Posted by: Gerald A. Maggio, Esq.
The process of a divorce in California can be complex in nature. There are a large amount of cases in the Orange County family law court, each a unique case with its own complexities. Sometimes there are cases where one of the parties gets a community property buyout, and then that party wants spousal support too. Are their demands justified in such a scenario? Here are some issues to be aware of.
Why Should A Spouse Get Spousal Support When She Gets Enough Community Property?
The answer to this question is simple – a spouse is generally going to get spousal support even if he/she has got a hefty community buyout because the division of community assets and the payment of spousal support are 2 separate issues. The primary argument here is that just because a spouse has contributed to the growth of the community property doesn’t mean he/she should not receive spousal support. Any action for such is likely to be seen as a means of punishing the spouse for his/her contribution to an increase in the community property and that is likely to be an infringement of his/her rights.
Is There An Argument Against Payment of Spousal Support In That Instance?
The case we will look at is the Orange County divorce case of In Re Marriage of Martin in 1991. The lawyers of M. Martin, who was going through an Orange County divorce, wanted to limit the amount of spousal support to his wife. The divorce lawyers on Martin’s side argued that their client could not afford to pay to his wife spousal support in lieu of the fact that she had already received a substantial community buyout. The trial court disagreed.
The View Of The Court
The court held that spousal support and community buyouts are two different aspects of divorce. The court was of the opinion that one of them could not finance the other. This meant that the plea by Martin’s lawyer of having to pay no spousal support in lieu of the community buyout being received was rejected.
The simple conclusion of the case and of the principle here is that you cannot pay off your spouse with their own money and then refuse their claim for spousal support. However, it is possible to negotiate a buy-out of spousal support as part of a divorce settlement, but to do so requires the knowledge and expertise of a competent Orange County divorce attorney to do it right and have it enforceable now and in the future.
Posted by: Gerald A. Maggio, Esq.
In this blog, we are going to review the Orange County divorce case of “In re Marriage of Andrew and Andrea Left”. This case is a unique one. The case concerned the question of whether a commitment ceremony of an ex-wife with her boyfriend should be considered as a re-marriage amounting to her spousal support being cut by her former husband.
FACTS OF THE CASE
The facts of the case are that Andrew and his wife, Andrea, had a marriage that lasted less than 5 years. The marriage resulted in the birth of two children. In the subsequent Orange County divorce that followed, Andrew was asked to pay $15,000 for child support per month and $30,000 per month for alimony support. Andrea, in the meantime, met “Todd,” and ended the status of her marriage with Andrew through a legal Orange County family law procedure known as bifurcation of the marital status. Andrea and Todd subsequently wanted to get married and had a wedding ceremony planned and went through with it, yet with the case going on they didn’t want to formalize the marriage. They had a full wedding ceremony.
DID THE COMMITMENT CEREMONY CONSTITUTE A VALID REMARRIAGE?
Now the question to consider in this case is that whether the ceremony that happened was actually a marriage ceremony. Andrea said no, and instead opted to call the ceremony a commitment ceremony. Todd and Andrea signed a document that is called Ketubah and is equal to the Jewish marriage contract. However, they did not obtain a marriage license. Andrew Left argued that California Family Code section 4337 applied in the case, which states: “Except as otherwise agreed by the parties in writing, the obligation of a party under an order for the support of the other party terminates upon the death of either party or the remarriage of the other party.” Andrew further argued that Section 4337 and its predecessors have been interpreted to include a ceremony that resembles a valid remarriage — regardless of whether the ceremony resulted in a valid marriage. In support of his position, Andrew cited three cases: Sefton v. Sefton (1955) 45 Cal.2d 872 [291 P.2d 439] (Sefton); Berkely v. Berkely (1969) 269 Cal.App.2d 872 [75 Cal.Rptr. 294] (Berkely); and Fry v. Fry (1970)5 Cal.App.3d 169, 170-171 [85 Cal.Rptr. 126] (Fry), arguing that these three cases show that it has been clear for decades that a ceremonial marriage, whether valid, void, or voidable, represents a “remarriage” as that term has been used in section 4337 and its predecessors.
The appellate court found that Andrew had provided no authority that the term “remarriage” as used in section 4337 means anything other than a remarriage carried out in conformity with the statutory requirements. Because Andrea and Todd did not meet those requirements, they did not marry, and Andrew’s obligation to pay spousal support did not terminate under section 4337.
ANDREW LEFT’S ARGUMENT THAT HE HAD ALREADY PAID SPOUSAL SUPPORT FOR ONE-HALF OF HIS SHORT-TERM MARRIAGE
Andrew further argued that the spousal support should be terminated because the marriage lasted less than 5 years and he had already paid the spousal support for half the duration of the marriage which is the general rule for marriages less than 10 years in duration. The appellate court found that the trial court had correctly noted that: “The code provides a guideline, not a hard and fast rule that support should be paid for half the length of the marriage.” This guideline is found in California Family Code section 4320, which provides numerous factors for the trial court to consider when determining the amount and duration of spousal support. Among the factors that the court must consider is the duration of the marriage. (§ 4320, subd. (f).) The section further provides that the trial court shall consider: “The goal that the supported party shall be self-supporting within a reasonable period of time. Except in the case of a marriage of long duration as described in Section 4336, a ‘reasonable period of time’ for purposes of this section generally shall be one-half the length of the marriage. However, nothing in this section is intended to limit the court’s discretion to order support for a greater or lesser length of time, based on any of the other factors listed in this section, Section 4336, and the circumstances of the parties.” The appellate court found that the trial court had not abused its broad discretion so as to fairly exercise the weighing process contemplated by section 4320, with the goal of accomplishing substantial justice for the parties in the case before it. The court noted that the trial court must consider the mandatory guidelines of section 4320, but once it does so, the ultimate decision as to amount and duration of spousal support rests within its broad discretion and will not be reversed on appeal absent an abuse of that discretion.
DID EX-WIFE’S CO-HABITATION WITH HER BOYFRIEND ENTITLE ANDREW LEFT TO TERMINATION OF SPOUSAL SUPPORT?
Finally, Andrew argued that the trial court erred in not terminating the spousal support order because his ex-wife, Andrea, was co-habitating with Todd. The trial court had considered Andrea’s cohabitation with Todd, and exercised its discretion to continue the spousal support, at a reduced rate. The appellate court noted that the trial court had considered other factors, as well as the circumstances of the parties, as permitted under section 4320. Specifically, the court found that there was no competent evidence that Andrea could be self-supporting, and that Andrew had been slow to pay Andrea the amounts of community property that he agreed he owed her but still had under his control. Simply put, the court felt that Andrew could not “withhold money that rightfully belongs to [Andrea] and then argue his support should terminate.” Andrew presents no authority that the court’s consideration of the failure to turn over community property is impermissible, and the court upheld the trial court’s decision.
Andrew lost the case and all three reasons he gave were rejected. Andrew appealed the case. The appellate court upheld the decision of the previous Orange County family law court and rejected Andrew’s appeal. The basis for the courts’ decision was that under California Family Code section 4337, the marriage of Andrea and Todd was not a legal marriage and therefore the courts could not treat it as such.
The issue of spousal support can be a complex one in California, and it is advisable to seek the legal counsel of an Orange County divorce attorney in your divorce and when contemplating a possible motion to modify or terminate your spousal support order in the years after your divorce case has been finalized.
Posted by: Gerald A. Maggio, Esq.
The existence or non-existence of common law marriage in California is sometimes asked by parties contemplating their legal rights when breaking up with their partner. Marriage in California is a creature of statute. This means that for a husband and wife to go through legal and real marriage, they must go through all the formal processes that involve licensing of marriage and solemnization laws among other things.
California abolished common law marriage back in 1895. However, that is not entirely the end of the story.
In Limited Situations Common Law Marriages Exist
There can be no marriage between a man and woman on the basis of consent or cohabitation alone. However, there is also an exception mentioned in this regard. However, a marriage that is pursuant to the laws of a State or foreign country where the marriage has occurred, the California courts could recognize such a marriage as a valid marriage.
It should be noted, however, that proving these aspects is a hard nut to crack, since more often than not in most cases the spouses themselves aren’t in agreement of the type of the marriage.
Has there been a California case recognizing a common law marriage?
This actually has happened in the California legal system. This was done in the case “Marriage of Smyklo” by the appellate court. This decision can be considered a landmark decision in this regard since the courts highlighted the differences between an invalid common law marriage and a valid common-law marriage. The marriage in this case had happened in Alabama and the courts recognize this. It is important to realize that such cases are likely to be very rare.
What happens if a couple acts completely like a husband and wife?
What is likely to be the courts stance in cases where a man and woman act purely like a married couple? This means that they have joint bank accounts, pay debts, and even hold property together. Are these kinds of people likely to be considered as in a valid marriage? The answer to this question is no. The only exception mentioned above can allow for the existence of a common law marriage in California.
Posted by: Gerald A. Maggio, Esq.
Previously, we have written about the narcissistic spouse in a relationship and the problems they may create for the other spouse. In the context of this article, let us revisit the definition of a narcissist. A narcissist is someone who loves himself (or herself) more than anyone or anything else in the world. These types of people continue to live in a world of fantasy, a world that revolves around them. Yet, when you get involved in a divorce with such a spouse, there are likely to be complications in the case.
This article is focused on helping the high earning spouse deal with a narcissistic low-earning spouse and how they are likely to drive up the costs of the litigation and create hurdles in the process.
Using the Children as Leverage
Orange County divorce cases can become territorial and contentious when children are involved. One of the worst maneuvers that narcissistic low earning spouses can make is to try and use the children as leverage. There is a variety of reasons why these parents retort to such means. The use of the children is simply to hurt the other spouse. This tactic can be completed through a number of steps such as interfering with the other spouses, custodial rights, not allowing adequate visitation times, and even retorting to false accusations.
In case where high earning spouses face such tactics, it is strongly advised that they use contempt of court proceedings to enforce their rights. Contempt of court proceedings will also make sure that the narcissist parent will have to face court penalties for their erratic behavior.
Conditioning of the Children, Alienation and False Allegations
Narcissist parents try to exert undue influence on the minds of the child to try and keep them from their higher earning spouses. This tactic, if found, is likely to result in severe punishments by the courts. One of the first things a spouse who is facing such a narcissist parent at the other end should do is request for custody and visitation modification. The courts are unlikely to allow a parent who is involved in such misconduct to keep the custody of the child under the rules of deciding on the child’s best interest.
The Attorney Fee and Sanctions Motion
Perplexed by the fact that your spouse who is a low earner cannot afford these orders? It is important for you to understand, however, that the Orange County family law court does not limit the attorney fee awards. The only thing the courts are likely to look at in this regards is whether the parent being fined has community property or some kind of equity or not. If that is the case, the court will assume that the party in violation is able to pay such costs and will likely order it against the party that has been proven to cause unnecessary delays.
Posted by: Gerald A. Maggio, Esq.
One of the most common misconceptions in Orange County divorce cases is that fathers don’t have the same rights as the mothers in family law or divorce cases. This misconception often leads to the fathers shying away from their rights and ending up conceding more than they should.
Out-Spending The Mother Trying To Gain An Advantage
If you have come under the guidance of an aggressive divorce lawyer, some can encourage men to try and outspend their partner in litigation to try and break the other financially. Overzealous spending though can cause a variety of problems for the spending part such as:
- Exposing yourself to monetary sanctions for being unable to act within the standards of reasonableness. Driving up the cost of the litigation without merit can be sanctionable by the court.
- The husband may also have to face a motion for attorney’s fees and costs related to the other spouse’s inability to pay their own legal fees.
Surrendering Your Rights as a Father on Issues of Child Custody
This is one of the most unfortunate mistakes that fathers tend to do in their Orange County divorce case. It should be noted that the only thing that the courts take into account in deciding child custody cases is the child’s best interest. The best interest of the child needs to be proven to the court by both parents. Fathers have the same custody rights as the other parent to start, subject to the court looking at the big picture involving the child and determining what custodial arrangement is in the best interests of the child under the circumstances of each case.
Not Asking for Modifications when Needed
In a wide variety of cases, most fathers stop paying spousal and child support payments when they are unable to instead of going to court to ask for modifications. This is a mistake that is likely to have legal repercussions to the male spouse. The failure to abide by a court’s order which spousal and child support payments is likely to result in contempt of court proceedings against the non-paying spouse. Modifications can be sought in the Orange County family law court. Courts are unlikely to burden anyone with more than they can bear and are often understanding of the situations, and in a wide variety of cases will order modifications in the support payments, depending on the circumstances of the case.
Posted by: Gerald A. Maggio, Esq.
They say the people who have more to lose need the best adviser. This is particularly true in the case of high net worth individuals going through divorce. There are a wide variety of steps that high net worth individuals should take to make sure they are able to make the most of their Orange County divorce case.
Child Custody & Visitation
There are three major ways that child custody cases can go:
- Smoothly with both the parents agreeing on a single parenting plan
- A little resistance in between both the parties at the start eventually leading to a parenting plan without a court hearing
- Litigation proceedings with the final decision being in the hands of the family law judge.
Here are few tips in this regard to help the high net worth individuals in this regard:
- Court proceedings and child custody cases require the availability of the individuals to hearings and for their child’s care. Keeping that in mind, high net worth individuals need to be realistic in front of the judge about their timings of work and work schedules. Honesty is an important trait in Orange county divorce litigation.
- Take care when you are deciding on moving out. Most high earning individuals are likely to move out of the houses in case of an Orange County divorce simply because they can. This however is likely to be a bad strategy unless you do it to avoid false accusations of domestic violence. Moving out of the house allows the other spouse to establish a stronger case over time against granting you equal custody.
Child Support and Spousal Support (Alimony) Support
Calculation of child support is an easy task since it is done in California through a computer program. While this is the general perception, it is unlikely to be the case for high net worth individuals. Simply put, whether they are alimony or child support payments, there is a wide variety of issues that high net worth individuals are likely to face.
Income Sources for Support Purposes
There is a wide range of sources that your income can fall into and it is important you are able to identify which category you fall under:
- Base Income for salaried individuals
- Profit distribution versus bonuses method for additional income of self employed individuals
- Interest income is the income that comes from investment accounts, bonds and stocks
Child support and alimony payments depend on the category of income that you fall under. More often than not, if your income is too high for the computer system to distribute, the courts are likely to make an exemplary support order. This order is likely to be more than the usual alimony payments and is likely to base on the concept of maintaining a status quo.
Posted by: Gerald A. Maggio, Esq.
Picking a divorce lawyer to fight your case is almost as important a decision as choosing to get a divorce itself. Any mistake in finding a good divorce lawyer is likely to cost you a considerable amount of discomfort at the very least and financial and relational issues at the worst. Having said that, finding a good Orange County divorce lawyer in California isn’t the easiest thing to do. Someone who is looking for a good divorce lawyer is likely to have to negate a wide variety of attorneys before finding the right lawyer for them.
Here is a list of some of the steps that you can do to make the selection process easier for you.
Start with the First Phone call
When you call a law firm, what is your purpose? Is it to talk to the secretary or an administrative executive? Or do you want to speak with an experienced divorce attorney (or have an appointment set up with them), who is willing to listen to your case and help you with respect to your situation. While some lawyers are desperate enough to talk to their clients on the phone, some like to talk in person. Most top Orange County divorce lawyers prefer to talk to their clients in person and charge a fee for it.
In Person Consultation
Always remember you should take an Orange County divorce attorney’s legal advice since they are the only ones legally permitted to give it. If you visit a law firm and meet only with someone who is not a lawyer, that someone cannot give you legal advice. It makes absolutely no sense to sit in a room and discuss your divorce case’s facts with someone who isn’t a qualified lawyer.
If They Sugar Coat It, They Aren’t The Right Lawyer
Your whole case, and in lieu of this your future, is in the hands of your divorce lawyer. In such a case, you would want someone that is clear about what he or she wants to do and is capable enough of addressing any issue to raise with respect to the divorce process. Another important trait in a quality Orange County divorce attorney is their ability of being to be honest. A wide variety of lawyers will try to lure you into paying for their services by making lofty promises and unachievable claims.
Choosing a good divorce lawyer is a multilayered process that has many stages. The best way to find a good, competent, and committed divorce attorney is to take the process one step at a time and not jumping to conclusions.
Posted by: Gerald A. Maggio, Esq.
One of the largest numbers of cases that come into the Orange County family law courts are cases of divorce. Divorce in itself is a complex process that involves a wide variety of aspects for the spouses and their lawyers to cover. Orange County divorce proceedings can focus on one or all of the aspects such as child custody, child support, spousal support and property distribution. Cases that involve all these above aspects are likely to be of complex nature.
When it comes to a divorce in family court, both of the spouses are hell-bent on trying to outfox the other and win the divorce case. In this article, we give you a lowdown on a few tips and tricks to make sure you are able to win such complex cases:
How to Win a Case that is about Child Custody
Child custody cases are one of the most fiercely contested aspects of a divorce case since parents regard their children as the most valuable asset that they each have. The best way for two parents who care for their children and want to give their child the best is to talk their differences outside of the court and propose a parenting plan in front of the court to get the court’s seal of approval. This is likely to be the best option since it will save you on your litigation costs and save the court’s precious time.
There are, however, other types of child custody cases that involve two parents where one of them has been accused of physical, emotional, and mental abuse to the child. In such cases, you are going to win a case by making sure that your facts are in order and that you are clear as to the evidence’s strength to prove the other parent’s guilt. Once their guilt has been proven, the other parent is unlikely to have any chance of getting the custody of the child.
How to Win a Custody Case that has Spousal and Child Support Involved
This one of the leading causes of disagreements caused between the spouses in the family law courts. In most of these cases, it should be understood that the courts before making any declaration, will need complete declaration of the financial position and capabilities of each of the parties. If one of the parties has doubts over the claims made by the other party, the courts will order an inquiry to allay those doubts.
There are different ways each of the parties can win these cases. In the first instance, the spouses asking for spousal and child support will have to prove to the court that their financial capability isn’t healthy and that the financial prowess of the spouses should be used to help bridge the income disparity.
The other spouse, on the other hand, will simply need to show that the other spouse is in a good enough financial position and can earn more than he/she can pay. Or the party needs to show that their financial restraints make them unable to make such large amounts of payments.
Posted by: Gerald A. Maggio, Esq.
Stress and panic are two of the most common issues that people going through a divorce are likely to face. While a lot has been written about stress and how to handle it in divorce cases, there is very little attention given to panic. Here are nine tips that will help you eliminate the element of panic from your divorce.
1. Start Reading Legal Blogs
The first and most important step in this regard is to make sure you are aware of the divorce and family law system. Read up on important articles or legal blogs to build a base that allows you to understand your position and chances.
2. Seek Advice From Professionals Only
Be careful when seeking advice from friends and family in legal matters. Any bad advice can be more fatal that no advice in Orange County divorce cases. It is important that you take advice from an experienced Orange County divorce lawyer only.
3. Visit a Number of Lawyers
Don’t be laid back. Your lawyer is your best chance to win in a hassle free manner. This means that you should be proactive in finding the right fit for you. Make sure you visit at least three before deciding on the one of your choice.
4. Have Any Questions? Ask Your Lawyer
Make sure you are able to display your willingness of winning to the lawyer. Listen to them about the legal issues concerned with your case and make sure you ask them all the questions you want. This is important since the more detailed an explanation the lesser you are likely to panic in that regard.
5. Does Your Lawyer Sound Unethical? Dump Them
Make sure you stay away from unethical lawyers. These kinds of lawyers are only going to increase and decrease the level of concern and panic in you using their inflated threats of bias and danger claims. In addition to that, they will churn money out of you every chance they get.
6. Outline Your Expectations Right from the Start
Work with your Orange County divorce lawyer and make sure that both of you are on the same page about the expectations from the case. Also, it’s helpful if you are able to determine the budget and strategy before hand, leaving little room for panic to creep in.
7. Communicate with Your Lawyer Daily
Make sure you have daily communication with your attorney to avoid any confusion and allowing you to stay updated with respects to all the happenings of the case.
8. Opt for Therapy if Things Get Rough
If you are struggling with emotions during your divorce proceedings, try and reach out to therapy to stabilize your mental state.
9. Put Your Emotions Aside and Try to be as Rational as Possible
This is an important point and should be considered. Make sure you treat your divorce case like a business. Try to stay logical and factual throughout the process. Always keep in mind that divorce is not a means to take revenge and any attempt at doing so can be damaging.
Posted by: Gerald A. Maggio, Esq.
Have you ever had those thoughts that take you from a good mood right down to being distraught and depressed? Such thoughts are common among people that have gone through or are going through a divorce. These are the thoughts that you are unable to share even with your best friends and are only left with to tackle by yourself. This phase in a divorce can be on of self-defeating thoughts. These are simply put, personal, pervasive, and permanent thoughts about the bitterness in your relationship which can be tough to deal with, since it can led to feelings of helplessness, followed by depression.
It is often seen that the end of a relationship can leave a mark on a person, and what is a bigger scar than to go through a divorce? These phases can bring up thoughts in one’s minds that are damaging to their personality, such as “I am a failure”, “Nobody can ever love me”, “I am broken and nothing without him/her”.
However, for couples who choose divorce mediation to resolve their divorce, they are likely to face little-to-no self defeating thoughts. The primary reason for this is because Orange County divorce mediation is a process that involves the couples to converse, solve, and mediate their differences to be able to get a usable conclusion. Yet even divorce mediation is likely to fail if a person has already been trapped in the self-defeating thoughts and is unable to break free. Thus, it is important that couples that come into divorce mediation are able to defeat their self-defeating thoughts.
There are two ways to beat self-defeating thoughts. These two ways are having a clear head and distraction. The first way means having a clear and conscious head that is able to look through the apparent despair. All you need to do to defeat these self-defeating thoughts is distinguishing that these perceptions are not reality. Make sure you ask yourself what basis the beliefs you are facing have, envision the happy moments in your life, visualize that into your future, and try to think of the way ahead rather than the cloud of darkness that surrounds you.
The other way of defeating self-defeating thoughts is distraction. The human mind can easily be distracted from all kinds of thoughts, and all you need to do to succeed against the self defeating thoughts is find an adequate distraction. Distractions are a plenty around you, go from dinners with your friends, plan excursion trips with your family, look for the best holiday destinations, and fly away for some time. What happens to your divorce mediation? The best thing about divorce mediation is that it’s flexible and the timings are decided upon the availability of the client. So you are free to do whatever you want.