Posted by: Gerald A. Maggio, Esq.
The terms “divorce” and “legal separation” are distinctly different. Legal separation does not mean the dissolution of marriage while divorce means the end of a marriage. After a divorce, couples can go back to their single status. Legal separation means the couples are still married but do not stay together. There are many reasons why legal separation takes place before a marriage. Some couples feel that opting for a divorce is a serious matter and should be taken slowly. Being legally separated allows couples to reflect on the issue they have with their marriage.
In certain cases, couples change from legal separation to divorce. In California, it is easy to convert a legal separation to a divorce and all that is required is a simple conversion. It can be done anytime during the legal process and it takes only one spouse to make the request. It also involves filing a petition which the other spouse must comply to.
In California, judicial counsel form, FL100, is used for making petitions in legal separation and divorce. Couples who want to change the petition simply need to file a second petition known as the Amended petition. In cases where one of the spouses hasn’t responded to the first petition, the other spouse simply needs to file the petition and send a serving notice. There are no charges for filing the amended petition.
If a legal separation is still in process and one of the spouses has still not responded to the petition, then the other spouse can file the amended petition. It is important for both spouses to meet the residency requirements of the state because the law for legal separation is different in each state. In certain cases where the legal separation has not been obtained but the petition has been filed, the spouse would require an approval request from the court.
After a legal separation gets finalized, spouses who want a divorce have to file a new case and start over again. Sometimes, couples prefer to stay as legally separated for an extended period of time when such cases arise.
The State of California believes that every individual has the right to decide the fate of their marriage. In California, it’s an easy process to change from a legal separation to a divorce and only takes a simple petition to change the status.
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.
Posted by: Gerald A. Maggio, Esq.
How long will my divorce take to complete? This is the most asked question when it comes to clients and their initial queries to their Orange County divorce attorneys. This question is almost as common as asking how much a divorce would cost them.
Typically when a client comes up to you and asks this question they are looking for a it will be quick answer. Whether that comes true or not will depend largely on how cooperative and conflict free your spouse is.
What happens in cases where you don’t have such a spouse? Well simply put, in such cases no lawyer can typically answer the question of how long your divorce case will take. Especially in cases where the other spouse is hell bent on stretching the divorce case. However, there are ways to combat these delays and make sure that your divorce case is resolved quickly.
Making Workable Settlement Offers
Before you start a divorce case, you need to figure out exactly what is it that you want. If you want to make sure that case resolves quickly, you need to be open to the possibility of making settlement offers. Settlement offers are attempts on your part to bring the other spouse on the table for discussion to try and agree a resolution to the case amongst them instead of it being decided by a judge.
Typically after the disclosures in the case have been made, you should look to engage the other spouse to settle the case. For that you should make sure that the settlement offer you make is enough to entice the other party top agree while not compromising on your own interests and prospects for the future. An amicable settlement agreement will usually result in the case being closed faster.
The Attorney Fee Motion
In some cases, attempts to try and settle the case fail because the other spouse is hell bent on trying to delay the case and churn out more and more attorney fees from you. If the delays are unreasonable, it may be possible to seek sanctions and attorneys fees from that other spouse. If successful, the amount of fees will be paid by the losing spouse in addition to their own attorney’s cost.
How long will the Case Take?
This is one of the hardest questions to answer. No divorce lawyer is able to accurately predict when the case would end. Yet, on an average if your divorce case is uncontested it will typically take 3-6 months, if it is contested it will take a year or two. Other complex cases with several disputes involved may takes years to end.
Posted by: Gerald A. Maggio, Esq.
Do you recall when you and your partner called it quits? For some people, their date of separation sticks out in their mind. Mainly because the decision to part ways resulted from a full-blown fight or your partner was unfaithful, or one of the parties moved out. Whatever your reason was to end things, you will always remember your separation date. Although you may not want to keep that memory intact, when it comes to filing for divorce, the date of separation is quite important to remember.
What Role does the Date of Separation Play?
Knowing the date of separation is important in order to:
- Ensure a proper division of property for assets acquired between the date of marriage and the date of separation
- Determine the length of time that either party may be entitled to receive or pay spousal support to the other.
1. Fair Division of Property & Debts
Equalization of property and debts depends on the date you separated from your partner. It can have a significant impact on the sum of money allotted to the partner during divorce settlements. There have been cases where the partner got more money due to the date they separated. The reverse for this is also true. The reason for getting more or less money is also due to the value of shares increasing or decreasing during the time of separation.
2. Support Payments
The law states that the partner needs to start paying support to their ex on the date they separated. Therefore, knowing your separation date will help disputing couples settle many arguments. What happens when the disputing partners clash on what the exact date of separation is? Look at the next heading to find out.
Figuring Out the Exact Date of Separation
It is helpful for your partner and you need to sit down, with a divorce mediator or your lawyers, to come to an agreed-upon date of separation. The questions that may arise to solve this issue are:
- Do you remember when you decided to separate?
- When did you tell your family and friends that you both are not living together or sleeping in separate rooms?
- When was the last time you had marital relations with your partner?
More questions to determine the date may be asked. If there is a disagreement between the parties as to the date of separation, that issue would otherwise have to be resolved first in your divorce case in order to be able to determine property division and long-term spousal support issues.
Posted by: Gerald A. Maggio, Esq.
Other than your house, the pensions and retirement plans of spouses as well as business(es) owned by one or both of the parties can often be the most values assets of the marriage.
With regard to pensions, such retirement plans are often divided by use of a Qualified Domestic Relations Order (“QDRO”), wherein the spouse that is not officially on the plan receives their community interest in the pension by a rollover IRA which avoids any tax implication to either party. A 401K plan is often divided the same way. Unlike a 401k whose value is whatever the current value in the account is, a pension is worth more in the future but does have a present day value that can be determined by use of an actuary, and such valuation can be considered in the division of all assets and debts in your case.
In addition, the business owed by you or your spouse or both parties is generally going to be considered a community property asset. In a divorce, the spouse that is not the active party in the business is entitled to their one-half interest in the value of that business, but that value must be determined. In order to figure out the value of a business, a forensic valuation of the business needs to be done in order to attach a dollar figure to the value of the business. Therefore, a forensic accountant needs to be hired by one or both of the parties, which will take time to complete and will come at a cost. Once that value is determined, then the parties in the divorce can determine how the other spouse will be paid their share of the business, either from other assets of the marriage, or by a payment plan, or other agreed option. For example, the controlling partner of the business can agree to give up their interest in the equity in the marital residence to offset the other party’s interest in the business.
The bottom line is that pensions and businesses are important assets that must be considered in your divorce case, because they have definite value that you want to receive your share of. Consider the financial issues as part of a business deal that you are negotiating, and educate and empower yourself in the process so that you can control your financial future by protecting your financial interests in your divorce.
Posted by: Gerald A. Maggio, Esq.
While generally women are more willing to seek counseling with a therapist to deal with issues both during and after divorce, men are often much less comfortable with admitting that they may need such support and assistance to work through their issues and feelings associated with separation and divorce. Men are also generally much less likely to discuss divorce issues with their friends and family, leaving them emotionally isolated and feeling alone.
Men should consider individual counseling to help work through their issues in order to be able to effectively move forward in their lives, and perhaps avoid problems they themselves may have caused in their marriage. If that is something that seems daunting, another option is to seek a men’s support group near where you live or work devoted to issues associated with the effects of divorce and separation. One such men’s support counseling group is offered by Orange County therapist Lawrence Marquez, Psy.D. Dr. Marquez leads a small men’s divorce support group in Irvine, California on a weekly basis that provides continuing support for men caught in the crossfire of divorce. The members of the group collaborate with the other men to help each other navigate the effects of divorce.
Dr. Marquez states that “the purpose of the group has been to provide a safe and supportive environment where divorce-related issues can be shared and explored. As the group leader, I provide insight for the men as they each work through their process. However, I must admit the most impressive aspect of the group has been the support that I see from each member of the group towards one another.”
Some of the topics discussed in this men’s group include the men’s court and legal experiences, the restructuring of the family following the divorce, how to deal with the ensuing emotional & financial stresses, and common or unique circumstances or struggles as they are presented. Dr. Marquez states that his role as group leader is to “encourage self-awareness, the ability to process, understand, and deal with feelings appropriately, foster improvement in areas of communication, stimulate growth and strengthening of parenting skills & healthy parent-child relationships, promote healthy boundaries with ex-spouse and others, provide guidance through issues of grief, and help renew personal focus and self-direction.”
The benefit of such men’s support groups is to show men of divorce that they are not alone and that there are many other men out there that are going through the same experiences. They are able to help each other with their feelings and with some skills to move forward with their lives. Another benefit is that such support groups are often moderately priced. Such support groups should not necessarily take the place of individual counseling that may also be needed, but it can be a healthy component to any counseling plan.
If interested in more information about men’s support counseling or in Dr. Marquez’s men’s support group, Dr. Marquez can be reached at (949)633-5355 or by email at [email protected]
For any legal information about divorce issues or to schedule a consultation with Orange County divorce attorney Gerald Maggio of The Maggio Law Firm, please call (949) 553-0304 or visit www.maggiolawfirm.com. The Maggio Law Firm is an experienced and compassionate Orange County divorce and family law firm serving the Orange County and Riverside areas and neighboring counties, serving clients with legal issues including divorce, legal separation, prenuptial agreements, divorce mediation, and other family law issues.
Posted by: Gerald A. Maggio, Esq.
It goes without saying that divorce is one of the most difficult and stressful events that can happen in an adult’s life. For children, divorce can be a much more confusing, emotional and uncertain time.
So having a strategy for how to tell your children that you and your spouse are divorcing is very important, as well as how to guide them through the divorce process without being emotionally damaged in the process.
What is most important for the sake of your children is to avoid conflict with your spouse as much as possible, particularly in front of them. The more that you and your spouse can communicate and act objectively with regard to parenting and co-parenitng for the sake of your children, the better, even if you are experiencing emotional pain and anger yourself.
A divorcing parent must make every effort to support their children through the divorce even if they struggle to do so because they do not really know how to do so. The key to this whole process is for your children to know that despite the pending divorce, they are not at fault and they are loved. Where children of divorce often start having problems at school, with drug and alcohol abuse, and have behavioral problems is when the parents are fighting, do not work together, and put the children in the middle of their disputes.
Here are a few tips in how to tell your children that you and your spouse are going to divorce and how otherwise to discuss the divorce:
- Sit Down Together With Your Spouse
When the time comes to tell your children that divorce is going to happen, you should not be doing so without your spouse there with you. Your children will feel better having you both together in that setting, and you and your spouse will be a united front. Each spouse will also know exactly what was said and not have to wonder. That will instill more trust in your children and your spouse will also trust you more as a result.
- Honesty Is Necessary
You do not have to get down to the “nitty gritty” details of what led to the divorce, but giving honest yet simple responses to their questions will go a long way in helping deal with their understanding of the situation. Honesty will also help with trust.
- Avoid The Blame Game
Do not be critical of your spouse when speaking with them at the beginning of or at any point during the divorce. That will not accomplish anything other than insecurity in your children. Perhaps your marriage did not work out, but that does not mean that you and your spouse do not still have a responsibility to act maturely and as a co-parenting team for the sake of your children. Today’s children are very smart and intuitive and they know more than you think they do. So do the right thing for them and make sure that they feel like you are taking their best interests to heart.
- Listen to Your Children
Much more than half of effective communications is listening to what the other party is saying. Communicating with your children is no different. Really listen and consider the concerns expressed by your children and do not take what they say lightly. They may be young, but their feelings and concerns about the divorce have as much validity as yours.
Following these simple tips will help reduce the level of stress associated with the divorce on your children. Be proud of how you handled your divorce!
For further information or to schedule a consultation with Orange County divorce attorney Gerald Maggio of The Maggio Law Firm, please call (949) 553-0304 or visit www.maggiolawfirm.com. The Maggio Law Firm is an experienced Orange County divorce and family law firm serving the Orange County and Riverside areas and neighboring counties, serving clients with legal issues including divorce, legal separation, prenuptial agreements, divorce mediation, and other family law issues.
Posted by: Gerald A. Maggio, Esq.
Small businesses in America account for a substantial amount of the workforce and businesses in the U.S. economy. Many small businesses are family-owned, with many owned together by married spouses with other family members.
When the primary owners of a family business go through a divorce, the implications can be tremendous. Therefore, with so much at stake with a family business, couples who co-own a business should consider a prenuptial agreement (premarital agreement). Such an agreement can identify which property should be considered a spouse’s separate property and which should be counted as marital property, or it can deem that the other spouse will have no interest in the family business under any circumstance.
Furthermore, if one or both spouses have an ownership interest in a larger family business that would be viewed as marital property subject to division in divorce, a prenuptial agreement – and thus subject to property division in a divorce – a prenuptial agreement can give guidance on how it should be divided in the event of divorce, when it can be sold or one spouse bought out, and under what circumstances.
In other words, a prenuptial agreement can help protect the interests of the family business which can become caught in the middle of divorce proceedings, so that the family business does not experience negative ramifications simply because of a pending divorce, such as a rushed sale of the business or, worse, the closing of the business.
Divorce is a complicated and emotional process, and when a family business is involved, the process is substantially more emotional and complicated. Use of prenuptial agreements is one tool to help avoid future pain and problems that might occur in the event of a future divorce. A family law attorney can help you in that regard, for the sake of you, your family and your family business.
For further information or to schedule a consultation with Orange County divorce attorney Gerald Maggio of The Maggio Law Firm, please call (949) 553-0304 or visit www.maggiolawfirm.com. The Maggio Law Firm is an experienced divorce and family law firm serving the Orange County and Riverside areas and neighboring counties, serving clients with legal issues including divorce, legal separation, prenuptial agreements, divorce mediation, and other family law issues.
Posted by: Gerald A. Maggio, Esq.
For most people, the decision to file for divorce is itself one of the most stressful and gut-wrenching ones in their lives, and is often made after many months or years of going back-and-forth deciding what to do.
The next step after deciding to file for divorce is whether to retain a divorce attorney or not. California family law courts do allow you to present yourself “in pro per” in family law proceedings. However, is that the right way to handle your divorce case? NO!
Although that answer is coming from a divorce attorney, it is an honest answer based on years of experience handling divorce and family law cases. Even if your divorce is uncontested, there are very few assets of the marriage, and perhaps there are no children involved, you should still at least have legal counsel for guidance and to make sure your case is resolved properly.
There is a reason why the saying goes “He who represents himself has a fool for a client.”
I once handled an Orange County family law case for an ex-husband where the parties had both settled their case by themselves and seemingly he thought he had gotten a good resolution of his case. However, he had thought that he had gotten a waiver of spousal support from his wife in the divorce judgment, but the wording in the divorce judgment was clearly not drafted by an attorney. Ultimately, having handled his divorce himself came back to bite him, because the spousal support waiver was not worded properly and did not hold up. I assisted him in working out his case at that point but in reality he spent more money than he would have had to pay if he had retained a divorce attorney in the beginning to do the job right.
Most divorce cases are never “easy.”
Even when you think your divorce is “easy,” the divorce process, the steps involved and, most importantly, the potential pitfalls that may arise in resolving your case are all more complicated than you may realize. You are better to retain competent legal counsel to represent your best interests in your divorce case and get it done right, thereby avoiding vagueness and potential loopholes and pitfalls in your divorce judgment that could come back to haunt you later.
Moreover, the divorce process itself can be very confusing and overwhelming, and I have had many clients who originally tried to handle their case themselves, only to realize that it was a task that they could not really take on and handle adequately themselves. Moreover, with all of the issues generally involved in a divorce case, including division of assets and debts, custody, child support, spousal support, division of retirement accounts, etc., the resolution of those issues fairly and properly by yourself can be daunting when emotions are already high.
If you have to go to court because you cannot resolve all issues with your spouse, appearing in court in front of a judge by yourself is incredibly nerve-whacking, and unless you have a legal background, you do not possess the knowledge and skills to represent your own best interests and get the best possible outcome.
If your spouse has a divorce attorney, YOU need a divorce attorney.
I have sometimes been asked if a potential client should retain a divorce attorney because the other party has legal counsel who says he can “handle everything” for both parties. My answer generally is “yes.” Even though that other attorney may appear to have the best intentions, the fact of the matter is that the attorney is representing your spouse, not you. At a minimum, you need a divorce attorney to review the divorce paperwork and any proposed divorce judgment in your case to advise you of your rights and to make suggestions. I generally tell someone whose spouse has legal counsel that they also need legal counsel, because there is always a possibility that without one, you will get taken advantage of.
For further information or to schedule a consultation with Orange County divorce lawyer Gerald Maggio of The Maggio Law Firm, please call (949) 553-0304 or visit www.maggiolawfirm.com. The Maggio Law Firm is an experienced divorce and family law firm serving the Orange County and Riverside areas and neighboring counties, serving clients with legal issues including divorce, legal separation, divorce mediation, spousal support, child support and child custody issues.
Posted by: Gerald A. Maggio, Esq.
No one wants any problems with the IRS as a result of their divorce! In any divorce case, there are tax issues both during and after divorce that need to be considered and addressed. Divorce is anguishing enough, and dealing with a tax problem thereafter is even worse. Here is some information and tips on what to consider as part of your divorce in relation to taxes:
- Division of Property
Generally, for property transfer between divorcing parties as part of a divorce settlement, there is no tax implication. That can include transfer of ownership of real property.
However, there can be tax implications when an asset like a retirement account is split. For example, to divide a 401(k) plan, you cannot simply withdraw funds from the plan without penalties and taxes. Therefore, a Qualified Domestic Relations Order is often required to divide such plans by a rollover IRA to the other spouse to avoid taxes.
- Income Tax Filing Status
If a couple is separated and going through a divorce but have not finalized the divorce, they can generally file as “married filing jointly” or “married filing separately.” However, if one of the parties is not willing to file jointly under these circumstances, that party cannot be forced to do so. Only a tax professional can truly determine what filing status makes the most sense for the parties.
The timing of entry of the divorce judgment also determines how a divorcing couple can file their taxes. If the divorce judgment is filed and entered prior to the end of the year, that judgment terminates marital status and that means the parties cannot file jointly or “married filing separately.” So it sometimes makes sense to wait to file the divorce judgment until after January 1st if the parties wish to file jointly.
After the divorce judgment has been filed, generally the divorced parties will each file as “single” or “head of household” filing status. It is important to know that pursuant to the IRS Code, a parent that has over 50% physical custody of a child is entitled to file as “head of household” and the other parent cannot. Even if the other parent has 49.9% physical custody, they are not entitled to file as “head of household.” The parent with over 50% custody is generally also entitled to claim the child as a tax exemption too.
- Child and Spousal Support
There are 2 simple rules regarding the deductibility of child and spousal support payments are as follows:
- Child support is not tax-deductible to the person paying the support, and does not have to be claimed as “income” by the receiving party.
- Spousal support (a.k.a. “alimony”) is tax-deductible to the person paying the support, much like mortgage interest. For the divorced party receiving spousal support, that party has to claim such spousal support payments on their income tax returns and will be taxed on those payments, so that party should pay accordingly and adjust their tax payments during the year pursuant to the recommendations of their tax professional.
The tax issues related to divorce can be complex, and it is highly advisable that divorcing parties consult with an experienced tax professional both during their divorce and when working towards a final divorce judgment that will include a division of property, support orders, and so on. The more information available to parties enables for a more carefully-negotiated divorce settlement that avoids tax pitfalls.
For further information or to schedule a consultation with Orange County divorce attorney Gerald Maggio of The Maggio Law Firm, please call (949) 553-0304 or visit www.maggiolawfirm.com. The Maggio Law Firm is an experienced divorce and family law firm serving the Orange County and Riverside areas and neighboring counties, serving clients with legal issues including divorce, legal separation, spousal support, child support and child custody issues.
Posted by: Gerald A. Maggio, Esq.
There are several procedures that occur in an Orange County divorce case after the initial divorce paperwork has been filed and the other spouse has been served. There are the three main ones
1. Temporary Orders
After the initial divorce paperwork has been filed with the court, either spouse may file for a “Request for Order” (RFO) hearing with the court requesting a hearing to decide temporary orders for child custody, visitation, child support, spousal support, and other orders while the divorce is pending. Other orders can involve temporary use of marital property, restraining orders and orders that one party pay the other party’s attorney fees and costs.
Whenever a Request for Order (RFO) hearing addressing temporary child custody and visitation issues are filed, the Court will order that the parties attend mediation at no cost through the court’s mediation department prior to the Request for Order hearing date. Although the law requires that the parents participate in mediation, there is no requirement that they reach an agreement.
2. Disclosure of The Spouses’ Financial Assets, Debts, Incomes and Expenses
The next step after service of the Summons and Petition for Marital Dissolution and the Response thereto is for both parties to complete and exchange their own “Preliminary Declaration of Disclosure.”
Both parties in a California divorce are required to disclose detailed, accurate information to the other about their respective incomes, expenses, property (both marital and separate property), and all debts and obligations. These mutual disclosures are called the parties “Preliminary Declaration of Disclosure. These formal disclosures are signed under penalty of perjury. A Final Declaration of Disclosure can be completed at approximately the time of trial or settlement in the case, unless the parties mutually agree in writing to waive such final disclosure.
These Declarations of Disclosure consist of special forms required by the court, and except for proof that the parties served each other with such forms, these forms are otherwise not filed with the court. The 4 forms that generally comprise the Declaration of Disclosure are:
- Declaration of Disclosure (Form #FL-140)
- Income & Expense Declaration (Form #Fl-150)
- Schedule of Assets & Debts (Form #FL-142)
- Declaration Regarding Service of Declaration of Disclosure (Form #FL-141)
The purpose of such financial disclosures is to make settlement negotiations easier to proceed because of the generally clear picture of the parties’ financial situation given by such formal disclosure. Moreover, it protects the parties in the event that either spouse failed to disclose all assets.
California law requires that the disclosure documents be completed and served twice, once at the beginning of the divorce (i.e. Preliminary Declaration of Disclosure) and then again near the end of the case immediately prior to trial or Judgment (i.e. Final Declaration of Disclosure). However, the parties can agree to waive service of the Final Declaration of Disclosure, as long as such waiver is in writing on the appropriate legal paperwork.
3. Legal Discovery
In divorces that require determinations of the fair market value of marital assets, community businesses, debts, and self-employment incomes for support purposes, “discovery” requests served on one or both spouses may be necessary. Such discovery requests can require responses to general and specific questions, production of documentation and other tangible items, and depositions of the parties or third parties.
Completion of the discovery process is generally necessary before a divorce case can be set for trial and can slow down the divorce process. However, such discovery is necessary to protect the parties’ rights and ensure a fair and reasonable division of the parties’ assets and debts.
For more information or to schedule a consultation, contact Orange County divorce attorney Gerald Maggio at The Maggio Law Firm, by calling (949) 553-0304 or visiting www.maggiolawfirm.com.