonable cost to both parents.
Child Support is generally paid until the minor child reaches the age of 18, or age 19 if they are still a full-time high school student at age 18, unless the minor child dies or becomes emancipated prior to becoming an adult.
Child Support orders can be modified if there is:
A significant increase or decrease in either parent’s income;
A change in custody or the amount of time the child spends with each parent; or
Any other change that would affect the child support guideline calculations.
For more information or to schedule a consultation, please contact California Divorce Mediators at (949) 553-0911 or at www.cadivorcemediators.com.
To learn more about the divorce process in California and how mediation can help, please visit our page, “What is Divorce Mediation.”
Gerald A. Maggio is a trained Irvine divorce mediator who has amicably resolved cases many cases out of court, as well as an experienced divorce and family law attorney. Mr. Maggio founded California Divorce Mediators in 2012 with the belief that although “not every marriage can be saved, every family can” and a mission to save families from the financial and emotional distress associated with traditional divorce litigation. California Divorce Mediators is located in Irvine, California, and serves the Orange County area and other counties in California offering divorce mediation, child custody mediation and mediation of other family law matters.
There are two types of custody: physical and legal. Each type can be joint or sole. For example, a couple may share joint physical and legal custody or a couple may have joint legal custody while one parent has sole physical. There are many different combinations of custody. It is easy to confuse the label of joint or sole custody with parenting time. Parenting time is the actual time each parent spends with the minor children and it can change over time. Parenting time can also be negotiated between the parents or exchanged as long as the parents agree but custody can only be changed by a court of law. Parents who have joint legal or joint physical custody may not have 50/50 parenting time. Similarly, a parent who has sole physical custody may only have 50% parenting time. How is that possible? Parenting plans are either created by parents, who then submit a stipulation to the court, or are created and ordered by the court. A parenting plan lays out the specific times a child is with each parent.
For example, a parenting plan may state the minor children are with the father every other weekend from 5pm on Friday to 8pm on Sunday and on every Wednesday from after school until Thursday morning at 9am. The parenting plan provides the framework for who is actually caring for the children every day of the week. In some cases, the parenting plan is specific enough to account for every minute of the week.
As children get older, parents may have less input on the parenting plan because teenagers have more input on where they want to spend their weekends. Teenagers may have to work on weekdays and may not be able to go to the noncustodial parent’s home during the week.
While the parenting plan may change as children get older and get more involved in school activities, sports, or work, the custody determinations do not change. That means that parents who have joint physical custody may continue to have joint physical custody even though the parenting plan may change drastically from the time children are young until they get into and through high school.
A parenting plan provides structure for parents and children alike and can avoid potential spur-of-the-moment arguments which can be difficult for everyone. Creating a plan, whether included in a court order or not, gives everyone a predictable schedule which can run smoothly without last minute arguments.
For more information or to schedule a consultation, please contact California Divorce Mediators at (949) 553-0911 or at www.cadivorcemediators.com.
To learn more about the divorce process in California and how mediation can help, please visit our page, “What is Divorce Mediation.”
In California, a party wanting to file for divorce must have lived in California for 6 months prior to filing, and in the county of filing for 3 months prior to filing. In situations where a party wants to obtain orders for child custody, visitation, and/or other issues but has not lived in the same county for the past 3 months or in California for the past 6 months to meet the time requirements for filing for divorce, that party can file for Legal Separation and amend his or her Petition to a divorce after 6 months have passed.
Legal Separation is also appropriate for some parties for religious and/or insurance coverage issues. Medical insurance companies who had previously insured a spouse under the other spouse’s medical insurance during the marriage generally terminate such coverage options when a divorce is finalized. Therefore, for spouses who would have difficulty in obtaining their own medical insurance coverage after termination of their marriage due to pre-existing medical conditions, a legal separation can make sense because it enables such medical insurance coverage to continue.
The court in a Legal Separation case can make orders relating to child custody, visitation, child and spousal support, and divide property in a legal separation case, but at the end of their case, the parties otherwise remain married to each other.
Unless your circumstances fit one of those circumstances above, you should consider divorce instead of legal separation because you will still be married at the end of a legal separation case and if you later decide to divorce, you will have to file a new case for divorce.
What About An Annulment? In order to qualify for an annulment instead of obtaining a divorce, the party seeking an annulment must be able to prove that the parties’ marriage was “void” (i.e. an incestuous marriage or where one of the parties was still legally married to another individual at the same time) or “voidable (where the party seeking annulment was under 18 years of age at the time of marriage or that the marriage was entered into based upon fraudulent representations, force, or mental and/or physical incapacity). It is generally substantially more difficult to obtain an annulment than a divorce.
For my information or for a consultation, please contact California Divorce Mediators at (949) 553-0911 and at www.cadivorcemediators.com.
To learn more about the divorce process in California and how mediation can help, please visit our page, “What is Divorce Mediation.”
In the State of California, there are only two legal reasons for ending a marriage: [1] “Irreconcilable Differences” or [2] incurable insanity. While you may believe that your spouse is afflicted with the latter, essentially everyone files for irreconcilable differences, which means that no amount of marital counseling will save your marriage. California is a “no-fault” divorce state, meaning that you do not have to give the court any other reason for ending your marriage, as opposed to other states which require proof of adultery, etc.
To file for a California divorce, you must have lived in California for 6 months and for 3 months in the county where you intend to file the divorce paperwork. So to divorce an California Divorce, you must have lived in California for 3 months prior to filing.
A “Petition” is filed with the county clerk’s office, along with a Summons. The importance of personally serving the Summons and Petition on your spouse is that the Summons includes automatic, built-in family law restraining orders preventing either spouse from selling or giving away any property, changing any insurance policies or beneficiaries, or taking any children of the marriage out of the State of California without the express written consent of the other spouse.
These automatic restraining orders state as follows:
“Starting immediately, you and your spouse or domestic partner is restrained from:
1. removing the minor child or children of the parties, if any, from the state without the prior written consent of the other party or an order of the court;
2. cashing, borrowing against, canceling, transferring, disposing of, or changing the beneficiaries of any insurance or other coverage, including life, health, automobile, and disability, held for the benefit of the parties and their minor child or children;
3. transferring, encumbering, hypothecating, concealing, or in any way disposing of any property, real or personal, whether community, quasi-community, or separate, without the written consent of the other party or an order of the court, except in the usual course of business or for the necessities of life; and
4. creating a nonprobate transfer or modifying a nonprobate transfer or modifying a nonprobate transfer in a manner that affects the disposition of property subject to the transfer, without the written consent of the other party or an order of the court. Before revocation of a nonprobate transfer can take effect or a right of survivorship to property can be eliminated, notice of the change must be filed and served on the other party. You must notify each other of any proposed extraordinary expenditures at least five business days prior to incurring these extraordinary expenditures and account to the court for all extraordinary expenditures made after these restraining orders are effective. However, you may use community property, quasi-community property, or your own separate property to pay any attorney to help you or to pay court costs.”
Personal service of the Summons and Petition can only be accomplished by someone who is 18 years or older who is not a party to the divorce, and alternate means of service may be necessary if the other spouse cannot be located.
For more information or for a consultation, contact California Divorce Mediators at (949) 553-0911 or at www.cadivorcemediators.com.
To learn more about the divorce process in California and how mediation can help, please visit our page, “What is Divorce Mediation.”
Gerald A. Maggio is a trained Irvine divorce mediator who has amicably resolved cases many cases out of court, as well as an experienced divorce and family law attorney. Mr. Maggio founded California Divorce Mediators in 2012 with the belief that although “not every marriage can be saved, every family can” and a mission to save families from the financial and emotional distress associated with traditional divorce litigation. California Divorce Mediators is located in Irvine, California, and serves the Orange County area and other counties in California offering divorce mediation, child custody mediation and mediation of other family law matters.
1. Contested divorces produce harsh emotional and financial tolls on children, not to mention the parties. Mediated divorce offers a quicker, less expensive and less burdening process of dissolving your marriage.
2. According to recent statistics on U.S. marriages, approximately 50 percent of first marriages end in divorce. In California, it is closer to 60%. Therefore, custody is often an issue in such cases and children often end up being victims of a power struggle between parents. Mediated divorce is a viable alternative to litigation and is gaining in popularity.
3. Divorce mediation is a negotiated settlement between the two parties using a third-party. The mediator has no power to make decisions for the divorcing parties, enabling the two parties to openly and honestly discuss and decide how to resolve the pending issues of their marital dissolution. Neither spouse is given preference over the other. As a result, the children of the marriage are not exposed to, and are spared, the emotional and psychological turmoil that often accompanies a divorce that goes to litigation.
4. Settling out of court through divorce mediation saves the marital finances from being spent on attorneys. That helps preserve the marital estate for the parties, but also for the children. Paying for a contentious, litigated divorce can drastically effect children’s present situation and future because when a couple’s financial worth is substantially reduced after paying each party’s attorney fees and the remaining assets are divided, there are less resources for everyone. This can result in lower standards of living for the parents and the children, and less opportunities for children regarding education, health, and other issues. In the end, the financial strain, compounded with the already emotional distress of the divorce, can cause deep emotional tolls on children.
5. A mediated divorce occurs out-of-court and is handled in an impartial and confidential way. In other words, the “dirty laundry” of your marriage is not put on display in court. Mediating your divorce is a less invasive, less stressful way to resolve what is likely one of the most difficult times in anyone’s life.
For more information or to schedule a consultation, please contact California Divorce Mediators at (949) 553-0911 or at www.cadivorcemediators.com.
To learn more about the divorce process in California and how mediation can help, please visit our page, “What is Divorce Mediation.”
It is important to know that the occurrence of domestic violence has a direct effect on any child custody case. In California, the Court will consider your case to be a “domestic violence case” if the Court finds that a parent committed or was convicted of domestic violence against the other parent (or their child) in the last 5 years.
Pursuant to Family Code Section 3044, if the Court makes such a finding, there is a legal presumption that the party who perpetuated the domestic violence should not have sole or joint custody of the parties’ children. Such legal presumption can be overcome over time, if the perpetrator has completed a 52-week batterer’s treatment program, not committed any other domestic violence, and has complied with any other orders of the Court. However, by that time, there will generally be a “status quo” of a regular custodial schedule, and part of what the court has to consider in determining what is in the best interests of the child is stability and a regular routine.
Furthermore, if there is a pending or final criminal case for domestic violence against the other parent, there is likely criminal protective orders in place in that case and possibly a family law restraining order also in the custody case that will affect custody and likely shape the ultimate outcome of the custody case.
So, if you are a victim of domestic violence, need a restraining order to protect you, and are seeking a divorce or child custody, you need legal assistance. Likewise, if you are falsely accused of domestic violence by the other parent in an effort to alienate you from your children and affect your custody case by putting you on the defensive, you definitely need legal assistance to aggressively refute those false accusations.
Here is the entirety of California Family Code Section 3044:
Upon a finding by the court that a party seeking custody of a child has perpetrated domestic violence against the other party seeking custody of the child or against the child or the child’s siblings within the previous five years, there is a rebuttable presumption that an award of sole or joint physical or legal custody of a child to a person who has perpetrated domestic violence is detrimental to the best interest of the child, pursuant to Section 3011. This presumption may only be rebutted by a preponderance of the evidence.
In determining whether the presumption set forth in subdivision (a) has been overcome, the court shall consider all of the following factors:
Whether the perpetrator of domestic violence has demonstrated that giving sole or joint physical or legal custody of a child to the perpetrator is in the best interest of the child. In determining the best interest of the child, the preference for frequent and continuing contact with both parents, as set forth in subdivision (b) of Section 3020, or with the non custodial parent, as set forth in paragraph (1) of subdivision (a0 of Section 3040, may not be used to rebut the presumption, in whole or in part.
Whether the perpetrator has successfully completed a batter’s treatment program that meets the criteria outlined in subdivision (c) of Section 1203.097 of the Penal Code.
Whether the perpetrator has successfully completed a program of alcohol or drug abuse counseling if the court determines that counseling is appropriate.
Whether the perpetrator has successfully completed a parenting class if the court determines the class to be appropriate.
Whether the perpetrator is on probation or parole, and whether he or she has complied with the terms and conditions of probation or parole.
Whether the perpetrator is restrained by a protective order or restraining order, and whether he or she has complied with its terms and conditions.
Whether the perpetrator of domestic violence has committed any further acts of domestic violence.
For purposes of this section, a person has “perpetrated domestic violence” when he or she is found by the court to have intentionally or recklessly caused or attempted to cause bodily injury, or sexual assault, or to have placed a person in reasonable apprehension of imminent serious bodily injury to that person or to another, or to have engaged in any behavior involving, but not limited to, threatening, striking, harassing, destroying personal property or disturbing the peace of another, for which a court may issue an ex parte order pursuant to Section 6320 to protect the other party seeking custody of the child or to protect the child or the child’s siblings.
For purposes of this section, the requirement of a finding by the court shall be been convicted within the previous five years, after a trial or plea of guilty or no contest, of any crime against the other party that comes within the definition of domestic violence contained in Section 6211 and of abuse contained in Section 6203, including, but not limited to, a crime described in subdivision (e) of Section 243 of, or Section 261, 262, 273. 5, 422, or 646.9 of, the Penal Code.
The requirement of a finding by the court shall also be satisfied of any court, whether that court hears or has heard the child custody proceedings or not, has made a finding pursuant to subdivision (a) based on conduct occurring within the previous 5 years.
When a court makes a finding that a party has perpetrated domestic violence, the court may not base its findings solely on conclusions, reached by a child custody evaluator or on the recommendation of the Family Court Services staff, but shall consider any relevant admissible evidence submitted by the parties.
In any custody or restraining order proceeding in which a party has alleged that the other party has perpetrated domestic violence in accordance with the terms of this section, the court shall inform the parties of the existence of this section and shall give them a copy of this section prior to any custody mediation in the case.
For more information, please contact California Divorce Mediators at (949) 553-0911 or at www.cadivorcemediators.com.
To learn more about the divorce process in California and how mediation can help, please visit our page, “What is Divorce Mediation.”
Trying to keep the marital house for the sake of the children is admirable and generally intended to be in their best interests, particularly during the instability of divorce and the adjustment of their life thereafter. However, there are real considerations that have to be weighed in order to determine whether it is wise to enter into such agreement.
First, you may have difficulty in qualifying for a new property you wish to purchase since you will be listed as a borrower under the existing mortgage for the marital property, thereby affecting your debt ratio that lenders use in qualifying borrowers.
Second, if the spouse remaining in the house makes late payments on the mortgage or defaults on payments, your own credit will also be detrimentally affected and seriously affect your credit score which in turn will affect your ability to borrow or lease anything in the future.
Finally, you will need to have a clear written understanding of what each spouse will be entitled to years from now after Junior has graduated from High School and now the time h
as come to sell the house. After all, should the spouse that did not keep the house still be entitled to one‐half of the equity in the property at the time of sale, or at the time of the divorce? Having a clear agreement is vital to avoiding future, costly problems in how to divide a property sold years after the divorce was over.
For more information or to schedule a consultation, contact California Divorce Mediators at (949) 553-0911 or at www.cadivorcemediators.com.
To learn more about the divorce process in California and how mediation can help, please visit our page, “What is Divorce Mediation.”
Gerald A. Maggio is a trained Irvine divorce mediator who has amicably resolved cases many cases out of court, as well as an experienced divorce and family law attorney. Mr. Maggio founded California Divorce Mediators in 2012 with the belief that although “not every marriage can be saved, every family can” and a mission to save families from the financial and emotional distress associated with traditional divorce litigation. California Divorce Mediators is located in Irvine, California, and serves the Orange County area and other counties in California offering divorce mediation, child custody mediation and mediation of other family law matters.
So you just found out that your spouse is cheating on you. Obviously never a pleasant experience. You should first try to determine possible causes for that behavior (if there are any) and then whether you are willing to work through it and the possible underlying issues or otherwise proceed with divorce.
The first instinct is to file for divorce and “make them pay!” Although each state has different standards and rules concerning marital infidelity, it is important to understand that in California, being unfaithful has no real relevance because California is a “no-fault” divorce state. In fact, there are only 2 basis for seeking a divorce in California: (1) “irreconcilable differences,” and (2) incurable insanity. Although you may believe that your cheating spouse is guilty of the latter, 99.99% of California divorces end for “irreconcilable differences.”
Furthermore, your spouse’s cheating ways does not generally entitle you to more spousal support or a bigger piece of the marital estate. If you can prove that your spouse spent your community monies on his or her fling (easier said than done), you may be able to recover your one-half of those monies. Otherwise, unless you have children and the other adulterer, whom your spouse may decide to have an ongoing relationship with, is a drug addict or other danger to your children, the issue of adultery will not no real relevance in your divorce case. However, those spouses who have been cheated on tend to find other ways to make the other spouse pay one way or another.
For more information or to schedule a consultation, contact California Divorce Mediators at (949) 553-0911 or at www.cadivorcemediators.com.
To learn more about the divorce process in California and how mediation can help, please visit our page, “What is Divorce Mediation.”
By: Gerald Maggio, Esq.
Gerald A. Maggio is a trained Irvine divorce mediator who has amicably resolved cases many cases out of court, as well as an experienced divorce and family law attorney. Mr. Maggio founded California Divorce Mediators in 2012 with the belief that although “not every marriage can be saved, every family can” and a mission to save families from the financial and emotional distress associated with traditional divorce litigation. California Divorce Mediators is located in Irvine, California, and serves the Orange County area and other counties in California offering divorce mediation, child custody mediation and mediation of other family law matters. 
