Concepts About Terminating Spousal Support

Posted by: Gerald A. Maggio, Esq.

Divorce attorneys in Orange County; The Maggio Law FirmTerminating spousal support is a big issue. The party that is receiving the support wants to be supported for as long as possible and the party that is paying for the support wants to end it as quickly as possible.  There are reasons for ending spousal support, such as:

  • The person getting the support may no longer need it as they are self-sufficient
  • The person paying the support might not be able to afford to pay for it any longer
  • The person getting the support is making no efforts to be self-sufficient
  • The person getting the support has remarried

How to terminate spousal support?

The first step to terminating spousal support is to assess the living conditions of both the parties and the length and flexibility of the support. The attorney should then find out if the court order has a Gavron warning attached to it. A Gavron warning is a warning issued by the court that requires the person receiving the support to become self-sufficient within a reasonable amount of time.

For marriages that last less than 10 years, that reasonable amount of time for payment of spousal support is usually half of the length of the marriage. Marriages that are longer than 10 years have a different set of rules to follow. A point to be noted is that there is no such thing as a lifetime support. According to California Family Code Section 4320, the spouse who’s getting supported should become self-sufficient within a reasonable amount of time.

After assessing the spouse who’s getting supported for the steps that he/she is taking to become self-sufficient, the attorney will build a case to bring it to the court. If the spouse getting supported has increased earnings, the attorney can argue to reduce the alimony and possibly reduce it or terminate it if possible. If the ex-spouse hasn’t started working yet, a vocational examination can be done to determine the ex-spouse’s ability to work. These methods can be effectively used to reduce the alimony to an eventual zero.

Also, Family Code §4322 can be used as a potential argument to terminate spousal support if the ex-spouse:

  • has no children
  • has or acquired a separate estate from inheritance that earns income
  • has income from employment

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.  

Using Texts and Emails In California Divorce Cases

Posted by: Gerald A. Maggio, Esq.

Orange County divorce lawyers; The Maggio Law FirmParties that are involved in divorce litigation will find that technology can have a significant impact on their cases. Text messages and emails are being regularly used in court proceedings. Introducing texts and emails to a judge in the court is tricky. Parties must familiarize themselves, because if not done properly, they will not be admitted into evidence.

Obtaining text messages and email communications

Text messages sent to the opposing party should always be backed up as the chances of the messages getting deleted by the opposing party is highly likely.

Information pertaining to the time the message was sent or received, in addition to the date, can be obtained through a subpoena. An opposition is to be expected from the opposing party and the cell phone provider when sending a subpoena to a cell phone provider. The attorney can draft a letter and send it to the cell phone provider to try and stop providers from permanently deleting messages. The best way to obtain messages that are related to the opposing party is to directly approach them.

To obtain email communications, there are two ways. Messages can be acquired from the party that is in control of the electronic device containing the emails. This can be achieved by serving a demand to examine the hard drive, allowing the emails to be copied. If the emails are stored on cloud servers, divorce attorneys have to subpoena the cloud service provider to obtain them.

Authenticating electronic evidence

Emails and texts need to be authenticated before being introduced as evidence. The chances of tinkering electronic evidence are higher than normal, hence proper steps must be taken to effectively use them. There are chances of a third party getting involved by using a party’s computer to send emails to different parties. Hence, authenticating all forms of communication are necessary.

There has to be a preliminary showing of relevance to the issue that has to be done with respect to emails and texts. This can be done by substantiating the writing, verifying that it was made by the sender, and not the receiver.

Text messages in California can be authenticated through the following ways:

  • Coincidental proof of authenticity (Evidence Code §1410)
  • Unique attributes of the message itself (Evidence Code §1421)
  • Testimony by witness who saw the creation or execution of messages (Evidence Code §1413)
  • Reply authentication (Evidence Code §1420)

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 Importance of A Trust Account in Divorce Cases

Posted by: Gerald A. Maggio, Esq.

divorce attorney Orange County; The Maggio Law FirmThe chances of any person knowing what a trust account is before going through a divorce is low. What are trust accounts and why are they important, especially in divorce cases?

Trust account

A trust account is an account that is opened by a law firm which holds money that a client party has given as their retainer for legal services, or is being held on behalf of both divorcing parties pending further agreement of the parties or a court order.  However, lawyers are not allowed to add their own funds into a trust account, nor to use such funds inappropriately.

There are 2 types of trust accounts that can be involved in divorce cases:

  • Interest On Lawyer trust account – It holds smaller amounts of money or retainers for small periods of time. The collected interest goes to the state bar. It is a creative way to improve access to lawyers for individuals and families that can’t afford a lawyer at the moment.
  • Segregated Interest-Bearing Attorney-Client trust account – Larger amounts of money can be stored for a longer time, and the collected interest goes to the client.

Segregated interest-bearing attorney-client trust account importance in divorces

These accounts can be used to hold the earnings gained from selling the residence of the disputing parties. It isn’t always clear on how each party will gain from the sale. Most couples that are getting divorced will divide the money received from selling the property. This isn’t always a good scenario. For example, if each party before separation spend different amounts of money for the property, then how will the money get divided appropriately? One party can claim that they paid for the property evenly, which will result in the unequal division if it hasn’t been proven in court.

A segregated interest-bearing attorney-client trust account is crucial to overall property division. It will help in resolving problems related to funds till the property division has been completed. It also ensures that the client’s money is not used for the wrong purposes. For example, the opposing party can spend the funds of the client, making it harder for the client to get it back later.

Also, it provides flexibility to both parties till the complete division of property. If the parties involved in the divorce cases have financial problems, they can distribute a part of the funds to aid in living expenses as the divorce case advances, and put the remainder of the money in the trust until the property division has been ordered by the judge or settled by the parties.

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 are Preliminary Financial Disclosures in California Divorces?

Posted by: Gerald A. Maggio, Esq.

best divorce lawyers in Orange County; The Maggio LawPreliminary financial disclosures are mandatory requirement to complete for getting a California divorce. Preparation and exchange of financial disclosures is one of the initial steps in any divorce in California. If the parties fail to fulfill this step then the judge will not grant the divorce. Parties that withhold financial information willfully or are negligent while stating them might face devastating results. Complete transparency and disclosure during the preparation of the preliminary financial disclosures cannot be understated.

The reason why preliminary financial disclosure is so important

California happens to be a community property state. This means, whatever is acquired during marriage becomes community property. The term community property includes pensions, assets and liabilities. So at any point of time, if a person wants a divorce, under California law the two parties are required to resolve all the issues that were created in the course of the marital period. Examples of such issues would be custody matters, division of assets and liabilities, among others.

Invested parties are required to fill the preliminary financial disclosures which include the Schedule of Assets and Liabilities (FL-142) and the Income and Expense Declaration (FL-150). Together these two documents sum up all the property and income of the two parties.

Only upon the complete disclosure will the court have a clear understanding of the entire community estate. Often people representing themselves do not understand what the term community property means. Hence they end up excluding certain information, unknowingly, which leads to incorrect information.

Intentional withholding of preliminary financial disclosure information

One of the most serious consequences of intentional withholding of preliminary financial disclosure is the innocent party losing their share of community property. And the other consequence would be a court punishment to the guilty party for not disclosing their assets, debts, or liabilities.

Although the forms FL-150 and FL-142 might look simple and easy to understand, they are often filled with multiple complexities. Due to the legal nature of the terms and complicated definition of community property, most people often get confused as to where they have a right to share and where they don’t. What belongs to who is also a matter of concern when it comes to family heirlooms or the spouse’s 401(k), among other assets. It is to deal with these intricacies, it makes sense to hire the services or seek consultation with a divorce advocate who can help you prepare for this important step in divorce filing and 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.  

Saving Your Retirement Plan During A Late-Life Divorce

Posted by: Gerald A. Maggio, Esq.

Orange County divorce attorneys; The Maggio Law FirmLate life divorces are increasing in number as more and more senior citizens seem to be dissatisfied in their marriages. A recent study has revealed that one in every four divorces are late-life divorces. Like any divorce, a late-life divorce can be hard hitting on the financial front. But a late-life divorce could ruin people with the best retirement plans.

The cost of living separately is much higher than the cost of living together as the number of accommodations and facilities double. In simpler words, an elderly couple that have been together for a long period of time would have likely planned their retirement together. When a divorce is filed, one of the spouses will have to move out and more often than not, have to plan separate occasions to meet other family members. All of this, could drive expenses up by 30 or 40 percent.

Anyone involved in a divorce will tell you that it is one of the most expensive scenarios to deal with. For people aged 50 or over, this could spell the destruction of their financial plan altogether. A financial planner or advisor needs to be consulted in order to understand the circumstances. This is especially true, if one of the spouses handled the finances throughout the marriage.

In some cases, retirement benefits might be more valuable than all of the couple’s other community property combined. This might form conflict on the division of the benefits. Some forms of benefits such as social security, military compensation, and workers’ compensation for disability are not considered to be community property and will remain with the individual after divorce.

Retirement Allocations

In California, retirement is considered to be community property that can be divided between the spouses. However, retirement divisions are handled outside of the usual divorce proceedings. A Qualified Domestic Relations Order (QDRO) outlines the division of the retirement funds.  It is usually filed after the divorce judgment. The QDRO is needed to divide 401k, 403b, profit-sharing plans, tax sheltered annuities and other aspects.

During divorce proceedings, the QDRO calls for the equal division of retirement assets. However, mediation and negotiation can help spouses agree on different rates or division percentages. The QDRO  is the final indicator of division of retirement benefits. Divorce attorneys often hire QDRO specialists to help segregation and division. Once both parties have agreed on the division of benefits, a QDRO is filed.

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.  

Managing Student Loans During Divorce

Posted by: Gerald A. Maggio, Esq.

Best Orange County divorce lawyers; The Maggio Law FirmIn California, student loans can be considered to be community property, but it depends on the circumstances.

So who pays?

According to California Law, if the student loan was incurred after marriage, it can be considered community property and will be split between both the spouses regardless of whose name is on the loan. If the loan was incurred before marriage, then it is judged to be separate property and has to be paid off for the spouse who opted for it.

While this may seem simple, there are multiple circumstances that could change the provisions made above.  The length of the marriage is a key factor that affects the court’s decision. In a long term marriage, the person that took out the loan will likely have proof that both they and their spouse benefited from the education. The other party will have a hard time proving that they did not benefit and the court usually splits the loan payments.

If both spouses had student loans before marriage and ended up consolidating their loans, both parties are equally responsible for it. The court will not consider the individual loans and terms that were in place before consolidation. The date of consolidation will be regarded as the date of the loan and both parties will continue making payments.

California Family Code sections 2641(b)(1) and 2627 maintain that the community should be reimbursed for community contributions to education or training of a spouse that substantially enhances that person’s earning capacity. The amount reimbursed must include interest at the legal rate, accruing from the end of the calendar year in which the contributions were made.   However, if the parties agreed in writing that there would not be such reimbursement or the contributions were for regular living expenses, then there is no right of reimbursment.

Also, there is a rebuttable presumption under California law that the community has not substantially benefited from community contributions to the education or training made fewer than 10 years before the commencement of the divorce, while it is generally held that the community did substantially benefit from community contributions to the education or training made more than 10 years before the commencement of the divorce.

Couples that are worried about student loans are often advised to have a prenup before marriage. Many take the opportunity to outline their terms for loans and debts. If such a document exists, the Court will follow the same guidelines at the time of the divorce. If there is no prenup or the validity of the prenup is in question, the parties will have to negotiate debt division with each other. If this does not work, mediation might be the only solution before going to 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.  

Child Custody Battles for Parents With Criminal Records

Posted by: Gerald A. Maggio, Esq.

Orange County divorce lawyers; The Maggio Law FirmChild custody decisions are tough and it could be even tougher if you have spent a while in prison. In any court of law in America, the decision will be in favor of the child’s best interests. Your child will play the most important role in your custody battle.

If the court finds that you were incarcerated, then it will first examine the residential status of both you and your spouse. Additionally, it will check the physical and mental condition of both of you.

Legal custody

Your incarceration in itself won’t be a ground for losing custody of your child, there are many other reasons which the divorce court considers. However, getting sole custody can be tough and you might have to settle for much less.

Parents with history of criminal record

In some households, getting partial custody of a child whose parents have done prison time can be next to impossible. In fact, they are not even allowed to stay in the same house where the child stays. If you are one such parent, then you should carefully consult your divorce lawyer and find a solution accordingly. Your visitation rights and child custody will depend on how serious your case is.

Sex offenders have a tough time getting child custody because society does not look upon such offenders too kindly. If your crime did not involve any sex-offense and if it also did not have to do anything with your child, then your chances are brighter. If you have refrained from further crime and stayed clean, the judge can most likely award you some custody. Getting accepted by your friends and family also becomes easier.

Working out a mediation plan

You need to work on a mediation plan with your ex-spouse and decide on custody and visiting hours.  If you have spent a considerable amount of time in prison, your chances might be slim. Then again, it depends on the court and the understanding between you and your ex-spouse.

Getting legal assistance

Whatever the case might be, get a good lawyer and seek expert advice. Even though you were incarcerated, you have certain rights, make sure you fully understand them before heading for a custody battle.

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.  

Seeking Divorce on Grounds of Mental Health Issues

Posted by: Gerald A. Maggio, Esq.

Top family lawyers Orange County; The Maggio Law FirmOne of the best things about the State of California is that it is a “no-fault” divorce state. It means that to get a divorce you do not have to provide any explanation regarding your behavior towards your relationship. Now, what happens if one of you seeks a divorce based on grounds of mental illness? In California, it is referred to as “incurably insane,” and it is ground on which you can seek a divorce. However, the judge decides whether the person in question has reached a level of insanity which is incurable or not.

Grounds on which divorce can happen

The legal incapacity of your spouse is determined based on his/her behavior. You can ask for a divorce if your spouse is unable to show one or more of the following traits:

  1. Making logical decisions with respect to marriage, health or legal grounds.
  2. Attention towards speaker
  3. Processing information
  4. Processing logical thoughts
  5. Modulating moods

You must provide proof of your spouse showing signs of mental illness. The judge will listen to testimony from different mental health experts and will then conclude.

Effect on Custody

Usually, the State Department of Social Services will handle the child when the parent is proved to be suffering from mental illness. They will provide reunification services to the family but only if the parent’s mental health is not extreme enough to be confined to a mental institution.

Additionally, the Director of State Hospitals or Director of Developmental Services can certify a parent to be mentally unfit and cease the parental rights. However, two or more mental health professionals must confirm and testify that the mental state of the parent will continue indefinitely before such action can be taken.

Effect on spousal support

“Spousal support” in California is based on the earning ability of each spouse to maintain a certain standard of living. If a parent gets divorced on grounds of mental illness, there are disability benefits provided by the state of California. However, in most cases, the newly-divorced parent struggles to maintain the same standard of living he/she had before the divorce.

If divorce is granted based on your ex-spouse’s mental illness, you are still liable to bear some of the expenses. You must understand that for a person suffering from mental health issues, it is very difficult to make a decent living on just disability benefits.

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.  

Charged With Contempt: The Effect of Violating Divorce Court Orders

Posted by: Gerald A. Maggio, Esq.

Best Orange County divorce attorneys; The Maggio Law FirmA court order is something that you should not take lightly. If the court orders to be present, you have to be present. If the court orders you to do something, you have to do it. If you don’t, you will be held in contempt. The court also requires people to maintain decorum inside a courtroom, failing to do which also attracts a charge of contempt. During divorce proceedings, if you intentionally disobey a court’s order, the consequences can be severe.

During a divorce, contempt charges are mainly due to willful disobeying of a court order.

Grounds on which contempt can occur

There are different grounds based on which you can be charged with contempt. Some of them are:

  1. Violating the residential schedule or residential time in a parenting plan, for example, exceeding visitation hours or failure to show up during visitation hours.
  2. Failure to pay child or spousal support.
  3. Failure to divide assets or property.

Consequences

Committing contempt has serious consequences on the person who has been charged with it. It includes paying hefty fines and a possible jail term. If you have been found guilty of contempt, the court will give you one chance to correct yourself. If you repeat the same mistake twice, you will be punished.

If the question is about child support and you pay back the support or even some amount of it, the court will drop the contempt charges on you.

The court has the right to give you jail time based on the level of offense, but that is rare. In most cases, you will be let off with a hefty fine and a stern warning. You are also liable to pay for damages that incurred as a result of your offense. Damages, obviously, mean economic losses. It is best to avoid unnecessary fines and charges because you never know exactly how much loss you might have to bear after your divorce.

Seeking legal advice

It is always good to seek advice from legal experts and have their say on such matters. If there are contempt charges on you, get a good lawyer or ask for legal advice and then proceed. At times, you might be able to save a lot of money or even avoid jail time if you do the right thing.

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.  

Tips for Preparing for Child Custody in California Court

Posted by: Gerald A. Maggio, Esq.

Orange County divorce lawyer; The Maggio Law FirmIt is in the best interests of both the spouses and their kids to try for an out of court custody settlement without bitterness or complications while getting divorced in California. After all, you would not want to make things even messier while parting from your partner.

Here are some of those handy tips to prepare for a child custody case if the negotiations on your out of court settlement fail:

  • List down all those witnesses who could be summoned when your case goes to trial.
  • You should follow the orders of the court thoroughly with respect to issues related to your kids, no matter what your spouse is doing.
  • Maintain all the details related to the communications related to issues related to child custody along with the timesharing details.
  • In case your child is not living with you, it is recommended that you personally pick or drop them, every time you meet them.
  • You need to collect sufficient evidence for proving your case of child custody.
  • If possible, try to review the style of your parenting so that it can be improved. –Often the judges make their decisions on visitation and child custody, looking at what is best for your children. It has been observed for instance that when the kids have been staying with their mom since the time their parents separated, judges usually like to maintain status quo for the interests of the kids.
  • You need to behave in a responsible manner so that your kids are safe and away from all types of harm. Is your spouse abusing your children? If that is the case, you need to consult agencies or professionals who are experts in dealing with handling cases of child abuse. Such professionals have the necessary expertise and experience to appreciate your predicament as they are skilled to deal with domestic violence and are the right kind of people who have the capability of safeguarding your kids when the divorce proceeding is going on and also after your divorce.
  • It is a sensible decision to consult an experienced attorney who has the expertise to deal with disputes related to child custody in California.
  • You need to be completely honest with the attorney about your present lifestyle and personal history.
  • If you are unaware about the process of dispute related to child custody, request your attorney to explain it to 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.

 
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.