Posted by: Gerald A. Maggio, Esq.
Many parents choose mediation over litigation because it eases the stress their children might feel during a divorce. Involving children in mediation proceedings will help parents ensure that their children’s interests are being protected.
When parents decide to get a divorce, all of their decisions will have consequences for their children. All parents want to protect their children from the pain and suffering that can stem from a divorce, but the involvement of children is often necessary in divorce proceedings. Today, more and more parents are turning to this option rather than risking the negative impact litigation might have on their children. In fact, many parents choose to pursue mediation precisely because they have the common goal of doing what is best for their children.
Through the mediation process, parents will be able to establish a parenting plan that will work best for all members of the family. While it is the adults in the relationship that will make decisions during mediation, the input of children can be valuable and is something that parents should consider when making these plans.
If parents have made the decision to consider their children’s input during mediation, then this may require an interview. The mediator may choose to interview the child himself, or a child therapist may conduct the interview instead. These interviews can be difficult, though, because children may not want to speak about their parents’ divorce to a stranger, they may not want to disappoint one parent, or they may have been coached to give certain answers. In such cases, a child therapist may be used to conduct an interview, as he or she will be highly qualified to deal with the children’s emotional issues.
Sometimes, a mediator may believe that an interview is not necessary and may simply ask parents about their impressions of their children’s wants. This actually focuses parents on their children and encourages them to consider their children’s needs. Once this has been discussed, the mediator will then try to incorporate what the parents have communicated into the mediation decisions.
By including their children’s interests in their divorce mediation proceedings, parents will ensure that the mediation process goes smoothly. Mediation will ensure a better outcome will be achieved for the entire family and will help family members lay the foundation for a more cooperative future.
To learn more about the Maggio Law Firm visit http://www.maggiolawfirm.com/.
Posted by: Gerald A. Maggio, Esq.
Although California is a community property state, the courts have special rules regarding settlements from personal injury cases. Personal injury settlements may or may not be considered community property, depending on when the injury occurred.
If you are considering a divorce, you may be wondering if your spouse’s personal injury award will be considered separate property or community property. In California, any reward that is the result of a personal injury settlement may or may not be characterized as community property.
Whether or not a personal injury settlement is classified as community property depends on when the cause of action occurred, not when the proceeds were received by the injured spouse.
The proceeds of a personal injury settlement are characterized as community property, if the cause arose during the course of the marriage, and before separation. If the cause of action occurred outside of this time frame, the proceeds of the settlement are considered separate property of the injured spouse under California Family Code 760 and 761. If the damages from a personal injury settlement were commingled with other community property funds, then it may be difficult to trace the source property and, as a result, the funds may all be considered community property.
Normally, the court will award the damages to the spouse who suffered the injury, unless there are special circumstances to be considered. Factors that the court may consider include the financial needs of each party, economic conditions, costs incurred by the non-injured spouse if he or she cared for the injured spouse, the time that has elapsed since the injured party recovered the damages, as well as any other factors relating to the case. In the event that the court considers these issues, damages will be assigned to the parties in a manner that the court finds to be just. Ultimately, though, the court will award at least one-half of the damages to the injured spouse when the damages are characterized as community property under California law.
If you are contemplating filing for divorce in California and are concerned about how a personal injury settlement will be divided, make sure you hire an expert divorce lawyer who can provide you with all of the details about community property.
Gerald A. Maggio is an Orange
County divorce attorney, in Irvine, California. To learn more about Orange Country divorce lawyer, Gerald A. Maggio, visit Maggiolawfirm.com.
Posted by: Gerald A. Maggio, Esq.
Sadly, many children are used as pawns in divorce proceedings. Emotional abuse can wreak havoc on them.
Caught up in the throes of divorce, some people don’t stop to think that they may be using their children as emotional pawns; taking their own anger and hurt out on the kids. This is a difficult position for a child to be in; emotionally and psychologically. Those who would abuse a child may find Child Protective services stepping into the picture.
A child is considered to be the victim of emotional/psychological abuse when they are subjected to acts/omissions on the part of the parents, or other responsible caretakers, that caused or could cause serious mental problems, emotional difficulties, behavioral problems or cognitive disorder. Even if there is no harm to a child’s condition or behavior, Child Protective services may still step in.
Unfortunately, there are many types of punishment divorcing parents hand out that may range from the extreme and downright bizarre to less severe actions such as rejecting the child or constantly using them as a scapegoat. The parent is considered to be guilty of emotional abuse if they are unable or unwilling to respond to their child’s needs or rejects them. They are guilty of psychological abuse if the child is witness to spousal abuse, if the child is told they can take drugs or alcohol, or if the parent(s) refuse or fail to offer proper psychological care.
Emotional and psychological abuse takes on other forms as well, such as economic power over another or dependence dominance. In cases that involve economic power or dominance, the kids are often used to wield power over the other spouse; to control them. Instead of directing their anger at the other spouse, the child is the target of abuse in order to cause the other partner severe distress.
The abuse may take on many forms such as yelling, screaming, shouting, threatening gestures, actions or looks. No matter what it takes to frighten the other spouse, the abuser will do it and use a child for the primary target to get at the spouse. Some abusers have been known to utter threats of taking the child without their knowledge, harming the child, or even making insinuations they would commit suicide.
If you are in an abusive relationship, you do not have to live in fear. There is help available by working with a skilled and compassionate attorney who is familiar with situations like this. Domestic violence must be dealt with promptly and decisively. Do not wait to get help.
If you live in California, you need to understand that domestic violence has a direct impact on child custody disputes. If you are facing a divorce and have been accused of domestic abuse/violence, it is critically important that you do everything possible to prevent a conviction if you wish to retain custody or visitation rights with your children.
Speak to a dedicated attorney who represents men and women who have been victimized by or who have been accused of domestic violence in marriage, domestic partnerships, dating relationships and same-sex partnerships. In trying times, a strong, aggressive advocate is the best ally for individuals involved in domestic violence cases.
Gerald A. Maggio is an Orange
County divorce attorney, in Irvine, California. To learn more about Orange County divorce lawyer, Gerald A. Maggio visit Maggiolawfirm.com.
Posted by: Gerald A. Maggio, Esq.
Same sex marriages may take place in some US states, but not others. Find out which states allow the marriage and benefits that go with it before tying the knot.
“Rather than make a major error by getting married in a state that does not recognize same sex unions, it’s wise to spend some time researching the matter. This will let you choose a state where unions like this are acceptable. Also make sure you find out if you need to be a citizen of that state as well,” said Gerald A. Maggio, an Orange County family lawyer.
Partners that want a legally recognized union and any benefits that go with it should aim to get married in New Hampshire, Connecticut, New Jersey and Vermont. These states will allow same sex civil unions and accord them with the same legal rights and obligations as marriages.
“A handful of states also offer limited same sex civil unions, but you need to check to see if you must be a resident of that state. In many cases, the states offering civil unions, as opposed to legal marriages, insist the people involved be citizens of that state,” Maggio explained. Things are very different in California and Massachusetts, where same sex couples may get legally married, just the same way a heterosexual couple would and thus get the same legal rights.
“Be aware that California will legally marry any couple from any state, but in Massachusetts, this isn’t the case. You need to live there to get married,” Maggio outlined. When it comes down to the date, time and place, if a same sex marriage is the goal, getting hitched in California may be the best option, as if offers much greater flexibility in circumstances like this.
There are some California counties that won’t sanction same sex marriage, but these same counties also can’t perform a wedding for a heterosexual couple either, or they may face charges of discrimination. Doing due diligence on wedding locations is a smart idea. So is researching the various fees in different counties and their operating hours.
“There is no problem when it comes to the paperwork for a same sex marriage, as it’s the same as for other marriages, but for the fact the papers don’t say bride and groom, but instead, Party A and B. Bring photo ID and if there is a divorce involved in the history of one or both of the partners, bring the divorce papers. There is no requirement in California for a blood test or health check,” commented Maggio.
Same sex marriage should not be confused with domestic partnerships, something that needs to be discussed in detail with a dedicated and skilled family law attorney.
Gerald A. Maggio is senior partner of The Maggio Law Firm, Inc., an Orange County and Riverside Divorce and Family Law firm headquartered in Irvine, California. The Maggio Law Firm is experienced in all aspects of divorce and family law matters, including child custody, child support, spousal support, complicated high asset marital property cases, and domestic partnerships.
To learn more about the Maggio Law Firm visit http://www.maggiolawfirm.com/.
Posted by: Gerald A. Maggio, Esq.
When divorce doesn’t seem like a viable economic solution to marital problems many are opting for a new approach. Say hello to the new “non-divorce.”
“There is certainly more than one way to end a failed marriage, although traditionally speaking, it has been to go to a divorce lawyer and get a divorce through the courts. After that, each person went on their separate way, only dealing with their ex-spouse if children were at issue,” recounted Gerald A. Maggio, an Orange County divorce lawyer. Of course, if there were no children involved, the couple just took the spoils of the divorce and went on to other relationships.
These days, it’s becoming more and more common for those who want to divorce, but can’t swing it economically, to go for a “non-divorce” divorce. While this may sound a bit counterintuitive, it does seem to be a solution of sorts for some couples.
“In essence, a non-divorce is an accord between the two spouses who are agreeing to keep their marriage intact, but making it a point to recognize the relationship they once had has failed. In other words, they want to feel like they are divorced, still live together, and not get a “legal” divorce. I should add, they have no intentions of reconciling either,” added Maggio.
The couple furthermore doesn’t want to hire a lawyer, file any papers, discuss custody or support issues, see their children any less or take the risk of losing half of their financial assets. “The net result of this approach is that while still legally married, they are acting as roommates who share child care. Living like this also preserves the marital estate, in their minds,” Maggio outlined.
Aside from some of the psychological fall out this type of living arrangement may have for couples, there are also legal ramifications that they are not taking into consideration. “The most important point here is that if the couple does finally decide to call it quits according to the ‘law’ and wants to get a divorce, there is no date of separation,” said Maggio. The date of separation is important when it comes to family law and divorce proceedings because it marks the death of the community of the marriage.
“From the date of separation, the law states that are no community assets or debts. It then becomes a spouse’s separate property and/or debts, and they start to accrue, much like they did prior to marriage. It also means that the spouse will be entitled to half of your property and you in turn, will be liable for half your spouse’s debt,” Maggio explained.
Put another way, if two people living in the same house, acting as if they are married, but they are each managing their finances separately and there is no full disclosure, this adversely affects the situation. “How? Your spouse is still entitled to all the benefits you had when you were ‘happily’ married and living together as man and wife, as opposed to living together as roommates, and that may mean rights to health insurance, the family residence and any gifts from wills or trusts,” indicated Maggio.
This whole new non-divorce area is fraught with other legal landmines that are best discussed with a competent divorce attorney before anyone should attempt to try living like this.
Gerald A. Maggio is senior partner of The Maggio Law Firm, Inc., an Orange County and Riverside Divorce and Family Law firm headquartered in Irvine, California. The Maggio Law Firm is experienced in all aspects of divorce and family law matters, including child custody, child support, spousal support, complicated high asset marital property cases, and domestic partnerships.
To learn more about the Maggio Law Firm visit http://www.maggiolawfirm.com/.
Posted by: Gerald A. Maggio, Esq.
Stalking is one of the most frightening behaviors a person may experience. One out of every twelve women and one out of every forty-five men will be stalked at least once during their lives.
Stalking in the 21st century isn’t just what we have come to associate as being the “typical” stalker-like behavior. Now, thanks to the advent of the Internet, there is also a category of stalker referred to as cyber stalkers. It too is illegal, and it is a great deal more difficult to catch and prosecute an online stalker.
The typical definition of a stalker refers to a person who wants to force a relationship on a victim. In most instances, the relationship is not wanted, which is usually the trigger for the stalking behavior; actions that include vandalizing the victim’s property, threatening or harassing the victim, obsessive messaging either by cell phone or online, or obsessive phone calling at all hours of the day and night. Some stalkers define their modus operandi by delivering certain types of gifts that they know will upset their target.
Stalking is one of the most gut-wrenching experiences any man or woman will ever go through. The feeling of fear, loss of control of their lives, the physical stress and anxiety, and the emotional rollercoaster many victims ride while being stalked takes a significant toll on their health and mental well-being. Victims may experience extreme fatigue, depression, intense fear, anger, anxiety, insomnia, PTSD, overwhelming helplessness, and yo-yo weight problems.
In some instances, stalkers don’t realize what they are doing; don’t understand that they are doing something wrong. Their perception is that they are doing something that other person should like and don’t comprehend why their advances are met with such violent reactions. Put another way, they are ignorant as to how their actions affect others. Nonetheless, stalking in California is still illegal. In fact, California was the first state to make stalking a criminal act in 1990.
The rest of the states now have similar laws in place to deal with stalkers, however each state also approaches the definition of a criminal act differently. For instance, some states call stalking illegal only if the stalker endangers or threatens the victim. There are also 13 states that charge the first count of stalking as a misdemeanor and subsequent charges as felonies. It’s best to ask a qualified attorney what laws are applicable to stalkers in your state. Shockingly, every year, there are approximately 2 million felony and 4 million misdemeanor stalking charges.
Gerald A. Maggio is an Orange
County divorce attorney, in Irvine, California. To learn more about Orange County divorce lawyer, Gerald A. Maggio visit Maggiolawfirm.com.
Posted by: Gerald A. Maggio, Esq.
The latest soap opera features a couple contemplating signing a prenuptial agreement. He feels it’s not very romantic.
It’s true; there’s a great deal of debate over the necessity of having a prenuptial agreement in place prior to getting married. If there were ever any questions about whether or not it was really the right thing to do, one could ask Angelina Jolie and Brad Pitt for their experiences with a prenuptial, which isn’t to say that prenuptials are only for wealthy people, because that isn’t the case.
“One of the most prevalent myths about prenuptials is that they ‘are’ only for the wealthy and that those who don’t have much don’t need an agreement. While you might not have that much money to go around, having an open and honest talk about how each of you handles finances before you’re married will make sure there are no surprises later,” explained Gerald A. Maggio, an Orange County divorce attorney.
Also, who knows what the fates will deal out? One of the spouses may acquire more money in the future through a business venture or an artistic talent. Knowing how to handle the business division now, in advance of any possible divorce is a good move.
Many people also think that prenuptials are only designed to protect the spouse that has the most money and take it away from the one who doesn’t have much. “The truth of the matter is that prenuptial agreements are supposed to be created to protect ‘both’ spouses. It should go without saying that any prenuptial that is one-sided will not likely be enforceable in court,” Maggio indicated. The whole idea behind these agreements is that they are fair. In order for a prenuptial agreement to be enforceable, signing it must be voluntary and thus, the agreement can’t be unfair when it is signed.
As for the romance of the situation, it’s better to discuss touchy things like money before marriage rather than find out later that neither party likes how the other one spends and handles money. While this may not be a great deal of fun, working toward a common goal often cements a relationship into a viable working partnership; a partnership where both are clear about their financial goals.
For some reason, people seem to think that they must deal with every possible issue that might come up in a divorce later. “This isn’t the case. In fact, prenuptials may be as complex or as simple as the parties wish. They are private contracts and therefore they can have just about anything in them. As an example, if one party only wants to protect just their pre-marital property that may be written into the contract,” commented Maggio.
The toughest thing for couples to understand seems to be the myth that if they just live together, the live-in doesn’t have any claim on the other’s property or income. Think again, the one with the income and assets could be risking them by living together without being married. “No doubt the word ‘palimony’ comes to mind and while difficult to prove, it has been done and people still try this route to claim support after a breakup,” Maggio said. The bottom line here is if people choose to live together without getting married, it’s a smart idea to have a cohabitation agreement.
Gerald A. Maggio is senior partner of The Maggio Law Firm, Inc., an Orange County and Riverside Divorce and Family Law firm headquartered in Irvine, California. The Maggio Law Firm is experienced in all aspects of divorce and family law matters, including child custody, child support, spousal support, complicated high asset marital property cases, and domestic partnerships.
To learn more about the Maggio Law Firm visit http://www.maggiolawfirm.com/.
Posted by: Gerald A. Maggio, Esq.
It’s not that child custody schedules can’t be modified; it’s usually more a matter of having both parties to the schedule actually agree on the change.
Let’s consider the hypothetical case of Mike and Nicole who had been divorced for over six years. Their original custody order worked out well for both of them, but Mike got a new job and his hours of work changed. He needs to have the visitation schedule altered or modified. Mike needs to know what to do to get the order modified. He also needs to know if he has any custody rights to modify the existing agreement.
These are tough questions and most people should find out the answers before attempting to make any changes/modifications to an existing child custody schedule. “Legally speaking, the parents definitely have child custody rights to make modifications. If the circumstances of either of the parents change, or it’s for the best interest of the children to change the initial arrangements, the parents may ask the court for a custody order modification,” indicated Gerald A. Maggio, an Orange County custody lawyer. There are a few things to keep in mind before doing this.
The first thing may take both parents by surprise if they are used to “not” talking to one another, and that is to discuss the modification with the other parent and work out the changes together. If the parents are on the same song sheet and support the changes, they only need to file some papers in court and the order is thereby modified. Modification may be just that simple.
“Communicating with each other over a change to the original child custody schedule is made a lot easier if the change isn’t enormous, like one parent moving out of the state or country. Smaller changes that really don’t impinge on the overall agreement are more readily accepted. The bigger the change, the higher the likelihood that the other parent won’t agree and the matter will be going to court,” Maggio added.
If the matter does wind up in court, the parent wanting the change has to be prepared to show the court it is in the best interests of the child. This may mean using witnesses that state if the change doesn’t happen the child will be harmed. “The prevailing concern of the courts in situations like this has to do with providing the child a stable environment. Unless the change will do just that, the court isn’t always inclined to grant the modifications,” said Maggio.
Gerald A. Maggio is senior partner of The Maggio Law Firm, Inc., an Orange County and Riverside Divorce and Family Law firm headquartered in Irvine, California. The Maggio Law Firm is experienced in all aspects of divorce and family law matters, including child custody, child support, spousal support, complicated high asset marital property cases, and domestic partnerships.
To learn more about the Maggio Law Firm visit http://www.maggiolawfirm.com/.
Posted by: Gerald A. Maggio, Esq.
Divorcing isn’t easy. Handling the various details required for marriage dissolution in California is enough to send a person into panic.
Going for marriage dissolution is a tough decision, made even more difficult if there are children involved. It’s a time for second guessing, worrying about the welfare of the kids, and about the future. Then there are all the details that need to be attended to in order to get marriage dissolution in California. The stress levels couldn’t be higher. In situations like this, discuss your fears with your Orange County divorce attorney. That’s what they are there for; to guide you through the labyrinth of confusion that arises when divorce proceedings take over what was once a normal life.
In order to get a handle on some of the stress, one of the better ways to get mentally organized is to make a checklist; a divorce checklist. While this might sound like the last thing on earth you would want to do with the roof falling in on your head, it offers you the chance to clearly focus on what needs to be done, what is done and what is pending, as well as puts into focus what documents or information you will need to round up.
The other positive thing gained by using a divorce checklist is that it tends to prevent any surprises further down the road if both of the spouses are on the same page during their dissolution proceedings. While this may be a very upsetting thing to do, it will pay off in the long run when all the sticky issues that need to be taken care of are out in the open and ready to be discussed with some degree of equanimity.
A divorce checklist should also have an asset and debt inventory section that covers various items that need to be shown to the court. That usually includes marital debts for the couple and an accurate record of all marital property. The property may include bank loans, bank accounts, student loans, pension plans and retirement plans, IRAs, bonds, stocks, sporting goods, the marital home, jewelry, and the vehicles both spouses drive. If there are any questions on how to classify property or divide your debts, speak to your Orange County divorce attorney for clarification.
One of the hardest things to sort out for a divorce proceeding is the value of assets, and in most instances, a reasonable guess will suffice keeping in mind that you may also need to be able to prove the actual value of the asset at a later date. The value of the asset should also include details about when the item was purchased and which person will take possession of it. Splitting the debts should also be done in a similar manner. In other words, who incurred the debt, how much is owed and who is going to take the responsibility to repay it.
There are other questions that will need to be dealt with over the course of the dissolution proceedings, and if you stay in constant contact with your Orange County divorce attorney, the journey to divorce won’t be quite as devastating or confusing.
Gerald A. Maggio is an Orange
County divorce attorney, in Irvine, California. To learn more about Orange County divorce lawyer, Gerald A. Maggio visit Maggiolawfirm.com.
Posted by: Gerald A. Maggio, Esq.
If you don’t think coercion plays a role in domestic violence in California, think again. This tactic may cost you your visitation rights with the children.
While many people work hard at their jobs and their relationships with significant others and get ahead on their own merits, there are those who attempt to get ahead by bullying, intimidating and coercing others. Some people may choose to live with this, others ignore it, some tolerate it, and others bear the brunt of it.
Typically, when coercion enters the picture in a personal relationship, it isn’t something that improves communication between the parties. It may in fact find one of the parties charged with criminal threatening and on their way to court and perhaps jail. A skilled Orange County divorce attorney will outline this for you if you have been charged with domestic violence.
Coercion is defined as forcing someone to act in an involuntary manner by threatening the person with bodily harm if they do not comply. What this means is that if the person feels compelled to act in a certain way out of fear, or because they are afraid of being harmed or hurt, that person may choose to file charges against the person trying to coerce them with threats.
Often coercion and criminal intimidation is used in a variety of settings from work to home and from school to social events. It seems to know no boundaries as the aggressor is intent on getting their way at any cost. This kind of violence is more common than we would like to think, particularly in situations where there is a marriage breakdown. This is one of the major reasons that speaking to a seasoned Orange County divorce attorney makes sense. The attorney is able to offer you a variety of options at your disposal to alleviate this situation.
Most often the aggressor is the male and rather than try to calmly and fairly settle a dispute, they use coercion to accomplish their goals. They intentionally make others do what they say by telling them if they don’t, they’ll “pay” for it; meaning they’ll be beaten or forced into doing something else. This type of conduct may spill over to other family members, most notably the children.
If the person uttering the threats and causing serious harm to others is charged, they may face the possibility of misdemeanor or felony charges. In the more serious cases, there may be fines, jail time or probation. While the perpetrator may think it’s no one’s business but their own what they choose to do and how they choose to act, if they are convicted of this type of crime, it will have a direct impact on visitation rights with their children. If you’re in the midst of a divorce proceeding in California, you will need to consult with your Orange County divorce attorney to find out what your options are under the circumstances.
Domestic violence, which includes coercion, has a direct impact on child custody disputes. In fact, California Family Code, Section 3044 states that: “Upon a finding by the court that a party seeking custody of a child has perpetrated domestic violence against the other party seeking custody of the child or against the child or the child’s siblings within the previous five years, there is a rebuttable presumption that an award of sole or joint physical or legal custody of a child to a person who has perpetrated domestic violence is detrimental to the best interest of the child.”
Put another way, if you are facing a divorce and have been accused of domestic violence or coercion, it is vitally important that you do everything possible to prevent a conviction if you wish to retain custody or visitation rights with your children.
Gerald A. Maggio is an Orange
County divorce attorney, in Irvine, California. To learn more about Orange County divorce lawyer, Gerald A. Maggio visit Maggiolawfirm.com.
