Personal Injury Settlements – Fair Game In A Divorce?

Posted by: Gerald A. Maggio, Esq.

Orange County family lawyer; The Maggio Law FirmSometimes in divorce proceedings, the lawyers need to deal with cases in family law that involve damages or personal injury.  The leading question in such cases that comes up is almost always whether any such damages are separate or community property. While the law on these prevalent issues is crystal clear in this regard, there still continue to be spouses and lawyers fighting over this issue in the court of law. Before we look at that aspect further, it is important to point out that personal injury cases are where a person has been awarded a compensation because they have suffered from some kind of violation whether physical or emotional.

Here is a lowdown on the subject:

Pre-Marriage Personal Injuries

If the personal injury had happened to the spouse before the marriage had taken place, then there is no doubt that the damages received for personal injury claim are solely and wholly that spouse’s property with no share of the other spouse in it.

Personal Injuries That Occur During The Marriage

There is another side of the coin in terms of personal injury cases. When personal injury cases happen after a person has been married, and subsequently their claims result in damages being paid to the spouse, the courts seem to adopt a position that is close to the one that was taken up in pre-marriage cases. California family law courts hold that more often than not, the damages coming in from a personal injury even after the person has been married are likely to be their separate property. This, however, has one exception, i.e. if the court determines that owing to the interest of justice the decision in a particular divorce case needs to be different.

It is in such cases that spouses battle it out to keep hold of the damages of personal injury or to be able to get their hands on the larger more substantial sum of the division.

What Is The Interest Of Justice Containing?

The primary elements included in the interest of justice are:

  • The current economic conditions of both the spouses
  • The economic and financial needs of each of the spouses at the current time
  • The amount of time that has elapsed since the damages for the personal injury case was recovered
  • All the other relevant facts of the case

There are cases where the courts may, on the basis of interest of justice, decide that the other spouse who hasn’t suffered the personal injury also deserves part of the damages being paid. The courts even in such situations can only be able to award at max half of the damages to the other spouse and no more.

Health Insurance and California Child Support

Posted by: Gerald A. Maggio, Esq.

best divorce attorneys in Orange County; The Maggio Law FirmIf you take a closer look at the California child support orders, you can usually note that they have the cost of health insurance factored into the child support number’s guideline. While most people are aware of the fact that the health insurance cost has been factored into this guideline, the reason for this action is still unclear on most people. In this blog, we are going to talk about how the Orange County family law courts consider the health insurance coverage in the child support order.

Before we talk about this aspect however, let’s take a look at what health insurance actually is. Health insurance in reality is when your medical costs are covered by an insurance that is paid for by deducting a certain amount from your monthly or yearly pay.

If either of the spouses has a health insurance coverage, the courts are likely to order that parent to continue with that health insurance coverage as long as that insurance is available to the child at no cost or at a very low/reasonable cost. It is important at this point to identify that health insurance is likely to cover not only hospital costs but also costs that are incurred on vision and dental care. Health insurance is often needed to be maintained and the most common way of doing so is by getting an amount deducted from the gross pay that is ordered in addition to the California child support number.

As far as the effect of this order is concerned, it can be termed as one that is equal in its importance to that of a child support order. The family law court has the power to, in case of non compliance of this order, to punish the non-compliant spouse. The fact that child health insurance factor is added in the child support order means that the addition of the health insurance cost coverage of the child will reduce the amount of child support that such a parent would have to pay.

It is important to be able to distinguish the uninsured medical costs from the insured medical cost coverage. It is also worth noting that in case one parent is spending on the costs of the child’s medical care, even though the child has insurance coverage, that spouse is unlikely to receive any kind of reimbursement against those costs. In some circumstances however, the courts can take into account the situation of the case and are likely to award the other spouse to pay the paying parent a reimbursement of 50% of their amount.

3 Steps To Take You Far In Your Divorce Proceedings

Posted by: Gerald A. Maggio, Esq.

Orange County divorce attorneys; The Maggio Law FirmThe experience of having a divorce is one that very few people would want to relive. The fact that it marks the end of the relationship between a couple that wanted to spend the rest of their lives together is a big shock, and more often than not, spouses tend to take time to get out of the trauma of a divorce. Having said that though, sometimes in life there are situations in a person’s life or events and circumstances that leave the spouses no choice but to part ways and end their relationship.

When couples go through divorce however, there is a sense of competition and will to win to try and get one over the other spouse and be able to satisfy oneself from the defeat of the other. In reality though, this approach needs to be changed. The role of the family law courts is to resolve disputes that exist between the spouses.

Most spouses want to win their divorce cases, as a result of which most of the spouses tend to turn to the family lawyers to gain an advantage, an edge over the other spouse in the proceedings. While all that is likely to help, what is important is working on yourself to make sure you are able to get the most of the divorce proceedings.

Here is a list of the three things that you need to do in order to make the most of your divorce proceedings and get a result in your favor.

·        Silence

This is one of the most important things that are needed for a spouse to be able to enjoy success in the court proceeding. Are you being criticized and incited by your spouse through their actions? The key to this is ignoring all those attacks and stay silent. Silence in this regards refers to calmness, composure, and poise, all of which are needed if you are to stay steadfast in your goal of getting the best deal for yourself in the divorce proceedings.

·        Know what you want

In the field of law, there are often cases where one comes across people who have started divorce proceedings against their spouses but are unsure of their own demands and what they want out of the proceedings. This is likely to be a key mistake which is likely to make your case direction-less. The key to making the most of an Orange County divorce case is to know exactly what you want the outcome of the case to be and communicating that to your lawyer so that they are able to work towards it.

·        Remember your values

Divorce is likely to leave you with an inner sense of guilt, loneliness, and an acute sense of having failed. These feelings are normal and are typically experienced by all spouses that go through a divorce. What is important is that you realize that these feelings are temporary and will come and go. What you have to keep dear to you are your values. Keep your values with you and your dignity intact, if you are able to do that, your chances of success in the divorce case are bright.

Preparing for Attorney Fees in Divorce Cases

Posted by: Gerald A. Maggio, Esq.

Orange County divorce attorneys; The Maggio Law FirmHave you and your spouse decided to call it quits? Are you planning on getting a divorce? If you are, chances are that you are likely to go to court to get divorced, which means the role of a family law attorney cannot be ignored.  Divorce is usually the last option that couples tend to exercise, owing to that however more often than not, relations are strained and the use of courts to get divorce and have the assets distributed is imminent.

When you are preparing for an divorce case, most spouses tend to get all the aspects of planning and preparing right except for one of the most important ones. While planning a case is important, an even more important thing in this regard is planning for the costs of the attorney. The problem of paying to an attorney comes differently to people of different socio-economic segments of the society.

The people with low incomes are often worried about how they are going to be able to pay the costs of a divorce lawyer, while the rich earners are likely to be stressed about paying also the costs of their spouse’s lawyer.

To make sure you aren’t left unprepared or underprepared in this regard, here are some points to know so that you are able to plan better for the legal costs of the battle in courts ahead.

Can the Attorney Fees be mitigated by settlement of certain aspects?

When a divorce case starts, the first thing your divorce will do is to identify the aspects in the case that can be settled out of court and the ones that will need to go to court. This step is extremely important, since it involves the elimination of certain issues for going to court, thereby eliminating excess costs.

The cost of the cases, especially the ones that involve child custody, can range from a few thousand to tens of thousands. The reason for this is the nature of the complexity in the cases. If the cases being dealt with involve allegations of child abuse, substance abuse, or neglect and endangerment, the court is likely to take its time to investigate such claims.

Are you a high or a low earner? How is that doing to affect the attorney fees?

The second step in the process of planning for the costs of an Orange County divorce attorney is to determine the higher earner out of the two spouses. This determination is important because the higher earner is expected to contribute in the attorney fees of the other spouse as well. The importance of this rule cannot be stressed enough, since it is based on the concept of parity between the spouses and it is integral to the working of the family law system.

Divorcing Your Lawyer Spouse

Posted by: Gerald A. Maggio, Esq.

Top Orange County divorce lawyers; The Maggio Law FirmDivorce can certainly be challenging both emotionally and legally, yet all that takes a new more complex turn when the spouse you are looking to divorce is a lawyer themselves.  People who are looking to divorce their lawyer spouse tend to have a greater sense of anxiety and fear in them owing to their legal acumen and experience. This feeling is normal especially in cases where the divorce has been long overdue, so here is what to consider.

Why does the fear of divorcing a spouse who is a lawyer exists?

The primary reason that this fear exists and holds you firm in its grasp is because of your sense of intimidation to your spouse. This sense of intimidation stems from the fact that all during the marriage and even when looking for divorce, you tend to consider your spouse intellectually superior to you.  The fact that you know your spouse is a lawyer has led you to believe that they have some other legal tricks already planned to ruin you. This however is illogical and not practically possible; all this shows is the level of control they continue to have over you.

How to manage and eliminate this fear?

As long as you have this sense of fear inside you that your spouse is a lawyer, there is very little chance of you getting your divorce right. The best way to make sure you have the right divorce is to manage that fear or even eliminate it. Here are a few ways that you can try and get rid of this fear of divorcing a lawyer spouse:

  • You should know that you have hired a competent lawyer and the faith in that lawyer will lessen your fear of being outfoxed and outmaneuvered in a family law court.
  • Always remember that no matter how good, famous or intellectual your lawyer spouse is, the primary fact is that they are equal in front of the law.
  • Don’t assume that your spouse knows anything more about family law than you or your divorce attorney does.

A Guide to the IRS Release of Claims and Exemption Form

Posted by: Gerald A. Maggio, Esq.

Orange county divorce lawyer; The Maggio Law FirmThe IRS release of claims and exemption form, also known as the IRS Form 8332, is actually two forms instead of one. One of the forms is the release form, while the other is the revocation of release form. What is this release and revocation of release of? This is the claim of exemption that concerns the child tax credit, also known as child dependency exemption. The IRS release of claims and exemption form is relatively easy to fill out, with it being self explanatory for the most parts.

Having said that though, are most parents aware of this? The answer is quite simply a No. Do they have issues dealing with such a form? The answer once again is No. It is important to understand what this is about.

What does it do?

The IRS form 8332 is a form that is filled by the custodial parent of the child. The custodial parent can use this form to do the following things:

  • Make sure to release the claim to exemption form of child/children to enable the non-custodial parent to claim a tax exemption of credit for the child.
  • Revoke a previous release form that was filed for the claim to exemption of the child.

Does the Orange County marital settlement agreement/Judgment need to state that the custodial parent should release the child dependency and tax credit exemption?

Yes, your divorce agreement should have this agreed upon and stated specifically. This is important because:

  • When the spouse or parent signs such an agreement that states the child tax dependency and exemption have been transferred over to you, it becomes legally binding.
  • The order clearly specifies that the spouse/parent needs to execute the IRRS 8332 form.
  • Inability to do so will mean you are able to claim exemption as well as reimbursement for further damages of the money that you lost as result of this disregard of the Orange County divorce agreement.

Why would a custodial parent agree on signing and filing out the IRS release of claims and exemption from?

While it is true that divorce tends to be an emotionally charged affair with each of the spouse holding some kind of bitterness about the other spouse, filing out such a form is not that hard to agree upon between the spouses. This is because the exemptions in this form are likely to have no real value to the parent who has the child’s custody. This is especially true in cases where the custodial spouse is dependent on the other spouse for spousal and child support.

The Common Types of Divorce Settlements

Posted by: Gerald A. Maggio, Esq.

Top Orange County divorce lawyers; The Maggio Law FirmThe words common and typical generally mean the same thing and the meaning of both of these words is something that occurs regularly. When we talk about the common types of divorce settlements in California, these include the terms of family law that can easily fit independent cases perfectly. It is true that each time that a case comes into a family law court, the facts, the parties and the circumstances are all unlike any other and yet the settlements decided at the end seem to usually overlap.

Here are the typical divorce settlements in family law:

Typical Orange County divorce settlement with regards to visitation and child custody

The child custody laws in California family law courts are based on the notion of having to protect the best interest of the child at all times. This generally includes the child’s safety, security, health, welfare and education. The typical divorce settlements in these cases include:

·         The common labels of child custody are usually sole and joint

Sole legal custody of the child is a settlement that is used mostly in cases that neglect abuse of any kind or harm to the child proven along the lines of the trial, or in circumstances where one of the parents has proved it is more appropriate for them to have custody over the other parent in making choices that safeguard the child’s best interest. Joint legal custody is the most common settlement since both the parents want to share the child and neither wants to give up their right.

·         The common settlements that involve parenting time

It is important to understand at this point that there is no set parenting time in child custody and visitation cases, but there are certain parenting time percentages used more than others. These times are likely to have little disparity between them for each parent unless there is an advantage of any sorts as mentioned in the previous bullet point to either of the spouses.

Typical Orange County divorce settlements with regards to spousal support

Spousal support or alimony, as it is also called around the legal world, is the amount a well-established bread earning spouse pays to the dependent spouse after a divorce. Here is a look at the typical settlements in the courts in this regard.

·         The common spousal support is usually half the duration of the marriage for short term marriages

Any marriage that lasts less than 10 years is considered a short term marriage. In this case, typically the spouse will have to pay the spousal support for half the time that the marriage had existed, which means; for an 8 year marriage, it’ll be 4 years.

·         Common spousal support with regards to a long term marriage that has no set termination date

Just like marriages that are under 10 years are considered short term marriages, for marriages that lasted more than 10 years are considered long term marriages. In long term marriages, there is no specific date as to how long the spousal support is to be paid. Likely termination dates would include if the spouse receiving the support dies, remarries or is able to earn a living for themselves.

What Is Parental Alienation?

Posted by: Gerald A. Maggio, Esq.

Top Orange County divorce lawyers; The Maggio Law FirmThis is one concept that is increasingly being used in Orange County divorce and child custody and visitation cases.  The custody of children can be one of the fiercest bones of contentions between two spouses. Owing to this, will to win at all costs and to keep the custody of the child is what leads to parents using every mean possible to gain themselves crucial advantages.

One such measure is Parental Alienation. Parental alienation is actually a concept for therapists and psychologists, yet the growing use of the term in the Orange County family law court has become very much part of a family lawyer’s repertoire of knowledge. The definition of the word alienation is to isolate something from another. When parental is added with alienation, the definition becomes: the attempts by one of the spouse to isolate the child or children from the other parent.

This isolation can be done through various means. One parent can alienate the child from the other parent using conduct and/or words to create an estrangement, division, or hostility between the victim parent and the child. There are several types of parental alienation:

Disparagement and Parental Alienation

This is the first step on the long road of parental alienation. Identification of disparagement can result in an insight into the process of parental alienation. Disparagement in this context refers to negative and hostile comments being made about one of the parent by the other parent in front of the child. Any such comment given in front of the child irrespective of whether it was directly addressed to the spouse or not is counted as disparagement.

Undermining Authority and Parental Alienation

Alienation is isolation and the undermining of authority of one of the parents by the other is an important part of the parental alienation cycle. In theory, the custody of each parent over the child and in matters of the child that each has autonomy over are respected by the parent. By undermining the authority and the decisions of one of the parents in front of the child, the other parent gives the child the impression that the style of parenting by the victim parent is wrong and needs to be changed.

Parentification and Parental Alienation

The word parentification may certainly seem new to you, but this word, however is dubious, as its spelling may best describe one of the most important weapons of parental alienation. When couples have gone through a divorce, the bitterness may lead to one of the parents manipulating the child to hurt the other. This is what the concept of parentification is all about. Parentification means granting the decision making power to the child when he/she is neither mature nor capable enough of making decisions for themselves. This is then taken advantage of and the manipulating parent manipulates the child into making decision that are against the other parent.

Family Code 2640 and Down Payments on Marital Property

Posted by: Gerald A. Maggio, Esq.

Orange County divorce lawyer; The Maggio Law FirmThe world of law, even in family law court, is filled with complex legal terminologies and sections that have effect on the overall outcome of a whole host of cases. Family Code section 2640 is no different. When it comes to California divorce cases, Family Code section 2640 is used in several litigation proceedings.  Section 2640 is broad and applicable in wide variety of situations and the most common of these is the reimbursement of a separate property down payment on a home.

For example, a down payment is made on a home which is purchased during the marriage. The source of the down payment money from one of the spouses is from a separate property source. When one spouse files for divorce, then what happens to the amount of down payment that was paid for by money from a separate source? Will the spouse who made this payment get their money back? How does the process work? The answer to all these questions is what Section 2640 deals with.

Property and Reimbursement Claims Under Family Code 2640

Section 2640 is one of the most detailed sections of the California Family Code which deals with all aspects of financial recovery of the down payments on marital real property and other aspects involved, done from separate source. The section in its wordings is clear with respects to the parameters of its authority and  states what parties involved should do or should not do. It is however important to understand that as far as the statute is concerned, unless it is written in black and white about what it means and what it does not, it is the judge’s discretion to interpret it as they see it fit.

The 3 Step Process to Recover the Separate Property Down Payment

There are three ways that a spouse in the process of divorce litigation will be able to recover the amount of down payment that had come from a separate property source using Section 2640:

  1. Identifying the amount of the down payment that was made using the separate property source. Only then you will be able identify the amount that has come from a separate source, which has been used in down payment, and will be able to start the process of recovering it.
  2. The separate source that the money came from should be clearly a separate source with no dispute or claim of ownership by the other party on it. Typically, a clear and clean separate source is likely to fund from the sale of property that had been in the possession of the spouse prior to the marriage that was kept in the bank. Even gifts from third parties that are given directly to one of the spouse come in the category of clear separate property source.
  3. The evidence needs to be drawn which proves the exact amount of money with the separate source of finance used. Proofs of transactions are likely to hold significance in this regard.

An Explanation of Orange County Child Custody Investigations

Posted by: Gerald A. Maggio, Esq.

Top Orange County divorce lawyers; The Maggio Law FirmIt has long been established that the issue of children in a divorce is integral. Parents consider their children to be their most valued asset and therefore, both the spouses are likely to fight it out in court fiercely to make sure they end up having the possession of their most prized assets. The courts, however, have to base their decisions in family law child custody cases on the best interest of the child. Sometimes, it is harder for the judge to be able to evaluate the claims of both the parents in terms of custodial suitability and hence, they can order a child custody investigation to clear the facts and the picture.

Parents that go through these investigations are likely to find themselves under considerable amounts of stress and confusion. Primarily, child custody investigations are about the accusations leveled by one of the spouses against the other with regards to:

  • Child neglect
  • Substance abuse
  • Sexual/physical child abuse
  • Other concerns in relation to the safety and security of the child

The Purpose of Investigations

The use of child custody investigations is done by the Orange County family law court personnel to be able to have a clearer and more objective view of the facts. These facts and clearing of accusations and perceptions are likely to increase the chances of decision by the court that is truly in the child’s best interest. These investigations are done by the internal investigator of the court and therefore, are completely different to the other child custody evaluations done under Evidence Code section 730.

Are Child Custody Investigations Helpful?

This is one of the most common questions that have been asked with regards to child custody investigation. Typically, in Orange County court proceedings, the pattern is in the ‘he said, she said’ style, where arguments seem to be flowing through and lawyers arguing over the actions taken by either of the spouses. All of this is done without any regard to the objective representation of facts and figures.

Child custody investigations, on the other hand, involve a whole host of procedures that are intended to provide the facts objectively at the end of the process. This can include processes such as:

  • Interview of the witnesses and the parents
  • Thorough reviewing of the important documents that include videos, photographs and medical records and other information that can prove decisive in the fighting of the case.

When the Investigation is Complete?

Once the child custody investigation is complete, the investigator is likely to submit a formal report to the Orange County family law court, which has all the necessary facts of the case in an objectively represented form. The court can sometimes ask the investigator for the live testimony of the facts provided.  It is important to note that these proceedings owing to the involvement of the children are closed and only parties and their lawyers are allowed to attend such proceedings.