Think Twice Before Having A Child Witness Testify In Your Child Custody Case

Posted by: Gerald A. Maggio, Esq.

Top Orange County Divorce Mediators; California Divorce MediatorsBy:  Gerald Maggio, Esq.

In some situations, taking the testimony of a minor child can be necessary, especially where physical or sexual abuse is involved.  Those court proceedings are generally done confidentially, either in a closed courtroom or in the judge’s chambers.

However, a parent in a child custody case should think long and think twice before seeking to have a child testify in their case.  For instance, in some cases, there are blended families where there are younger children of the parties’ marriage or relationship, and also older stepchildren or children of just one of the parents (hereinafter described as “the other children” in this article), all living under the same roof.  I have seen parents want to call one of “the other children” to testify against the other party because the children of the relationship of the parties are too young to really do so, to make allegations that the other parent has been abusive to them and to their younger half-siblings.  It becomes apparent soon enough that “the other children” have been coached to say things in a certain way in court to help the parent pushing them to testify in the first place.

It is troubling for any parent to ever put their children in such a difficult position to have to testify in court, if it is not really necessary.  It is awful that any parent would coach their children to potentially lie or misstate the truth, for the sake of the parent seeking the testimony (hereinafter referred to as “bad parent”).  The problem is further compounded when the other attorney representing the other parent starts questioning the child regarding his or her prior, canned responses prepared and coached by “bad parent.”  At that point, the child will start looking at “bad parent” across the courtroom seeking help in how to answer unscripted, tougher questions from the other attorney.  In the end, the child’s previous testimony can be found unbelievable, and potentially “bad parent’s” use of the child’s testimony backfires and hurts bad parent’s custody case, because the court has determined that “bad parent” is not a sympathetic and credible parent, but a manipulative one.

Not only can use of a child’s testimony for such purpose backfire, it can detrimentally affect the child psychologically and emotionally.  Child custody disputes are generally never easy to resolve, but using child witnesses for such purposes is not right and can hurt them and your custody case.

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.”

When Can I Modify My California Spousal Support Order?

Posted by: Gerald A. Maggio, Esq.

Top Orange County divorce mediators; California divorce mediatorsBy Gerald Maggio, Esq.

There are 2 types of spousal support orders in California.  First, there are temporary spousal support orders made while a divorce or legal separation case is pending, which are generally made in the initial stage of such cases until a final resolution of the case is accomplished.  Second, spousal support orders made at trial of trial or by a stipulated Judgment reached between the parties are generally termed “long-term” spousal support orders intended to kick in once the divorce or legal separation is finalized.

In California cases, long-term spousal support orders can be amended or terminated under certain circumstances. Supporting partners have a number of different options available to them, if they wish to pursue a modification or termination of the support they provide.

In most cases, long-term spousal support can be terminated or modified at any time during the support period.  The only instance when this is not true is when there is a written agreement by the parties expressly stating that spousal support is non-modifiable. In the absence of such an agreement, the court generally retains continuing spousal support jurisdiction and can decide to terminate or reduce spousal support in later court proceedings.  This is especially true for marriages that were more than 10 years in duration.

If the court assumes continuing spousal support jurisdiction, then the court may grant a request to modify spousal support if the supporting party can demonstrate a material change of circumstance since the most recent court order outlining the spousal support. When reviewing a modification or termination request, the court will consider the following factors:

  • Reducing Support if Spouse is Self Supporting– The California Family Code emphasizes that even in long-term marriages, defined as those which last 10 years or more, the supported spouse has a duty to become self-supporting within a reasonable amount of time, which is considered to be one-half the length of the marriage.  Generally, if the duration of the marriage is less than ten years, a supported spouse is expected to become self-supporting in half the length of the marriage. Modification or termination of the support can be ended before this time. If the spouse has not made any reasonable efforts to become self-supporting, you may ask      the court to terminate the spousal support.  If, on the other hand, your former spouse has actually increased his or her earnings, you will be able to present evidence of this in court and argue that he or she now has a reduced need for support.
  • Reducing Spousal Support Based on Obligations– In some cases, the supported party’s separate estate, including any and all assets allocated to him or her in the community property division, and its reasonable income potential, may be enough for you to seek a reduction or termination of previously awarded spousal support.
  • Other Factors that affect Modification of Spousal Support include:
  •    Remarriage– A spousal support order automatically terminates when the supported party gets remarried.
  •    Cohabitation– Cohabitation may also be a basis for seeking a modification or termination of a spousal support order. If your former spouse is cohabitating with a    member of the opposite sex in a romantic relationship, you can request that the court order a termination of support or a downward modification of support.
  •    Retirement– The retirement of the supporting party may be sufficient basis to receive a termination of support; however, it will be important to prove that the supporting spouse has a right to retire and is not choosing early retirement.  In California, the recognized retirement age is 65, meaning that your ex-spouse cannot force you to work beyond that age, and if your retirement income is less than your pre-retirement income, you are likely entitled to a modification of the spousal support order at a minimum.

Whether you can terminate or reduce your existing spousal support obligation depends upon the unique facts and circumstances of your case. If you are considering modifying or terminating your spousal support order, you should contact a family law attorney who will review your case and advise you on how best to proceed.

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.”

What Are My Options Concerning My House In A Divorce?

Posted by: Gerald A. Maggio, Esq.

Orange County divorce mediator;s California divorce mediatorsBy: Gerald Maggio, Esq.

Following the real estate collapse in the past 5 years, more people owe more on their homes than the home is worth than prior to the real estate bust.  Many have no equity in the home and some are even under water because they owe more than the value of the house.  Historically, when people divorced, it was common for people to fight over who would get to keep the house because there was equity in the house. The house was not only desirable for emotional reasons, it was also often the most valuable asset in the  marriage and was expected to increase in value.

In today’s market though, it is common for parties to fight over not taking the house.  No one wants to be saddled with a mortgage that they cannot afford for a house which has no equity, so both spouses are more likely to try to get out of the house. This has been a relatively new dilemma for divorcing parties, for attorneys and for courts.  Here are your 3 options for dealing with this increasingly common problem.

1. Sell the House.

If you can sell your house, you may be able to pay off the mortgage and start fresh. The risk in keeping a house which has no equity is the very real risk of foreclosure.  A homeowner would have to keep the home and continue to make mortgage payments until the real estate market recovers to the point that the home has more value. A homeowner may have to work with the mortgage company on a short sale in order to avoid liability for any remaining balance owing on the mortgage. Both spouses will likely have to remain on the mortgage until the house is sold but once the house is sold, both will be released from the debt.

2. Rent the House.

If parties do not want to sell the house while it has no equity, the parties can choose to rent the house until the market recovers or until there is some equity in the house. One party can assume the responsibility of caring for the home or the parties can share it. If the parties decide to rent the property, they will also have to decide if one of them will take the tax deduction and claim the rental income or if they will share the income and/or the tax deduction. Renting the home allows both parties the option to live somewhere new while still getting some income from the home until the right time to sell arises, or at least buy some time for the real estate market to fully recover. Both parties will likely have to remain on the mortgage until such time as the home is sold.

3. Stay in the House.

One party may decide to take the risk and assume possession and the sole interest in the home.  The risk is that the home may not ever be worth as much as the amount owed on it, but the potential benefit is that over time, the house will have value again and in the meantime, they will receive the tax deductions for mortgage interest and property taxes.  If one party is willing to assume that risk, the party should not owe anything of value in return for getting the house. For example, if the house had equity of $200,000, and the wife decided to keep the house, then she would have to compensate the husband for his $100,000 marital share of the equity in the house. When the house has no equity, there is no reason to compensate the other spouse.  The house may have value someday, but it might not. The person willing to assume the risk will solely assume the loss or the profit from that decision.

For more information or to schedule a consultation, please call California Divorce Mediators at (949) 553-0911 or visit 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.”

A Tough Economy Makes Divorce Even Tougher

Posted by: Gerald A. Maggio, Esq.

21743109_mlBy:  Gerald Maggio, Esq.

In today’s weak economy, divorcing couples and their attorneys are finding that economic issues are more contentious than ever.  In a recent survey by the American Academy of Matrimonial Lawyers (AAML), 85% of respondents reported complications in divorce proceedings due to housing debt in the past three years.

Now more than ever, money is the big issue in divorce litigation.  The foreclosure crisis and high unemployment rate mean that every dollar counts for all families, especially those that are splitting up.

Another complication is the need to relocate due to economic circumstances, which can greatly complicate child custody matters.  The AAML survey found that 53% of respondents reported an increase in relocation requests in child custody cases.  Traditionally, such requests are made when one divorcing spouse is seeking employment elsewhere, or to relocate closer to another partner.  However, moving away is not a simple option for a custodial parent under current California law, and will likely cause further litigation over the issue of child custody.

The current economic crisis has also pushed divorcing couples to seek alternatives to expensive divorce litigation.  More couples are now trying to reach an agreement through divorce mediation,.  Hiring a divorce mediation attorney can save both spouses a lot of money compared to the expense of the divorce litigation process.  In today’s economy, everyone is much more aware of financial issues, and the lower cost of divorce mediation can be a money-saving alternative for divorcing couples.

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.”

The Benefits Of A Cohabitation Agreement For Unmarried Couples Are Many

Posted by: Gerald A. Maggio, Esq.

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As cohabitation is on the rise in the United States, many of those who have kids under one roof but remain unmarried often help each other with expenses. Nearly 75 percent of these households keep their assets separate but equally pay for child and household expenditures, noted the PewResearchCenter. A big portion of these households see cohabitating as a step toward marriage.

When each person is contributing to the household and they want to truly make sure each person is doing so fairly and with an eye toward the future, a cohabitation agreement can make sure each person knows their duties and responsibilities.  This type of agreement helps set the future up for success and all the anticipated events that could happen.

A recent study in the journal Family Relations echoed similar findings. Many people do not want to plunge into marriage, but decide to live together. More than 65 percent are worried about divorce and the economic, social, legal, and emotional fallout that can happen with a failed marriage. The study interviewed cohabiting women and men between 18- and 36-years-old.

The study showed a similar percentage desire to marry only once, so cohabiting is a way to test the waters.  They are living like a married couple but without the piece of paper and a ring.

A cohabitation agreement can go beyond just financial duties and child responsibilities.  Many couples use it to state their health care wishes, the division of assets and debts, and wishes for each other.  This can be important in the event of a crisis and there are opposing sides of the family.

For more information or to schedule a consultation, please contact California Divorce Mediators at (949) 553-0911 or visit www.cadivorcemediators.com.

Source:

http://www.news.cornell.edu/stories/Dec11/SasslerDivorce.html

http://www.pewsocialtrends.org/2011/11/22/cohabiting-couples-and-their-money/

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

Beware of What You Post On Social Media During Divorce & Child Custody Proceedings

Posted by: Gerald A. Maggio, Esq.

Top Orange County divorce mediators; California divorce mediatorsBy:  Gerald Maggio, Esq.

Relationships are established much quicker in our hyper social media age. It used to be that relationships evolved over months but with technology – whether texting, social media, or email communication – everything happens at a rapid pace. For marriages that are on the rocks, a spouse can rekindle or find a new love and intensify the bonds rapidly.  This means more affairs more easily enabled by such technology.

When a person is having a bad day at home with a spouse, they often turn to social media to relieve their stress and get back some enjoyment. But before you start to post negative comments about your spouse or send inappropriate pictures or posts over social media, think twice, especially when child custody is involved.

The American Academy of Matrimonial Lawyers notes that 75 percent of divorce lawyers are utilizing evidence from social media in marriage dissolutions. Use caution and restraint when posting on Facebook, Twitter, Google+, or any online social media outlets or you could cause more trouble than your post was worth.  Remember it is not social media that is causing the problem, it is your behavior and comments that are inappropriate.  You do not want to have to deal with a moment of questionable judgment that is now something you not only regret out of embarrassment but more importantly, can be used against you in court.  Your ex’s lawyer will use, and the judge can consider, these posts, so exercise restraint so that problems are minimized.

So do yourself a favor and either stay off all social media altogether or otherwise exercise extreme caution until the divorce is finalized and you want to start a new relationship. Otherwise, you could jeopardize your child custody case and outcome of your divorce because of inappropriate behavior.

For more information or to set up 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.”

Divorcing People Should Focus On Their Kids, Not Their Anger

Posted by: Gerald A. Maggio, Esq.

Top Orange County divorce mediators; California divorce mediatorsBy Gerald Maggio, Esq.

Divorces typically are all about the two adults who can no longer get along and who gets what assets, property, and privileges. Even though each spouse might equally love the children, oftentimes divorce can bring out the worst behaviors in a parent. Before, during, and after the divorce proceedings, it is critical to focus on a healthy and nurturing environment for the kids; otherwise, the negativity can have big consequences.

“Children tend not to tell you when they are angry, resentful, confused, hurt or depressed,” says author Rosaling Sedacca in her book How Do I Tell the Kids…about the Divorce?  “Instead, kids reflect their problems through their behavior – acting out or perhaps turning inward in ways that you have not experienced prior to the divorce. Take time to see the world through your children’s eyes and you will be better able to meet their needs, understand their confusion or aggression and find appropriate ways to dissolve tension through your conversation and caring behaviors.”

Parental behavior that involves negatively talking about one parent, missing or cutting into the other’s parenting time, or concealing the truth can wreak havoc on a child’s emotional wellbeing and alter their perceptions of how they should act. Children who watch parents say cruel things, lie, and seek revenge can end up being rude, hostile, dishonest, and hold grudges or worse.

Many child psychologists promote that parents must set aside whatever ill will they have towards their ex to effectively be a good parent. Yes, this will involve a daily focus to accept the child custody and shared parenting time. Halting the negative words and interacting proactively with your ex will show that people can be their own individuals and be courteous yet have their boundaries.

Divorce law and child custody agreements are all about the best interests of the children, so the earlier an individual focuses on this fact and has a good child custody attorney by their side will bring about faster and fair results. From visitation and shared parenting rights, to adequate child support and enforcement, a skilled child custody attorney will address all the factors needed for the children.

A schedule must be created so that each child will get to enjoy a normal schedule with each parent as well as specific holidays, vacations, birthdays, and special cultural and religious days. Patience, tolerance, and communication are critical to make the schedule work and ensure that the kids are benefitting from it. The agreement will also detail decisions regarding medical, education, religious, and any other special considerations for the children.

For more information or to schedule a consultation, please contact California Divorce Mediators at (949) 553-0911 or at www.californiadivorcemediators.com.

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 Court Determine Child Support?

Posted by: Gerald A. Maggio, Esq.

Top Orange County divorce mediators; California divorce mediatorsBy:  Gerald Maggio, Esq.

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:

  1. A significant increase or decrease in either parent’s income;
  2. A change in custody or the amount of time the child spends with each parent; or
  3. 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.”

What Is The Difference Between A Parenting Timeshare Plan And Child Custody?

Posted by: Gerald A. Maggio, Esq.

Top Orange County divorce mediators; California divorce mediatorsBy:  Gerald Maggio, Esq.

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.”

What Is The Difference Between Legal Separation, Divorce, and Annulment?

Posted by: Gerald A. Maggio, Esq.

Top Orange County divorce mediators; California divorce mediatorsBy:  Gerald Maggio, Esq. 

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.”