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.  

The Steps Involved In Divorce Litigation

Posted by: Gerald A. Maggio, Esq.

Orange County divorce lawyers; The Maggio Law FirmNo one is ever really prepared for a divorce. Even if you have been through it before, no times are ever alike. For someone who is already going through the emotional upheaval that comes with this trying time in one’s life, it helps if you know what to expect on the legal front. Being aware of the steps involved in a divorce litigation are vital for emerging with your sanity intact.

Attempt to arrive at an agreement: If you are now facing the challenge of going through a divorce litigation, this means that other means to come to an amicable solution with your estranged partner have failed. However be sure that you have done all you can to come up with a reasonable or at the very least a realistic solution that the other party will likely agree too.

File a Petition for divorce: The first step is to file an Original Petition for Divorce identifying you and your spouse and naming any children who will be impacted by the divorce. The partner initiating the divorce is called the petitioner and the other the respondent. After the respondent is served the papers, they will need to respond within 30 days.

Get temporary orders: During this time you must find a good divorce attorney to represent you. If either party wants to get protective orders or restraining orders this is when it is to be done. Some couples may request a temporary order to permit or prevent access to funds or property as well as determine temporary possession of minor children, and provide for child support and spousal support.

Discovery: 

  • This phase begins with disclosures – documentary requests sent by attorneys representing both parties, requesting specific items/response, to be closed out within 30 days.
  • A ‘Request for Production’ will also be made, where documents are obtained by attorneys for their clients using this legal mechanism. This includes but is not limited to statements of income and bank statements among other things. Be prepared to encounter major delays at this phase as your spouse and his/her attorney do not produce the documents needed. Be patient and wait it out, this delay tactic is normal.
  • You will also be called upon by the attorney of your spouse, to make a deposition and your lawyer will take a sworn testimony from your spouse as well. It is important to understand that anything said during this deposition is permissible for use in court, so choose your words carefully.

Divorce mediation

This process is used to help both parties arrive at an agreeable solution out of court. Failure to arrive at an agreement will result in the course going to court. It is important to engage the services of an experienced divorce mediation attorney to give yourself a shot at getting the best possible deal in this otherwise difficult time.

Trial

If you are among the relatively small number of people whose divorce goes to trial, work closely with your divorce attorney to understand how to conduct yourself in court. Prepare a strong case and handle yourself well to improve your chances of a favourable outcome. You will be called on to testify under oath, and after examining all the evidence, the judge will arrive at a decision and make both you and your spouse sign off on a decree of divorce. Details relating to division of property, custody of the kids, any child or spousal support that is to be paid, as well as other contested areas, will be stipulated.

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 California Spousal Support Rules

Posted by: Gerald A. Maggio, Esq.

spousal support attorneys in Orange County; The Maggio Law FirmOrange County divorce cases can sometimes be complex affairs. A divorce cases usually involves a host of issues that need to be addressed by the two parties before a judge can decide on the final judgment. One of the most important factors in a divorce case is spousal support. Spousal support has multiple rules that can make it difficult to understand.

In this blog, we will take a look at the rules used in calculating temporary spousal support while the Orange County divorce case is going on (versus long-term spousal support considerations at the end of the divorce case at trial which requires a consideration of the marital standard of living and the factors under California Family Code section 4320). In California, the courts determine temporary spousal support using a computer formula that is known as Xspouse or Dissomaster. In cases that involve children, spousal support is calculated after the child support requirements have been evaluated since the children come above everything else in a divorce case.

Yet despite the computer program, there are exceptions to the way spousal support is calculated.  Here are a few rules that govern exceptions in calculating spousal support.

·        When Tax consequences are different to what has been assumed by the Spousal support formula

The computer program that calculates the spousal support has an assumption of a tax consequence existing for all gross incomes. It will take into account what you would pay as tax. If however that is not the case, you need to notify the court as such as prove it using facts and evidences that prove your net disposable income has been calculated incorrectly.

·        When you have support obligations from other relationships

The computer formula is not designed for special circumstances. If you have been in a prior Orange County divorce and still have support payments to make, you should tell that to the judge. The judge will take that into account when deciding on the spousal support amount in this case.

·        The California Spousal Support Number doesn’t consider what you need

One of the leading criticisms of the system has been its inability to take into account the need of the spouse being supported. The computer will simply develop an amount using the net disposable income of the spouse. If the spousal support amount is disproportionate or inadequate for the needs of the spouse, they can put the matter in front of the judge for modification.

To prove you have need, the evidence needs to be factual, compelling and of an actual need and not a hidden want. Despite that, it will be on the court’s discretion to award an additional mount on top of has been decided or not.

·        Extremely High expenses not considered by the Spousal Support Formula

If you have out of the ordinary expenses that you want the court to take into account before making the spousal support order. You need to lay it down in front of the judge. The judge will only listen to your claim if you can give tangible, compelling evidence. But the decision is solely on their discretion.

 
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