What Are Your Rights As A Father During A California Divorce?

Posted by: Gerald A. Maggio, Esq.

Orange County divorce lawyer; The Maggio Law FirmIn many countries and in some parts of the US, mothers are given more preference than fathers when it comes to a divorce. Previously, courts would award custody to the mothers stating that mothers are more caring and ‘nurturing’ than fathers. In recent times this view has changed. At least in California both sexes are given equal preference. The internet is flooded with articles about mother’s rights but what about the father? It’s time we had a look at the rights men are entitled for in a divorce case.

What are father’s rights?

The role of the husband or father in a family often goes unnoticed due to the notion that they are not too ‘involved’. But studies have shown that when both parents are present in a family, the child does better in school and home. As a father your rights include spending time interacting with your child, having a say in important discussions, and participation in parenting. It also includes looking after his child’s education, health, happiness and welfare. You should also be aware that you do not need a court order to exercise these rights since your custody rights are already established.

Why should fathers be aware of such rights?

As a father, you should be aware of your roles, responsibilities and rights concerning your child. A father is no less important to a child than his mother. If you are a couple, then it is already an established fact that the child is yours but if you are unwed then you must prove your paternity. Understanding the rights will give you a clear understanding of things that you can and cannot do.

Mistakes husbands and fathers should avoid

One of the worst mistakes that you need to avoid if you are divorcing your spouse is to try and outspend her. Now your lawyer might tell you to do that but try and avoid it at all costs. Similarly, don’t be over generous over financial matters. It might cause more damage than the first mistake. Next, never ever surrender your fathers’ rights on parenting time. You need to remember that the California law is unbiased and both parents are treated equally. There is absolutely no reason why you should give up your rights as a father. Lastly, if you can’t provide financial support to your child, go to a court and modify the order; don’t stop supporting your child.

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

Maintain Records Of Your Alimony Payments Post-Divorce

Posted by: Gerald A. Maggio, Esq.

Top divorce attorneys in Orange County; The Maggio Law FirmSpousal support or alimony is payment by a spouse to another spouse after a divorce. Alimony is not always given by the courts. It is mostly given where the marriage was a long lasting one and income of one spouse is more than the other. It is also given where one spouse has been out of the workforce to manage the household or raise children.

Alimony is tax- deductible for the person who pays. Conversely it is a taxable income for the recipient spouse. It follows that it is very advisable to keep all records when you pay or receive the alimony. These can turn out to be extremely important. It is seen that spouses dispute post-divorce over the amount which is actually received or paid. If there is insufficient documentation, the payer may lose alimony tax deduction or can be pushed to pay back -support in-case the spouse wants to make a court claim.

Payer of the alimony

It follows that each party must keep a list which shows each payment. This must include the date, check number and the address to which that check was actually sent. Records must also be kept of all the check originals used for making payments. These must be kept in a secure place, like safe deposit boxes. Ensure that a note must be made on each check for every month when the support is paid. In case the support is being paid in cash, the payment receipts must be kept, and signed by recipient. These records must be kept for a minimum period of three years from date you have filed tax return which was deducted from the payments, but it is advisable to keep them as long as possible.

Recipient of the alimony

The spouse who receives the support must prepare a list which displays every payment received. Information like the date of received payment and the amount received should be carefully kept. Identifying information like the money order number or check number and the account number on which the check gets written must be preserved. Other important documents on the list include the bank name on which the money order is issued or check drawn must be documented. Photocopies of the money order or check and any copy of the signed receipt given for cash payments must also be filed away for future use.

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.  

Considering Healthcare Options For After Divorce

Posted by: Gerald A. Maggio, Esq.

Orange County divorce lawyers; The Maggio Law FirmHealthcare is of prime importance for anyone, especially those who are 50 and above years of age. It is vital for someone at that age in the middle of a divorce. The trick to maintain a quality of healthcare coverage is to act quickly. Search for replacement coverage and try to keep the existing coverage as soon as you know that your marriage is about to end. Inform your attorney as soon as possible if you have an inkling that your spouse could fail to pay the required premiums or drop the employer provided insurance coverage. In case you are aware that you may require the coverage of private health insurance after the divorce, begin the process as quickly as possible. Longer time could be needed for studying the different policy options and for coverage application.

Understand that the cheapest health insurance is employer offered group insurance. You will be considered lucky if you get covered through own employment. In case you get covered via the workplace of your spouse, there is a possibility that you will get COBRA coverage. If not, individual insurance is the best bet.                    

Individual plans in healthcare

A number of varieties of individual plans related to healthcare exists. These include expensive plans providing greater coverage and many lower priced plans could restrict physician and hospital access. There can also be plans with zero deductibles, no waiting periods and no co-pays. There could also be umbrella plans with a number of health services. Others could be PPOs or preferred provided plans, catastrophic plans, HMO plans and mini-med plans.

Starting points

Individual health insurance can be purchased via an insurance agent, insurance company website or any wholesale purchasing entity like trade association, credit union or organizations like American Association of Retired Persons or AARP. You should compare policies of same type and providing same benefits. If not, a difference in price becomes meaningless. You should know important insurance terms like deductibles, co-pay or co-insurance and covered expense so that you select the right plan. 

Coverage cancellation and renewal

Once you get insurance coverage, the carrier cannot cancel the health coverage at will. Do keep in mind that the insurance could be canceled if you fail to pay premiums or fail to disclose all the relevant medical information. It may also be canceled due to the elimination of benefits. You should preferably chose guaranteed renewable coverage.

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.  

Dissolution of Domestic Partnerships under California Law

Posted by: Gerald A. Maggio, Esq.

Domestic partnerships Orange County; The Maggio Law FirmCalifornia law established ‘Domestic Partnerships’ for same sex partners who choose to share their lives in a committed and intimate relationship. It is possible for the partners to sign up for a legal domestic partnership via a Declaration of Domestic Partnership (registered with California Secretary of State).

Once the domestic partners are registered, they can enjoy the same benefits, rights and protections and will be subjected to all those obligations, duties and responsibilities under law which are imposed upon and granted to married couples.

Dissolution

In circumstances that the domestic partners decide to dissolve their relationship, they can file a ‘Petition for Dissolution for Domestic Partnership’ by going to the Superior Court in their county of residence. The partner who is filing for the petition is obligated to provide copies of this petition as well as the other paperwork to his/her partner.

An easy and quick way of getting a dissolution is termed as “summary dissolution”.  In a summary dissolution, there is no need for the domestic partners to visit the court but it is still important for them to consult a lawyer prior to ending the domestic partnership. Also, most domestic partners need to go for a regular divorce and may not get summary dissolution.

Residency and Other Requirements

The residency requirements involved in filing for domestic partnership dissolution are slightly different. When the domestic partners are registered in the state of California, then they are already in agreement with the California courts’ jurisdiction with regards to ending the partnership, even in the circumstances that they shift base or have never resided in California. But if the domestic partnership is registered with another state, a partner can only file for dissolution if at least one partner resides in California. Also, one among the two partners must stay in California for a minimum of 6 months before filing a petition for dissolution.

The domestic partnership will automatically get terminated 6 months post the date of filing the Notice of Termination of Domestic Partnership with the state (so long as none of the partners ends up canceling the termination prior to the ending of the 6-month period).

It is possible for either of the two partners to revoke to Notice of Termination of Domestic Partnership filing at any point of time before the ending of the official six-month period. The common reasons for cancellation include the following:

  • The partners decided to get back together, or
  • A partner is pregnant or
  • Partners have decided to dissolve the partnership by going to the court

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

Changing A Child Support Order

Posted by: Gerald A. Maggio, Esq.

Top Orange County divorce lawyers; The Maggio Law FirmMany people nowadays have trouble meeting child support payment requirements due to change in their living or professional circumstances. If you receive or pay child support, they could be a time when you feel that the support order must be changed. You can make this happen.

Parents and the modification of support

The first step you must make is to see whether you and your spouse can reach an agreement to modify relevant child support terms. If this is possible, you can simply request a judge to approve such a change. This will be done without any hassle. There will be a problem only if the amount is less than what the State of California has stated in such a case. If this is the case, you must give a detailed explanation of why you are doing this and how can the new amount will provide for the support of the child.

Requesting the court to modify support

If you and your ex-spouse cannot agree on the change, you will require to ask for the appropriate court hearing. Both you and your ex could argue for the appropriate amount. The general rule is that for getting a modification you must show that something about your own circumstances have changed from the time the court gave the existing and last order. The court, depending in nature of changed circumstances, may grant a modification. The list of changes which will provide a temporary modification include the medical emergency of the child, the temporary inability of the payer to pay or temporary medical or financial hardship on the recipient parent’s part.

You may get a modification if either one of you change to a new job or lose the existing one and get a markedly different income. Another condition will be if any of you remarries and the income of the new spouse significantly jacks up the income of the household.  Modification will also be given if there is an increase in the cost of living or either one of you suffers a disability. It can also be done if the needs of he child change significantly or there is a change in the child support laws. The permanent modification of the child support order will be kept in place until the time the support is not needed or if the order gets modified due to changed circumstances.

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 Know About Retroactive Child Support

Posted by: Gerald A. Maggio, Esq.

Top Orange County divorce attorneys; The Maggio Law FirmThe meaning of retroactive child support is that the concerned child support order is not simply a prospective one but is a retroactive one. In other words, the retroactive child support is a kind of child support which begins on a past date.

Rules and petition

Retroactive child support carries with it a number of rules. The first or initial child support order can be or not a temporary one. This is order prior to a judgment. This temporary order could be made retroactive to that particular date the petition or any other document which is filed at first. There is no compulsion that it has to be a temporary one, but the court could order that it begins at that particular past date.

This kind of petition generally begins a paternity or divorce action. It means that the initial or begin date of the child support order in California could go back to that date which was filed. This will be applicable even if the court hearing starts after that. However, there could be exceptions to this rule. One example of this can be divorce petition filed on the February 1 date and then served. A child support request is subsequently filed on the first day of March. The hearing was scheduled on April 15. The court on April 15 makes the child support order and could make the same retroactive to the first day of February or March. 

Exceptions

A common exception is that when that first petition -or any other document which began the process- was not served on other parent within a space of 90 days of the filing. If such a situation arises, the retroactive beginning date is date of serve. However, the exception may have exceptions as well and it will not be applicable as per the Family Code 4009.

California Family Code 4009 states that the original order given for child support could be retroactive to date of the Petition filing or complaint filing or any other initial pleading. In case the parent who was ordered to pay the support was not being served with initial pleading, petition or complaint within the space of 90 days after filing and it is found by the court that the concerned parent did not have the intention to evade service, the concerned child support order will be effective not earlier than the service date. In some cases, the California Family Court may reserve retroactivity at the time of making the child support order.

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.  

Factors To Consider Regarding Moving During Divorce

Posted by: Gerald A. Maggio, Esq.

Orange County divorce lawyers; The Maggio Law FirmA house is frequently the most prized financial asset of any couple. Majority of house owners are emotionally attached to their home. Due to this, the decision of whether one spouse will move out at the time of the couple deciding to divorce can be hard to resolve. Situations are unique to each couple and the answers will also be a little different.

Personal safety above all

If the home is wracked by domestic violence, then you must do what is necessary to secure your personal safety. This includes visiting the court for protective order and also requesting the judge to give an order compelling the abusive nature spouse to move away. You may leave the temporarily in case you feel unsafe. Children at risk can also be taken with you. Do note that in case you and your kids move out, then it is important to go for a court order to get temporary custody at the quickest opportunity. This will help you to avoid any accusations of kidnapping.

There may be instances where the situations can be less transparent. Even in an absence of violence at home, it can be extremely hard for a once couple to continue to stay together post the divorce decision. This can be an extremely challenging affair and the children will suffer most in the middle of torturous home. When you consider a move, do consider issues of property and child custody.

Custody of the child

For children, repeated changes can be a torture and judges are aware of that. This is why a judge will always try to maintain status quo. In case the children have been living in family home at the time of divorce, the parent staying there could argue that varying the arrangement could be too disruptive while the moved out patent will object to this arrangement and say that the previous action was done to reduce conflict within the home. This argument can be avoided by parents through the creation of a written parenting agreement prior to one of them moving out. A parental schedule could also be established and it could be agreed that any parent who moves out is not surrendering any rights over the child by this action.

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.  

Divorcing A Physically Abusive Spouse

Posted by: Gerald A. Maggio, Esq.

domestic violence attorneys Orange County; The Maggio Law FirmObtaining a divorce from a physically abusive spouse can be an extremely difficult affair for those on the receiving end. You need courage, sacrifice, and strong legal representation. It also needs a willing mind to navigate through challenging circumstances for a better life both for the spouse and children. It is extremely difficult to divorce an abusive husband in marriages that have lasted a long time. This is because the husband generally in these kinds of cases control the household finances.

Not a simple process

A few people will advise you to simply walk away from a life of hell. Do not listen to them. Your pain will be decipherable to only those who themselves have felt the pain. At the Maggio Law Firm, we know exactly what you are going through. We have in-depth knowledge of such cases and have successfully concluded the same in our clients’ favor.

Defining abuse under California law

Abuse is a broad term. It is inclusive of attempting to cause or intentionally causing bodily injury, placing persons in a reasonable apprehension of any imminent or immediate mortal bodily injury or engaging in any behavior as described by section 6320 of the Family Code. This code includes molesting, striking, threatening, battering, telephoning, attacking, stalking, sexually assaulting and harassing as per Section 653m of Penal Code and destruction of personal property, contacting either indirectly or directly, through mail or any other medium, or coming within a particular distance, or disturbing the other party’s peace and as per the court’s discretion, other named household or family members.

Situational domestic violence

Family law lawyers and judges use the situational domestic violence term when they refer to a domestic violence which is a component of a one off incident and not pattern of abuse. It is frequently linked with external factors which result in an usually non-abusive husband to behave badly with his children or his wife. A number of circumstances could result in such an outcome. However, in a majority of cases, these are caused by wife’s infidelity, when husband’s infidelity has been discovered, or the husband addicted to alcohol or drugs or even the decision of the wife to leave husband and to file for divorce which subsequently angers the husband.

Handling situational domestic violence

These kinds of problems are best handled by applying for domestic violence restraining order. The wife, with her lawyer’s assistance, requests the court for both permanent and temporary restraining orders.

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.  

Protections Available To Active Military Personnel During A Divorce

Posted by: Gerald A. Maggio, Esq.

Orange County divorce lawyers; The Maggio Law FirmOverview

Divorce can be a confusing and complicated matter for couples. Military couples face the same issue. Usually, a military divorce is looked upon as a civilian matter and is handled a civilian court. If you are in the military and are heading for a divorce, then you will follow mostly the same procedures as a civilian. However, there are certain Acts and unique laws applicable only for military divorces.

One of the benefits in a military divorce is that you won’t be charged for the legal assistance services. Both service members and their spouse can enjoy the services free of cost through the legal assistant office. The office also does not charge for the notary services it provides.

California military divorce laws

There are two important Acts that you should be aware of if you are into the services and heading for a divorce.

  1. Service members Civil Relief Act

The Service members Civil Relief Act, states that the divorce proceeding may be postponed for the entire time the active service member is on duty and for up to 60 days thereafter.  Under 50 UCS section 521 and in the discretion of the local California court, active service members have the right to abstain from a divorce during a duty. But this right can only be exercised when a judge belonging to the military finds a good cause.

The Act also provides protection to service members from failure to show up at a trial on the given date and time.

  1. Uniformed Services Former Spouse Protection Act (USFSPA)

If your partner is working in military services, then you are unlikely to get any of the retired pay as per the USFSPA rules and regulations. Instead, the act allows a state to give military disposable retired pay as marital property and divide it in case of a divorce.

The USFSPA allows a former spouse to be designated as a beneficiary for the Survivor Benefit Plan (SBP). The SBP allows retired service members to provide continued income to a named recipient in case of the retiree’s death.

If you are a former spouse, in certain cases, the USFSPA will allow you to continue receiving health care and other benefits. But to be eligible for such benefits you must qualify for the 20/20/20 rule. It means your partner must have provided at least 20 years of good service, the marriage lasted for 20 years and the marriage period overlapped the service period by 20 years.

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.  

All You Need To Know About CA Divorce “ATROs”

Posted by: Gerald A. Maggio, Esq.

Orange County divorce lawyers; The Maggio Law FirmThe term restraining order provokes a limiting thought process that regards it as something to do with abusive or violent circumstances, wherein a court of law issues an order that restrains an individual who might be a threat to someone else. However, ATROs or automatic temporary restraining orders are quite contrary to the popular belief.

What are ATROs?

ATROs are a set of orders contained in the Summons filed at the beginning of a California divorce case.

What does an ATRO imply?

An ATRO requires both the separating parties to refrain from indulging in several acts that might have a negative influence on the proceedings of the lawsuit.

  • Both the parties are prohibited to remove their minor children from their state of residence without obtaining an order from the judge or a written consent of the other partner.
  • Both the parties are prohibited from transferring, selling, hypothecating or borrowing against any kind of community or separate property without an order from the court or a written consent of the other spouse.
  • The parties are also restrained from borrowing, selling or modifying the beneficiary names on policies that have been held for the other spouse.
  • Both the partners are prohibited to change their bank accounts without a prior court order or a written consent from the other spouse.
  • And lastly, both parties are prohibited from destroying or concealing any assets held together or separately by the couple during their marriage.

The ATROs will stay in effect until the court dismisses the petition or a final verdict is reached. In addition to this the ATROs can also be suspended when a court issues an order for its modification or dismissal. This implies that the Automatic temporary restraining orders can be terminated even before the final judgment of the case is passed by the court of law.

Since the ATROs are mutually agreed upon and signed by both the contesting parties, a violation of the orders by either of the partner will lead to stringent legal actions by the court of law.

To sum it up in a nutshell, the ATROs are designed to protect the rights of minor children in California, and restrain any unsolicited actions against the assets and insurance policies of both 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.  

 
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