Requesting a Modification in Spousal Support

Posted by: Gerald A. Maggio, Esq.

Divorce attorneys in Orange County; The Maggio Law FirmThere are several such divorce cases, wherein either spouse might want to request a modification in the amount of alimony he or she pays to the other partner. The state laws of California allow an individual to get his spousal support adjusted in due course of time only if the original court order does not carry specific clauses or statements that render the alimony ‘non modifiable’. We are listing a few common situations wherein an individual can request the court to modify his or her alimony.

A mutual agreement with your spouse 

In certain cases, both of the divorce partners might come to a common agreement regarding a modification in the terms of their spousal support. The settlement can be made without the approval of a court of law. However, under some situations the other partner might later refuse to accept the new terms and conditions of the modified agreement. It is therefore advisable to get your new agreement signed by a judge, in order to make it enforceable by the court of law and legally binding upon both the partners in agreement.

The cost of living adjustment clause

By incorporating a COLA or cost of living adjustment clause in your original divorce decree, you can ensure that the alimony payments you receive will be increasing at a rate equivalent to the increasing annual rate of cost of living. The COLA clause will not only ensure that you receive suitable payments as per the changing economy around you, but also minimize any conflicts or disputes arising out of a need for modifications.

The escalator clause

An inclusion of the escalator clause in the original divorce decree ensures that you are automatically entitled to receiving a share of an increase in your partner’s earnings. For example, if your ex-spouse serves in the armed forces and is entitled to an annual raise in his cost of living, you will by default receive a specific portion of that raise.

Temporary situational modifications

If in case, the recipient of the alimony falls ill or loses a job, the court of law has the discretion to increase the support payments for the time period of the unforeseen contingency. On the other hand, if the payer loses a job or falls ill, he can also request the court to reduce the support payments for a specific period of time. These modifications however are temporary, and revert back to the original terms once the individual returns to his normal life.

If in case, you think that the support that you pay or receive is too huge or too little respectively, you can consult your attorney and go ahead with the proceedings as per your state laws.

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

The Disposition of Student Loan Debt in a Divorce

Posted by: Gerald A. Maggio, Esq.

orange county divorce attorneys; The Maggio Law FirmA student loan, nowadays, can be quite significant. It may very well run into six figures. A number of professional couples carry student loan debts from their college years. Now, in a divorce, just like the assets are divided, the debts have to be divided as well. The question is whether student loan debts are considered as marital debts or separate debts.

For what purpose the student loan was used for

If the student loan was used solely for the purpose of pursuing the degree of one spouse, then it may be considered as a separate debt. For example, the money was used only for paying the tuition fee, to buy study materials, for projects, and so on. However, if the money was used for living expenses as well, apart for education purposes, then the debt may be considered as marital debt. Since the money benefited both the parties, both of them have the responsibility to pay it back together. In California, the enhanced earning ability of a spouse as a result of acquiring a degree remains with that person itself. That is, the income earned by that spouse belongs to him/her, the other party does not have any right to that income.

The earning ability of each spouse

The court will look at the earning capacity of the parties involved while deciding on the student loan debt. If one spouse has literally no income or his/her income is very low or the earning potential of that spouse is very low, then the court may ask the other spouse to take care of the student loan debt. While this may not seem fair to the spouse burdened with paying off the student loan debt, especially if the money was also used for household expenses, the court sees it only as fair since the other party has no income or only limited income.

The tax benefits

The tax benefits may make it desirable for one party to assume the whole student loan debt if the other part agrees to take care of another debt, maybe the credit card debt. This is more or less a negotiation. If both the parties find it working to their benefits, then it is something that they will no longer have to argue about or ask the court to decide.

The intended purpose of a student loan is to use it for educational purposes. If it is used only for educational purposes, then a lot of complications can be avoided during debt division.

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.  

Is Your Ex-Spouse Curbing Your Child’s Technology Addiction?

Posted by: Gerald A. Maggio, Esq.

orange county divorce lawyers; The Maggio Law FirmWhen your ex-spouse and you share the physical and legal custody of your child, it is better to agree on a schedule for your child’s activities. For instance, you both can decide at what time your child should go to bed, how much playtime your child should have, how much time your child may watch TV, and so on. This will make it easier for your child to move between his/her two homes. This consistency will also help to promote family unity. However, while most of the time your ex-spouse and you may agree on the rules for your child, sometimes you both may disagree on something. For instance, your ex-spouse may think that providing unlimited screen time to the child may help him/her in the future in terms of getting a job, and you may think that excessive screen time would cause the child to develop digital dementia. Trying to resolve this by putting your foot down may not be the best approach. For one, your ex-spouse may not be willing to listen to you and there is nothing you can do about that. Second, you may just alienate your child by trying to curb his/her screen time.

The calm approach

The best approach to tackle this situation is the calm approach. Just sit with your ex-spouse and discuss the issue. Make him/her understand that the child is getting addicted to the technologies, he/she is spending way too much time on their iPad, smartphone, laptop, and so on. The child may be getting addicted to the Pokemon Go game, and it is putting his/her safety on the line. The video games he/she is playing may be too violent. The child may be much too involved in social media. By having a practical discussion, you both may decide on the best course for your child.

Seek court intervention

If your ex-spouse is not willing to discuss the issue of technology addiction with you, you may seek the intervention of the family court. However, before you take this approach, you have to be absolutely sure that your child is addicted to technology, and it is affecting his/her overall well-being. You may have to prove in the court that your child’s technology addiction is causing him/her to perform poorly in the school or the violent video games are affecting the child’s mental well-being or the Pokemon Go game is putting your child’s safety at risk. Your ex-spouse, of course, would counter all this, he/she would argue that the technology is actually making the child smarter, the video games are helping him/her to bond with the child, and so on. So, unless you have solid proof, do not seek court intervention.

At the end of the day, all you can do is encourage healthy behaviors in your child. Be innovative. Instead of just taking away his/her iPad, let him/her bring it along while going fishing. Slowly, your child may see things your way, and make the best decision for himself/herself.

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.  

Why Self-Representation is Not Recommended in a Divorce Case

Posted by: Gerald A. Maggio, Esq.

Orange County divorce attorneys; The Maggio Law FirmSelf-representation, also termed as ‘Pro Per’ or ‘Pro Se’, is when you decide to state your own divorce case in the court rather than hiring an attorney to represent you. While this may seem like a good option in terms of saving the attorney fees, self-representation, in reality, poses numerous disadvantages, especially in the long run. According to a survey conducted by the ABA Coalition for Justice, it is not just the law firms or the lawyers who discourages you from representing yourself but the court system itself. The reason is that self-representing individuals are most often unprepared and are unfamiliar with the court proceedings. This puts an extra burden on the court system. Following are some of the obvious disadvantages of ‘Pro Se’.

Dealing with the opposition party’s attorney

If your spouse is also representing himself/herself in the divorce case, then your decision to self-represent may still make sense. However, if your spouse has hired an attorney to represent him/her in the case, then your chance of winning the case is almost nil, realistically. Think about it, you will be going against someone who has a deep knowledge of divorce laws. Even if the attorney is a novice, he/she would still be proficient on the divorce laws. A seasoned attorney who is proficient in both the state and the local laws will know what to ask and when to ask to get the most desired outcome. At the end of the day, going head to head with an attorney is just not practical.

Filling and filing forms

When you hire an attorney, all you have to do is fill up the divorce forms. Your attorney will even help to fill up those complicated forms. He/she will then file it at the right place, at the right time. When you are self-representing, you may struggle filling up the forms. You may also find it difficult to find out where exactly those forms need to be filed. Failing to file the forms before the deadlines may further complicate the process for you.

Representing yourself when you are emotionally drained

A divorce can put enormous stress on you. You may be constantly fighting with your spouse while at home. You may have a lot of pressure at the office. By the time you enter the court and stand in front of the judge, you may be harboring a lot of sadness, frustration, and anger. Standing in the court, in front of the judge, in front of a lot of attorneys, and in front of all the other people in the court itself can be intimidating. On top of that, stating your case when your emotional state is in such a fragile state can be quite an effort. You will not be able to effectively represent yourself.

It is not unusual for self-representing parties to find it necessary to bring in an attorney during the later part of the divorce proceedings by paying them a higher fee, since they will have to fix the issues caused as a result of self-representation.

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.  

Divorce is Better Than Keeping Your Kids In An Unhealthy Marriage

Posted by: Gerald A. Maggio, Esq.

divorce attorneys in Orange County; The Maggio Law FirmA number of couples stay together despite their marriage gone bad for the sake of their children. They truly believe that staying together no matter what the cost is, is better for their children, than getting a divorce. While their intention is good, it can, in reality, do more harm than good. A couple should work on their issues, and do everything they can to repair their marriage. However, if nothing is working out, then, for the sake of your children, get a divorce. If a couple is not happy together, they will not be able to bring up a happy child. No matter how much you try not to fight in front of your children, you will not be able to keep your resentment towards each other from your children. Your behavior towards each other will be reflected one way or the other. Inadvertently, you both will be setting the stage for how your children will behave when they grow up to be adults.

The psychological and emotional scars that a bad marriage can bring to your children’s lives

A bad marriage is void of respect towards each other and each other’s family members, happiness, and cooperation. It hurts the children when they see their parents fighting with each other. It hurts them when they do not see them talking to each other. It hurts them when they disrespect each other. Children often get confused with their parent’s poor behavior towards each other. It makes them tense. Experiencing all this regularly will eventually cause them to develop psychological and emotional scars, which most of them carry a lifetime.

Continuing a bad marriage can affect your children’s future romantic relationships

When children see two people who have been in love now fighting constantly and disrespecting each other, it will hinder their perception on romantic relationships. This will affect their romantic relationships in adolescence, and in adulthood as well. By forcing them to be part of an unhealthy marriage, you may very well be prepping them for future breakups and divorces.

The behavioral problems

Children in high-conflict marriages often show behavioral problems, such as limited interpersonal skills, poor academic performance, emotional insecurity, low self-esteem, and so on.

So, compared to an unhealthy marriage, a divorce is the better option. It can bring peace to the whole family, and it can ensure the well-being of your children.

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.  

Dwelling Exclusion Orders in California Divorce

Posted by: Gerald A. Maggio, Esq.

Orange County divorce lawyers; The Maggio Law FirmIn California, dwelling exclusions or ‘kicking out’ your spouse from the marital home is possible if the spouse demanding such a request meets certain legal requirements. You may ask for a dwelling exclusion of your spouse because of their abusive nature or because of an assault or threat of an assault. Your request will be granted depending on the emergency of the situation.

Code 6321 of the California Family Code states that dwelling exclusions of the accused party can be granted for a certain period of time and on certain conditions. The order requested is classified as emergency or non-emergency.

Requirements for emergency orders

Emergency orders are granted if the spouse asking for the grant can meet the following conditions –

  • Providing the court with proof that he or she has ‘right under color of law to possession’ of the house. It means they either own or have a lease to the house.
  • The accused has assaulted or threatened to assault the spouse asking for the dwelling emergency order or anyone under his or her care and custody (the children).
  • The accused will cause emotional and physical harm to the spouse asking for the dwelling emergency order or anyone under his or her care and custody (the children).

Time and place and the precise extent of harm or injury will have to be proved. Only recent threats or assaults will be taken into consideration.

Requirements for non-emergency orders

Non-emergency orders are easier to get. Code 6340(c) of the California Family Code states that the Court has to determine what kind of emotional physical harm will be caused if the order is not granted to the spouse seeking dwelling exclusion for the other spouse. The harm may be caused to the one making the petition or to any child or any other person under the petitioner’s care and custody. But chances or instances of assaults and threatened assaults will still have to be proven in front of the court.

Matters of dwelling exclusions should never be dealt on your own. Such legal procedures are very complicated and tricky. If you are seeking a request for such an order from the court or are facing one, you should always seek the help of an experienced family law attorney. People with legal expertise can determine if you can successfully defend such requests or have strong grounds of making such requests.

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.  

Preliminary Financial Disclosures Are Necessary In A Divorce

Posted by: Gerald A. Maggio, Esq.

divorce lawyers in Orange County; The Maggio LawPreliminary financial disclosures have a crucial part in a divorce. Documents detailing the debts and assets of the parties (separately and jointly held) in a divorce need to be prepared. Omission of any debts or assets, intentionally or unintentionally, can affect the outcome of the divorce. California divorce laws require both parties in a divorce to prepare preliminary financial disclosures or else a divorce will not be granted.

The Schedule of Assets and Debts (FL-142) and Income & Expense Declaration (FL-150) make up the preliminary financial disclosures that have to be submitted by divorcing couples in California. All separate assets and debts, property and income from community property are declared in these two documents. The state of California considers all debts, assets, liabilities, pensions and property acquired during the period of marriage as ‘community property’.

Importance of disclosures

The disclosures help the court and the divorcing couples to determine the extent of their community property. For most people, determining community property becomes a tedious task. The state of California allows you to represent yourself in your divorce case. So if you are not aware of what qualifies as community property you stand to lose the case. Similarly, intentionally incorrect disclosures can severely affect a divorce ruling. Either or both parties may get affected.

Result of incorrect disclosures

If a party innocently makes mistakes while filling out their disclosures because they are not aware of what constitutes community property, they stand to lose out on their share of the community property. For example, the husband receives returns on an investment made in his name and the wife inherits a piece of jewelry from her grandmother.

Any person would think that because the investment is in the name of the husband, it is his separate property; and the inherited jewelry is community property because it is not in the wife’s name. But legally speaking, that is incorrect. The inherited jewelry is in fact the wife’s separate property and the returns on investment are a community property. So the woman would have lost out on 50% of the returns on investment.

Intentionally preparing inaccurate disclosures can lead to punishment for the guilty party. If one party makes certain deposits and enjoys benefits from it but the other party is clueless about this income, the situation will be termed as willful withholding of information. The party concealing this information can be punished by 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.  

Divorce Depositions in California – What to Expect

Posted by: Gerald A. Maggio, Esq.

orange county divorce attorney; The Maggio Law FirmDivorce depositions (sworn evidences during the divorce proceedings) in California are not very common. Depositions can be really expensive. The fees of the lawyers for such legal procedures are quite high. Even the court reporters charge you high rates by the page for creating such transcripts and for providing you with certified and original copies. Most of the time, divorce depositions are not necessary at all because all divorce cases are not complicated and there may not be too many contested issues to deal with.

Divorce depositions are helpful if the lawyer doing it is prepared and experienced. Also, depositions can be done if the lawyer is not doing it just because it will give him the chance to make personal financial gains in terms of fees. But lawyers need to focus on issues that matter and not waste the court’s time.

Types of deposition

There are 2 types of deposition – party and witness.

  • Party deposition – The petitioner or the respondent in the divorce case is the party. A party deposition is just ‘noticed’ by one lawyer to the other with a formal written request. It may request certain documents to be produced during the deposition.
  • Witness deposition – A witness may be ‘noticed’ to appear in the deposition and provide proof or documents during the deposition. They are served a ‘deposition subpoena’.

What to expect

It is a good idea to be present during a deposition. You can and should help your lawyer during the preparation of the deposition. You would be the best person to provide your lawyer with answers or important bits of information on issues that get raised during a deposition. You will be able to determine if your spouse is lying about certain things or not.

If you are the one who the deposition is being carried out, you will have to be prepared to answer a lot of questions by the opponent lawyer. You should do your preparation well. You will be under oath so the obvious piece of advice would be, ‘be absolutely honest’. Everything you say will be recorded by the court reporter. You will get breaks where you can consult with your lawyer.

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.  

Uncontested Divorce of Self-Employed Persons

Posted by: Gerald A. Maggio, Esq.

Orange County divorce lawyers; The Maggio Law FirmEven though it is an uncontested divorce, complications are bound to come up in such divorces. The biggest complications that arise for divorce of self- employed people are their finances where income is not a regular or standard amount, so deciding on how to settle all financial issues becomes very difficult.

Here is some advice that lawyers give when trying to sort out financial matters in an uncontested divorce. It is not much different from a contested divorce.

Ask for all financial documents

You should ask your self-employed spouse for documents that detail their income and expenditure. If they are into any business ask for an evaluation record of their business. Ask to have a look at their expenses, profit and loss statements, and the ledgers. If you are a part of the same business you will have a rough idea of the income of your spouse. But if it is a large and complex business it can become quite complicated for you to understand every little detail.

Seek the help of an accountant

If your spouse runs a huge business you should seek the help of a professional accountant who has experience in dealing with calculations related to family law. The accountant would be able to calculate the exact income of your self employed spouse. Just because you hire the help of an accountant and ask to review your spouse’s income does not make the divorce a contested one.

Do not make any assumptions

There are two things that you should not do in an uncontested divorce. Do not make any assumptions about your spouse’s earnings. It can cause serious problems later on. Also, do not believe whatever your spouse quotes as his or her earning and expenditure. Inaccurate estimates of finances will only make for inaccurate and incorrect calculations when it comes to deciding spousal or child support, alimony and other payments related to the finalizing of a divorce.

Get your finances in order

Make sure all your finances are in perfect order. Open a bank account for yourself and check your credit report.

Do not hope to settle all matters in an uncontested divorce all by yourself. If you are the self employed spouse or are seeking divorce from your self employed spouse, consult with a family law attorney based in California. Consult them for strategies that will help resolve all matters related to your 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.  

Dividing Property in Uncontested California Divorce Cases

Posted by: Gerald A. Maggio, Esq.

Top Orange County divorce lawyers; The Maggio Law FirmIn all divorce settlements, property needs to be divided. Both separate and community property have to be divided. But the situation is somewhat easier and amicable in an uncontested divorce. It makes it simpler to divide the marital residence, any retirement savings plans and all other assets between the spouses.

Community property

The division of the community property depends on the honesty of the couple. Both the spouses should be willing to accurately declare their income and expenses to each other. All accounts and financial documents can be verified to reach a settlement.

Marital residence

The marital residence is first put through an appraisal. The equity is decided on and the house is then divided in such a manner that it suits both the spouses. One of the spouses can also opt for a complete buyout. A buyout can be made in the form of a cash payment or as an exchange for some other personal property. The aim of property division is to give each spouse an equal share of the community property. Neither spouse should be allowed to have an unfair advantage over the other.

If neither of the spouses has enough resources to complete a buyout then it is best to sell the marital property. The selling of the property should be done with the help of an experienced real estate broker.  Again it should be made sure that both the spouses have an equal say in the sales procedure and receive the same share from the sale of the property.

Bank accounts

All account statements should be exchanged with your spouse. It is important for you to determine which comes under community property and which under separate property. Take the help of an accountant if need be. Then you would be sure that the classification of property as community and separate is correct. It would save you from losing out on any money that is rightfully yours. In bank accounts separate property is from inheritance and gifts.

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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