Responding to Divorce or Legal Separation Filings

Posted by: Gerald A. Maggio, Esq.

Top divorce attorneys Orange County; The Maggio Law FirmEither spouse in a marriage or as a partner in registered domestic partnership has the right to request the court to terminate their legal relationship. Your domestic partner or spouse has requested the court to end the relationship in case you received a summons and petition for legal separation or dissolution (divorce). In Orange County, California, the court has the power to end domestic partnership or marriage even if the other partner is unwilling to be legally separated or divorced.

Any registered domestic partners or married couple can terminate their marital status six months after papers are first filed at courthouse and then the copies of such papers served on the respondent, in such case, as yourself. 

Response options

In case you are served with summons and petition, then you are regarded as the respondent in court case for legal separation or divorce. You must carefully read papers served to you. The Petition informs you what your domestic partner or spouse (the petitioner) has asked for. You can get important information concerning your rights from The Summons and about the process of separation or divorce. There will be standard restraining orders which will restrict what you can do with the property, assets or debts. You or your partner or spouse can be prohibited to move out of state with children borne from the partnership or marriage. You may also be stopped from applying or renewal of passport for the children, without prior written consent. A court order could be required.

Post-service options

You have a number of options after being served. The easiest thing to do is to do absolutely nothing. If you take this path, then demands of your partner will be granted in its entirety. This situation is termed “true default”. If your agreement is written and notarized and where you and your domestic partner or spouse has agreed to end the partnership or marriage, then also you have to do nothing. If you and your spouse agree about other things like property division, partner or spousal support, then it is also termed as “default”. This is due to the fact that you have not filed for any response.

Other ways of responding include filing a response with court but also reach the needed agreement with domestic partner or spouse about all issues. This option is regarded as “uncontested” case as you and your domestic partner or spouse is not battling over issues. If you file a response with court, and also disagree with domestic partner or spouse, then it is regarded as a “contest.”

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

Completing The Divorce Process

Posted by: Gerald A. Maggio, Esq.

Orange County divorce lawyers; The Maggio Law FirmThe instructions and forms used by you to end your case is dependent on whether case respondents have filed the necessary response and whether you and your domestic partner or spouse have an agreement concerning the ending of marriage, support issues, dividing property and debt, and also visitation and child custody.

You have to complete a number of forms, and it can turn out to be extremely complicated in the case of inclusion of child custody and child support orders.

If you file the case

Do understand that you have to fill a number of forms to complete all through the court process. This could turn out to be extremely complicated. The level of complexity increases if you want the inclusion of support orders, property division orders and child custody orders.

The first step is to fill out the court forms. What you fill in can affect the case outcome. It is thus important to be complete and accurate. This can be important if you believe that there can be disagreements between you and your partner concerning issues which the court forms ask you to fill in. Have the forms reviewed after you complete them. You may have to fill out local forms if needed.

The second step is to file the forms with Court Clerk. Turn in both originals and copies. In case they have no obvious errors, the original forms will be taken by the clerk and the copies returned to you. There will be a “filed” stamp.   You will also have to pay a certain filing fee. In case you find the fee unaffordable, it is possible to have a fee waiver.

The third step is serving the first set of all the court forms. As per the law, your domestic partner or spouse must be told that you have initiated legal process for annulment, legal separation or a divorce. To make this possible, it is compulsory for you to serve your domestic partner or spouse with the copies of all court papers. The fourth step and subsequent steps involves you filling out and serving the financial disclosure forms. Then you have to wait on whether your partner or spouse responds to your petition.

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

What are Preliminary Financial Disclosures in California Divorces?

Posted by: Gerald A. Maggio, Esq.

best divorce lawyers in Orange County; The Maggio LawPreliminary financial disclosures are mandatory requirement to complete for getting a California divorce. Preparation and exchange of financial disclosures is one of the initial steps in any divorce in California. If the parties fail to fulfill this step then the judge will not grant the divorce. Parties that withhold financial information willfully or are negligent while stating them might face devastating results. Complete transparency and disclosure during the preparation of the preliminary financial disclosures cannot be understated.

The reason why preliminary financial disclosure is so important

California happens to be a community property state. This means, whatever is acquired during marriage becomes community property. The term community property includes pensions, assets and liabilities. So at any point of time, if a person wants a divorce, under California law the two parties are required to resolve all the issues that were created in the course of the marital period. Examples of such issues would be custody matters, division of assets and liabilities, among others.

Invested parties are required to fill the preliminary financial disclosures which include the Schedule of Assets and Liabilities (FL-142) and the Income and Expense Declaration (FL-150). Together these two documents sum up all the property and income of the two parties.

Only upon the complete disclosure will the court have a clear understanding of the entire community estate. Often people representing themselves do not understand what the term community property means. Hence they end up excluding certain information, unknowingly, which leads to incorrect information.

Intentional withholding of preliminary financial disclosure information

One of the most serious consequences of intentional withholding of preliminary financial disclosure is the innocent party losing their share of community property. And the other consequence would be a court punishment to the guilty party for not disclosing their assets, debts, or liabilities.

Although the forms FL-150 and FL-142 might look simple and easy to understand, they are often filled with multiple complexities. Due to the legal nature of the terms and complicated definition of community property, most people often get confused as to where they have a right to share and where they don’t. What belongs to who is also a matter of concern when it comes to family heirlooms or the spouse’s 401(k), among other assets. It is to deal with these intricacies, it makes sense to hire the services or seek consultation with a divorce advocate who can help you prepare for this important step in divorce filing and proceedings.

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

Who Can File For A Summary Dissolution in California?

Posted by: Gerald A. Maggio, Esq.

Top family lawyers Orange County; The Maggio Law FirmSummary dissolution is a quick and simple approach to obtaining divorce from your spouse without the intervention of a judge. In other words, it is a shorter and easier way to end a marriage or a registered domestic partnership without the hassles of lengthy and expensive litigation proceedings. However, there are certain limitations that a couple needs to qualify for, in case they are looking for a summary dissolution. 

The eligibility criteria for applying for a summary dissolution

Regardless of the gender, a couple can achieve a summary dissolution of its domestic partnership or marriage by qualifying for specific criteria that is required for it. Let’s have a look at the various factors that are considered while establishing a couple’s eligibility to apply for a summary dissolution.

  • Either of the partners must have lived in the state of California for at least six months before the separation.
  • The couple should have been married, or been a part of the domestic partnership for at least five years or more.
  • The couple must not have any biological or adopted children from the marriage or domestic partnership.
  • Neither of the spouses owns any real estate property in the form of a land or a building.
  • Neither of the partners owes more than $6000 worth of debts, since they entered into the marriage or domestic partnership.
  • The couple should not be having any marital property more than $41,000 worth of cost.
  • Neither of the partners should have separate property worth more than $41,000.
  • Both the parties have agreed and refused to demand any spousal support from each other.
  • The couple must sign an agreement that states the instructions for dividing the marital assets and debts, or stipulates that there is no property or debt to divide.

How is a summary dissolution more advantageous than a typical divorce?

A summary dissolution is an effective way of bypassing several lengthy procedures of a typical divorce trial, for couples who are in complete agreement of various aspects related to a divorce. It therefore requires considerably less amount of intricate legal paperwork and saves you a lot of unnecessary expenditure. Another major advantage of seeking a summary dissolution is that the process is a definite and sure shot way of achieving a legal separation. In other words, unless either party withdraws its agreement over the summary dissolution, the process grants automatic divorce to the couple before the stipulated deadline. This implies that your separation is not subject to the discretion of a judge.

If you and your partner wish to carry out a summary dissolution of your marriage or domestic partnership, you can take the assistance of an attorney in determining whether you are eligible for it or not.

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

Annulment – An Alternative To Divorce

Posted by: Gerald A. Maggio, Esq.

Top Orange County divorce lawyers; The Maggio Law FirmMarriage annulment is a fairly misunderstood concept owing to the inaccurate projection of its legality by the popular religion and culture. Both annulment and divorce can be considered somewhat similar in their basic underlying principle of determining the status of wedlock. However, the major distinguishing factor that separates an annulment from a divorce is the implication of the marital status post a verdict in the court of law in the two cases.

What is the difference between a divorce and an annulment?

A divorce or a legal separation marks the end of a valid relationship and implies that the couple is no longer viewed by the court as man and wife. On the other hand, an annulment, colloquially termed as nullity of domestic partnership or marriage, is when the court declares the domestic partnership or marriage never really existed in the first place. With a verdict of annulment, it is assumed that the marriage never really happened as it was not valid or legal to begin with.

What are the grounds for filing for an annulment?

  • A marriage is never considered valid by the Californian state law, if the two parties involved are related by blood.
  • Another situation wherein a marriage stands illegal or invalid is when one of the partners is already in an existing registered wedlock with someone else. The marriage is then termed as bigamous.
  • A person who was below the acceptable age of 18 years at the time of his/her marriage can also file for an annulment of the same.
  • Another situation which is somewhat similar to bigamy can be distinguished on the basis of the fact that a spouse, who was already married to someone else, gets into another wedlock on the premise that the former partner has been absent and assumed dead for the past five years.
  • If either of the partners has an unsound mind that prohibits them from understanding the true implication and obligations of a marriage, their spouse can request an annulment.
  • An annulment can also be requested in a situation where a marriage was a result of fraud. For example, if an individual deceives his partner into wedlock only for obtaining a green card, the marriage will be considered fraudulent and invalid.
  • In cases where a partner was forcefully made to consent for a marriage, an individual can file a petition for an annulment.
  • Finally, if one of the partners was physically incapacitated at the time of marriage which rendered him/her unable to consummate the relationship, and the incapacity continues to stay incurable, the healthy partner has the right to file for annulment.

In order to obtain an annulment, it is mandatory for an individual to be able to prove at least one of the aforementioned reasons, with authentic evidential proof in the court of law.

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

All You Need To Know About CA Divorce “ATROs”

Posted by: Gerald A. Maggio, Esq.

Orange County divorce lawyers; The Maggio Law FirmThe term restraining order provokes a limiting thought process that regards it as something to do with abusive or violent circumstances, wherein a court of law issues an order that restrains an individual who might be a threat to someone else. However, ATROs or automatic temporary restraining orders are quite contrary to the popular belief.

What are ATROs?

ATROs are a set of orders contained in the Summons filed at the beginning of a California divorce case.

What does an ATRO imply?

An ATRO requires both the separating parties to refrain from indulging in several acts that might have a negative influence on the proceedings of the lawsuit.

  • Both the parties are prohibited to remove their minor children from their state of residence without obtaining an order from the judge or a written consent of the other partner.
  • Both the parties are prohibited from transferring, selling, hypothecating or borrowing against any kind of community or separate property without an order from the court or a written consent of the other spouse.
  • The parties are also restrained from borrowing, selling or modifying the beneficiary names on policies that have been held for the other spouse.
  • Both the partners are prohibited to change their bank accounts without a prior court order or a written consent from the other spouse.
  • And lastly, both parties are prohibited from destroying or concealing any assets held together or separately by the couple during their marriage.

The ATROs will stay in effect until the court dismisses the petition or a final verdict is reached. In addition to this the ATROs can also be suspended when a court issues an order for its modification or dismissal. This implies that the Automatic temporary restraining orders can be terminated even before the final judgment of the case is passed by the court of law.

Since the ATROs are mutually agreed upon and signed by both the contesting parties, a violation of the orders by either of the partner will lead to stringent legal actions by the court of law.

To sum it up in a nutshell, the ATROs are designed to protect the rights of minor children in California, and restrain any unsolicited actions against the assets and insurance policies of both the parties.

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

Military Divorce Laws in California

Posted by: Gerald A. Maggio, Esq.

Orange County divorce lawyers; The Maggio Law FirmThe fact that the family laws applicable to the military divorce cases in California are marked by several unique concerns in comparison with the regular civilian divorce cases implies that specific federal and state laws and guidelines should be followed for the former.

Military protection against divorce litigation in California 

California state law exempts the on duty military personnel from providing an immediate response for a divorce petition filed by his or her spouse. The law was designed specifically to protect the military members from being accused of ‘defaulting’ in active divorce litigation. The 50 USC section 521 of the Soldiers and Sailors Civil Relief Act stipulates that a divorce lawsuit can be postponed for the entire time duration of a military member’s active service and for an additional period of 60 days after that. However, individual military personnel may chose to waive off this postponement in case he wishes to obtain the divorce at the earliest. The law has been enacted to protect the military members serving in a war to be divorced by their spouses without them having any prior knowledge of it. 

Serving and summoning an on duty active military spouse 

In order for the court of law to have any jurisdiction over an on duty active military personnel, the court is obliged to personally serve the latter with a copy of the divorce petition as well as the summon. In the event of an uncontested divorce case, the on duty spouse need not be served if he/she acknowledges the divorce petition by signing and filing a waiver affidavit.

Division of property 

In addition to the typical property division laws of California, the US government further requires the courts of law to exercise the USFSPA or the Uniformed Services Former Spouses Protection Act which establishes the guidelines for the evaluation and division of military retirement benefits in the event of a divorce. The Act entitles a former spouse to receive a specific portion of the retirement pay of his or her military partner by means of a direct payment. However, the federal law also states that this distribution of the retirement fund of military official to his former spouse will only be applicable to the couples who have been married for ten or more years, inclusive of the active time served in military.

And last but not the least, in order to file a military divorce in California, either you or your partner should be a resident of the state, or stationed here.

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

Basic Steps in Filing a Divorce Petition

Posted by: Gerald A. Maggio, Esq.

Top Orange County divorce lawyers; The Maggio Law FirmAlthough different states might have slight variations in the divorce legislation, the basic structure for filing a divorce remains largely the same. Below are the key steps involved in fling a divorce petition:

Filing the petition

You first need to file a ‘Petition for Dissolution of Marriage’ when seeking a divorce. The person filing the Petition is called the Plaintiff or Petitioner while the spouse is termed as the Defendant or Respondent. In the Petition for Dissolution of Marriage, you state basic facts related to you and your spouse as well as the children (if any). This document is considered to be public record.

The respondent is then served with the original letter of complaint or petition. Typically, the petition is served by somebody from the local sheriff’s office. After the respondent received the petition, he/she is given 30 days to hire a lawyer and send a response to the original divorce petition. During this period, either of the involved parties might request for restraining or temporary or protective orders relating to alimony and child support.

Temporary divorce orders

The court has the authority to issue temporary orders which state certain actions that need to be taken immediately and continued till the last divorce hearing. For example, this might include spousal support, child custody and child support.

Such orders are legally binding. In the failure to follow them, the person might find himself/herself in contempt of court.

Financial investigations, settlement and negotiations

Financial investigations involve determining the marital estate’s value. This is also termed as “discovery”. Different discovery procedures in divorce cases include subpoenas, depositions, financial documents review and interrogatories. Visitation and custody are other issues that are addressed in negotiations.

When the parties fail to reach a settlement, the lawyers might consider submitting the controversial issues to the judge in a pretrial conference.

Divorce court

In case mediation does not work out and there are still unresolved issues, then a trial date is set with the court. Both parties get an opportunity to present their cases in front of a judge during the trial. It is important to have a discussion with the attorney regarding proper courtroom behavior. This will help you make a good impression when arguing your case before a judge.

After examining the available evidence, the judge will take a decision based on his perception of the case and pass appropriate divorce settlement.

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

Understanding Domicile in California Divorce Cases

Posted by: Gerald A. Maggio, Esq.

Orange County divorce lawyer; The Maggio Law Firm, Inc.With regard to the issue of California residency requirements in a divorce case, it is important to know that the person filing for divorce must have lived in California for 6 months prior to filing and for 3 months in the county they are filing in.

California Residency Requirements – How Do You Show Domicile?

The most important word to highlight whether you fulfill the California residency requirement is domicile. This can be broken down into two parts, one is intent to stay in the state and the other is physical residence in the State of California.

The most important thing to know when showing domicile is that it is at the very least not a black and white rule at all. There are a number of issues that the court will look at such as:

  • Voter Registration
  • Organizations, mail receipts and memberships
  • Registration of vehicle and your driver’s license
  • Residency or home ownership
  • Filing of tax returns
  • What banks hold your money and where

What You Should Ask Yourself Before Filing

A lot of the times you will find yourself unsure regarding the correct domicile to file for your divorce case. However, if you are unsure, it’s best that you ask yourself the following questions:

  • How likely is it that your spouse will file for a divorce in another state?
  • How well do you think you match up to the residency requirements to file for an Orange County divorce?
  • Where are the children, financial documents and witnesses that back up your claims located? This is an important question because their presence in the county will help you establish domicile.
  • Is it feasible in line with a cost benefit analysis for you to file in this jurisdiction and have the jurisdiction challenged, or for you to challenge jurisdiction in another state?

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

Fatal Errors That Could Derail Your Divorce Proceedings

Posted by: Gerald A. Maggio, Esq.

Orange County divorce lawyers; The Maggio Law FirmDivorces are hard enough times by their very nature, so you can do without shooting yourself in the foot with some of these easily avoidable, seemingly minor errors that could blow up into bigger issues.

Not being honest about financial information

For the divorce process to move along smoothly, do not cover up or try and hide information on assets, income and marital debt. Be sure your estimates for expenses accurately reflect your expected life after divorce. Remember, as part of divorce litigation you may be requested to share some information in the discovery stage of the process. Should this occur you will be obliged, by law, to disclose all information. If you try and hide some information which your spouse’s divorce lawyer discovers later, it could be used against you in court.

Working from the heart

As much as marriage and love are affairs of the heart, divorces need to be worked out with the mind. Emotions can – and will – get the better of you even if you had hoped for the most amicable parting of ways ever. It is ideal to work through the details of questions likely to be discusses, including contentious issues, with your attorney or a counselor before you sit down to work out an agreement with your spouse and their divorce attorney.

Expecting too much

Be realistic in your expectations. The truth is that the benefits you had by combining both your incomes or even managing one household on a single income will go away when you try and split up the funds. Both sides will need to accept that some degree of financial cut back on lifestyle will need to happen.

Not knowing what you have

Doing your groundwork in preparation for the divorce proceedings is important. Keep an inventory of assets – be sure to include all valuable possessions, not just the obvious big ones like property and cars. If you go in uninformed, an estranged spouse and their attorney could well give you a deal with less than your fair share and you will be none the wiser. Equally important is estimating accurately your future expenses, and keeping in mind the tax implications of all these decisions.

Not putting things in writing

During a divorce, verbal agreements are not enough. If your spouse and you come to an agreement on any issue, in a personal conversation, be sure to have to recorded or drawn up into an agreement or a legal document. For instance, you might have decided that you would accept lower spousal support in exchange for getting the proceeds or ownership of a shared property. Later, you could wind up with lower alimony and just half your share of property if you haven’t drawn it up formally.

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

 
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