Posted by: Gerald A. Maggio, Esq.
To file for a divorce or dissolution, you need to speak to a skilled Orange County divorce attorney to understand that California is a no fault state, and what this means.
One of the first questions many divorce attorneys get in California is usually, “What are the grounds for divorce?” The first thing those seeking to end their marriage need to know is that California is a no fault state and divorce is more often than not referred to as dissolution. In addition, since this is a no fault state, this means the courts don’t look at which party is at fault when they need to make a decision about issues such as support and the division of community property.
Be aware as well that there are some residency requirements that must be met by both of the parties to the dissolution. For example, either you or your spouse must have lived here for the last six months and you “must” live in the county in which you will be filing for dissolution for the last three months. On the other hand, if you meet the “living in California for six months” criteria, but have lived in different counties for at least three months, then you may file in either county.
It’s usually a smart thing to do to speak with a qualified Orange County divorce attorney to find out what your rights are when you file for dissolution and how to go about it. Representing yourself in situations like this is not a good idea, as there are a number of pitfalls – for example the division of community property – that may wind up to be a highly contentious issue. Without the expert assistance of an Orange County attorney, flying solo may land you in a great deal of hot water.
If you still wish to proceed with your dissolution, generally speaking, you must have your attorney file and serve a petition and summons with the courts prior to having it served on your spouse. This means that you become the petitioner and your spouse the respondent. If you have children you will need to ask your Orange County divorce attorney about filing a UCCJEA declaration relating to your children of your marriage.
If you happen to be served with a petition and summons and didn’t see it coming or don’t know what to do with it, contact a highly reputable Orange Country divorce attorney who will explain the process and what you need to do. Generally speaking as a respondent, there will be 30 days to file and have a response served. If you wait too long to speak to an attorney, and your response is not filed, the person who filed the papers (the petitioner) may ask for a default judgment.
Another thing you will need to know is that if you have been served with a petition and summons, the date when they were served on you is when the clock starts ticking for the earliest time for you to get a judgment of dissolution or divorce. Put another way, neither of the parties is considered to be divorced any “earlier” than 6 months after the date when the papers were served.
Many people do not realize that the summons has an automatic restraining order attached to it and that it applies to “both” parties. If either one of you violate the restraining order, you run the risk of being held in contempt of court.
There are many other issues that couples contemplating a dissolution need to know (division of community property, spousal support, etc.) before they make their final decision to proceed or not. It’s vital in instances like this to discuss your rights with an Orange County divorce attorney.
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.
It’s true; separations don’t necessarily end in a divorce. Each case is different and this is why you need the wise advice of an experienced Orange County divorce attorney.
Generally speaking, a great number of people who are considering filing for divorce will opt to try a period of trial separation. While this may work, or may not, many couples feel it is worth trying given the number of years they may have spent together and if there are children involved.
Some people look at being separated as something that just “is,” an informal thing like moving in with a best buddy for “now” until things gets sorted out. This does indeed happen, but it’s not always the best way to manage the disintegrating marital situation. Put another way, it’s not always an informal deal and some couples prefer seeking legal separation under the auspices of a separation agreement drafted by an experienced Orange County divorce lawyer.
Separation agreements are typically written in such a manner that is beneficial to both parties. They are a way for the partners to separate without being legally divorced and without facing the emotionally devastating consequences of a divorce. Call it a stop gap measure to let the couple find the time to deal with their issues and either come to a resolution or decide divorce is the correct step for them.
Living apart may clarify many issues that had no chance of being resolved when both parties were living under the same roof. This way, time may heal the difficulties. In fact, the time apart may not result in divorce. Some separated spouses take the initiative to try their marriage once again.
If a couple does decide to do this, get back together after being separated, nothing has really changed. On the other hand, if they had chosen to go the divorce route, and then decided to remarry, the difficulties inherent in that kind of a situation are enormous. This is one of the reasons why talking to an Orange County divorce attorney makes sense.
If you’re faced with trying to decide whether to separate or divorce, only an attorney will be able to inform you of your rights and what would happen if you do choose to divorce. The attorney will also be able to draft a legal separation document.
You may be wondering why you need to bother with a legal separation. The answer is that its main benefit over an informal separation is that if there is no court sanctioned agreement, the spouse who left the house may be charged with desertion. The legal consequences of this if you have children are highly problematic in that you may be taken to court for abandoning the children. In some jurisdictions, you must have a legal separation agreement in place before the courts grant a full divorce. Check this with your Orange County divorce attorney before making any moves.
Remember that in situations like this, working together with your attorney is the quickest way to find a satisfactory resolution to the contentious issues you are both dealing with to get a divorce.
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.
There are certain circumstances where it is best to annul a marriage. This is a situation that needs to be discussed with an Orange County divorce attorney.
Many people have heard the term annulment but aren’t sure precisely what it means when dealing with a marriage. Simply put, an annulment cancels a marriage, making it like it never happened in the first place. “Keep in mind that not everyone may qualify for an annulment. They must meet certain requirements referred to as a declaration of nullity,” explained Gerald A. Maggio of The Maggio Law Firm in Irvine, California.
Why not just get a divorce? While this is possible, it is not recommended in some instances. Generally speaking, there are two ways to cancel out a marriage. The most common way, divorce, happens when two adults can’t reconcile their differences. A divorce creates a record for everyone to see.
“The second way to bail out of a marriage is an annulment, meant for circumstances where the marriage was accidental or was entered into under false pretenses. Once the annulment is granted, there is no record of the marriage ever happening,” Maggio added.
One of the leading benefits of an annulment is that it is much faster than a divorce, with a waiting period of 20 days. This may be waived if both parties agree to do so. Generally speaking, if the couple involved in the annulment proceedings is amicable and agree to go this route and they qualify, then an annulment is usually the best way to proceed.
This is where things may get a bit difficult. “To qualify for an annulment, a reason must be given as to why the marriage should be null and void. A reason for annulment is referred to as a diriment impediment to the marriage,” outlined Maggio. These impediments may include not intending to remain faithful to the spouse when they get married, abducting a person to make them get married, one partner has been deceived by the other to get their consent (if the partner had known about the deceit they would not have gotten married) and insanity.
Other impediments are that the couple killed the spouse of one of them to be free to marry, the couple committed adultery, and one of couple killed the spouse of one of them to be free to marry, and not living up to the requirement of common law for marriages. “These are serious impediments and in all instances, these situations must be discussed with a skilled Orange County divorce attorney in order to start the process to have the marriage considered null and void,” said Gerald A. Maggio of The Maggio Law Firm in Irvine, California.
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.
It’s difficult enough facing a marriage breakup and then finding out your state may have different rules for divorce. Speak with an Orange County divorce attorney to know by what laws your state abides.
It’s a complex world when it comes to divorcing. It’s difficult emotionally and financially and if children are involved, it’s even more complex. Some states’ divorce laws are relatively benign and others divide property and deal with child custody differently. If you are searching for information on the Internet, be very cautious about what you read, as what happens in Nevada may be entirely different than what happens in California. When in doubt, always consult with an Orange County divorce attorney.
If you happen to live in California, either spouse is able to file a petition for divorce at a local courthouse. This does not have to be a mutually agreed upon action. Once the petition is filed, it is served on the other spouse, leaving 30 days to respond to it. If there is no response within the defined time limit, then you may file a judgment claiming whatever you want. There may be exceptions to this scenario, and for this reason it’s best to speak to an Orange County divorce lawyer. Keep in mind as well that in this article we are only discussing the “basics.” Each divorce case is different, and because of that, each one may be handled differently by your attorney.
If you do get a response from your spouse, the next step is usually a discovery of assets. Right about now, either person involved in the divorce proceedings may file an order to show cause and get temporary orders for support, attorney’s fees, visitation and child custody. If you do happen to get mutual agreement on settling all of your assets, support and child custody, a Marital Settlement agreement is filed. Approximately six months later, your divorce would be final.
In many cases, such as those where the partners are no longer speaking, reaching agreement on the wide variety of issues involved in a divorce is difficult. If you are unable to agree on all or some of the assets, custody issues and support, your Orange County divorce attorney will likely take the case to trial. At that point, it is up to the judge to make a decision on the whole case.
While this process is a difficult one, there are also many other instances along the road that may crop up that no one was expecting. These actions make proceeding with a divorce even more difficult. There have been actual instances where one spouse or the other has found themselves locked out of their home, had the bank accounts shut down, credit cards cancelled, and the other spouse attempting to hide assets. Stranger things have happened, but instances like this are situations that a skilled Orange County divorce lawyer will take in their stride.
If you’re in a difficult situation where your spouse is alienating the children, calling you names, hiding family vehicles, picking fights over nothing, and dragging up things out of your past that you’d rather not deal with and have no relevance to the divorce, you need to speak to a seasoned Orange County divorce attorney. They will let you know your rights, what is important to the divorce going through, and what you may ignore.
While it is difficult to ignore hurtful actions and words, if you have children and the marriage is past the point of no return, you need to focus on the kids and their best interests. Be prepared for your divorce in California by hiring an experienced Orange County divorce attorney to represent you. This will ensure the best possible outcome for your case.
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.
The courts look at marriages like partnerships in the State of California, so when it comes to divorce, spouses are co-owners.
If you live in California and are contemplating or about to actually file for a divorce, you need to be aware that California is a community property state, one of only nine like it in the United States. Community property means that spouses are regarded as co-owners of property, like being in a partnership.
There are three categories that married spouses may fit into when facing a divorce in California, the first being community property; the second being separate property; and the third being quasi-community property. Why the different categories when a couple is getting divorced?
The category the property happens to fall into controls how it is divided when the divorce is final. For instance, California’s community property law says community property is considered to be “all” property, no matter where it is located, that was acquired by the married couple while they lived in California. If the property is located within California, the California law classifies such property as community property. If the property is located outside the State of California, it is called quasi-community property.
Generally speaking, the couple both own property that they bought between the time they were married and the day they separated. Each of them owns a one-half interest in that property. This is what is referred to as community property, with both people owning it at the same time.
On the other hand, separate property is property that either spouse owned “before” the marriage or after separation. Or, it might also be assets that were received during the marriage as a gift or an inheritance. An example of this might be if a relative gifted an ancestral home to the wife. That home is then hers and is considered to be separate property at divorce time.
On another note relating to separate property: if any money is earned from that property, it is considered separate. However, if income is generated by both spouses and it is not related to the separate property, it is community property and it doesn’t matter if the money is in separate bank accounts.
Things tend to get a bit complicated when it comes to the quasi-community property category. The law looks at that as all property, no matter where it is located, or if it was bought before or after the operative date of the community property code. Wait, it gets worse, as here are the various ways property may be acquired: by either partner while living someplace else, which would have been community property if the person who bought it had been living in California when it was purchased; or if the property was acquired by exchange, then it would have been community property if the person who exchanged it had been living in California when the property was exchanged.
Talk about confusing to say the least. So to simplify things a bit, typically quasi-community property means a property acquired by a couple when they lived in an equitable distribution state prior to living in California. Once they move to California, their quasi-community property is treated like community property.
There’s one other thing that divorcing California couples need to know and that is that there are instances where separate property may become community property during the course of the marriage. To say this would come as a really unpleasant surprise is an understatement.
If you are contemplating filing for a divorce in California, make sure you hire an expert divorce lawyer who will outline the details about community property and guide you through the tangled divorce process.
Renee Cary writes for Irvine divorce attorney, Gerald Maggio of The Maggio Law Firm. To learn more about Irvine divorce lawyer, Gerald Maggio visit Maggiolawfirm.com.
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After the initial divorce paperwork has been filed with the court, either spouse may file for an “Order to Show Cause” 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 feed and costs.
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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. There mutual disclosures are called the parties’ “Preliminary Declaration of Disclosure”. The 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:
1. Declaration of Disclosure (Form FL-140)
2. Income and Expense Declaration (Form FL-150)
3. Schedule of Assets and Debts (Form FL-142)
4. Declaration of 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 (Preliminary) and then again near the end of the case immediately prior to trial or judgment (Final). However, the parties can agree to waive service of the final Declaration of Disclosure, as long as such a waiver is in writing on the appropriate legal paperwork.
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Stipulation (Agreement) of the Parties:
When parties are able to work together in reaching agreements for temporary orders or final settlement of their entire marital dissolution case, a “Stipulation & Order” for temporary orders or a “Marital Settlement Agreement” can be drafted by the attorney outlining the terms of such agreement which the parties and their respective counsel will sign and when filed with the court, they become official orders of the court.
Trial:
If the spouses ultimately are unable to reach a more “permanent” agreement on all custody, visitation and related issues, the parties will need to request that a trial date be set to have the judge assigned to the case decide the issues. There are not juries in family law court, so such issues are generally decided by the Judge or a Commissioner of the Family Law Court.
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California has a six-month “cooling-off” period prior to entry of a judgment in a marital dissolution case, meaning that a judgment terminating the marriage cannot be entered until at least 6 months after the date the other spouse was served with the petition for marital dissolution has passed. However, nothing happens automatically when the 6 month time period is reached, and the court does not automatically terminate the marriage after 6 months. Entry of a judgment requires either a formal Marital Settlement Agreement be entered into by the parties as part of a judgment package filed with the court, or otherwise by court orders made at trial.
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Yes. Until a judgment is entered in your divorce case, you cannot legally remarry. However, in cases where the issues are heavily contested, it it possible to seek a “Bifurcation of Marital Status” wither by agreement or court order whereby the Court separates the issue of marital status from the rest of the case, restores the parties to the status of single persons, and reserves the remaining issues for further determination. Bifurcation of marital status enables the parties to remarry while they continue to negotiate and litigate the remaining issues of their divorce.
