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.

Buyouts Of Community Property And Spousal Support In Divorce

Posted by: Gerald A. Maggio, Esq.

Orange County divorce attorneys; The Maggio Law FirmThe process of a divorce in California can be complex in nature. There are a large amount of cases in the Orange County family law court, each a unique case with its own complexities. Sometimes there are cases where one of the parties gets a community property buyout, and then that party wants spousal support too.  Are their demands justified in such a scenario? Here are some issues to be aware of.

Why Should A Spouse Get Spousal Support When She Gets Enough Community Property?

The answer to this question is simple – a spouse is generally going to get spousal support even if he/she has got a hefty community buyout because the division of community assets and the payment of spousal support are 2 separate issues.  The primary argument here is that just because a spouse has contributed to the growth of the community property doesn’t mean he/she should not receive spousal support. Any action for such is likely to be seen as a means of punishing the spouse for his/her contribution to an increase in the community property and that is likely to be an infringement of his/her rights.

Is There An Argument Against Payment of Spousal Support In That Instance?

The case we will look at is the Orange County divorce case of In Re Marriage of Martin in 1991. The lawyers of M. Martin, who was going through an Orange County divorce, wanted to limit the amount of spousal support to his wife. The divorce lawyers on Martin’s side argued that their client could not afford to pay to his wife spousal support in lieu of the fact that she had already received a substantial community buyout. The trial court disagreed.

The View Of The Court

The court held that spousal support and community buyouts are two different aspects of divorce. The court was of the opinion that one of them could not finance the other. This meant that the plea by Martin’s lawyer of having to pay no spousal support in lieu of the community buyout being received was rejected.

The simple conclusion of the case and of the principle here is that you cannot pay off your spouse with their own money and then refuse their claim for spousal support.  However, it is possible to negotiate a buy-out of spousal support as part of a divorce settlement, but to do so requires the knowledge and expertise of a competent Orange County divorce attorney to do it right and have it enforceable now and in the future.

A Review Of Marriage Of Andrea Left And Andrew Left’s Family Law Appeal Case

Posted by: Gerald A. Maggio, Esq.

Divorce attorneys in Orange County; The Maggio Law FirmIn this blog, we are going to review the Orange County divorce case of “In re Marriage of Andrew and Andrea Left”. This case is a unique one.  The case concerned the question of whether a commitment ceremony of an ex-wife with her boyfriend should be considered as a re-marriage amounting to her spousal support being cut by her former husband.

FACTS OF THE CASE

The facts of the case are that Andrew and his wife, Andrea, had a marriage that lasted less than 5 years. The marriage resulted in the birth of two children. In the subsequent Orange County divorce that followed, Andrew was asked to pay $15,000 for child support per month and $30,000 per month for alimony support. Andrea, in the meantime, met “Todd,” and ended the status of her marriage with Andrew through a legal Orange County family law procedure known as bifurcation of the marital status. Andrea and Todd subsequently wanted to get married and had a wedding ceremony planned and went through with it, yet with the case going on they didn’t want to formalize the marriage. They had a full wedding ceremony.

DID THE COMMITMENT CEREMONY CONSTITUTE A VALID REMARRIAGE?

Now the question to consider in this case is that whether the ceremony that happened was actually a marriage ceremony. Andrea said no, and instead opted to call the ceremony a commitment ceremony. Todd and Andrea signed a document that is called Ketubah and is equal to the Jewish marriage contract. However, they did not obtain a marriage license.  Andrew Left argued that California Family Code section 4337 applied in the case, which states: “Except as otherwise agreed by the parties in writing, the obligation of a party under an order for the support of the other party terminates upon the death of either party or the remarriage of the other party.”  Andrew further argued that Section 4337 and its predecessors have been interpreted to include a ceremony that resembles a valid remarriage — regardless of whether the ceremony resulted in a valid marriage. In support of his position, Andrew cited three cases: Sefton v. Sefton (1955) 45 Cal.2d 872 [291 P.2d 439] (Sefton); Berkely v. Berkely (1969) 269 Cal.App.2d 872 [75 Cal.Rptr. 294] (Berkely); and Fry v. Fry (1970)5 Cal.App.3d 169, 170-171 [85 Cal.Rptr. 126] (Fry), arguing that these three cases show that it has been clear for decades that a ceremonial marriage, whether valid, void, or voidable, represents a “remarriage” as that term has been used in section 4337 and its predecessors.

The appellate court found that Andrew had provided no authority that the term “remarriage” as used in section 4337 means anything other than a remarriage carried out in conformity with the statutory requirements. Because Andrea and Todd did not meet those requirements, they did not marry, and Andrew’s obligation to pay spousal support did not terminate under section 4337.

ANDREW LEFT’S ARGUMENT THAT HE HAD ALREADY PAID SPOUSAL SUPPORT FOR ONE-HALF OF HIS SHORT-TERM MARRIAGE

Andrew further argued that the spousal support should be terminated because the marriage lasted less than 5 years and he had already paid the spousal support for half the duration of the marriage which is the general rule for marriages less than 10 years in duration.  The appellate court found that the trial court had correctly noted that: “The code provides a guideline, not a hard and fast rule that support should be paid for half the length of the marriage.” This guideline is found in California Family Code section 4320, which provides numerous factors for the trial court to consider when determining the amount and duration of spousal support. Among the factors that the court must consider is the duration of the marriage. (§ 4320, subd. (f).) The section further provides that the trial court shall consider: “The goal that the supported party shall be self-supporting within a reasonable period of time. Except in the case of a marriage of long duration as described in Section 4336, a ‘reasonable period of time’ for purposes of this section generally shall be one-half the length of the marriage. However, nothing in this section is intended to limit the court’s discretion to order support for a greater or lesser length of time, based on any of the other factors listed in this section, Section 4336, and the circumstances of the parties.”  The appellate court found that the trial court had not abused its broad discretion so as to fairly exercise the weighing process contemplated by section 4320, with the goal of accomplishing substantial justice for the parties in the case before it. The court noted that the trial court must consider the mandatory guidelines of section 4320, but once it does so, the ultimate decision as to amount and duration of spousal support rests within its broad discretion and will not be reversed on appeal absent an abuse of that discretion.

DID EX-WIFE’S CO-HABITATION WITH HER BOYFRIEND ENTITLE ANDREW LEFT TO TERMINATION OF SPOUSAL SUPPORT?

Finally, Andrew argued that the trial court erred in not terminating the spousal support order because his ex-wife, Andrea, was co-habitating with Todd.  The trial court had considered Andrea’s cohabitation with Todd, and exercised its discretion to continue the spousal support, at a reduced rate. The appellate court noted that the trial court had considered other factors, as well as the circumstances of the parties, as permitted under section 4320. Specifically, the court found that there was no competent evidence that Andrea could be self-supporting, and that Andrew had been slow to pay Andrea the amounts of community property that he agreed he owed her but still had under his control. Simply put, the court felt that Andrew could not “withhold money that rightfully belongs to [Andrea] and then argue his support should terminate.” Andrew presents no authority that the court’s consideration of the failure to turn over community property is impermissible, and the court upheld the trial court’s decision.

Andrew lost the case and all three reasons he gave were rejected. Andrew appealed the case.  The appellate court upheld the decision of the previous Orange County family law court and rejected Andrew’s appeal. The basis for the courts’ decision was that under California Family Code section 4337, the marriage of Andrea and Todd was not a legal marriage and therefore the courts could not treat it as such.

The issue of spousal support can be a complex one in California, and it is advisable to seek the legal counsel of an Orange County divorce attorney in your divorce and when contemplating a possible motion to modify or terminate your spousal support order in the years after your divorce case has been finalized.