Technology and Divorce Litigation-Pros and Cons

Posted by: Gerald A. Maggio, Esq.

divorce lawyers in Orange County; The Maggio Law FirmThe prospect of going through an Orange County divorce can be pretty daunting for anyone facing it for the very first time. One of the leading fears that can overcome you in that point of time is the fear of walking into court. This can particularly increase in times where one of the spouses is not aware of the divorce process to be followed, and the level of technology that can be used against them in courts.

The role of technology in a divorce case has often been ignored, yet in reality it can either make or break your case and your chances of success.

The use of technology can really help you in fighting your divorce case. All that needs to be done is proper and smart use of technology to gain advantage and evidence over the other spouse. What would you do in a case where you think that your spouse has sent a number of texts to his or her business partner highlighting some of his offshore bank accounts that he or she has hidden from you in divorce?

Cons

While the messages may hold the key to proving the dishonesty of your spouse, the problem and the fact remains that it will be next to impossible to get your hands on such a text in any case. The first reason is that the phone company often deletes the volume of messages every three days, therefore ending any chance of them being available in the first place.

This is especially true since, before presenting new evidence, the family law rules requires the party to serve a notice to the opposing party several days in advance of serving a subpoena on a cell carrier provider, for example. This is what can prove to be a con of technology, since it can’t help the person in need of help despite having the evidence required.

Pros

While this is a con of the role of technology in a divorce, there are also a host of pros that technology offers in cases of divorce. What if during the divorce proceedings your spouse or their lawyer accuses you of stalking them and/or harassing them. What can you do to respond to such a claim in the secondary case of a restraining order?

The first and most obvious thing to do is to provide a valid explanation, such as a person who witnessed your innocence. The second way, on the other hand, is to use your smartphone as your verifier of truth.  This can happen by using the phone’s GPS facility to show your whereabouts at the time of the alleged incident.

Some Interesting Tech and Divorce Facts

  • A large number of divorce investigators and family lawyers spend a large amount of time on social media interacting with existing and potential customers.
  • Any information that is posted by your spouse on their social media account can be used as evidence against them in court.

Limitations of Prenuptial Agreements

Posted by: Gerald A. Maggio, Esq.

prenuptial agreements Orange CountyA prenuptial agreement is an agreement that is meant to work out financial terms and post marital expectations as well as to preserve both party’s assets as separate property.  The role of prenuptial agreements has increased in the past few years with more and more people trying to protect their assets legally.

Prenuptial agreements, also known as premarital agreements, basically outline the post divorce assets and finances that each of the spouse will be entitled to. These are drawn up usually by wealthier spouses to keep hold of more than a portion of the wealth they have built up, but also upper middle class individuals.

There are a few things that prenuptial agreements can do and some that they can’t. Here is a list of some of a few of the limitations on what prenuptial agreements can do.

Spouses Cannot Be Punished For Using A Prenuptial Agreement

No spouse can be punished using a prenuptial agreement. This is because the State of California continues to be a no-fault divorce state. This means that generally even though a spouse may have been unfaithful, the other generally cannot use the prenuptial agreement to punish them.

Yet, there can be some exceptions such as in the case of a spouse who physically or verbally abuses the other spouse. A spouse that is proven to be abusive can be punished using the prenuptial agreement and be refrained from receiving the finances and the support that he or she is entitled to.

Prenuptial Agreements Are Not Entitled To Change Child Support And Child Custody

When couples go through an Orange County divorce, the family courts decide on the cases of using the California Family Code. Keeping this in mind, while prenuptial agreements can define the division of assets etc., when it comes to the issues of children in divorce, the scope of prenuptial agreements is limited.

Family law courts don’t allow the agreements to overall or make determinations concerning child custody, child support, and child visitation.  Prenuptial agreements can have a say with regard to the property and spousal support only.  Yet, in matters related to the children, the final authority lies with the courts. This action is meant to protect the best interest of the child at all times.

Prenuptial Agreements Are Not Allowed To Reign Over Day To Day Affairs

Prenuptial agreements have been primarily made to protect the division of assets between the two spouses and hence it is restricted in its ability to dictate day to day affairs between the spouses. Any issue that interferes with the choice and free will of the spouses is not allowed to be in a prenuptial agreement. An example can be the number of children to be born out of the wedlock.

Important Terms in Child Custody Proceedings

Posted by: Gerald A. Maggio, Esq.

Orange County divorce lawyer; The Maggio Law FirmIf you are going through a divorce, issues of child custody are sure to come up. Child custody issues tend to be complex as well, not just emotionally but also legally. During the proceedings, you may encounter some words that you might not understand or are unfamiliar with. To make sure you are well prepared for your Orange County child custody case, here is a list of few important words used in child custody proceedings.

·         Joint Physical Custody

This word is used to refer to the custody where both the parents will have considerable amount of physical custody. This custody by no means requires that the share of custody between the two must be equal. An example can be one of the spouses getting the child for the weekends and the other keeping him for the rest of the five days in the week.

·         Joint Legal Custody

Joint legal custody is little different a concept than joint physical custody. Joint legal custody allows both the parents the authority to make the decisions related to the child such as education, health, etc. In some Orange County divorces though, the judge can grant the parents joint legal custody but not joint physical custody.

·         Sole Physical Custody

Only one of the two parents of the child is allowed to spend the largest amount of time with the child and to be able to completely be in charge of all the child’s day to day affairs.

·         Sole Legal Custody

Only one of the two parents of the child is allowed to make the decision with respect to the important issues in the child’s life, such as education, welfare, health, religion, etc.

·         Primary Custody

More often than not, Orange County divorce family lawyers use the term “primary custody” in describing physical custody instead of only using the words joint custody and sole custody, to distinguish the parent who has control of the day to day affairs of the child. Despite the widespread use of the word, under California law, there is no such recognized term.

·         Visitation

If one of the parent has the custody of the child instead of both, the other parent will be allowed to meet the child at agreed times. This is referred to as visitation.  However, a preferred alternative is describing the other party’s time as their custodial timeshare without labeling it “visitation” per se.

Types of Restraining Orders in Divorce Cases

Posted by: Gerald A. Maggio, Esq.

restraining order attorney Orange County; The Maggio Law FirmThere are many reasons that people go through a divorce. If you are a victim of domestic violence, you can look at divorce as a means of protection from your spouse. The abusing spouse needs to be dealt with, and you need to take action right away. The faster you act, the better the chance of ensuring the protection of you and your family.

If you think you are in grave danger, the first thing you should do right now is contact law enforcement right away. If, however, the problem is a persistent one but not one that poses immediate danger, you should, along with your Orange County divorce, file for a restraining order.

There are two main types of restraining orders in Orange County family law to protect the victims and families or those victims from abusive spouse and individuals.

Restraining Order Types

·         EPO (Emergency Protective Order)

An emergency protective order is a temporary order issued in criminal domestic violence situations for restraining an individual away from a person or a group of people, and is often part of a domestic violence incident by one spouse against another that led to an arrest by the police. These orders are specially issued by the law enforcement agencies and will be valid for no more than five days of issuance.  There are a number of victims that this restraining order applies to, such as:

  • Domestic Violence
  • Stalking
  • Child Abduction
  • Child Abuse

·         DVRO or TRO (Domestic Violence Temporary Restraining Order)

The domestic violence temporary restraining order is the primary type of restraining order that are made to apply specifically in cases of domestic violence whether it be for an Orange County divorce or otherwise. The emergency order is put in place by an Orange County family law judge for a total of 21 days and a hearing on the merits and facts is required within 21 days to determine if a more permanent restraining order of 1-5 years should be issued by the court.

If you have been subjected to abuse at the hand of your spouse, now is the time to stand up and protect yourself through a divorce and these restraining orders.

4 Tips On What To Do When In Orange County Divorce Court

Posted by: Gerald A. Maggio, Esq.

orange county divorce attorney; The Maggio Law FirmDivorce cases can prove to be the turning point in a person’s life with their relationship and the family starting to crumble in front of them. When you are going through a divorce, there are a variety of emotions that a person can go through. These emotions can either be of hurt, guilt, or disappointment. Irrespective of your feelings, when you are going to court for your Orange County divorce case, there are some standard things that you should expect from yourself at that time.

Here is a list of a few things you should expect from yourself in court for the proceedings of your divorce case:

·        Be Aware Of The Facts

When you walk into court, irrespective of the case that you are fighting, you should be aware of the facts of the case. Many people tend to have misconceptions that it is their divorce lawyers and not them who need to be in knowledge of all case related aspects. While your divorce lawyers need to be aware of the ins and outs of the case, so do you. A lack of case related knowledge when you appear in court can severely hamper your chances of winning.

·        Rise Above The Emotions

As mentioned in the first few lines of the blog, getting emotional is a natural part of going through a divorce. When people go through divorce, they face emotional torment. Despite that, you need to be able to control  your emotions. Letting your emotions take over will only allow you to deviate from your goal and impair your ability to make logical and sound decisions.

·        Be Truthful In Front Of The Court

This is something you should already be aware of know. To lie is looked down upon in almost all walks of life and most definitely so in the court of law where the future of both parties depends on the facts and statements presented. There may however be instances in your Orange County divorce proceedings that your spouse might lie to gain an advantage. Even in situations like those, make sure you continue to stay on a high moral ground and continue to be truthful. Beware that if courts find out that a spouse is being untruthful, the offending party will have to face legal consequences.

·        Expect To Be In It For A Long Time

Divorce is not a matter of life and death, and yet, it is considered no less by the competing spouses. There are lots of things from assets to child custody at stake in a divorce and therefore it is important that you expect to potentially be involved in the divorce proceedings for a long time.

What To Expect From Your Lawyer In A Divorce Case

Posted by: Gerald A. Maggio, Esq.

Divorce Lawyer in Orange County; The Maggio Law FirmOnce you have decided to get yourself involved into a divorce, the role of the lawyer becomes of paramount importance. Orange County divorce cases tend to be won and lost because of the competence of the lawyers as much as the facts of the case. Your attorney in court is often your spokesperson in court and the only chance you have of winning the case of getting a favorable result is through the performance of your Orange County divorce attorney.

This highlights the importance of the role of a lawyer in divorce proceedings. When you employ a lawyer to represent you in court, there are a few things that you need to expect from him/her in court.

·        Expect Them To Be Well-Prepared

This is one of the most obvious expectations that a client is likely to have from their lawyer in an Orange County divorce case. The proceedings of the court means that lawyers from both of the spouses will fight and argue the case in front of the judge who would in the end give their judgment. Keeping this in mind, it is important to have your Orange County divorce lawyer aware of the facts of the case inside and out.

A good lawyer is likely to come prepared to court knowing what questions the opposing lawyer could ask, any testimony that they should present, and have a list of witnesses and evidences to be presented.

·        Expect Them To Communicate With You Regularly

You and your lawyer are on the same side in a divorce case. In fact, your lawyer is your sword and your shield. Therefore, it is important that you expect your lawyer to communicate with you on a regular basis throughout the course of divorce proceedings. The communications between the two of you can be on a variety of topics that may range from the day’s happenings in courts to the up and coming testimonies and cross questioning phase in court. The more you communicate with your lawyer the better it is for you and your lawyer’s chances of winning the case.

·        Expect Them To Be Social And Cordial With The Opposing Counsel

The legal world of Orange County family law is small and well-knit like a community together. This means that lawyers who practice extensively in the same field will generally be good colleagues out of court. You should keep that in mind, since you may see your lawyer communicating with the opposing counsel. However, it will not affect your case. In fact, this might help as both lawyers may even be able to discuss peaceful resolutions to the case out of court.

What To Expect Of The Judge In An Orange County Divorce Case

Posted by: Gerald A. Maggio, Esq.

Orange County divorce lawyer; The Maggio Law FirmWho is the single most important person in the court that can single-handedly effect whether you prevail in your case? The answer is the judge of the Orange County family law court that is assigned to your case. The job of a judge is one of the hardest in courts since it is their responsibility to make sure they make the correct decision. Any discrepancies or ambiguities in a judge’s decision will not only be challenged in court but could also cause irreparable damage to the party wronged.

The judge in an Orange County divorce case holds unparalleled importance since they are the ones who are the decision-making authority. With great power come greater responsibility, and a judge will be expected by the parties to be up to a certain standard. Here are a few things that either of the spouses should expect from the judge.

·        Expect Them To Be Busy

The number of family disputes and people looking for divorce seems to be on the horizon with a large number of cases being registered in the family law courts. This is likely to mean that you should expect the judge to be busy. This would mean that the judge would have to juggle your case along with other similar cases that he or she is dealing with.

·        Expect The Judge To Prioritize The Type Of Cases To Be Heard

There are some things that a family law judge should do but often end up not doing. This is likely to be one of those instances. Judges in family law courts are expected to prioritize the case they are hearing in order of importance of the case and the issue at hand.  Setting priority to the case would allow the judge to fast track the hearing of the case instead of dealing with it at the same pace as other cases. These cases can usually be ones that involve domestic violence and child custody issues.

·        Expect The Judge To Want A Time Estimate

Usually when an Orange County divorce case starts, the judges are looking to know the time limit or the period of time that the  divorce case is expected to run. Therefore, you should expect the judge to ask your lawyers and that of the other spouse to give him/her an estimate of the length the case is expect to run for. When a judge asks you for an estimate, it is not needed to be a 100% accurate value, rather an estimate. Yet, telling a judge your case would take less time when it actually will take more is the wrong thing to do.

·        Expect Them To Ask Why Your Cases Has Not Been Settled Out Of Court

With the increasing number of cases in the Orange County family law court, judges have been encouraging their potential clients to settle their cases out of court. It is only when that does not happen that they expect the spouse to battle it out in court. So you expect the judge to ask you the reason for not settling the case out of court.

Divorce Mediation and the Division of Assets

Posted by: Gerald A. Maggio, Esq.

Orange County divorce mediation lawyer; The Maggio Law FirmThere are several aspects in an Orange County divorce that can be contested by each of the spouse. One of them is asset division. Asset division is significant to each of the spouses primarily due to the economic clout that surrounds assets and their divisions. However, there are some properties like the marital homes of the couple that can raise the stakes even higher. More often than not, the value of the marital home will be more than the rest of the assets. This serves to only complicate matters further in divorce mediation cases.

In Orange County divorce mediation cases, however, couples can agree on scenarios that allow one of the spouses to want possession of the marital home while the other wants his/ her name off the mortgage.  While this sounds simple in practice, it can actually be quite difficult to achieve. Here is a list of a few. In such cases, spouses have only two legal options to bring their decision into affect. One is refinance and the other is to sell the house and keep whatever cash it is sold for.

Why Is Refinancing Of A Mortgage A Difficult Option?

Of the two ways mentioned above, refinance is the only one that allows you to stay in control of and in possession of your home. Yet, before you proceed with divorce mediation, you need to consider problems that can arise in refinancing. The mortgage of homes tends to be more than the government backed loan refinance schemes. This would mean that when and if you opt to refinance your income will closely be scrutinized.

There are strict criterions that you’ll need to fulfill to be applicable to have a refinance of your mortgage. A look at the federal finance rules highlights that only people who have a personal debt ratio of less than 43% on their income are able to refinance their loans and get new loans. Therefore, the banks or the lenders will take into account your debt repayment ability and other payments that you are making because of your Orange County divorce like alimony and child support payments.

How Can You Make The Process Easier?

The first step to easing this process off is to know what the problems are. Since you know that during and before you have taken part in your Orange County divorce mediation means you are already on the right track.

The key to making sure you stray well clear of such things is to first of all make sure that every transaction you make is credit approved and done correctly.  Also make sure that any and all suggestions given and decisions taken in Orange County divorce mediation are discussed with a financial expert.

Getting Temporary Family Law Orders In Orange County

Posted by: Gerald A. Maggio, Esq.

divorce lawyers in Orange County; The Maggio Law FirmDivorce is an act of legal separation that happens when couples are unable to live happily with each other. There are many reasons for an Orange County divorce to take place. The reasons can range from a lack of compatibility to unfaithfulness etc. Irrespective of the reasoning though, when couples decide to call it quits in their relationship, they seek help from the Orange County family law court. Divorce cases in family law courts can be emotionally charged with each of the couple wanting to get the best decision in their favor.

There are many tools in the California family law legal system that can be used by couples to make sure that the case is going on smoothly and that they are able to get exactly what they want. One such tool that has been used by divorcing parties is the temporary order. Temporary orders are orders where the spouses want the court to rule on matters of importance temporarily until they settle the entire case or go to trial.

How Do You Get Temporary Orders?

The request by parties to be granted temporary orders in their favor is made by filing a Request for Order with the Orange County Family Law court at the Lamoreaux Justice Center, in Orange, California.  A Request for Order (RFO) is simply put a request put forward by the spouses for the court to make certain orders in their case.

The Process of Bringing a Request for Order

For a Request for Order process to start, both parties need to file papers in the courts that highlight issues that the judge will need to pass a temporary order on and their sides of the case and the order that they believe should be ordered, and the court will schedule a hearing date for the RFO.

At the day that the actual RFO hearing is scheduled, the divorce lawyers from both sides will generally present testimony to the court and highlighting the law and make the legal arguments that they believe applies to their case for them to get a temporary order in their favor.

When it comes to the actual hearing, the burden of proof of proving his or her claim to the court is entirely on the person filing the RFO.

Types Of Temporary Orders

While the family law court can hear a number of issues, there are generally only a few matters that they will make temporary orders for. Here is a list of a few of them:

Options To Enforce Child & Spousal Support Orders

Posted by: Gerald A. Maggio, Esq.

Divorce Lawyers Orange County; The Maggio Law FirmOne of the leading reasons people continue to come back to the Orange County family law court is to enforce orders of the court. The orders of a court in relation to the Orange County divorce can range from supposal support orders, to custody orders, to orders for the division of assets, and in some circumstances even injunctions. The most important among these orders and the ones most commonly used are the child custody and child and spousal support orders.  Here are some options to enforce support orders.

Order of Wage Assignment

California law empowers the courts to issue an earnings assignment for all the support orders that they issue. This is a means to ensure that the payment of the spousal and child support is not made by the spouse but by the employers of the spouse directly through deductions from their monthly salaries.

This method is an effective enforcement of a court order since it keeps the paying spouse from reinvading on the orders of the court and disregarding them altogether. In cases where the parties have mutually agreed on the support being paid and the part fails to honor it, the company can again be ordered to pay the monthly amount from the parties’ paycheck.

Contempt Of Court Proceedings

The charge of contempt is usually applied to parties that are unable to comply with the court’s order despite being capable of carrying out the instructions mentioned in the court order and having full knowledge of the court’s order. There is however a legal rule that anyone who is accused of contempt needs to be proven to have committed the contempt beyond reasonable doubt. This means that the burden of proof for proving contempt is on the party that makes the accusation. A few examples of charges leading to contempt cases are failing to abide by child custody orders or pay child support. The penalties of contempt can include hefty fines and jail terms.

Writ of Execution

This is one of the measures that the parties can resort to in lieu of going back to court. The writ of execution is basically a writ in the court which asks the court to order the liquidation of the non performing parties’ assets and transfer the funds to the party that was promised said funds. There can also be other writs such as writ of seizures for matters related to property etc. This type of property order is often used in situations where the court’s order for asset distribution in an Orange County divorce case is disregarded by the either of the spouse.