Posted by: Gerald Maggio
In California, couples need to mark the date of their separation. The date is necessary to determine property and spousal support rights and interests.
Property acquired after the date of separation is deemed to be separate to each party; property acquired before the date of separation is community property.
The difficulty is, many couples do not think to record their exact date of separation. Such a life-altering change can also be difficult to tie to a single day.
For example, a couple might come to the conclusion that their eight-year marriage is over in 2011, but continue to cohabit and share expenses and parenting duties until 2014. Was their marriage eight or 11 years long?
In many cases, former spouses struggle to agree on a named separation date. If that happens, courts use two different tests to determine a date – a subjective test and an objective test.
The subjective test holds that physical separation in not enough to indicate that a couple is separated. Some couples may live apart for periods of time with no intention of filing for divorce. The court examines “intention” by looking at a couple’s conduct towards one other. This test, combined with the objective test, helps the court set a separation date.
Using the objective test, the courts figure out when a couple started living apart. This generally happens when one of the spouses moves out. However, in today’s economic climate, many former members of couples continue to share a house because they cannot maintain two residences. In such situations, U.S. courts account for ways to ensure and prove physical separation. That proof needs to be offered to the court. One spouse, for example, might have moved to a basement suite with external access to the main home on the couple’s date of separation.
Once the court has arrived at a date, it will be used for the rest of the divorce process. The date of separation for a couple in California may be determined by the court, provided that the couple has not written it down or retained any proof of actual physical separation.
Today’s families often find themselves in difficult financial circumstances. They remain together, yet apart, for the sake of their children. While not actually a bar to obtaining a divorce, there may be issues determining a date of separation that one individual regards as unfair.
When there is doubt as to the date of separation or how to proceed with a divorce, seek the counsel of an experienced divorce lawyer.
Posted by: Gerald A. Maggio, Esq.
If you are a spouse in a divorce proceeding, how can you make sure you are paid a fair and equitable share of bonus income? How can the spouse paying support avoid overpaying? The main issue is that bonus income is discretionary and rarely known until it is paid. If a spouse’s income history for the last calendar year, plus bonus, is tallied and divided by 12, the result is the amount spousal support due. This is a flawed calculation, as bonuses vary and may also not be given every year. However, the spousal agreement remains in place, causing a financial inequity.
To try and avoid a Catch 22 situation, both parties and the family court judge must clearly and openly discuss financial circumstances and all possible variables. The judge, who holds the discretion to design a fair and equitable method to determine what cash is on hand to pay support, is then able to design a relatively balanced approach for payments.
There are cases where this is not done and the spouse paying support ends up in a difficult financial position attempting to juggle payments and their own personal obligations. It is difficult to accurately calculate phantom income and thus it is vitally important to retain an experienced divorce attorney who understands how the system needs to work with such unpredictable numbers and percentages. Both parties are entitled to equity in a divorce settlement.
The California Family Code sections dealing with income earmarked for child support awards are laid out in section 4058 and 4058(1). Section 4064 empowers the courts, based on both parties earnings, if applicable, to make adjustments to include fluctuating incomes, for those who work on commissions. Even with such limited guidelines in place, there is very little case law dealing with this issue. There are three “go to” cases with the most relevance, with the 1990 case of Marriage of Ostler & Smith being the one most often cited in relation to analyzing and presenting the issue of bonus income as part of child and spousal support orders in California.
Marriage of Ostler & Smith is most noted for the judge’s even-handed approach to base support on the husband’s dividends and salary (not phantom bonuses) and determine a percentage of support for each child and the wife. The conclusion was the husband would pay 35 percent of the gross bonus income. The decision was appealed and upheld. Each case is determined based on its merits and the case law may only provide guidelines even if Ostler & Smith is being argued in court.
Determining spousal and child support when one or both partners derives income from bonuses is a complex matter. Since there are only three reported cases in California dealing with this type of situation, hiring an experienced divorce attorney is the best way to ensure an equitable and fair resolution relating to support.
Posted by: Gerald A. Maggio, Esq.
Not all relationships are happy, well balanced unions. There may be issues of domestic violence involving either spouse. The end result is that it leaves not only a criminal record, if the perpetrator is convicted, but may also affect other situations in the future.
An example of domestic violence affecting something in the future would be a male spouse, prior to marriage, being involved in an incident with his partner in which she brandished a firearm at him. Although the wife was arrested and charged, contrary to the uncooperative man’s direct wishes, she was ultimately granted probation on a lesser charge. The case was dismissed when she completed probation.
About a decade later, the marriage disintegrated and the husband wishes to avoid paying temporary spousal support because of the wife’s previous history of violence. Is that possible?
The ruling legislation for situations such as this is the California Family Code – specifically sections 3600, 4320(l)(m) and section 4325. As with any stated legislation, there are often exceptions or legal work-arounds. For instance, the most applicable section in this example is section 4325, which is a rebuttable “presumption” that permanent or temporary alimony for an abusive spouse should not be ordered in the presence of a conviction within a five year period before filing for a divorce.
In the example above, the couple were not married when the violence occurred and the incident took place longer than five years ago – two points that may possibly go against the man being able to avoid paying temporary spousal support. Whether or not there is a conviction for spousal battery is irrelevant, as it can be any lesser-included defense. What is relevant are the facts of the case, not the plea.
The more relevant applicable section is Family Code section 4320(l), which experienced divorce attorneys argue in court. This subsection says the courts “must” hear evidence of domestic violence between the “parties” (the legislation does not specifically say spouses). Thus, section 3600 of the California Family Code, applies to temporary spousal support and it states courts may order any amount of spousal support necessary that is consistent with either section 4320(l) and/or (m) or section 4325.
The take away in this is that the courts may make spousal support orders consistent with either or both relevant section/subsections, that there is no mandated five year time bar in section 4320 and that domestic violence may be used as a defense to judgment or temporary orders for spousal support.
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.