Posted by: Gerald A. Maggio, Esq.
California uses a child support guideline formula to determine the appropriate amounts owed to the custodial parent. This guideline depends heavily on net income and the amount of time each parent spends with the child or children.
The California Family Court looks at two main factors when calculating child support: each parent’s net income and the amount of time each parent spends with the child or children. Additional factors that may have an effect on the overall amount of child support awarded to the custodial parent include child care expenses, medical insurance premiums, home mortgage payments, tax filing status, and any other expenses that may impact the family’s financial situation.
When a judge calculates child support amounts, he or she will look very closely at the amount of time each parent spends with the child or children. This amount of time is then entered into a complex formula that is used to calculate support payments, often referred to as the “J Factor.” This element is named so because the California Child Support Guideline operates using a mathematical formula in which “J” refers to the amount of time the non-custodial parent spends with the child or children.
The formula used in calculating child support is the same in every case and in every court in California. Because the formula used to calculate the child support amounts is complicated, the court most commonly utilizes a computer program called a Dissomaster™ to calculate the monthly child support amounts. The information entered into the program will be provided by the custodial and non-custodial parent. However, an experienced family law attorney will negotiate certain items with the other party to ensure that the proper child support is received each month.
“Family law attorneys will often negotiate what gets calculated into the non-custodial parent’s net income. They may ask the court to award support based on bonuses, commissions, overtime work and any other supplemental income they feel is regularly occurring,” explained Gerald A. Maggio, an Orange County divorce attorney.
Basic child support does not include the cost of child care or uninsured medical expenses. These additional costs will be considered by the court and will be ordered in addition to the guideline support.
These types of expenses are called mandatory add-ons, and a judge will take them into consideration before deciding on a final amount. Usually, a court will order that each parent is responsible for paying half of the child care expenses necessary for the custodial parent to be employed full time. In addition, the court will order that each parent be responsible for one half of the child or children’s medical and dental expenses which are not covered by insurance.
Although calculating child support can be a complex process, it’s important that a judge consider all of the factors when awarding child support amounts. “Parents have an important responsibility to provide for their children. Paying the appropriate amount of child support fulfills that obligation. Not getting the appropriate amount of child support will place financial strain on the custodial parent, and this, in turn, will put the child or children at great risk,” noted Maggio.
To learn more about the Maggio Law Firm visit http://www.maggiolawfirm.com/.
Posted by: Gerald A. Maggio, Esq.
Going through a divorce can be a difficult time for couples. Not only must they decide on an attorney to hire, but they must also consider whether a divorce can be handled through mediation rather than litigation.
Mediation is a practical option that can offer couples a chance to end their marriage in the spirit of cooperation rather than hostility. Once mediation is chosen as an option, the couple will work with a mediator to reach an amicable resolution of any issues that remain at the dissolution of the marriage.
“Mediation can offer couples the opportunity to end their marriage in a manner that minimizes stress and maximizes cooperation. During mediation, both parties can work together to achieve a positive outcome where both parties get some of what they want,” explained Gerald A. Maggio, an Orange County divorce attorney.
One of the most common reasons couples choose mediation is because it is less expensive than litigation. A couple will need to hire only one person to assist them in their divorce, rather than two separate attorneys. It is a flexible, inexpensive way for a couple to end their marriage without much conflict.
Mediation is also a good choice for couples because it offers them a greater degree of control than other options. When couples choose to pursue litigation, all of the decisions regarding their future rest in the hands of a stranger who really does not know their situation and personal circumstances.
“If divorces are settled through litigation, a judge will be responsible for making decisions that will affect a family’s future. A judge will have limited time to hear the details of each divorce case and cannot carefully consider how a decision will affect a family in the long-term. Mediation, on the other hand, offers families the flexibility to take as much time as necessary to consider how these decisions will impact their future,” indicated Maggio.
A divorce can have a traumatic effect on children, and pursuing mediation instead of litigation is often easier on them. When choosing to use a mediator, it can help families move forward in a way this is amicable. Children will not be subjected to a bitter battle in a court room, and the couple will be able to work together to find the best solution without putting the children in the middle. “Placing children in the middle of difficult divorce proceedings could impact their ability to have healthy relationships and may cause them to suffer emotional problems that can carry into adulthood. Mediation allows parents to discuss important decisions in an arena that is less stressful on child,” added Maggio.
Mediation is also a great option because it does not limit couples from going to court. If a couple is not satisfied in mediation and cannot come up with a solution that fits both parties, they can stop at any time, retain separate attorneys and have a judge decide their important issues.
Mediation is not the only alternative to an unpleasant divorce experience, but it is an option that deserves serious consideration. A family law attorney is an excellent choice for a mediator, as he or she will know and understand the rules of divorce and will understand the type of decisions a judge could make, if the matter has to be litigated. A divorce attorney serving as a mediator can also prepare the necessary documentation to complete the divorce process in the court.
To learn more about the Maggio Law Firm visit http://www.maggiolawfirm.com/.
Posted by: Gerald A. Maggio, Esq.
When filing for a divorce in California, there are a number of different documents you should provide for your attorney, so that he or she can know how to best proceed in the matter. Depending on the issues involved in your case, you may wish to produce documents that date back approximately a year prior to the date on which you separated from your spouse through the present time. In some cases, you will need to provide documents that date further back. If this is the case, your attorney will advise you regarding exactly which documents are necessary.Getting all of these documents together before you file for divorce will help your attorney speed-up the divorce process. In addition, it will help preserve critical evidence that may be needed to resolve your case. You should gather the following documents:
- Individual income tax returns from the past three to five years (federal and state)
- Any business income tax returns from the past three to five years (federal and state)
- Proof of your current income (Including W-2 forms, 1099 forms, and recent pay stubs)
- Prenuptial agreement, if one exists
- Bank statements
- Retirement account statements
- Stock portfolios and options
- Pension statements
- Credit card statements
- Any existing loan documents
- Utility bills and other bills (tuition, medical bills, etc.)
- Life, health, automobile and homeowners insurance policies
- Real property deeds for each property you or your spouse own, or any properties owned by any entity that you have an interest in
- A detailed list of personal property, including jewelry, home furnishings, artwork, electronic equipment, clothing, etc. If you and your spouse own any particularly valuable or unique items you may wish to photograph them and inventory them and perhaps obtain an appraisal.
- List of real property and assets owned by each spouse prior to marriage
- Wills, trusts, living wills, powers of attorney, durable powers of attorney
It is important to remember that this list is not exhaustive. Your family law attorney may require additional documents from you. The more of these documents you can provide, the easier it will be to proceed with your divorce.
Gerald A. Maggio is an Orange
County divorce attorney, in Irvine, California. To learn more about Orange Country divorce lawyer, Gerald A. Maggio, visit Maggiolawfirm.com.
Posted by: Gerald A. Maggio, Esq.
Long-term spousal support in California cases can be amended or terminated under certain circumstances. Supporting partners have a number of different options available to them, if they wish to pursue a modification or termination of the support they provide.
In most cases, long-term spousal support can be terminated or modified at any time during the support period. The only instance when this is not true is when there is a written agreement by the parties expressly stating that spousal support is non-modifiable. In the absence of such an agreement, the court generally retains continuing spousal support jurisdiction and can decide to terminate or reduce spousal support in later court proceedings.
If the court assumes continuing spousal support jurisdiction, then the court may grant a request to modify spousal support if the supporting party can demonstrate a material change of circumstance since the most recent court order outlining the spousal support. When reviewing a modification or termination request, the court will consider the following factors:
Reducing Support if Spouse Is Self Supporting – The California Family Code emphasizes that even in long-term marriages, defined as those which last 10 years or more, the supported spouse has a duty to become self-supporting within a reasonable amount of time, which is considered to be one-half the length of the marriage. Generally, if the duration of the marriage is less than ten years, a supported spouse is expected to become self-supporting in half the length of the marriage. Modification or termination of the support can be ended before this time. If the spouse has not made any reasonable efforts to become self-supporting, you may ask the court to terminate the spousal support. If, on the other hand, your former spouse has actually increased his or her earnings, you will be able to present evidence of this in court and argue that he or she now has a reduced need for support.
Reducing Spousal Support Based on Obligations – In some cases, the supported party’s separate estate, including any and all assets allocated to him or her in the community property division, and its reasonable income potential, may be enough for you to seek a reduction or termination of previously awarded spousal support.
Other Factors that affect Modification of Spousal Support include:
Remarriage – Unless the parties have made an agreement in writing, a spousal support order automatically terminates when the supported party gets remarried.
Cohabitation – Cohabitation may also be a basis for seeking a modification or termination of a spousal support order. If your former spouse is cohabitating with a member of the opposite sex in a romantic relationship, you can request that the court order a termination of support or a downward modification of support.
Retirement – The retirement of the supporting party may be sufficient basis to receive a termination of support; however, it will be important to prove that the supporting spouse has a right to retire and is not choosing early retirement.
Whether you can terminate or reduce your existing spousal support obligation depends upon the unique facts and circumstances of your case. If you are considering modifying or terminating your spousal support order, you should contact a family law attorney who will review your case and advise you on how best to proceed.
Gerald A. Maggio is an Orange
County divorce attorney, in Irvine, California. To learn more about Orange Country divorce lawyer, Gerald A. Maggio, visit Maggiolawfirm.com.
Posted by: Gerald A. Maggio, Esq.
Dealing with divorce is complicated enough, but having to deal with dividing debts makes it considerably more difficult. How a couple’s debt is divided depends on a number of different factors.
In California, the community is liable for all debts that were incurred during the marriage, regardless of which partner actually incurred the debt and whether this debt benefitted the family or the individual. Both parties are thus equally liable for the debt, and this debt should be divided evenly when settlements are being discussed unless the parties come to some other agreement. For example, one spouse may agree to pay off the joint debts in exchange for a greater share of the community property. A spouse may be inclined to do this because it will ensure that he or she is not responsible to the creditors.
Couples often face issues when one party has been off the other’s pre-marital debts. Oftentimes, a couple is married and one spouse has a great amount of pre-marital debt that the other spouse agrees to help pay off. In this case, the couple has used community property to pay off a separate debt. If either party files for dissolution of the marriage, California case law states that the community is entitled to reimbursement for the amount it paid to discharge one party’s separate property.
Debt that occurs after a couple has separated can be a more complex affair. If there is no court order or written agreement established in the separation that outlines payment of the debts incurred, then those debts that are deemed “necessaries,” will be confirmed to either spouse according to their respective needs and abilities to pay at the time the debt was incurred. Debts incurred by either spouse for things deemed “non-necessaries,” of that spouse or children of the marriage for whom support may be ordered shall be confirmed without offset to the spouse who incurred the debt.
Divorce can be a difficult process and dealing with debts incurred during the marriage and afterwards can be hard to navigate. It’s a smart idea to consult a California attorney who can provide guidance about how debts incurred during a marriage are likely to be divided by the court.
To learn more about the Maggio Law Firm visit http://www.maggiolawfirm.com/.
Posted by: Gerald A. Maggio, Esq.
Registered domestic partners have the same rights as married couples when it comes to community property. Unless couples establish an agreement prior to their registration, community property rules will apply in the event of dissolution or death.
In California, a domestic partnership gives parties a legal status that is similar to marriage. As such, those parties involved in a domestic partnership have certain legal rights afforded to couples who are married, including community property rights. In a registered domestic partnership, community property is generally regarded as the property acquired by either partner during the period of the registered domestic partnership. This means that all income, assets and savings acquired after registration was filed and all assets accumulated from earned income are considered to be equally owned and, therefore, community property. This is regardless of titling of deed, asset, or account.
Under California’s Domestic Partner Rights and Responsibilities Act of 2003 community property concepts apply to property rights, but not for tax purposes. In the event that the domestic partnership is dissolved or a death occurs, each partner would automatically be entitled to a half interest in any property that was purchased during the time of the registered partnership.
However, if one partner dies, community property concepts will not be used in order to determine the size of the decedent’s estate. If the partnership is simply dissolved, the community property would be divided equally between partners, and they would have the right to use the state court system in order to properly divide their assets.
If couples are not registered as domestic partners, then they do not have any community property rights. All pre-registration assets and gifts or inheritances received at any time during the registered partnership are presumed to be separately owned.
Community property rights will also not apply if registered partners have prepared a Domestic Partnership Agreement that outlines how assets, debts, and property are to be distributed in the event of a separation. This agreement provides both partners with legal protections should either party ever decide to end the relationship. It can also help couples avoid the effects of certain domestic partnership laws that can be disadvantageous to them.
If you are considering dissolving a domestic partnership or would like to establish a Domestic Partnership Agreement, you should consult with an experienced California attorney who can help you navigate these difficult, complex legal processes.
Gerald A. Maggio is an Orange
County divorce attorney, in Irvine, California. To learn more about Orange Country divorce lawyer, Gerald A. Maggio, visit Maggiolawfirm.com.
Posted by: Gerald A. Maggio, Esq.
Many parents choose mediation over litigation because it eases the stress their children might feel during a divorce. Involving children in mediation proceedings will help parents ensure that their children’s interests are being protected.
When parents decide to get a divorce, all of their decisions will have consequences for their children. All parents want to protect their children from the pain and suffering that can stem from a divorce, but the involvement of children is often necessary in divorce proceedings. Today, more and more parents are turning to this option rather than risking the negative impact litigation might have on their children. In fact, many parents choose to pursue mediation precisely because they have the common goal of doing what is best for their children.
Through the mediation process, parents will be able to establish a parenting plan that will work best for all members of the family. While it is the adults in the relationship that will make decisions during mediation, the input of children can be valuable and is something that parents should consider when making these plans.
If parents have made the decision to consider their children’s input during mediation, then this may require an interview. The mediator may choose to interview the child himself, or a child therapist may conduct the interview instead. These interviews can be difficult, though, because children may not want to speak about their parents’ divorce to a stranger, they may not want to disappoint one parent, or they may have been coached to give certain answers. In such cases, a child therapist may be used to conduct an interview, as he or she will be highly qualified to deal with the children’s emotional issues.
Sometimes, a mediator may believe that an interview is not necessary and may simply ask parents about their impressions of their children’s wants. This actually focuses parents on their children and encourages them to consider their children’s needs. Once this has been discussed, the mediator will then try to incorporate what the parents have communicated into the mediation decisions.
By including their children’s interests in their divorce mediation proceedings, parents will ensure that the mediation process goes smoothly. Mediation will ensure a better outcome will be achieved for the entire family and will help family members lay the foundation for a more cooperative future.
To learn more about the Maggio Law Firm visit http://www.maggiolawfirm.com/.
Posted by: Gerald A. Maggio, Esq.
When divorce doesn’t seem like a viable economic solution to marital problems many are opting for a new approach. Say hello to the new “non-divorce.”
“There is certainly more than one way to end a failed marriage, although traditionally speaking, it has been to go to a divorce lawyer and get a divorce through the courts. After that, each person went on their separate way, only dealing with their ex-spouse if children were at issue,” recounted Gerald A. Maggio, an Orange County divorce lawyer. Of course, if there were no children involved, the couple just took the spoils of the divorce and went on to other relationships.
These days, it’s becoming more and more common for those who want to divorce, but can’t swing it economically, to go for a “non-divorce” divorce. While this may sound a bit counterintuitive, it does seem to be a solution of sorts for some couples.
“In essence, a non-divorce is an accord between the two spouses who are agreeing to keep their marriage intact, but making it a point to recognize the relationship they once had has failed. In other words, they want to feel like they are divorced, still live together, and not get a “legal” divorce. I should add, they have no intentions of reconciling either,” added Maggio.
The couple furthermore doesn’t want to hire a lawyer, file any papers, discuss custody or support issues, see their children any less or take the risk of losing half of their financial assets. “The net result of this approach is that while still legally married, they are acting as roommates who share child care. Living like this also preserves the marital estate, in their minds,” Maggio outlined.
Aside from some of the psychological fall out this type of living arrangement may have for couples, there are also legal ramifications that they are not taking into consideration. “The most important point here is that if the couple does finally decide to call it quits according to the ‘law’ and wants to get a divorce, there is no date of separation,” said Maggio. The date of separation is important when it comes to family law and divorce proceedings because it marks the death of the community of the marriage.
“From the date of separation, the law states that are no community assets or debts. It then becomes a spouse’s separate property and/or debts, and they start to accrue, much like they did prior to marriage. It also means that the spouse will be entitled to half of your property and you in turn, will be liable for half your spouse’s debt,” Maggio explained.
Put another way, if two people living in the same house, acting as if they are married, but they are each managing their finances separately and there is no full disclosure, this adversely affects the situation. “How? Your spouse is still entitled to all the benefits you had when you were ‘happily’ married and living together as man and wife, as opposed to living together as roommates, and that may mean rights to health insurance, the family residence and any gifts from wills or trusts,” indicated Maggio.
This whole new non-divorce area is fraught with other legal landmines that are best discussed with a competent divorce attorney before anyone should attempt to try living like this.
Gerald A. Maggio is senior partner of The Maggio Law Firm, Inc., an Orange County and Riverside Divorce and Family Law firm headquartered in Irvine, California. The Maggio Law Firm is experienced in all aspects of divorce and family law matters, including child custody, child support, spousal support, complicated high asset marital property cases, and domestic partnerships.
To learn more about the Maggio Law Firm visit http://www.maggiolawfirm.com/.
Posted by: Gerald A. Maggio, Esq.
Divorcing isn’t easy. Handling the various details required for marriage dissolution in California is enough to send a person into panic.
Going for marriage dissolution is a tough decision, made even more difficult if there are children involved. It’s a time for second guessing, worrying about the welfare of the kids, and about the future. Then there are all the details that need to be attended to in order to get marriage dissolution in California. The stress levels couldn’t be higher. In situations like this, discuss your fears with your Orange County divorce attorney. That’s what they are there for; to guide you through the labyrinth of confusion that arises when divorce proceedings take over what was once a normal life.
In order to get a handle on some of the stress, one of the better ways to get mentally organized is to make a checklist; a divorce checklist. While this might sound like the last thing on earth you would want to do with the roof falling in on your head, it offers you the chance to clearly focus on what needs to be done, what is done and what is pending, as well as puts into focus what documents or information you will need to round up.
The other positive thing gained by using a divorce checklist is that it tends to prevent any surprises further down the road if both of the spouses are on the same page during their dissolution proceedings. While this may be a very upsetting thing to do, it will pay off in the long run when all the sticky issues that need to be taken care of are out in the open and ready to be discussed with some degree of equanimity.
A divorce checklist should also have an asset and debt inventory section that covers various items that need to be shown to the court. That usually includes marital debts for the couple and an accurate record of all marital property. The property may include bank loans, bank accounts, student loans, pension plans and retirement plans, IRAs, bonds, stocks, sporting goods, the marital home, jewelry, and the vehicles both spouses drive. If there are any questions on how to classify property or divide your debts, speak to your Orange County divorce attorney for clarification.
One of the hardest things to sort out for a divorce proceeding is the value of assets, and in most instances, a reasonable guess will suffice keeping in mind that you may also need to be able to prove the actual value of the asset at a later date. The value of the asset should also include details about when the item was purchased and which person will take possession of it. Splitting the debts should also be done in a similar manner. In other words, who incurred the debt, how much is owed and who is going to take the responsibility to repay it.
There are other questions that will need to be dealt with over the course of the dissolution proceedings, and if you stay in constant contact with your Orange County divorce attorney, the journey to divorce won’t be quite as devastating or confusing.
Gerald A. Maggio is an Orange
County divorce attorney, in Irvine, California. To learn more about Orange County divorce lawyer, Gerald A. Maggio visit Maggiolawfirm.com.
Posted by: Gerald A. Maggio, Esq.
Getting a divorce in California does not necessarily mean alimony is awarded. When in doubt about this provision, speaking to a skilled Orange County divorce attorney will clear up any questions.
“Just because two people decide they want to file for a divorce doesn’t always mean alimony will be a part of the final package. Although many people think that alimony is automatic, this is not the case. What is clear is that there is a great deal of confusion surrounding this issue, and that confusion involves the belief that all divorcing spouses are entitled to alimony,” explained Gerald A. Maggio of The Maggio Law Firm in Irvine, California.
While it might make sense to assume that in cases where adultery is the reason for the divorce that the judge will punish the cheater by ordering spousal support, divorce law doesn’t work that way. Another common fallacy is that just because the marriage lasted as long as it did, or didn’t as the case may be, that one of the parties is entitled to support. This too is not the case.
What does happen does then? “First and foremost, the couple is free to make their own arrangement for support payments, if they wish to do so,” added Maggio. If they are able to agree on support, a divorcing couple need to tell the court how much will be paid in support; how long it will last; why it might decrease or increase in the future; and other matters the couple want included in their agreement.
“Coming to an agreement on their own is advantageous to the couple,” Maggio pointed out, “because they can also agree the court will not have the power to change the payment any time despite what the financial situations of either person happens to be.”
While this might sound like it’s an easy thing to do, come to an agreement on spousal support, it is actually one of the more contentious areas in a divorce proceeding. Many couples just cannot agree on anything, never mind an amount for support payments. “In situations like that, California provides specific standards for figuring out how much will be awarded to the ‘receiving’ spouse,” outlined Maggio.
For example, if the couple has been married for less than ten years, alimony/support will usually be required to be paid for five years. In other words, alimony will be required to be paid for half the length of the marriage. “So, in the case of a 30 year marriage, the receiving spouse could conceivably get payments for 15 years,” Maggio indicated. On the other hand, if the marriage lasted for ten or more years, support will be paid until the spouse getting it remarries or dies.
The crux of this issue is how the judge decides on what is a fair alimony payment. Interestingly enough, computers help the judge do this by using software that uses guidelines such as: how much total income each spouse makes; their living expenses (individually); if there are children and how many days the kids spend with each parent; and other factors. “Remember, that if the court is deciding the amount of alimony, they also have the right to change the figures later,” commented Gerald A. Maggio of The Maggio Law Firm in Irvine, California.
In most cases, alimony amounts would be changed (if decided by the court) based on a spouse losing their job, declaring bankruptcy or becoming disabled. “This is a two way street,” said Maggio,” in that changes may be made for the receiving spouse if something happens to merit a higher amount.”
When it comes to spousal support, there are various ways this may happen: the parties may seek their own agreement about payments; ask the court to figure them out; or take a pass on it altogether and just go for the divorce. No matter what the decision is, speaking to an Orange Country divorce attorney is the smart thing to do.
Gerald A. Maggio is senior partner of The Maggio Law Firm, Inc., an Orange County and Riverside Divorce and Family Law firm headquartered in Irvine, California. The Maggio Law Firm is experienced in all aspects of divorce and family law matters, including child custody, child support, spousal support, complicated high asset marital property cases, and domestic partnerships.
To learn more about the Maggio Law Firm visit http://www.maggiolawfirm.com/.
