The Presumption for Joint Custody in California

Posted by: Gerald Maggio

Top Orange County divorce attorneys; The Maggio Law FirmIn California child custody is based on the overall best interest of the child. This means the health, welfare and safety of children is the first concern of the courts.

“Despite the fact that most states, including California, advocate for the best interests of the child in custody proceedings, what that ‘actually’ means is often decided on a case by case basis. Its interpretation is also often left to the family court judge,” commented Gerald A. Maggio, of The Maggio Law Firm in Irvine, California.

The difficult thing with this mantra – what is in the best interests of the child – tends to vary in each state, with some advocating a preference and presumption for joint custody while others don’t agree with that line of thinking. Some states are also amending their laws to have a preference/presumption for joint custody, and others are opting to only have joint custody if the parents both agree to it. “Frankly, this is a matter that is best discussed with an attorney, because each case is different and thus may resolve itself in a different manner. When dealing with child custody cases it’s best not to make assumptions,” Maggio said.

In California, the standard for child custody is the much talked about best interests doctrine combined with a leaning toward frequent and continuing contact with both parents. “The one thing to note about California family law when it comes to dealing with child custody is that there is ‘no’ preference or presumption for or against joint custody or even custody to one parent. The parenting plans are generally left to the family law court or a judge,” explained Maggio.

For those who may have been following the changes in the law with regard to child custody, California at one time ‘did’ have a presumption for joint custody. This was amended in 1994 to allow for joint custody only when the parents were in agreement. This amendment put California in line with several other states who adopted a similar law: Washington, Vermont, Nevada, Mississippi, Michigan, Maine, and Connecticut.

Whatever the case may be in the various other states, one thing seems to be certain: there is a trend toward joint custody being adopted as being in the best interests of the child. This of course is only applicable if certain circumstances apply. For example, evidence of an unfit parent or evidence that the child may be the victim of abuse; therefore, joint custody would not be in their best interests.

“Anyone faced with a child custody battle would be well-advised to speak to an experienced family attorney to find out what laws apply in that area. It would also be in the parents’ best interests to find out what the courts in their state feel is the best for the child in custody disputes,” Maggio pointed out.

Gerald A. Maggio is senior partner of The Maggio Law Firm, Inc., an Orange County and Riverside Divorce and Family Law firm headquartered in Irvine, California. The Maggio Law Firm is experienced in all aspects of divorce and family law matters, including child custody, child support, spousal support, complicated high asset marital property cases, and domestic partnerships.

For more information or to schedule a consultation with Orange County divorce lawyer Gerald Maggio, contact The Maggio Law Firm by calling (949) 553-0304 or visiting www.maggiolawfirm.com.

Domestic Violence May Impact Your Orange County Child Custody Case

Posted by: Gerald Maggio

Top Orange County divorce lawyers; The Maggio Law Firm

The National Center for Victims reveals that nearly 1.4 million people are stalked every year in the US alone. This may be considered domestic violence during divorce proceedings and may impact on child custody if there is a conviction.

It goes without saying that the number of victims stalked in the US every year is highly unsettling. Unfortunately, in many cases, the victim was not aware they were being stalked until things get out of control. If you have instituted divorce proceedings and find you are being stalked, immediately speak to an Orange County divorce attorney. Generally speaking, women are more likely to be stalked than men; and in most cases, women are being stalked by men whom they were once involved with intimately. This may mean dating, long or short term cohabitation, and even marriage.

Stalking is usually defined as multiple unwanted acts that escalate over a period of time and get more dramatic and more out of control. No one has to put up with stalking and this is where an Orange Country divorce attorney will be able to assist you. There is no reason for you to have to change your lifestyle to feel safe. In many cases, stalking may lead to even more violent crimes such as murder.

While there are several things that you may do to take action in situations such as this, speaking to a highly skilled and empathic Orange County divorce attorney should be the first thing on your list. Find out how you may protect yourself and your children if you feel you are being stalked as a result of a failed cohabitation or marriage.
Aside from speaking to a compassionate divorce attorney with extensive experience in the area of domestic violence, make sure you keep a record of every incident where the person stalking you tries to contact you. This means by any method of communication and includes phone, texts, emails, in-person visits, and other incidents that seem strange and unusual.

Even though you may set boundaries and explicitly tell the person they are making you uncomfortable, they may continue to harass you. You may be able to put some distance between them and you and your children, but if they are dedicated to stalking you for their own reasons, getting them to cease and desist is often difficult. You definitely need to speak to a knowledgeable Orange County divorce attorney to find out what your options and legal remedies are here.

Do not attempt to do anything about the stalking on your own and always tell anyone who may be able to help you about any suspicious activities you have witnessed. This would include speaking to your attorney to apprise him or her of anything untoward or anything that indicates an escalation in the harassment of the stalker. Having been involved with the person, you will have good insight into what they may be doing and why and what they may attempt to do to harm you.

If the stalking incidents are not resolved by a conviction and jail time, and the significant other or spouse has been accused of domestic violence, this will have a direct impact on any child custody disputes.

Domestic violence is simply not tolerated when it comes to the safety and best interests of any children involved in a marital breakup. This is clearly stated in the California Family Code, Section 3044 that outlines “Upon a finding 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 such a person is detrimental to the best interest of the child.”

Gerald A. Maggio is an Orange County divorce attorney, in Irvine, California.  For more information or to schedule a consultation with Orange County divorce lawyer Gerald Maggio, contact The Maggio Law Firm by calling (949) 553-0304 or visiting www.maggiolawfirm.com.

Not Everyone Gets Alimony in California Divorce Cases

Posted by: Gerald Maggio

Top Orange County divorce attorneys; The Maggio Law Firm

Getting a divorce in California does not necessarily mean alimony is awarded. When in doubt about this provision, speaking to a skilled Orange County divorce attorney will clear up any questions.

“Just because two people decide they want to file for a divorce doesn’t always mean alimony will be a part of the final package. Although many people think that alimony is automatic, this is not the case. What is clear is that there is a great deal of confusion surrounding this issue, and that confusion involves the belief that all divorcing spouses are entitled to alimony,” explained Gerald A. Maggio of The Maggio Law Firm in Irvine, California.

While it might make sense to assume that in cases where adultery is the reason for the divorce that the judge will punish the cheater by ordering spousal support, divorce law doesn’t work that way. Another common fallacy is that just because the marriage lasted as long as it did, or didn’t as the case may be, that one of the parties is entitled to support. This too is not the case.

What does happen does then? “First and foremost, the couple is free to make their own arrangement for support payments, if they wish to do so,” added Maggio. If they are able to agree on support, a divorcing couple need to tell the court how much will be paid in support; how long it will last; why it might decrease or increase in the future; and other matters the couple want included in their agreement.

“Coming to an agreement on their own is advantageous to the couple,” Maggio pointed out, “because they can also agree the court will not have the power to change the payment any time despite what the financial situations of either person happens to be.”

While this might sound like it’s an easy thing to do, come to an agreement on spousal support, it is actually one of the more contentious areas in a divorce proceeding. Many couples just cannot agree on anything, never mind an amount for support payments. “In situations like that, California provides specific standards for figuring out how much will be awarded to the ‘receiving’ spouse,” outlined Maggio.

For example, if the couple has been married for less than ten years, alimony/support will usually be required to be paid for five years. In other words, alimony will be required to be paid for half the length of the marriage. “So, in the case of a 30 year marriage, the receiving spouse could conceivably get payments for 15 years,” Maggio indicated. On the other hand, if the marriage lasted for ten or more years, support will be paid until the spouse getting it remarries or dies.

The crux of this issue is how the judge decides on what is a fair alimony payment. Interestingly enough, computers help the judge do this by using software that uses guidelines such as: how much total income each spouse makes; their living expenses (individually); if there are children and how many days the kids spend with each parent; and other factors. “Remember, that if the court is deciding the amount of alimony, they also have the right to change the figures later,” commented Gerald A. Maggio of The Maggio Law Firm in Irvine, California.

In most cases, alimony amounts would be changed (if decided by the court) based on a spouse losing their job, declaring bankruptcy or becoming disabled. “This is a two way street,” said Maggio,” in that changes may be made for the receiving spouse if something happens to merit a higher amount.”

When it comes to spousal support, there are various ways this may happen: the parties may seek their own agreement about payments; ask the court to figure them out; or take a pass on it altogether and just go for the divorce. No matter what the decision is, speaking to an Orange Country divorce attorney is the smart thing to do.

Gerald A. Maggio is senior partner of The Maggio Law Firm, Inc., an Orange County and Riverside Divorce and Family Law firm headquartered in Irvine, California. The Maggio Law Firm is experienced in all aspects of divorce and family law matters, including child custody, child support, spousal support, complicated high asset marital property cases, and domestic partnerships.

For more information or to schedule a consultation with Orange County divorce lawyer Gerald Maggio, contact The Maggio Law Firm by calling (949) 553-0304 or visiting http://www.maggiolawfirm.com/.

The Main Requirements for Filing For Divorce or Dissolution in California

Posted by: Gerald Maggio

Top Orange County divorce attorneys; The Maggio Law Firm

To file for a divorce or dissolution, you need to speak to a skilled Orange County divorce attorney to understand that California is a no fault state, and what this means.

One of the first questions many divorce attorneys get in California is usually, “What are the grounds for divorce?” The first thing those seeking to end their marriage need to know is that California is a no fault state and divorce is more often than not referred to as dissolution. In addition, since this is a no fault state, this means the courts don’t look at which party is at fault when they need to make a decision about issues such as support and the division of community property.

Be aware as well that there are some residency requirements that must be met by both of the parties to the dissolution. For example, either you or your spouse must have lived here for the last six months and you “must” live in the county in which you will be filing for dissolution for the last three months. On the other hand, if you meet the “living in California for six months” criteria, but have lived in different counties for at least three months, then you may file in either county.

It’s usually a smart thing to do to speak with a qualified Orange County divorce attorney to find out what your rights are when you file for dissolution and how to go about it. Representing yourself in situations like this is not a good idea, as there are a number of pitfalls – for example the division of community property – that may wind up to be a highly contentious issue. Without the expert assistance of an Orange County attorney, flying solo may land you in a great deal of hot water.

If you still wish to proceed with your dissolution, generally speaking, you must have your attorney file and serve a petition and summons with the courts prior to having it served on your spouse. This means that you become the petitioner and your spouse the respondent. If you have children you will need to ask your Orange County divorce attorney about filing a UCCJEA declaration relating to your children of your marriage.

If you happen to be served with a petition and summons and didn’t see it coming or don’t know what to do with it, contact a highly reputable Orange Country divorce attorney who will explain the process and what you need to do. Generally speaking as a respondent, there will be 30 days to file and have a response served. If you wait too long to speak to an attorney, and your response is not filed, the person who filed the papers (the petitioner) may ask for a default judgment.

Another thing you will need to know is that if you have been served with a petition and summons, the date when they were served on you is when the clock starts ticking for the earliest time for you to get a judgment of dissolution or divorce. Put another way, neither of the parties is considered to be divorced any “earlier” than 6 months after the date when the papers were served.

Many people do not realize that the summons has an automatic restraining order attached to it and that it applies to “both” parties. If either one of you violate the restraining order, you run the risk of being held in contempt of court.

There are many other issues that couples contemplating a dissolution need to know (division of community property, spousal support, etc.) before they make their final decision to proceed or not. It’s vital in instances like this to discuss your rights with an Orange County divorce attorney.

Gerald A. Maggio is an Orange County divorce attorney, in Irvine, California.  For more information or to schedule a consultation with Orange County divorce lawyer Gerald Maggio, contact The Maggio Law Firm by calling (949) 553-0304 or visiting www.maggiolawfirm.com.

 
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