Top 3 Things to Do Before Filing for Divorce

Posted by: Gerald A. Maggio, Esq.

Orange County divorce attorneys; The Maggio Law FirmThe first thing most people lose when they finally make up their mind to divorce their partner is their ability to rationalize. With all that resentment and anger, it becomes hard for us to deal with the situation in a logical and practical manner. However, it is important to understand that a divorce is an extremely complex affair and needs to be dealt with sensibly, without letting our emotions get the better of us. Here are a few things that you should keep in mind before filing your divorce petition.

Consider your options

You must first analyze the extent of conflict with your spouse and determine whether your marriage can be dissolved with any other approach than a divorce. If in case you still have a level of understanding with your spouse, you can consider other alternatives such as collaborative law or arbitration, which will not end up costing you a fortune as in the case of a divorce. If you and your spouse wish to go for an out-of-court settlement for your conflicts you may also consider mediation as a tool to reach a mutual agreement. 

Hire a skilled divorce attorney

It goes without saying that you will almost certainly require a legal professional to assist you in dealing with the intricacies of family law. There are various aspects related to a divorce or a legal separation such as child custody, visitation, property division, and support that need to be handled with utmost care. Although an experienced divorce attorney will probably imply an additional expenditure, it is best to hire one and save yourself from losing out on your share of the final settlement. 

Organize your finances

You must obtain access to all your financial records and establish a detailed understanding of all your debts, assets, expenses, and income before you file your petition for a divorce. If you own a business, you can consult your accountant or manager to organize your financial statements and tax returns. The idea is to determine your financial status and strategize a plan accordingly so that you do not lose your share in the marital and separate assets after the final verdict is announced.

It is always better to plan out your strategies well in advance, to avoid the additional stress of witnessing any undesirable surprises, and ensure that you sail through your divorce litigation process smoothly and with the least amount of trouble.

Getting divorced in California can be complicated.  Download our free eBook, 18 Important Things to Know About California Divorce to educate yourself on the process.

What Violations of Divorce Orders Justify A Contempt Filing?

Posted by: Gerald A. Maggio, Esq.

Orange County divorce lawyer; The Maggio Law FirmIn the event of a violation of an order stipulated in the final decree of divorce, the court has the right to take immediate penal action against the party held in contempt of court. A contempt of court can result in either civil or criminal penalties, in accordance with the seriousness of the violation and its impact on the well-being of the other party. There are several scenarios wherein you can file a motion for contempt of court against your ex-spouse.

Child or spousal support orders

In case your spouse refuses to make a contribution towards the child or spousal support ordered by the court of law in the final decree of divorce or makes late payments on a regular basis, you can report the issue to the legal authorities as a contempt case and request adequate corrective action. In addition to this, a spouse who only pays a portion of the amount ordered as a contribution to the child or spousal support will also be held in contempt of court and instigate a penalty of some kind. 

Child custody and visitation

Child custody and visitation are two of the most frequently violated aspects of a court order. There are several cases wherein one parent intentionally tries to violate the other partner’s right to exercise his or her share of the joint custody or parental visitation schedule. A failure to adhere to the parental plan crafted by the court of law as a part of the final custody arrangement is a major offense that is viewed as a contempt of court and commands stringent punitive actions. However, it is important for you to gather substantial evidence in the form of documents or soft copies of emails, text messages or other communications that might prove the violation. 

Failure to seek employment

More often than not, when a court instructs a partner to seek employment for earning their livelihood, it is viewed as a mere suggestion and not a full blown order. If an individual intentionally fails at finding a job or means of livelihood as directed by the court in the final decree, he or she is liable to be tried in a contempt of court proceeding. In other words, a person’s willful failure to obtain some kind of work or training to fulfill his/her obligation of supporting his/her children will be held in contempt of court.

If you find that your ex-spouse is violating any court orders mentioned in the decree of divorce, you can seek legal consultation from an attorney and file a contempt action with the court.

Getting divorced in California can be complicated.  Download our free eBook, 18 Important Things to Know About California Divorce to educate yourself on the process.  

What Is A Contempt Action In A Divorce Case And How Do I File It?

Posted by: Gerald A. Maggio, Esq.

Best Orange County divorce attorneys; The Maggio Law FirmThe final decree of divorce announced by a court of law is legally binding on both the parties involved in the lawsuit. In other words, it is a legal obligation on both the spouses to fulfill the demands of all court orders regarding the various aspects of a divorce verdict such as child custody, visitation, support, property distribution, and the like. The idea is to respect the court’s decision and minimize any post-divorce conflicts and disputes between the exes.

What is a contempt of court in a divorce?

When a party violates a divorce order, the court can find that party in contempt of court and carry out legal ramifications in a quasi-criminal proceeding.  It is an effective way of enforcing court orders against your spouse.  If your ex-spouse refuses to comply with the instructions stipulated in the final decree of divorce, you have the right to file a motion for a contempt of court and inform the legal authorities about the violation of the settlement. 

How do I file for a contempt of court in a divorce?

Owing to the fact that the court of law is instinctively motivated to be in complete control over its decisions, a contempt case is typically met with stringent punitive actions. In case you wish to file a motion for a contempt of court against your ex-spouse, you can either go ahead with it yourself or take the help of a divorce attorney. The next step is to serve a copy of the motion of contempt to your ex-spouse. If you are handling the situation all by yourself, you can consult the court officials regarding the forms you will be required to fill out and send to your spouse, as a court notice. However, if an attorney is involved, he/she will take up the responsibility of serving your ex-partner with the notice. The basic content of the motion will comprise of the orders of the final decree that have been violated by the other spouse and why he or she must be held in contempt of court.

If you find that your ex-spouse has not been keeping up with the obligations mentioned in the final decree of divorce, you must immediately take legal counsel and go ahead to ensure adequate action against him/her.

Getting divorced in California can be complicated.  Download our free eBook, 18 Important Things to Know About California Divorce to educate yourself on the process.  

The Status of K1 Visa Fiancees After Separation or Divorce

Posted by: Gerald A. Maggio, Esq.

Divorce Attorneys in Orange County; The Maggio Law Firm, Inc.The K1 Visa is exclusively given to fiancées who come to the U.S. to get married. Getting married is a joyous occasion and individuals who come from different countries are eager to embark on a new journey with their partners. However, all marriages don’t work out and some end in divorce or separation. In cases like these, the status of K1 fiancées become a little confusing. Usually, U.S. immigration law wants the K1 fiancée to marry his/her partner within 90 days of arrival on U.S. soil. After getting married, the couple must file for Adjustment of Status.

K1 fiancées looking for a divorce before the Adjustment of Status gets through can get one provide all criteria are met. The rules have substantially changed in favor of foreign nationals who want to get divorced from their American partners. It is expected that the new laws and rules will help K1 fiancées get a green card after a smooth and easy divorce on American soil.

New BIA (Board of Immigration Appeals) rule

The BIA recently ruled that K1 fiancées are eligible for the green card even if they get divorced before the Adjustment of Status application is finalized. The new BIA ruling is good news for individuals who want to get a divorce from their American partners in America. The new rule helps individuals who want to obtain a green card after their marriage ends. Earlier, the only way that could be obtained was through a marriage with an American citizen for a certain period of time. Now, the green card can be provided through the person who filed the K1 petition. However, K1 visa is restricted to fiancées and cannot be changed to H-1B or student visa.

The BIA has also emphasized on the fiancées’ ability to demonstrate that the marriage occurred in good faith and was willfully done by the individual. The ruling does not apply to individuals who never got married to their American partners or who are unable to show that the marriage took place.

Conclusion

The K1 Visa helps foreign nationals obtain a green card in America even if circumstances force them to divorce their partner before their status is updated in the country. The new rules for the visa will allow foreign fiancées to become green card holders even after the divorce. In every case, however, it is always better to hire an attorney or a law expert who can provide proper guidance on matters of divorce.

Getting divorced in California can be complicated.  Download our free eBook, 18 Important Things to Know About California Divorce to educate yourself on the process.  

Changing from Legal Separation to Divorce in California

Posted by: Gerald A. Maggio, Esq.

Orange County divorce lawyers; The Maggio Law FirmThe terms “divorce” and “legal separation” are distinctly different. Legal separation does not mean the dissolution of marriage while divorce means the end of a marriage. After a divorce, couples can go back to their single status. Legal separation means the couples are still married but do not stay together. There are many reasons why legal separation takes place before a marriage. Some couples feel that opting for a divorce is a serious matter and should be taken slowly. Being legally separated allows couples to reflect on the issue they have with their marriage.

In certain cases, couples change from legal separation to divorce. In California, it is easy to convert a legal separation to a divorce and all that is required is a simple conversion. It can be done anytime during the legal process and it takes only one spouse to make the request. It also involves filing a petition which the other spouse must comply to.

Amended petitions

In California, judicial counsel form, FL100, is used for making petitions in legal separation and divorce. Couples who want to change the petition simply need to file a second petition known as the Amended petition. In cases where one of the spouses hasn’t responded to the first petition, the other spouse simply needs to file the petition and send a serving notice. There are no charges for filing the amended petition.

If a legal separation is still in process and one of the spouses has still not responded to the petition, then the other spouse can file the amended petition. It is important for both spouses to meet the residency requirements of the state because the law for legal separation is different in each state. In certain cases where the legal separation has not been obtained but the petition has been filed, the spouse would require an approval request from the court.

After a legal separation gets finalized, spouses who want a divorce have to file a new case and start over again. Sometimes, couples prefer to stay as legally separated for an extended period of time when such cases arise.

Conclusion

The State of California believes that every individual has the right to decide the fate of their marriage. In California, it’s an easy process to change from a legal separation to a divorce and only takes a simple petition to change the status.

Getting divorced in California can be complicated.  Download our free eBook, 18 Important Things to Know About California Divorce to educate yourself on the process.  

How A Lawyer Can Help Protect Your Assets During A Divorce

Posted by: Gerald A. Maggio, Esq.

divorce lawyers in Orange County; The Maggio Law FirmA lawyer plays a pivotal role during divorce. A good lawyer will not only help you with legal matters but will also advise you to take the right steps. If you are going through a divorce, then the first thing to do would be to find yourself a good divorce lawyer. One of the important things during a divorce is property and asset division. The opposition can rip you off your hard-earned assets if you are not backed by a good and talented lawyer.

The role of an experienced divorce lawyer goes well beyond just helping you with the legal matters in a divorce. A good divorce lawyer creates a plan of action that will help protect your assets as much as possible. A lawyer can not only help you manage your assets but can also suggest you to take certain prevention from future losses.

When are attorneys useful?

When you are going through a divorce, you will under a lot of emotional and psychological stress. It becomes difficult to think logically about matters that concern your finances. In certain cases, your spouse might have already taken some of the property from the house. If this happens then your divorce lawyer will first tell you to make a list of all your property. Next, your divorce lawyer will make sure that the properties and expenses meet a fair market value. Additionally, you should also consider closing bank accounts and line of credits that were jointly owned by you and your spouse. Your divorce lawyer might also suggest you to ask for a restraining order from the court against your spouse regarding financial assets and properties.

Gathering key evidences

One of the jobs that divorce lawyers and attorneys are shouldered with is the task of collecting key evidences against property divisions. Divorce lawyers often suggest their clients to keep ample amount of proof regarding the total amount of property involved in the division. One of the techniques involves taking pictures and the other involves keeping multiple copies of bank statements. In any divorce proceedings, timely preparation is the key.

Conclusion

Divorce lawyers are very important during property divisions in a divorce and can help minimize the damage. Hiring a good lawyer will not only help you manage your assets but it will also help understand the rights during property division.

Getting divorced in California can be complicated.  Download our free eBook, 18 Important Things to Know About California Divorce to educate yourself on the process.  

Can Dating or Cohabiting Ahead of Divorce Affect Child Custody?

Posted by: Gerald A. Maggio, Esq.

Top Orange County divorce attorneys; The Maggio Law FirmSome argue that to give yourself the best chances of retaining the custody rights of your child/ children or at least enjoy visitation rights equal to your ex-spouse, it is better to avoid dating or cohabiting before the divorce settlements are finalized. How far is it true? This post aims to analyze that.

Give your child some time to adjust 

You must understand that under the California laws, courts must prioritize the welfare of the children above everything else. So, whatever the judge decides will be from a point of concern for the protection of interests and rights of the child. A child often goes through an emotional turmoil when he sees his parents feuding or wrangling frequently and then sees them divorcing and separating from each other.

In addition, if one or both the parents start dating, seeing or cohabiting someone who is also vying for the attention of their parent, they can get confused, angry and develop a deep sense of resentment not only against the new partner but also against the parent. That might scare them away into the arms of the other parent. Many courts ask for the opinion of the child (especially older ones) when deciding and sealing their fate. If the court sees that the child themselves want to stay with one parent in particular, they might take that into consideration and even limit the visitation rights or contest the joint custody rights.

Some factors that might affect your chances of retaining the custody of your child:

  1. Your current dating habits and past dating records could determine whether you are suitable to be the primary caregiver of your child: Not only will your past dating records be analyzed but if you have already started dating or cohabiting with someone before your divorce has been finalized can come under the glare and will be questioned, if there is even a little doubt that your dating habits are coming in the way of providing proper care to your child.
  2. The past of your new significant other can come under the scanner: If the court feels that the child might come into regular contact of your new partner and they might spend a lot of time together, the lawyer of your ex-spouse may try to bring to the fore the questionable past of your new significant other (may be cases of domestic violence). In addition, if the child themselves show a lack of positive feelings towards the person in question, it could hurt your chances.
  3. Speak negatively of the other parent in front of the child: Although you may not share a cordial relationship with your ex- or getting romantically involved has made them more jealous, that may not justify your frequent ranting against them, especially in front of your child. The court would consider whether your tirade or behavior is leaving a scar on his tender mind. 

Always keep the best interests of your child in mind before getting into a new relationship. Give them time to adjust before introducing them to your new romantic interest. Also, get the approval of your ex-partner, before introducing your current partner to your child and always ensure that your relationship doesn’t come in the way of your ability to provide adequate care to your child. That will increase your chances of getting custody of your child.

Getting divorced in California can be complicated.  Download our free eBook, 18 Important Things to Know About California Divorce to educate yourself on the process.  

Common Reasons for Losing Your Child Custody Case

Posted by: Gerald A. Maggio, Esq.

Orange County divorce lawyer; The Maggio Law FirmThere are a number of reasons that could lead you to lose the sole legal or physical custody of your child as directed by a California court. In California, when starting out, both parents have joint custody rights of the child. However, when such an order is contested, you have to provide solid evidence-backed facts and reasons to demonstrate your capabilities of being the “primary care giver” and being involved in the growing up of your child.

Acting without discretion could lead to a loss of custody rights 

A judge in a California court would see whether your involvement in the rearing of your child has a positive impact on him or her. If you are someone, who is an abuser of some kind, someone who rants or loses his temper quickly, someone who doesn’t demonstrate enough interest or inclination to take the responsibility of your child, gets into an abusive relationship before the divorce is finalized or has a new partner with shady history, all these could be used to contest your custody rights or even limit your parenting time to supervised visitation or complete withdrawal of your visitation rights.

You must also demonstrate your abilities to cooperate and work in tandem with the other parent of the child in order to provide the best possible care to the child. You must set aside your personal differences and take active part in your child’s daily life like taking him to scholl, speaking to his teacher’s, taking him to his games, spending quality time with him, going for holiday breaks, even if it means with your ex-partner for the welfare of your child and showing an constantly showing an active interest towards his growth. Also don’t act out in front of the judges, the child attorney, his teachers, playmates, other parents of his friends and stop ranting and fighting with your partner always. Try not to have casual flings in front of your children so that he feels neglected.

Some very specific reasons that could contribute to your loss 

  1. Physical or sexual abuse: One of the most common reasons for losing child custody is to physically, emotionally or sexually abuse or hurt your child. If your other partner can provide enough evidence like a paper trail, circumstantial evidence and witness based evidence; you could lose your parenting rights if the judge finds your behavior and attitude towards your child inappropriate.
  2. Child abduction: Family Code 3048 of the California laws define it. Your actions may be deemed dangerous if you try to sneak the child past the other parent and take hime from one county to another or out of America. He can’t be moved as per your whims. You will have to take legal permission for doing so and provide sound and valid reasons. 

Making false allegations of abuse against the other parent, showing an affinity for substance abuse, trying to interfere with the parenting rights of the other parent could also lead to loss of your custody rights or visitation rights. Take care to act with discretion and don’t ignore the needs of your child.

Getting divorced in California can be complicated.  Download our free eBook, 18 Important Things to Know About California Divorce to educate yourself on the process.  

Divorce & Medical Issues: What To Know

Posted by: Gerald A. Maggio, Esq.

Orange County divorce lawyers; The Maggio Law FirmChronic illness, including mental illness, can make a destructive impact on conjugal life. It is possible to seek divorce on grounds of chronic illness. It can be factored into alimony and custody decisions as well.

Decision capabilities

In the State of California, there is no need for the spouse who want a divorce to prove that the other spouse is the cause of divorce. This is termed “no-fault divorce”. In particular circumstances, however, the chronic illness of one spouse can be a valid reason for the other spouse to seek divorce. Courts in California could dissolve any marriage on grounds that the spouse in such a case is not capable of making decisions. This is termed “legal incapacity”. It determines that a person who is mentally sick is incapable to make decisions like getting married, making medical decisions, executing wills or entering into contracts. Any individual who is incapable of making any decision has deficiency in one or multiple categories like:

  • Processing the information given to him or her
  • Ability to modulate his or her mood
  • Attention and alertness
  • Thought processes

Any spouse who seek a divorce due to legal incapacity must prove that other spouse lacks the capacity to make decisions at divorce filing time. Multiple medical professionals will give a statement or testify before a judge to find out whether this particular spouse suffers from any illness. It should be to such an extent that the spouse cannot be capable of making any kind of decision.

Guardian and annulment

For divorce seeking spouse, he or she must deliver or serve petition for divorce on the conservator or the guardian of mentally ill spouse in case there is one present. The conservator or guardian represents the interests of the ill spouse in court. Do understand that an ill spouse has same rights as a healthy spouse to property rights.

Courts in California can annul any marriage if it is proved that a spouse cannot have agreed to marry at time of wedding. To give an example, this will happen in the case of underage spouse. It is also applicable if the spouse is forcefully married. Marriages can also be annuled by the court when one spouse cannot have consented if it was not possible to understand nature of marriage. However, in case the sick spouse recovers after the marriage is completed, then it will not be possible for any judge to annul that marriage.

Getting divorced in California can be complicated.  Download our free eBook, 18 Important Things to Know About California Divorce to educate yourself on the process.  

Can Spouses Convicted Of Domestic Violence Get Alimony?

Posted by: Gerald A. Maggio, Esq.

restraining orders Orange County; The Maggio Law FirmDomestic violence is an unpleasant subject and has plagued the lives of many couples. The number of domestic violence cases are more than that which get reported every year. Domestic violence is often one of the grounds on which one spouse seeks divorce. In California, domestic violence can mean many different things and you should carefully read through the California law before proceeding with the case.

Domestic violence in California

California is a “no-fault” state but in certain cases like domestic violence fault is a factor. In California, fault is thoroughly examined when spousal supports are determined in a domestic violence case.

California law states that after divorce the higher earner must support the lower earner. But in domestic violence cases, this law can be overlooked. For example, if domestic violence charges are against a spouse who earns lower then, after divorce, the other spouse need to provide spousal support.

California Family Code section 4323 clearly states that spousal support won’t be given if a spouse is charged and found guilty of domestic violence. In a standard divorce, the low-earner receives spousal support unless he/she is charged with domestic violence. If he/she is found guilty then any monetary compensation or other help will get terminated. One issue is that the marriage must have lasted for at least five years after which the rule stands true. The law is found in some of the states and provides a helping hand to the victims of domestic violence.

Examination by courts

Any domestic violence that has been documented will be examined thoroughly by trial courts. The decision will determine whether spousal support will be provided or not. Trial courts will also consider emotional distress, history of convictions and other problems which might be useful.

In California, domestic violence includes a wide range of problems. One of them is one spouse disrupting the peace of another. Domestic violence in other states might be only about physical assaults but not in California. Domestic violence is a serious offence in California and even the lightest change in behavior can lead to domestic violence.

False allegations

Can domestic violence be misused by someone? This question can be best answered by a law expert or one who has had extensive experience in dealing with such issues. The judge needs to look at all the evidence provided and after carefully going through the evidence, it will take its decision.

Getting divorced in California can be complicated.  Download our free eBook, 18 Important Things to Know About California Divorce to educate yourself on the process.  

 
No Legal Advice Intended: This website includes information about legal issues and legal developments. Such materials are for informational purposes only and may not reflect the most current legal developments. These informational materials are not intended, and should not be taken, as legal advice on any particular set of facts or circumstances. You should contact an attorney for advice on specific legal problems. Full disclaimer.