A Guide to the IRS Release of Claims and Exemption Form

Posted by: Gerald A. Maggio, Esq.

Orange county divorce lawyer; The Maggio Law FirmThe IRS release of claims and exemption form, also known as the IRS Form 8332, is actually two forms instead of one. One of the forms is the release form, while the other is the revocation of release form. What is this release and revocation of release of? This is the claim of exemption that concerns the child tax credit, also known as child dependency exemption. The IRS release of claims and exemption form is relatively easy to fill out, with it being self explanatory for the most parts.

Having said that though, are most parents aware of this? The answer is quite simply a No. Do they have issues dealing with such a form? The answer once again is No. It is important to understand what this is about.

What does it do?

The IRS form 8332 is a form that is filled by the custodial parent of the child. The custodial parent can use this form to do the following things:

  • Make sure to release the claim to exemption form of child/children to enable the non-custodial parent to claim a tax exemption of credit for the child.
  • Revoke a previous release form that was filed for the claim to exemption of the child.

Does the Orange County marital settlement agreement/Judgment need to state that the custodial parent should release the child dependency and tax credit exemption?

Yes, your divorce agreement should have this agreed upon and stated specifically. This is important because:

  • When the spouse or parent signs such an agreement that states the child tax dependency and exemption have been transferred over to you, it becomes legally binding.
  • The order clearly specifies that the spouse/parent needs to execute the IRRS 8332 form.
  • Inability to do so will mean you are able to claim exemption as well as reimbursement for further damages of the money that you lost as result of this disregard of the Orange County divorce agreement.

Why would a custodial parent agree on signing and filing out the IRS release of claims and exemption from?

While it is true that divorce tends to be an emotionally charged affair with each of the spouse holding some kind of bitterness about the other spouse, filing out such a form is not that hard to agree upon between the spouses. This is because the exemptions in this form are likely to have no real value to the parent who has the child’s custody. This is especially true in cases where the custodial spouse is dependent on the other spouse for spousal and child support.

What Is Parental Alienation?

Posted by: Gerald A. Maggio, Esq.

Top Orange County divorce lawyers; The Maggio Law FirmThis is one concept that is increasingly being used in Orange County divorce and child custody and visitation cases.  The custody of children can be one of the fiercest bones of contentions between two spouses. Owing to this, will to win at all costs and to keep the custody of the child is what leads to parents using every mean possible to gain themselves crucial advantages.

One such measure is Parental Alienation. Parental alienation is actually a concept for therapists and psychologists, yet the growing use of the term in the Orange County family law court has become very much part of a family lawyer’s repertoire of knowledge. The definition of the word alienation is to isolate something from another. When parental is added with alienation, the definition becomes: the attempts by one of the spouse to isolate the child or children from the other parent.

This isolation can be done through various means. One parent can alienate the child from the other parent using conduct and/or words to create an estrangement, division, or hostility between the victim parent and the child. There are several types of parental alienation:

Disparagement and Parental Alienation

This is the first step on the long road of parental alienation. Identification of disparagement can result in an insight into the process of parental alienation. Disparagement in this context refers to negative and hostile comments being made about one of the parent by the other parent in front of the child. Any such comment given in front of the child irrespective of whether it was directly addressed to the spouse or not is counted as disparagement.

Undermining Authority and Parental Alienation

Alienation is isolation and the undermining of authority of one of the parents by the other is an important part of the parental alienation cycle. In theory, the custody of each parent over the child and in matters of the child that each has autonomy over are respected by the parent. By undermining the authority and the decisions of one of the parents in front of the child, the other parent gives the child the impression that the style of parenting by the victim parent is wrong and needs to be changed.

Parentification and Parental Alienation

The word parentification may certainly seem new to you, but this word, however is dubious, as its spelling may best describe one of the most important weapons of parental alienation. When couples have gone through a divorce, the bitterness may lead to one of the parents manipulating the child to hurt the other. This is what the concept of parentification is all about. Parentification means granting the decision making power to the child when he/she is neither mature nor capable enough of making decisions for themselves. This is then taken advantage of and the manipulating parent manipulates the child into making decision that are against the other parent.

An Explanation of Orange County Child Custody Investigations

Posted by: Gerald A. Maggio, Esq.

Top Orange County divorce lawyers; The Maggio Law FirmIt has long been established that the issue of children in a divorce is integral. Parents consider their children to be their most valued asset and therefore, both the spouses are likely to fight it out in court fiercely to make sure they end up having the possession of their most prized assets. The courts, however, have to base their decisions in family law child custody cases on the best interest of the child. Sometimes, it is harder for the judge to be able to evaluate the claims of both the parents in terms of custodial suitability and hence, they can order a child custody investigation to clear the facts and the picture.

Parents that go through these investigations are likely to find themselves under considerable amounts of stress and confusion. Primarily, child custody investigations are about the accusations leveled by one of the spouses against the other with regards to:

  • Child neglect
  • Substance abuse
  • Sexual/physical child abuse
  • Other concerns in relation to the safety and security of the child

The Purpose of Investigations

The use of child custody investigations is done by the Orange County family law court personnel to be able to have a clearer and more objective view of the facts. These facts and clearing of accusations and perceptions are likely to increase the chances of decision by the court that is truly in the child’s best interest. These investigations are done by the internal investigator of the court and therefore, are completely different to the other child custody evaluations done under Evidence Code section 730.

Are Child Custody Investigations Helpful?

This is one of the most common questions that have been asked with regards to child custody investigation. Typically, in Orange County court proceedings, the pattern is in the ‘he said, she said’ style, where arguments seem to be flowing through and lawyers arguing over the actions taken by either of the spouses. All of this is done without any regard to the objective representation of facts and figures.

Child custody investigations, on the other hand, involve a whole host of procedures that are intended to provide the facts objectively at the end of the process. This can include processes such as:

  • Interview of the witnesses and the parents
  • Thorough reviewing of the important documents that include videos, photographs and medical records and other information that can prove decisive in the fighting of the case.

When the Investigation is Complete?

Once the child custody investigation is complete, the investigator is likely to submit a formal report to the Orange County family law court, which has all the necessary facts of the case in an objectively represented form. The court can sometimes ask the investigator for the live testimony of the facts provided.  It is important to note that these proceedings owing to the involvement of the children are closed and only parties and their lawyers are allowed to attend such proceedings.

Determining the Child’s Preference in California Custody Cases

Posted by: Gerald A. Maggio, Esq.

Orange County divorce lawyer; The Maggio Law FirmA decision for divorce not only affects you, it also has an effect on other people that are part of your family, most importantly your children. The effect of divorce is felt most closely and severely by the children of the broken couple. Over the years, the role of the child has become more important in determining the parent that they want to live with.

The child is one of the most important assets to a parent. Contrary to popular belief though, the child continues to have a greater role in determining the parent that he or she wants to live with. This blog takes a look at the aspects of California family law with regard to determining the child’s preference.

The Preference Of The Child Aged 14 Or Older

Keeping in line with California Family Code 3042, the court must take into account the child’s preference and choice with regards to the parent they want to be with. This needs to be done for children who are of the age 14 or over, unless of course the court has reasons to believe that it is not in the child’s best interest to do so. This means that before the child is allowed to voice his opinions in front of the court, the court will decide on whether that would be in the child’s best interest or not.  California family law courts give the utmost importance to the best interest of the child or children involved in the case.

It should be clear at this point that the set bar of age 14 has been set by the legislature, since according to them a child of the age 14 years is mature in terms of emotions and has the mental capacity to take decisions of such significance.

How Can The Choice Be Made By The Child?

This is another instance in California family law courts where the courts have their utmost discretion over the way that the child can convey his/her choice. Despite this, family law judges can take the direct approach of hearing the choice straight from the child. Here are a few things that judges consider before deciding how the child’s choice can be made:

  • The location of the testimony
  • Whether the parents or attorneys should be present. In some cases, the stakeholders’ presence may make the child feel pressurized into making a decision.
  • The method of questioning, i.e. whether the lawyers of the parents or the judge will ask the child.

At this point though, it is important to understand that despite the choice of the child, it is not binding on the court of law to follow the choice and the judge can disregard it if he/she deems fit.

The Myths and Facts of California Child Custody Cases

Posted by: Gerald A. Maggio, Esq.

Orange County divorce lawyer; The Maggio Law FirmCalifornia child custody cases are the subject of myths and untrue statements.  These myths and false facts are so widespread that they have started to become more of a fact in the minds of the people as opposed to the myths that they actually are. As a result,  parents make errors in parenting and other decisions related to the child, trying to keep in line with these myths.

Here, we will try and dispel these rumors once and for all.

Myth 1: Gender is an important consideration for the family law judge

The fact of the matter is that there is no such thing in the family law courts. Gender is irrelevant in the child custody decision making of a family law judge. This myth was actually made to act as an excuse for those parents, more specifically, fathers who, along with their attorneys, were unable to present their case properly and win. The fact that some parents are unable to prove the facts and make a real case out of the trial lose is due to the lack of preparation as opposed to the difference in gender.

Myth 2:  Once a child reaches the teenage years, the decision which parents he/she wants to live with is taken by them

This is not entirely a myth, but isn’t completely true either. In child custody cases, most of which are complex in nature, the child does have a role in deciding which parent to live with, but the decision does not solely lie with them. When a child is judged to be mature enough to know the ins and outs of decision, he or she will be asked by the court about their preference regarding which parent they want to live with. This preference though, is only a means to aid the judge in their decision regarding child custody and is in no way binding. The judges can refuse to acknowledge or even take it into account if they believe it is against the interest of the child themselves.

Myth 3: As long as there is no court order, the parent that has custody of the child before the trial will continue custody during the trial

In reality, while the status quo, i.e. what has been happening before the trial, is an important consideration when it comes to deciding on temporary custody, it is by no means the final word. Courts will look at the facts objectively to decide which parent gets the temporary custody for as long as the trial goes on. The most important consideration in child custody cases is the best interests of the child.

A Low Down On “Parental Gate-keeping”

Posted by: Gerald A. Maggio, Esq.

Top Orange County child custody attorney; The Maggio Law FirmParental gate-keeping can be broken down into paternal and maternal gate-keeping. Maternal gate-keeping has a far greater dominance over the paternal gate-keeping, yet the creation of barriers with respect to parent and child quality time, co-parenting and communication can be attributed to both in equal regard. This blog will set out to give you a brief low down on what parental gate-keeping exactly is.

What is Parental Gate-keeping?

In the context of family law, parental gate-keeping can be defined as an action or series of actions taken by a parent to protect the child from harm that is actual, perceived, or manufactured.

The 3 Categories of Parental Gate-Keeping

·         Parental Gate-Keeping Due To Actual Harm

This type of parental gate-keeping is sometimes referred to as protective gate-keeping. This type of gatekeeping is an action or series of actions taken by parent in an attempt to ward off the actual harm from the child. The most common example of such parental gate-keeping is parent protecting their child from emotional and/or physical abuse as well as emotional neglect. It is assumed that parents who use protective gate-keeping simply intend to do it in the best interest of their child and don’t intend on damaging the child-parent relationship.

·         Parental Gate-Keeping Because Of Perceived Harm

“Perception is stronger than reality.” This quote holds true in all aspects of life including family law proceedings and child custody issues. It is clear that in terms of divorce cases, the emotions can run high leading to concerns becoming fears in child custody proceedings of a divorce case.

This is often the case as observed with parents that have had sole authority of caring and nurturing of the child for most of the child’s life. In such instances, the notion of having their child taken away from them and placed in someone else’s custody for some periods of time due to the child custody settlements can lead to hypersensitive protective actions by the parents.

·         Parental Gate-Keeping Because Of A Manufactured Harm

Orange County family lawyers are likely to tell you, child custody proceedings are home to some of the most serious and heinous nature of false accusations leveled against one another. This type of gate-keeping is also known as restrictive gate-keeping and the use of false accusations makes up the core of this approach. This type of parental gate-keeping is reckless, malicious, and against the notion of genuine concern for the child and has more to do with the hate and sense of revenge towards the other spouse.

Tips for Dads to Avoid Spoiling the Kids Out of Guilt after a Divorce

Posted by: Gerald A. Maggio, Esq.

Top Orange County divorce lawyers; The Maggio Law FirmWhen it comes to the toxic effects of a divorce, one of the hardest things to be effected by such a situation are the children involved in the marriage, and at times, parents tend to overcompensate for their sufferings through an extra shower of care, love, and affection. While care can be fine, at times, dads have been labeled for being too over enthusiastic in trying to make up for the child’s sufferings because of the divorce. Through their actions, they try to rid themselves of the guilt that they feel of having been responsible for the mental and emotional torment that was suffered by their child.

Here are some tips to avoid spoiling your kids out of guilt after divorce:

·        Talk To Them As Much As They Want

Talking to your kids whenever they want to talk is a sign from your side that you are always there for them.

·        Be Consistent

If you make lofty promises, try and fulfill them. However, it is better if you don’t make promises that are hard to keep. Parenting needs to consistent and if you continue to pamper the child and make fairytale promises, there will be a time when it’ll become hard for you to fulfill your commitments and that might leave your kid disappointed.

·        Small Surprises Are Also Worth A Lot

Most of the times, there are instances when you try and go overboard with the surprises and gifts and that can be acceptable on big occasions like birthdays and other achievements. Yet, what you have to understand is that your kids don’t always want the best of the world from you, sometimes it’s those little notes of appreciation that can show them you love them and care for them.

·        Make Sure Discipline Isn’t Compromised

It is one thing loving and caring for your child and quite another to turn a blind eye to all that he/she does. When it comes to children, even those who have suffered through a divorce need to be disciplined from time to time. Always be firm on matters of discipline and let the child know that you will not tolerate ill discipline and given any concessions on that.

·        Let the Kids be Kids

Your kids are kids and should be treated as such. You are the parent and neither they nor you can reverse the roles. Irrespective of the feelings you have about the other spouse, always make sure that you keep them to yourself in front of the kids. Treating the kids like kids also means making sure they stay in their limit. If you don’t care about their limits, gradually, they won’t care about their limits at all.

High Conflict Child Custody Cases and Parallel Parenting Plans

Posted by: Gerald A. Maggio, Esq.

Top Orange County divorce lawyers; The Maggio Law FirmCases that involve child custody in the Orange County family law courts tend to be one of the most hotly contested cases, where the emotions can sometimes take the better of both parties since the case involves their children. In child custody cases in California, the words parallel parenting plan are being used increasingly. When cases are hotly contested and have emotions running high, in such high conflict cases there is effectively little or no communication between the parents which means being able to formulate a single parenting plan is almost impossible.

Often after a divorce, the level of bitterness in the parents can increase which is usually carried on to and taken to another level in child custody cases. In such cases, where the conflict and hostility between the parents makes co-parenting impossible, parenting plans need to be used.

Situations where Co-parenting is Impossible

Here are a few instances where co-parenting can be almost impossible for parents to agree on:

  • Both the parents are at logger heads with each other and lack respect for each other
  • The emotional distress that comes with divorce has overcome them and bars them from having effective communication with each other
  • One of the parents has a level of bitterness about the other parent which makes co-parenting impossible. Bitterness can be due to a number of factors that may include the Orange County divorce, distribution of assets, or the behavior of the other spouse.

Definition of Parallel Parenting

Just like its name, parallel parenting is parenting by both parents simultaneous to each other with little or no need for either to communicate or have discussions with the other. In a parenting plan, parents are made autonomous for parenting and custodial decisions when the child is under their custody.

How a Parallel Parenting Plan Should Be?

The major difference between co-parenting and parallel parenting plans is the aspect of communication. Therefore, to eliminate the need for communication between the divorced parents, the parallel parenting plans need to be detailed.

Here are few things that a typical parallel parenting plan should clearly have outlined in it:

  • Dates that specify the starting and ending date of each custodial period for the child
  • How and where will the child be handed over to the other spouse
  • Other issues which may give rise to an undue conflict in such a case

While parallel parenting can be deemed as something that relieves the parents of communicating for the benefit of their child, it is also worth recognizing that it saves the child from witnessing constant bickering about his or her life between the parents.  However, it is always better and preferable when at all possible to co-parent than having to parallel parent.

The Most Appropriate Time to Get Divorced

Posted by: Gerald A. Maggio, Esq.

Top family lawyers Orange County; The Maggio Law FirmThe decision to get divorced is one of the hardest for couples to take. Most divorces are known to leave a bitter mark on each of the spouses that are involved in the process. While the decision to get divorced is difficult enough, another decision that is equally important is the timing of the divorce. The timing of a divorce is important because of a number of factors. In this blog, we’ll look at different aspects to judge what the best time to get a divorce is.

The Timing of Divorce and the Age of the Child

When the children tend to grow up in each phase of their life, they react to different things differently. A child that is 6 years old is likely to react differently to their parents’ divorce compared to the reaction of a 16 year old. A child at a younger age may find it difficult to cope with the sudden changes in his/her life and the constant conflicts between his/her parents. Therefore, considering the timing of divorce with respect to the child’s age is important because your children are the ones who will be the most affected by any decision you take.

The Best Time To Divorce When The Children And Spouse Need Financial Protection

Financial decisions affect nearly all decisions in one’s everyday life and it is a no-brainer that when the time comes for making one of the biggest decisions of their lives, spouses tend to look at the financial aspect before deciding when to get a divorce.

If you are the parent that supports the family financially, the issue of the timing of the divorce becomes a little less complicated. This is because when you are the earner in the family, it is assumed that you are financially stable and your soon-to-be ex is not. Here is a list of questions that you should consider before your decision:

  • Have you considered the amount of time in child custody or visitation you’d want with your child?
  • Do you have an idea of how much child support you’ll need to pay?
  • Have you considered the division of the family’s assets and the fate of your house and subsequently your residence?

For stay-at-home parents, however, this decision can be a little tricky. In such situation you need to carefully consider your and your children’s financial future. Moving out wouldn’t be the wisest option for such parents because that may mean that the state of their finances will be almost impossible to control. In most cases, the parent can consider the timing of the divorce to decide to file for divorce and yet stay in the same residence as the other parent. This is legally an option in Orange County family law.

Remember, there is no “correct” time for filling a divorce. The timing of the divorce depends on a number of circumstances and factors in your  life and the lives of your children.

Divorce Mediation for Couples with a Special Needs Child

Posted by: Gerald A. Maggio, Esq.

Divorce-mediation-attorney-Orange County; The Maggio Law FirmDivorce mediation is beneficial to almost all couples, but it is perhaps most beneficial to families with a special needs child.  Emotions in these situations run especially high: one or both parents may be particularly concerned about how the financial and logistical changes of divorce can have serious consequences for a special needs child.

In addition, parents may not agree on what the child needs.  But almost certainly, the financial and emotional strain of a protracted legal battle is not the answer.  The truth is that mediated divorce is the best way to ensure a healthy and happy future for a special needs child.  When divorcing parents agree to use a child-focused divorce mediation process, real progress and tenable agreements can be made.

Focusing on the short- and medium-term

A divorce mediator with special needs experience will ensure that the mediation process includes significant focus on the medical, educational, social and emotional well-being of the child.  This includes both short- and long-term living arrangements as well as financial planning to ensure future care.  When appropriate, the mediator will place particular focus on creating an agreement as to how different types of medical decisions will be made.

Making plans for the long-term

Some special needs children will need care and support throughout adulthood, and the mediation process can lay the foundation for that.  Divorcing parents of children with severe disabilities may need to plan for their child to have housing, social security benefits, and ongoing care, even beyond the lifetime of the parents.  While traditional divorce agreements frequently do not address these issues, a mediated divorce agreement can create a framework plan to ensure that both parents are working towards these important goals.