Posted by: Gerald Maggio
Two legal methods dissolve a marriage: divorce and annulment. An annulment differs from a divorce in that when a couple annuls a marriage, the marriage never happened.
Grounds for an annulment vary by jurisdiction, but they may include: concealment, fraud, inability (or refusal) to engage in sexual relations or serious misunderstanding.
In California, a marriage is never considered legal if it is bigamous, with one partner already being married to someone else, or incestuous, when the parties are close blood relatives.
A case of concealment may involve a spouse hiding a prior criminal record, a drug addiction or a sexually transmitted disease. Fraud could involve misrepresenting an unmarried status or failing to disclose an inability to have children. Misunderstanding may revolve around each person’s idea of a lifestyle or the desire to have children.
The most famous contemporary example of an annulment is the January 4, 2004 marriage of Britney Spears to Jason Alexander in Las Vegas, Nevada. Spears filed for annulment on January 5, 2014, citing a lack of understanding of her actions — the couple did not know what one other liked, whether they wanted children or where they wanted to live. Spears and Alexander were granted an annulment within two hours, with the court stating that their marriage was not legally valid.
In California, obtaining an annulment does not depend on how long you have been married or in a domestic partnership. Filing for an annulment does, however, have a deadline that depends on the reason why you filed. If you miss it, further action is barred.
After an annulment, the former members of the relationship may not have other rights/obligations that divorced or legally separating couples may have. For example, if you have children and get an annulment, the court legally presumes that they do not exist. A judge must establish paternity. Then, the judge may make orders relating to visitation, custody and child support.
Annulments also affect community property laws in California. Those laws may not be used to divide debt or property accumulated while married or in a domestic partnership. The couple does not have the right to spousal or partner support or the right to receive any other benefits.
There is an exception to this situation: the putative spouse doctrine. The doctrine applies to a partner who reasonably believes the parties are married. There must be evidence offered to the court showing a belief that the usual formalities were completed. An example would be if the papers for a registered domestic partnership (RDP) were completed, but not mailed.
In California, an annulment may be referred to as a nullity of domestic partnership or nullity of marriage. Other marriages or domestic partnerships may be nullified if a filing party is under the age of 18 years old, if either spouse is already legally married or in a registered domestic partnership, if either party is of unsound mind, if either spouse married/registered due to fraud, if one of the parties agreed to marry as a result of force, or if one party to a union was physically incapable of consummating the marriage and that disability is deemed permanent.
Each reason for annulment requires those requesting such legal relief to prove the details involved in their request. In other words, it must be proven to the court that at least one of the possible reasons for filing for an annulment is true. Proving that at least one reason for requesting an annulment may be difficult. For this reason, it is wise to consult with an experienced divorce attorney.
Posted by: Gerald A. Maggio, Esq.
Divorces are usually traumatic for the children and it can become difficult for them to recover from the event and move on. When they do move on, their most future decisions are tainted by the experience of their parents separating and they can feel responsible for the outcome. This is why a divorce should not be carried out or discussed in a negative manner. The fights, arguments and proceedings of a traditional divorce case are usually more than they can take and they tend to withdraw from everyone and become isolated. These children can later make bad relationship choices and suffer from trust issues all their lives.
In short, an ugly divorce can usually have a traumatic experience that never fades away. This is where mediation helps both partners as they seek it out in the best interest of their children. How does mediation work? In mediation, a mediator usually acts as a neutral third party in presence of both parties, and listens to the stories of both partners, unraveling the anger from the words and tries to get to the bottom of the real story by picking out the common events in them. The mediator then establishes a common ground upon which both parties can agree and brings them to a situation where they can both reach a compromise, allowing them to accept the situation and let go of the anger in order to make the proceeding as painless for their children as possible.
Usually the two parties leave the mediation process on friendly terms and agree to a situation or agreement which proves to be a win-win for both of them. A mediator usually helps the two parties remember the good in the relationship, allowing each of the two to dissolve their negative emotions and come to terms with the situation. The mediator allows you to figure out what is the best course of action for both you, your spouse and your children to make sure the separation is brought to conclusion in the best manner.
When both parents let go of the anger and are on friendly and talking terms with each other, they are able to explain to the children why this divorce is the best for all of them and how it is not going to change anything and only improve the situation for them. Once all of the terms of divorce, including division of assets, spousal support, and child support are agreed upon, as well as the custody of the children if they are under age, the divorce mediator/divorce attorney in Orange County will proceed with legal formalities including the preparation of the final Judgment, and finalize the process.
Posted by: Gerald A. Maggio, Esq.
If you are in an abusive relationship and have children, it is very important to distance yourself and them from your abusive partner. Distancing yourself through divorce may very well be your best option. Even though the thought may have crossed your mind several times, it is likely time to take action. Get the courage to file for divorce, but before you do, take these steps to protect your kids and yourself:
1. Report Abuse to the Police and Maintain Records
If your partner is violent, keep records of every incident involving him (or her) stored in a secret place. Abuse can be in the form of physical or emotional, so either record or take pictures to exhibit in court. Also, write down the time, date, and place with the description of the altercation between you and your partner. The records will come in handy when you are fighting for custody of your kids, especially if you did not previously report such incidents to the police. Do not hesitate to call the police if you have been physically abused!
2. Have a Safe Residence to Go To And Then File For a Restraining Order
After you have filed for divorce, you need a place where you can take your kids at least temporarily until you can take further legal action. Consider filing a restraining order to protect you and your children, which can prevent your partner from going to your home and the children’s schools. In a restraining order, you can request exclusive use, possession and control of the marital residence, with a kick-out order requiring your partner to vacate the marital residence. Such orders are then enforceable by the police and the court.
3. Seek Sole Custody of Your Children Under the Restraining Order
If your partner becomes too abusive towards you or your kids, don’t wait to file for custody; do it immediately under the request for a restraining order. The court can grant you with such restraining orders that can give you custody of your kids and orders your partner to stay away at the same time.
4. Seek Control of Visitation Rights
If your partner has not abused the kids, he/she may be permitted to see them. However, if you are still concerned, you can ask the judge for supervised visits if they are appropriate under the circumstances of your case. If you don’t want the kids to see their mom/dad at their residence, you can ask them to agree to meet them in public such as a restaurant, park, or even the police station.
5. Get Legal Assistance
People struggling with emotional and physical abuse need to get out of the relationship fast. Don’t wait to get legal help. Seek legal assistance at the first signs of abuse. The safety of your child is what’s important here. Consult a divorce firm to help you. If you don’t have enough money, you can always go to a shelter. The shelter will find you the legal help you need.
Posted by: Gerald A. Maggio, Esq.
Prenuptial agreements, also known as premarital agreements, are excellent ways to settle property issues in the instance that a marriage falls apart. The mess of deciding who is entitled to what becomes easier, as it’s already been decided before the two partners decided to end their marriage.
Both parties can otherwise be fighting for their rights to property, but with a prenuptial agreement, this scenario is usually a lot different. Even with the benefits of prenup known, people are still a little unclear on how obtaining a prenup will benefit them.
Naturally, they think that such agreements are only for people with wealth. This is a misconception. The reasons listed here debunk this and many other myths that have formed over the years about prenups:
1. Prenups are Only Reserved for the Wealthy
Let’s get this one out of the way. Every marriage isn’t perfect, there are flaws, and when those become too much to bear, people separate. The legal fees incurred during the divorce proceedings are yet another problem especially for the ordinary couple. With a prenup in hand, everything is there in writing. Hence, if you own a lot of real estate or run a successful business and divorce rears its ugly head, you will be glad that you and your partner signed a prenup.
2. Prenups are Only Valuable if the Relationship Ends
Business-minded folks who regularly invest in property could benefit from a prenup in many ways. First, the majority of the estate will stay with you. Second, your partner won’t be able to cut you out of your own property. Third, your children from a previous marriage (if you have any) can remain financially secured.
3. Prenups Send Negative Signals to Your Partner
You may have a lot of money saved, while your partner might not. So, why take a chance with losing half of it if the marriage crumbles. You don’t have to spring the prenup on them, but get them to gradually agree by stating some facts. Remember that signing a prenup isn’t forecasting the end of the marriage, it is merely clarifying the rights of the parties concerning property and support issues.
4. Prenups Won’t Uphold in Court
This can occasionally be true is the legal requirements of such agreements in your state have not been met. For example, California law requires that the parties have their own independent attorneys to draft, review, and counsel them concerning such agreements. Also, the party who is presented with such agreement must have had at least 7 days from presentment of it before signing it. A prenuptial agreement presented the day before the wedding is simply not going to be enforceable in California. A prenuptial agreement drafted with the assistance of an attorney who understands the legal requirements is much more likely to be upheld in court. Prenups aren’t Expensive
The bottom line is that divorce costs more than getting a prenuptial agreement. Getting a prenuptial agreement isn’t expensive and in the future can save you from a lot of trouble, because it is a one-time cost that’s sure to save you a lot of money if your marriage ends.
Posted by: Gerald A. Maggio, Esq.
If you are divorced or going through a divorce, the topic near at the top of the agenda is going to be child support, unless of course you don’t have children. The issue of child support is complicated when some partners are unwilling to pay. In certain circumstances, the partner with primary custody of the children might not know their full rights concerning child support. Here is a list of answers to questions clarifying when the partner is entitled for child support:
1. “I am pregnant and getting divorced, am I eligible for child support?”
It’s rare for pregnant women to separate from their spouse, but it does happen. File for child support as soon after the child’s birth as possible. Your spouse is also liable to pay one-half of the child’s medical expenses not covered or reimbursed by insurance.
2. “I was married for a short time, but found out I was pregnant, now he’s says the baby isn’t his, but I know it is, so can I make him pay child support?
If a man is married and his wife has a child during marriage, he is legally presumed to be the father unless proven otherwise. If your spouse declines to pay child support or tells you that the baby isn’t his, the only way for him to fight that legal presumption is to seek a genetic DNA test to prove parentage. If the DNA matches with your child, the legal presumption is confirmed as fact. However, if there is no DNA match, the husband has legal ground to fight against paying for child support.
3. We share the custody of our kids and are separated, not divorced, but my partner’s name is not on the birth certificate nor is there a court order in place. Can I still file for child support?
If your partner and you have a mutual understanding to share custody of the kids, that’s great, but in order for your partner to pay child support, you need to file for it. The better option is to go to a divorce mediator to make a settlement agreement, which includes child support. The mediator can also tell you about the state’s laws regarding the payments.
Posted by: Gerald A. Maggio, Esq.
Have you and your partner opted for divorce mediation? If so, a good choice to have made. Divorce mediation is a great process to make your rightful claim on assets that you deserve, but only if you know what you are doing. You can’t go into a meeting with guns blazing thinking that everything is going to go in your favor. For one thing, your partner may raise some issues to weaken your claim and without any evidence supporting it, you may leave the mediation displeased. Therefore, if you want to strengthen your position, prepare yourself before you head for your first mediation meeting. Here’s what you have to do:
1. Get a Copy of All Your Financial Documents
The first step to successfully obtain what you want is to gather the following financial documents:
- Brokerage & Bank Accounts
- Vehicle Insurance and Loans
- Time Shares
- Business Documents (corporate tax returns and a current profit-loss statement)
- Retirement Funds
- Credit Card Balances
- Mortgage and Home Equity Payments
- Pending Debts
- The last 3 years of Tax Returns
You can both gather these documents together or separately depending on your current financial situation.
2. Arrange to Meet with the Mediator Separately
If you are doubtful about your partner’s intentions, contact the mediator to arrange a meeting alone to discuss issues. You can request to meet the mediator separately at any stage of the mediation process. The mediator is not going to leak the information to your partner, so you can express your concerns with ease, as long as both parties agree that the mediator can speak with the parties individually.
3. Know Your Rights
For some, divorce mediation is new. They may not have any prior knowledge of what happens during the meetings. On the other hand, your partner who suggested it may already have vast knowledge of it. Therefore, talk to people who already have gone through this process, read books on it, talk to a mediator, and research online. In doing so, you will know what your options are and what you can do or not do during meetings.
4. Learn to Negotiate, Not Argue
Even though your partner is the last person you may want to see, you need to attend the meetings with a clear and cool head. Learn to control your outbursts especially when your partner brings up an issue that you both bump heads on. Instead, look at the bigger picture, talk with your partner, and come up with solutions to solve it.
5. Present a Budget
Alimony (spousal support) is an issue that people want solved quickly without any bad blood developing between them. In order to come to a joint decision, it’s recommended that both partners draw up a budget. The partner asking for the monthly income should list all the expenses that incur within a month whereas the other partner should list their expenses and how much they are able to pay, to get an idea of what support might be needed.
Posted by: Gerald A. Maggio, Esq.
The birth of your first child is a milestone for a couple. Life after a child completely changes. Your needs take a back seat and your child’s needs take center stage. Everything that you do or plan, you do it meticulously. With your partner, you are in charge of making your child’s future bright.
This remains a parent’s top priority even when they are in the middle of divorce proceedings or are already divorced. To provide their child with a healthy environment to grow up in, parents can and should take co-parenting classes. Co-parenting classes show parents how to put their differences aside and together raise their children in an environment free of arguments. Enrolling in these classes will benefit you in the following ways:
1. Helps Parents Resolve Conflicts
Co-parenting classes encourage parents to talk about their issues and resolve them. The classes will teach them about the negative impact they are having on their kids by arguing in front of them. Also, parents will learn to keep their issues at bay and not to confuse them with the needs of their kid(s).
2. Helps Parents Control Their Anger
Even after parting ways, couples can often prefer to avoid contact with each other. Just dropping their child off at your former partner’s residence can be infuriating. If you feel this way towards your partner, you are not alone, but you do need to think about your kids. The co-parenting classes will teach you how to control your anger especially in the presence of your kids.
3. Helps Parents Bridge the Communication Gap
Parents who want to play an important part in their kid’s life will continue to do so after parting ways. They will go to their child’s events, go for parent-teacher meetings, see them off to prom, and be a constant presence in their life. For this reason, bridging the communication gap between them is necessary. Through the co-parenting classes, parents will learn communication techniques. Learning these will enable them to be civil with each other during their child’s vital development years.
4. Helps Parents Learn Problem-Solving Techniques
Sometimes, parents may need to come together to solve a problem involving their child. If both of them on purpose disagree with each other out of anger, the children will suffer the most. In life, parents have to make important decisions regarding their child’s future. The decisions they make will impact their children forever. That’s why it’s important that they don’t say anything just to disagree with their partner, but see their point of view as well. Co-parenting classes will do just that. The classes will strengthen their problem-solving skills and help them adopt a respectful approach towards their ex.
After or during a divorce, the primary aim for all parents is to provide their kids with a nurturing environment. Co-parenting classes helps divorced parents build a mutual understanding to work in unison to look after their children.
Posted by: Gerald A. Maggio, Esq.
Do you recall when you and your partner called it quits? For some people, their date of separation sticks out in their mind. Mainly because the decision to part ways resulted from a full-blown fight or your partner was unfaithful, or one of the parties moved out. Whatever your reason was to end things, you will always remember your separation date. Although you may not want to keep that memory intact, when it comes to filing for divorce, the date of separation is quite important to remember.
What Role does the Date of Separation Play?
Knowing the date of separation is important in order to:
- Ensure a proper division of property for assets acquired between the date of marriage and the date of separation
- Determine the length of time that either party may be entitled to receive or pay spousal support to the other.
1. Fair Division of Property & Debts
Equalization of property and debts depends on the date you separated from your partner. It can have a significant impact on the sum of money allotted to the partner during divorce settlements. There have been cases where the partner got more money due to the date they separated. The reverse for this is also true. The reason for getting more or less money is also due to the value of shares increasing or decreasing during the time of separation.
2. Support Payments
The law states that the partner needs to start paying support to their ex on the date they separated. Therefore, knowing your separation date will help disputing couples settle many arguments. What happens when the disputing partners clash on what the exact date of separation is? Look at the next heading to find out.
Figuring Out the Exact Date of Separation
It is helpful for your partner and you need to sit down, with a divorce mediator or your lawyers, to come to an agreed-upon date of separation. The questions that may arise to solve this issue are:
- Do you remember when you decided to separate?
- When did you tell your family and friends that you both are not living together or sleeping in separate rooms?
- When was the last time you had marital relations with your partner?
More questions to determine the date may be asked. If there is a disagreement between the parties as to the date of separation, that issue would otherwise have to be resolved first in your divorce case in order to be able to determine property division and long-term spousal support issues.
Posted by: Gerald A. Maggio, Esq.
Divorce is difficult on both parents and children. Parents going through a divorce will find breaking the news of them parting ways to their children very difficult whereas kids will go through a multitude of emotions when their parents tell them of their decision. In order to make this easier on kids and parents, parents can choose to break the news in more subtle ways. Ways that will ensure that no one will get hurt in the process. Divorcing partners with kids should announce the news of their separation in the following ways:
1. Do It Together
People choose to separate for many reasons such as losing the spark in their relationship, cheating, and various other reasons for dissolving the marriage. Those reasons can create a rift between parents leading to animosity in the house.
When this conflict reaches a boiling point, going their separate ways is the best solution. However, breaking this news to the kids is the real challenge. To overcome the challenge, parents can do it together telling the kids a reason they both agree on. Keep in mind that when telling the kids, speak in terms they can understand.
2. Don’t Use Complex Language
Young children especially have a tough time understanding why their parents won’t be living together anymore. They will have many questions for you, which you should be prepared to answer. Before they ask, explain it to them earlier. The earlier you explain, the better they will be able to cope with the news, but how will you explain it?
Don’t beat around the bush. Start with sentences such as “Recently, mom and dad have done a lot of thinking,” then start explaining what those thoughts are. Gradually, tell them that they are not responsible for mommy and daddy parting ways.
3. Tell Your Children that It’s Not Their Fault
Children often hold themselves responsible for their parents parting ways. Younger children may think they are at fault. As parents, you need to sit them down and reassure them that their decision for getting a divorce wasn’t because of them. During your conversation with your child, try never to blame the other partner directly.
4. Act Civil with Each Other
Down the line, things might have changed between you and your partner. Now, those things may have become the reason to file for divorce as well. Never disclose the reasons in front of your children, but keep them between you two. The last thing children want to see are their parents throwing vile remarks at each other. To avoid creating such a situation in the first place, try to part ways amicably by choosing divorce mediation, a more peaceful way to end things on a good note.
Posted by: Gerald A. Maggio, Esq.
You might find a number of ways of finding a divorce lawyer in California, but finding a competent lawyer whom you can trust with all legal matters, can be a little difficult. In order to find a family law and divorce attorney in Orange County that you feel comfortable with, you must know have some understanding about the qualities of an experienced, competent divorce lawyer.
Here is a quick look at some of the many traits of a competent family lawyer to keep in mind in finding a competent family law attorney:
He Or She Should Be an Expert In Family Law
You can’t rely on a general lawyer for handling your divorce-related problems. You have to consider the attorney’s specialization when relying on online resources and referrals for attorney hint in California. Every lawyer with sound academic profile is not necessarily competent or fully versed in all areas of law. A family law and divorce attorney’s practice should be focused on those areas of law, and not be the “jack of all trades” so to speak. Moreover, family law spans a broad spectrum of family-related legal practices. If you are looking for an attorney for child support, for instance, then make sure that the attorney offers the services you need.
Good Communication Skills
A divorce lawyer must have good communication skills. Family law services also include legal advisory and counseling services. You might need to seek an attorney for expert advice on matters related to divorce, child support, property distribution, alimony, etc. But if the lawyer does not have good communication skills and can’t make you understand his point, he or she can’t help you. So don’t completely rely on referrals and online resources for hiring a divorce attorney. Meet the attorney in person to make sure you are satisfied with his or her professional skills and can communicate with him or her comfortably.
Experience is a Must
An experienced attorney not only handles all the legal matters strategically but you can also count on him for legal advice and counseling. So experience is an important aspect you must consider when hiring a divorce attorney in California. An attorney can’t learn practical aspects of family just by having a law degree alone. Hands-on experience is very important to understand various aspects of divorce law and keep track of changing divorce laws. So make sure that the attorney you are choosing is experienced in handling divorce and child custody cases.
Your Satisfaction is Important
It is very important that you have a good connection with your attorney. Nothing is more important than your contentment and comfort. You might come across a number of lawyers with exceptionally good professional skills, but they treat people merely like files and don’t understand their emotional stress. Therefore, it is recommended to hire a lawyer who puts in efforts to help you cope with the mental and emotional trauma of divorce.
Testimonials and Clients’ Feedback
An easy way to make sure that the attorney you are choosing is reputed and offers reliable services, is looking at the clients’ feedback and testimonials. An authentic and professional attorney has a large client base and their response reflects the quality of services the attorney offers.