Rights Of Parents With Disabilities Regarding Child Custody

Posted by: Gerald A. Maggio, Esq.

best divorce attorneys in Orange County; The Maggio Law FirmIt is a given that a divorce can be one of the most stressful and traumatic situations for most people.  For divorcing parents, there can be several considerations regarding the custody and visitation arrangements of their children. However, the situation becomes more intensely complex and overwhelming when one of the separating parents has some kind of disability to deal with. The parent with disabilities is constantly surrounded by the fear of being on the losing side of the final child custody settlements to be announced by the court.

Understanding California family law on parent disability and child custody determination 

Whereas years ago a disabled parent might have been viewed by a court as incapable of financially, physically and/or emotionally providing for his or her children the same way as a parent with no disability would. However, with changing times, laws have also changed.  The State of California incorporated a provision in the family law dealing with custody cases involving a parent with disabilities. As per thelaw, courts are prohibited from relying merely on a physical handicap to establish a parent as being unable to care for a child. The provision states that the court will not decide upon any child custody, support or visitation related settlements against a parent merely on the basis of his or her disability.

The provision requires the court to make a few considerations while dealing with divorce cases involving a disabled parent.

  • The existing and potential physical capabilities of the parent
  • The individual’s capacity to cope with his disability
  • The response and adjustment of other family members with the individual’s handicap

In addition to this, it is also accepted that the health and physical condition of a parent should not be given undue importance while considering the best interests of a child.

Parenting by a disabled parent 

As per the findings of modern psychology, parenting involves much more than regular soccer practice and carpools. It is within the guidance, support and teachings of a parent that the true essence of parenting lays. It is a parent’s learning from his or her own life experiences, that he/she passes on as invaluable legacy to the child. Considering the bigger picture, a parent with disabilities can be cited as far more capable of imparting lessons of life to their children, as opposed to someone who has never seen the dark part of life.

As long as a disability does not hamper a parent’s capacity of rearing his child the correct way, a court of law cannot deny him or her the custody and visitation rights over his or her children.

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 Happens When A Spouse Dies During A Divorce?

Posted by: Gerald A. Maggio, Esq.

Orange County divorce attorneys; The Maggio Law FirmAs per the California family laws, a marriage will be accepted as terminated only in the event of divorce, annulment or the death of either spouse. In the event of a divorce petition being filed, as soon as the couple files for the dissolution of their marriage, the couple is regarded as ‘separate’ from that point forward. Such a separation is considered only until the final court verdict is announced regarding the change in the marital status of the couple, or either of the spouses dies. In the event of a spouse’s demise after a divorce petition has been filed, the family courts of California loses its jurisdiction to carry on with the trial and proceedings of the divorce and other related issues such as custody, support or property division.

Share in estate 

When an individual has filed for a divorce, and his or her spouse passes away before the family court can announce a final verdict, the case is automatically moot because a person cannot divorce a dead person.  At that point, this means that if a spouse dies during this period, the surviving partner is still deemed to be legally wed to the deceased.  Pursuant to California probate laws, the surviving spouse will have the right to claim their share in the estate of their deceased partner as instructed in the will, trust, or final testament of the deceased partner.  In case the deceased spouse had not created a trust or will, his/her estate will be divided and distributed as per the probate/intestate laws of California. 

Intestacy law of California 

As per the intestacy law of California, if a married individual dies without creating a will or a trust, his surviving partner will likely be the primary heir. To sum it up, in the event of death of a spouse during a pending divorce, the pending divorce case will be dismissed.  The surviving spouse can then proceed to a probate court for the property and estate division proceedings.

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 Basics of How to File for Contempt of Court in Divorce

Posted by: Gerald A. Maggio, Esq.

divorce lawyers in Orange County; The Maggio Law FirmIn California, contempt of court orders can lead to quasi-criminal proceedings. Violations of divorce and family law issues can all be brought to the notice of the court. A contempt of court order can be filed to remedy the violation.

The Petitioner will have to file an Order to Show Cause and Affidavit for Contempt form to proceed with contempt petition. Because contempt of court is treated as criminal offense, sufficient proof is required.

Time limit – Violations regarding payment of support should be reported and contempt proceedings should be started within 3 years of the beginning of violation. But as child and spousal support payments are monthly obligations, each default is considered a separate contempt and legal proceedings can be started on the basis of that. Any other contempt will have to be reported within 2 years of the violation.

Evidences and proofs required – In order to file a contempt of court petition, you will need to provide the court with ample evidences that a violation has taken place. The following proofs will be required –

  • Valid and clearly specified orders issued by the court.
  • The accused spouse is aware of the court order. The spouse may have received a personal copy of the order or was present at the court when the order was made.
  • Intentional or willful violation of court orders by the accused. The accused may mention an inability to follow the orders of the court due to financial or other reasons. The term ‘willful violation’ depends on the present circumstances.

Rights of the accused – The accused spouse is entitled to contest the contempt of court petition. There are certain rights and laws that can be invoked by the accused.

  • Formal notification of the charges filed against him or her.
  • Right to hire a lawyer to contest or defend the accused in the court.
  • The accused has the right to a fair hearing and should be allowed to testify.

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.

Bringing Contempt Actions In Family Law Cases

Posted by: Gerald A. Maggio, Esq.

Best Orange County divorce attorneys; The Maggio Law FirmA contempt of court order regarding divorce or family law cases can be filed in California courts. Both husbands and wives can file for contempt of court against their spouse when they refuse to follow the court order. A contempt of court order is very useful but it is hardly used in divorce cases. Contempt of court can lead to criminal proceedings.

Violations of court’s decisions about child custody, spousal support, child support, property division, and any other payment can be contested and remedied by using the contempt of court order. In California, contempt of court can be filed against a number of violations.

Child support – Not paying child support is an absolute instance of contempt of court. Temporary as well as final child support payment orders are made by the court. If not adhered to, it is treated as contempt of court. It is contempt if the child support is paid late or if only a part of the amount is paid.

Spousal support – Similar to child support, partial payment or late payment or no payment at all of spousal support is considered contempt of court. Violations of orders of paying combined child and spousal support can also be brought to the notice of the court.

Attorney fees – Attorney fees of the other spouse are a part of support so it is that spouse’s need. Failure to pay this need-based fee is considered contempt. Codes 2030 and 2032 of the California Family Code categorize the different kinds of attorney fees in family law and divorce cases.

Restraining orders – An intentional violation of any kind of a restraining order, such as the one against domestic violence, is an obvious case of contempt of court. A ‘no contact order’ should be followed.

Visitation orders – One parent violates the other parent’s visitation rights of their children. Visitation schedules are not followed and the parent is not allowed to visit the child. Failure to follow the parenting plan approved by the court can be appealed at the court as contempt.

Splitting of property – One spouse can refuse to part with a personal property or transfer a piece of property to the other spouse even after being ordered to do so by the court.  

If you feel your rights are being willfully violated, you should approach the court and remedy it by invoking the contempt of court order. Seek the help of a lawyer.  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 To Do With The Marital Home For The Self-Employed

Posted by: Gerald A. Maggio, Esq.

Best Orange County divorce attorneys; The Maggio Law FirmIt is very important to decide what to do with the marital home after the divorce. If, as a self employed spouse, you are the one earning more or you are the only earning member in the family, you will not only have to pay child support but also potentially spousal support. So, it is a possibility that your decision regarding the house will be influenced by how much you need to pay as support.

The house will imply a lot of financial expenditures like payments of mortgage, taxes and insurance. Ideally speaking, you should not make all these payments and not get to live in the house and pay child and spousal support on top of that.

Generally speaking, there are 3 things that you can do with the house –sell it, buy it from your spouse or your spouse buys it from you. You could also opt to stay in it but moving out is financially advantageous. You should decide what to do with your house after you have established what your financial situation is.

Sell or defer – If the mortgage has been paid or your child support payment will not get affected by the mortgage payment you have to make, you can decide not to sell the family home. If the house has good equity and the market is favorable, it is a good idea to agree to sell the house and make considerable financial gains.

Threat of defaulting on the mortgage – If you cannot afford to pay the mortgage and fear that a foreclosure is likely, you should look to sell the house. The house should not go through a foreclosure if it has equity.

Trade assets for the house – You can choose to buy the house from each other by trading assets in exchange of the house. The exchanged assets should amount to 50% of the equity. Take the help of a financial advisor regarding this.

If you are not ready for a buyout for financial or other reasons, then your spouse may get to keep the home and you agree to help him or her take over the mortgage. You must determine if that makes financial sense for you.         

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.  

Put Things Into Perspective #neverforget

Posted by: Gerald A. Maggio, Esq.

#neverforget; The Maggio Law Firm

Considerations In Determining Spousal Support

Posted by: Gerald A. Maggio, Esq.

Top divorce attorneys in Orange County; The Maggio Law FirmSpousal support or alimony is one of the most burning issues of a divorce or a legal separation. Many a times, the spouse who is required to make a hefty support payment might feel that it is quite unfair for him to carry on with the financial obligation towards their ex spouse even when the actual relationship ends. However, in order to make the alimony settlement with due fairness, there are several considerations that a judge must keep in mind while deciding upon the final verdict.

Duration of the marriage or domestic partnership

In cases involving a long term or permanent spousal support or alimony order, the court of law is obligated to align it with the length of the wedlock or domestic partnership. The basic aim of alimony is to ensure that the spouse receiving the support is able to meet the financial requirements of their sustenance and lifestyle within a stipulated time. The state law of California describes this stipulated time typically as half of the actual duration of the marriage or partnership. However, the same law also provides a discretionary power to the judge to make a deviation from the rule as per the requirement of the individual case.

A major deviation example will be in the case of long term marriages or partnerships that have lasted for a period of 10 years or more. In such cases, the judge has the discretion to entirely do away with the stipulation of an end date for the alimony, which will then carry on for a lifetime.

Domestic violence or abuse

While making a final alimony settlement, the judge is obligated to look for documented accounts or evidences of any domestic violence in the past, between the two parties involved. In case the abusive partner is supposed to make the alimony payments, the judge will evaluate the level of mental and emotional distress that the other partner may have suffered at the hands of their violent spouse.

Apart from this, in the event that a criminally convicted abusive spouse demands an alimony from his or her partner, the court may go for a rebuttable presumption against granting him the right of receiving any spousal or partner support.

There are several other considerations such as tax impact, standard of living, age and health, property and debts, unemployment and the like, that the judge has to account for before announcing a final verdict for alimony.

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.  

Things To Know About California Spousal/Partner Support

Posted by: Gerald A. Maggio, Esq.

Orange County divorce lawyer; The Maggio Law FirmIn many divorce or legal separation cases, the court of law may arrange for a monthly financial support that one of spouse has to contribute to for his/her partner. The court of law stipulates a fixed amount called spousal support, partner support or alimony which has to be paid by one party to the other on a monthly basis.

When to request for a spousal or partner support?

One of the domestic partners or spouse can file a case for obtaining alimony in the court of law in the event of a divorce, legal separation, annulment or a restraining order for domestic violence. An individual can file a request for support to be paid to him/her even when the case is still pending in the court of law. The aforementioned type of spousal support is often termed as temporary spousal support order. On the other hand, you may also request spousal support as an auxiliary settlement post the final verdict of a divorce or legal separation case. In such cases, it is termed as long term or permanent partner or spousal support.

What happens if an individual falls behind on his spousal support payment?

As the settlement for spousal support is stipulated in a legal court order, it must be followed as per the agreement instructions up until the end date, or for as long as the court doesn’t alter or put an end to it. However, in the event that an individual fails to make the payment, he is charged with a 10% yearly interest on the due amount. If you fall back on your post-due partner or spousal support arrears, the court will order you pay the additional amount along with the monthly support payments. The aforementioned additional amount is referred to as liquidation amount and is contributed towards your due arrears. However, even if you continue with the arrear payment via monthly installments, the yearly interest will still be charged on the balance due amount.

In the event that a court of law finds out that you are intentionally falling behind on your monthly alimony payments even when you have the means and the ability to pay for them, it may charge you with the contempt of court. Such charges can be extremely grave and may even result in you being imprisoned.

Both spousal and partner support are complex legal proceedings which would require you to consult a professional attorney before you file for the same in the court of law.

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 To Calculate Child Support in California

Posted by: Gerald A. Maggio, Esq.

child support attorney Orange County; The Maggio Law FirmThe calculation of the amount of child support in California is determined by a number of factors. Any child support payment includes the basic child support and health insurance coverage. There are other extra mandatory child support payments as well.

Factors influencing support calculations

There are mainly 4 factors that influence calculating the amount that is to be paid as support.

  • The number of children who are permitted to receive child support.
  • The parenting time or visitation right or custodial rights of each parent with the child.
  • The net disposable income of each parent. But computer software programs such as X-spouse and Dissomaster consider your gross income to determine how much can be set aside for child support.
  • In case there is more than 1 child, the youngest child receives the full amount of support an only child would have received. The other child or children is given an amount based on downward adjustment of the support amount.

Mandatory health insurance coverage

Every child receives a mandatory medical support from either or both the parents as long as the health insurance is free or is available at a reasonable premium. The health insurance should include medical, vision and dental coverage. Most commonly, group health insurance policies received at employment are the most reasonable of health insurances to be used in child support.

Mandatory child support extras or add-ons

  • Health care costs of the child that are uninsured are generally divided equally between the parents. California child support laws say not paying uninsured health care costs is akin to not paying child support. But payment of uninsured health care costs can be challenged in court which opens up scope for heavy litigation of such instances. All reasonable and necessary uninsured healthcare costs (those that are not related to cosmetic procedures) have to be shared by both parents.
  • A parent may be asked to pay an additional amount in support if the child needs special schooling or goes to a private school. But such costs are not needed if the child suddenly makes a transfer from a public to a private school. The parent’s ability to pay such costs will definitely be taken into consideration.
  • Travel expenses may have to be paid if the child has to travel a great distance to be with the noncustodial parent with visitation rights or the other way round.

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 Child Support Process in California

Posted by: Gerald A. Maggio, Esq.

Divorce attorneys in Orange County; The Maggio Law Firm, Inc.The process of seeking child support in California has different stages to it. It is advisable to enlist the help of experienced lawyers with knowledge of the child support laws in California. The process will require you to fill out a number of detailed information. It is best your lawyer helps you do this.

Child support cases can become quite complex. Self representation should not be considered. You may be a parent seeking or disputing child support, but these are the different stages in the child support process that you need to be aware of.

Filing a request for child support

The filing of a request for child support can be done in 2 ways. Most commonly, the parent seeking child support will have to file a Request for Order.  Or your attorney may want to type out the formal request declaration detailing in legal terms the basis of such a request. Sometimes a child support case may be filed because a local child support agency has approached the California Department of Child Support Services.

Declaring your income and expenditures

A request for child support should have a declaration of the income and expenditures of the parents of the involved child. Failure to provide these critical details will affect the process and outcome of the child support case. The parent seeking support may be denied the requested amount of child support.  The parent opposing the child support request, based on an assumption made by the court about his or her income, may have to pay more.

Serving the request order to the other parent

The other parent is served with the child support request order once the request has been filed. The method of serving the order depends on whether the other parent has already been served with a paternity or divorce petition. It is also greatly influenced by the fact that whether the other parent is a resident of California or not.

Deadline for responding to the order

The parent receiving the request order will have to reply within 9 working days of the court and before the date of the hearing of the child support case.

The hearing 

The court will review the documents submitted by each parent, and listen to testimonies made under oath to make a decision on the child support case. The court will listen to all disputes and issues that are well supported with factual evidence.

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.  

 
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