What Are The Legal Grounds For Divorce In The U.S.?

Posted by: Gerald A. Maggio, Esq.

Best Orange County divorce attorneys; The Maggio Law FirmDivorce is very common in the United States and has been categorized into two types mainly – no fault divorce and fault divorce. Each state has its own grounds of divorce depending on the type of divorce category the couple would fall into.

What is the meaning of the “legal grounds” for divorce? 

Grounds for divorce are the legitimate reasons for which a couple decides to separate and end their marriage. Each state government in the U.S. specifies different circumstances under which a divorce would be granted to a person or a married couple. The person wishing to file for a divorce will have to prove their reason or reasons for wanting a divorce at the divorce trial which will be a date set by the family court. Before granting the divorce, the court will ask the couple to live apart for some time and see a marriage counselor to try and resolve their issues and save their marriage.

Grounds for divorce in the U.S. 

Grounds for divorce in the U.S. differ according to whether the divorce is classified as a fault or no-fault divorce. A no-fault divorce is one where neither party can be held accountable for the breakdown of the marriage and they want to separate mutually. A fault divorce is one where either one party acted with cruelty or ill-treated the other in which case the aggrieved party wants to file for a divorce.

Grounds for no-fault divorce (California law) 

The following are the only two legal grounds for divorce acceptable in a no-fault divorce state such as California –

  • Irremediable breakdown of the marriage – also known as “irreconcilable differences,” this is when the couple mutually agree that they do not wish to continue with the marriage due to major differences or incompatibilities between each other.
  • Incurable insanity of one of the parties.

While California only recognize the above 2 legal grounds for divorce, other no-fault divorce states can also accept the following legal basis for divorce:

  • Living separately – a couple that is already living separately can file for a divorce under no fault divorce.
  • State acceptance – if, after hearing both parties, the state feels that it is better in the interest of both parties to get divorced it will grant the divorce accordingly.

Grounds for fault divorce 

The following are the reasonable grounds acceptable in fault divorce –

  • Adultery – when either party is guilty of being unfaithful or committing adultery the aggrieved or innocent party can file for a divorce. However, the party filing for a divorce must prove beyond doubt the adultery committed by the other party.
  • Cruelty – mental, physical and emotional abuse inflicted by one party on the other must be proved by the hurt or aggrieved party. Any form of physical and verbal abuse, beating, affairs, torture, etc. would qualify as cruelty.
  • Other grounds – abandonment or desertion, mental illness, criminal conviction, impotency, change of religion, impotency, infertility and change of sexuality are some other grounds for a fault divorce.

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.

Trying to Avoid The Divorce as Parents

Posted by: Gerald A. Maggio, Esq.

Divorce lawyers in Orange County; The Maggio Law FirmThe life of a parent is difficult. But so is a marriage coming to the brink and you having to make the call of whether to stay or go. Has your relation reached a point where there is and can be no turning back? Are all the steps to salvage the marriage exhausted? The decision to get a divorce is one that needs to be taken with care since it inadvertently affects your child.

Children

Your children came into the world because of you and your marital relation. They have been growing up seeing the marital relation and togetherness of their parents. At a moment’s notice or within a few weeks, if you find yourself in the cross roads of divorce, what will the children think about it? How will they react? Their world, the one they were born with, would turn upside down as a result of a divorce. This is why it is important for parents to look at divorce as parents, not spouses.

Being a parent is not hard; acting like one is the real challenge. Yes, you may not be happy in the marriage, but have you tried your fullest for the sake of your child? Children crave continuity, and like to have what they like, and their parents are people they love. A divorce can damage that.

A few steps to try and salvage your marriage

There are a few things that you could do to try and rescue your marriage for the sake of your child. Some of these things include:

Avoiding:

  • Non-communication
  • Fights
  • Abusing one another
  • Getting angry
  • Shouting
  • Continued Disagreements

Changing:

  • The way you interact
  • The style of approaching the arguments
  • Your romantic side (bringing it to the forefront and expressing your appreciation regularly)

If you can’t salvage the marriage, change the method of divorce

Even if you have done the above steps, sometimes relationships have gone past their date of renewal and can’t be revived. In such cases, dragging on a marriage just because it’s not best for the child is actually putting the child through more pain and anguish. Having to witness their parents’ fight in the courtroom is enough of a trauma. How would it feel to have their parents fight every day regularly? We can assure you it would be painful for them, to say the least.

So, if you can’t carry on with the relationship, at least choose a divorce method that is less and less confrontational.  The most peaceful method to end your marriage and to keep your children away from the effects of a divorce is Orange County divorce mediation.

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.

5 Common Questions of Parents in a Divorce

Posted by: Gerald A. Maggio, Esq.

Top Orange County divorce attorney; The Maggio Law FirmWhen parents go through a divorce, their primary concern is their children. While assets and finances may matter, the fact of the matter is that your children are the greatest asset of all. Here are a few questions related to children that parents can typically ask a divorce attorney in a divorce.

1.     How can we create the schedule for the child in co-parenting?

A parenting schedule is an important document to have after a divorce since first up, it helps decrease conflict between the two spouses with everything pre-planned and secondly, it keeps you away from your ex spouse. When you are making a schedule, there are few things that need to take into account, such as;

  • Your work schedule
  • The work schedule of your spouse
  • Whether either of you travels
  • The distance between the two houses where you and your spouse live

It is important to ensure that the work schedule isn’t rigid. The child needs to have some sort of freedom and most importantly, the freedom to meet any of the parents whenever he or she wants. Your divorce attorney will help you develop your parenting plan.

2.     Which kind of parenting is right for me?

There are two kinds of parenting, co-parenting and parallel parenting. You need to make the choice of which one is right for you and your spouse. The first one is best for people who are on good terms with one another, while the other one is best for spouses that aren’t comfortable dealing with one another.

3.     How can I handle not having my children with me every day?

Yes, this is a challenge, and it is a change that you would never have welcomed, but it is nothing out of the ordinary and simply a repercussion of the decision you have taken. The fact that you will not be with your child can hurt, but you should rest assured that you and the other spouse are both equally committed to the betterment of the child. You will be able to meet the child on your turn and contact them regularly, lessening the impact of the lack of presence.

4.     What if I can’t stand my spouse and they can’t stand me either?

The problem with parenting is that it can’t be conducted in a vacuum so to speak.  Most spouses don’t want to see one another after a divorce. Yet for parenting purposes, they have to. If you hate one another, you can’t eliminate the possibility of conversing, but what you can do is minimize it by crafting well drafted parenting plans and making use of parallel parenting.

5.     How do I break the news to my child?

This is something that has no right or wrong answer. Different children react differently to divorce. Yet, typically, you must be compassionate, true and sensitive with the child when breaking the news. They may react adversely, but you need to be the calming presence, allaying their fears.

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.

Looking at the Big Picture During Divorce

Posted by: Gerald A. Maggio, Esq.

Top Orange County divorce lawyers; The Maggio Law FirmIn a recent workshop, there was a woman giving a lecture on the way our mind works. She took a large piece of paper and started to write down some of the positive emotions on the piece of paper, and then some negative emotions, followed by exciting emotions and later, by emotions causing fear, creating a paper filled with all kinds of emotions.

The emotions were placed strategically. Once the exercise ended, the sheet was folded about the size of an 8.5″ X 11″ piece of paper, and the square that was visible to the human eye only contained negative and fearful emotions.

Why?

The first question that comes to one’s mind is why are we only seeing the negative side of things and the emotions of fear and not the more positive ones also written down on the same piece of paper? The answer is because that is how our mind works. All of us have a wide range of positivity in our life and yet, when we are triggered, our mind can only set its sights on the negative stuff in our life.

Lessons to Be Learned

This is a great example to learn lessons from in life. Yes, your marriage didn’t work; yes, you may have been left wanting in life, yes, you were unable to achieve all that you wanted to with this relationship. Yet, much like the piece of paper, your relationship has had positives and negatives and during the talk of divorce, those positives shouldn’t be forgotten.

There was a reason you started a relationship with your spouse, and then went ahead and started a family and had kids. Before your divorce, they were someone you wanted to spend your life with and did. The fact that your life couldn’t work well together doesn’t mean their positives no longer exist.

This is why it is important to look at the big picture in life in general and in a divorce in particular. As much as you hate it, you will have to accept that even after a divorce, you cannot end all ties with your spouse. You will have a relation of being a parent even after the divorce and you’ll have to share that with your ex-spouse.

For that, it is important that you aren’t on bitter terms with the other spouse. Keeping view of the big picture which has some positives as well as negatives is helpful in divorce mediation. The process is all about cooperation, conversations and coordination. You will have to agree to the resolution of your divorce with your spouse. It would be easier to do so if you had some element of positivity in your mind about your spouse.

A divorce can be emotionally and physically draining, but to ensure that it is not financially stressful, it’s best if you opt for divorce mediation in Orange County or elsewhere, where you get to decide your future.

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.

Reducing Conflict Post-Divorce

Posted by: Gerald A. Maggio, Esq.

Orange County divorce lawyer; The Maggio Law FirmOnce you have gotten a divorce, the world around you changes. You no longer have someone you could depend on for emotional support. The trust you once enjoyed, has all but vanished. What hasn’t ended though is your need to communicate with the other spouse. Being parents, you have to put your children first and for them, you need to communicate with one another.

The danger of conflict lies in these post-divorce conversations. Both the spouses will still be reeling from an unfulfilled relationship and will want to place the blame on one another. At such a point, a person is at their most vulnerable emotionally; they can react to the smallest of things and breed conflict. For people who have just had to go through their divorce, here is a list of three simple steps to reduce conflict.

1.     Decrease How Often You Talk and See One Another

Did you know that interestingly, around 40 % of the communication that we have is through hearing, the other 55% is visual? Either of these can have an adverse effect on you emotionally when conversing with your ex spouse. Yes, you may be parenting the children and yes, you may have to converse with them but it is natural for the emotional tension to build up every time you communicate. This can lead to conflict.

One of the easiest ways of doing that is to use neutral exchanges with the other parent. The most common reason you have to see or talk to the other parent is because of child handovers. It’s best done through day care, school events etc., allowing the child to transition from one place to another without you having to run the risk of conflict.

2.     Don’t Exercise Authority or Demands

When you were married, you were perhaps the dominating spouse, perhaps you weren’t. Either way, it doesn’t in any way mean that post-divorce; you can dominate the other spouse. They are no longer a part of your life and will not adhere to anything you say as long as they don’t want to. So no matter how much you want something to be done in one way, you cannot force it on them.

For example, if you want them to give their opinions or decision on something, you cannot forcefully engage with them and give them ultimatums. Give them time and freedom to make up their mind, because once you start to impose yourself too much, it may lead to conflicts.

3.     Use Emails

Emails are not the new chip around the block, but they definitely are what will save you from future post-divorce conflicts. They are short and formal ways of communication which can be used to keep the conversations to the point and logical. Even with that, there must be rules to follow such as no more than one email per day, the issue or question to be laid down clearly, etc.

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 Does A Prenuptial Agreement Impact Divorce Settlements?

Posted by: Gerald A. Maggio, Esq.

Top divorce attorneys Orange County; The Maggio Law FirmPrenuptial agreements or prenups are contracts undertaken between two partners who are soon to be married, and detail the terms of what will happen, should the marriage go sour. If you and your soon to be ex had the foresight to work out a prenuptial agreement before you got married, your divorce proceedings should, in general, be a much smoother process. Here’s a look at how having a prenuptial agreement impacts divorce settlements.

What does a prenup do?

A prenuptial agreement is a written undertaking that is legally binding, like any contract, with specific terms laid out usually with regards to the divisions of assets in the event of a divorce. It may also lay down specific conditions or circumstances under which one spouse may give up their rights to the marital assets. For instance, if the prenup says a spouse will not get anything if they are found guilty of adultery, are abusive or use drugs, then this will steer the divorce proceedings in that direction.

Proving infidelity or abuse

In case the prenup has some conditions which exclude either the husband or the wife from taking their share of the assets, for instance if they cheat during the marriage, then the onus is on the other spouse to prove this adultery. Once this is proven in a court of law, the other spouse will lose their right to the assets, as per the terms of the contract. If however, this cannot be proven, then a good divorce attorney might still be able to help get some of the assets, if not an equitable share.

Dealing with what isn’t in the prenup

While a prenup is usually well thought through and arrived at through mediation and with the consultation of a professional, and checked by your attorneys, there are times when it doesn’t cover every eventuality. For these aspects of the divorce, the regular route of mediation or heading to family courts will play out.

Caveat!

Having a prenup doesn’t mean you are covered, if the contract doesn’t hold water in court due to improper phrasing or missed details in the drafting. This is why you must be extra careful when drawing up the prenuptial agreement. Work with family law attorneys with experience in prenups as well as the laws specific to the area you live in.

Even if it is legally accurate, a prenup can be dismissed or ignored by the court if it is deemed unfair or fails to stand up to the requirements of the state the divorce is being filed in. So be sure your prenup is not just perfectly drafted, but also unambiguous, logical and most importantly, justifiable.

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 A 4-Way Divorce Settlement Conference

Posted by: Gerald A. Maggio, Esq.

Top Orange County divorce lawyers; The Maggio Law FirmIn divorce cases, the parties and their counsel can arrange and meet to do a ‘four-way informal settlement conference.’ Here’s what you should know about how these settlement conferences work during divorce, and what to avoid during the process to get the most out of such meetings.

Use your commitment to get results

A four way meeting involves four parties during the divorce, typically you and your divorce attorney, and your spouse and his divorce attorney. Going into such a meeting during the divorce process, it is important to keep an open mind and be willing to listen. If you have decided to take the route of divorce to work through your differences on things like division of financial assets and custody of the children, then a four way meeting is an important milestone.

Prepare!

Don’t go into a four way meeting unprepared, that is the single worst thing you can do for your case. Have all the information related to finances, work schedules, assets to be divided, custody or whatever else relates even remotely to the details you hope to discuss in the four way meeting. Have your set of goals in mind and be clear on what you want out of this meeting. Come with alternatives and your ‘next best’ option if you aren’t making headway with getting to your ideal outcome.

Speak up

This is a unique opportunity for you to sit across the table from your ex and work through your differences to a level where you are able to arrive at some kind of arrangement that you can both live with. Because both attorneys are also present, you can go over legal aspects and whether the solutions will hold in court. Unlike a regular divorce mediation meeting, a four way meeting may not involve a mediator, so you will not be ‘given’ a chance to speak, you will have to take it.

Be realistic

Don’t expect miracles in just one four way meeting. See it as a stepping stone to your ultimate goal of working out a mutually agreeable divorce settlement through the course of the divorce process. You may discuss only some aspects in this meeting, and deal with others later or through your attorneys.

Don’t show your weakness

Avoid getting too emotionally charged up, this will show your hand to your ex and give them a window to what matters most. If they’re bitter or vindictive, they could use your weakness to do you out of some other financial assets, by using this weakness as leverage.

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.

Removing a Spouse from the Marital Home During Divorce

Posted by: Gerald A. Maggio, Esq.

Best Orange County divorce attorneys; The Maggio Law FirmSometimes, during a divorce there may be cause for removing the other spouse from the marital home, due to a history of abuse or other compelling reasons. Whether you are the spouse being ousted, or the one who wants to get some distance between you and your ex, here is what this entails and the repercussions of making this move during divorce.

When spouses can be ousted

Simply not being able to stand to live with each other isn’t reason enough to bar one partner from the marital home while the divorce is finalized. Even if it means sharing a home for several months. However, there are some exceptional circumstances, under which a court may grant an order that debars one spouse from the home. This may be for reasons such as the possibility of the spouse causing severe emotional or bodily harm, or if living together could  be detrimental to the kids, and other such compelling circumstances.

How the process works

The family home is often central to the divorce settlement, and division of the assets may sometimes require the house to be sold and the amount divided equitably between both partners. As such, the judge will review this matter seriously and grant the order removing one spouse from the home, only if they find enough justified cause to do so.

Filing a motion: If you feel you need to bar your spouse from your marital home, you will first need to file a motion to the family court, so that they may apply equitable jurisdiction to have him or her removed. Getting this order passed is not always easy and you will need to build a strong case and present evidence justifying this need.

Plenary hearing: For cases where a court believes there is good reason for this request, a full plenary hearing is granted. During this hearing, testimony as well as documentary evidence is presented. For many, the motion may be dismissed at this stage if reasons are not compelling enough or are not adequately proven.

Domestic abuse cases

Cases involving domestic abuse are the ones most commonly granted such a court order. This is usually supplemented by a restraining order which prevents your spouse from coming within a certain distance of you and your children. And this will include the home you live in.

Why you shouldn’t move out of the family home

Unless there is a court order to that effect, divorce attorneys and experts will advise you not to leave the family home. That’s because by moving out you weaken your case for being awarded the property in the divorce or moving back in once the divorce is finalized. During the divorce mediation process or as the divorce proceedings move forward, the fact that you do not actually live in the home anymore may be used to reduce your rights to staking a claim on it.

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.

Breaking the News of Divorce to Adult Children

Posted by: Gerald A. Maggio, Esq.

Orange County divorce attorney; The Maggio Law Firm“We cannot divorce, the kids are too small to deal with it” is a common phrase spoken by parents who, despite not being happy with their marriage, decline to proceed with divorce. Ironically, most of these couples will go for a divorce once their kids have passed the age of 18. What parents like this need to realize is that irrespective of the age of the child, divorce can affect them. Even after the child becomes an adult, seeing their parents end their marriage can leave a lasting impression.

Once the kids are all grown up, they’ll either be studying in college, working their sweat off or starting a life, having kids and experiencing all that their parent’s did; responsibilities, commitments and relationships. For them, their mom and dad are the ideals of a successful marital life. So when the same parents decide to get an Orange County divorce, fighting one another in court, it comes as a shock that could shake their world to the core.

Hence, it is important that you soften the blow by breaking the news to them properly.

A Family Huddle

This is perhaps the biggest news you’ve had to break to them. So make sure that you have all of your children gathered at one place to hear the news. Both the spouses, not just one, needs to talk to them in person, to build a mild background for their decision before breaking the news.

Yet, whenever that is done, it has to be done subtly. Prepare for what you have to say to the children and the most important thing is presenting the decision as one that is taken mutually, in consultation. Now is not the time to put blame on one another.

Be Prepared for Questions and Shock

This is not ordinary news for your adult children and you shouldn’t expect them to simply take it in their stride and move on. Once the news has settled, they will react to it. Their reaction can be one of two things; they will ask a lot of questions, express dissatisfaction or anger or do both simultaneously.

Remember they are no longer kids, so their questions may be pin point, and ones that make you uncomfortable answering. The fact that they are adults will be highlighted in their questions. Some children may even break down. Irrespective of your feeling towards the other spouse or the reason for you to get an Orange County divorce, you need to reassure your children of your presence for them as a parent. Tell them that you will put up a united front, whenever the need arises. This will go a long way in preparing them for things to come.

When you end your relation with your spouse, the way you end it will leave a lasting impression on your children. It is best that you choose Orange County divorce mediation instead of a court fought divorce, since that is more peaceful and cooperative.

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 Children Are Affected By Their Divorced Parents

Posted by: Gerald A. Maggio, Esq.

family law attorney Orange County; The Maggio Law FirmDivorce can have a profound effect on children.  How their parents handle the divorce and both parent and co-parent can have a big impact on how well (or not) such children live through the experience and the aftermath of divorce.  Here are some points for such divorcing parents to consider when it comes to how to act regarding their children and what to avoid:

Children benefit when their divorced parents:

  • Have similar rules and disciplinary actions.
  • Prevent conflict and never result to any physical/emotional/verbal abuse of any kind.
  • Allow contact with grandparents and other extended family to avoid a further sense of loss.
  • Have a healthy and respectful method of communication.
  • Speak kindly about one another in the presence of the children.
  • Allow flexibility with visitation and give adequate notice when the children want to participate in family celebrations, events and special occasions.
  • Always keep the children’s routine and activities in mind when planning vacations, etc.
  • Provide an itinerary of travel dates, destination and lines of communication available for all parties while on vacation.

Children are harmed when their divorced parents:

  • Deny access to the children for anything other than for the safety or well-being of the children.
  • Use physical/emotional/verbal abuse of any kind.
  • Don’t keep their promises to them.
  • Make the children choose between their parents.
  • Degrade the other parent in the children’s presence or to the children.
  • Ask their children about the other parent’s activities, relationships, etc.
  • Involve the children in problems they are having with the other parent.
  • Have the children act as spies, messengers or mediators.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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