Posted by: Gerald A. Maggio, Esq.
The petitioner and the petitioner’s divorce lawyer start a divorce case by filing a Petition for Dissolution of Marriage. They would file it in the California Superior Court, initiating the petitioner’s divorce case. The petitioner requests the court dissolve the marriage as well as child custody, child support, property, debt and lawyer fee issues.
How the case is handled depends on the respondent, or the other party, and whether the respondent fails to file a Response to the Petition, settle the case by agreeing or files a response contesting the issues.
Therefore, depending on what the respondent does, there are three ways a divorce case gets resolved in California:
1) The default divorce is when the respondent fails to respond to the divorce petition or legal separation. If this happens, the matter still proceeds without the respondent and as “default” by the court clerk.
2) An uncontested divorce is when both the respondent and petitioner work together without much ado in order to settle the case by written agreement. This can also happen when the respondent defaults at first but later decides to settle.
3) The contested divorce is when the respondent files a response to the petition that an agreement cannot be made on certain issues and therefore the court takes the case to trial.
There is a list of procedures on how to proceed for a default or an uncontested divorce with your lawyer:
1) Choose the proper county that has jurisdiction
2) Prepare documents that need to be filed
3) File the documents with the court
4) Serve the documents
5) If no response is filed, enter a default
6) Prepare financial disclosures and have the respondents financial disclosures reviewed
7) Notarize a marital settlement resolving all the issues in your case, such as child custody, child support, child visitation, division of community property, etc.
8) Prepare an order for child support withhold of income
9) File a judgment package with the court that resolves issues between both parties
10) Serve the judgment
11) File family support or child support orders with the state of California entitled “Child Support Case Registry Form” (FL-191)
12) Serve wage garnishment or order to withhold on spouse’s employer
For a contested divorce, there are additional steps that may include filing Order to Show Cause (OSC) to get temporary orders to stay in place until the final judgment is entered by the court. Also a discovery needs to be done to gather evidence from both parties to present at trial if your case does not settle and goes before the court.
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.
There are many ways that addiction can affect a marriage.
Drug, alcohol, pornography or gambling addiction can sabotage trust. Trust is the foundation of any good relationship. Addiction, in general, could lead to making poor choices, risky behaviors, diminished communication, lack of attention to personal and business affairs, and sometimes even extra-marital affairs. Once trust is damaged, it is often harder to get it back. Damages done by drug-related, alcohol-related or deviant behaviors that usually override the addicted spouse’s family obligations.
The addicted person becomes more self-serving in order to feed his or her addiction by any means necessary, therefore maintaining balance and reciprocation in the marriage is not present or often much skewed. The non-addicted spouse is left to pick up the pieces of his or her partner’s bad behaviors and bad choices and will feel neglected and abandoned over time. The burden of taking the entire family often falls on the non-addicted spouse’s shoulder, bearing the weight of their addicted spouse’s self-serving behavior.
Drug or alcohol addiction also can affect the addicted spouse’s mood and can and often makes the addict violent toward others and lash out at their family. The drug or alcohol induced spouse can exhibit aggression, usually when intoxication levels and frequency increase. There is a strong link between drug and alcohol addiction and domestic violence. When children are present in the home, the risk of harm to them is very prevalent. Also, many times there can be an underlying mental illness or condition that may be at the root of the addicted spouse’s addiction.
“The first step that an at-risk family with addiction problems should take is to seek professional help,” said Gerald A. Maggio from The Maggio Law Firm, a family law practice based in Irvine, CA. “All marriages that have addiction problems cannot realistically be saved; therefore, protecting families from emotional and physical harm is a priority and becomes a societal concern.”
Rehabilitation centers provide support such as therapy and support groups for the whole family dealing with addiction, even when marriages end; it is suggested to seek or continue rehab, especially when children are involved. This can help both parties can cope better and the whole family can heal and move forward, even after a divorce.
To learn more about the Maggio Law Firm visit http://www.maggiolawfirm.com/.
Posted by: Gerald A. Maggio, Esq.
Should You Date in the Midst of a Divorce?
One would think pursuing a relationship would not be a big deal during divorce proceedings since the marriage is being terminated anyway. People are tempted to seek or pursue relationships at this time because it fills a void and can offer some emotional support during the trying times of a divorce, but legally it is bad practice.
The action of involving and introducing a new relationship can have lasting effects on decisions and outcomes of divorce proceedings. The legal standpoint of dating during divorce procedures still implies that one is still technically married well up until the day the divorce is finalized. Believe it or not, the new relationship can weigh heavily on court decisions when it comes to dividing assets, spousal support and child custody. The reason for this is the implication of one’s character, and begs to question morals.
The emotional standpoint; however, is that both parties are engulfed in emotional turmoil during the divorce. Introducing or pursuing a relationship might enrage or offend a spouse. This can prove detrimental and negatively affect court decisions, especially when the enraged spouse might to decide to take every measure to make divorce proceedings difficult and add more stress to the situation as the divorce moves forward.
“There can be repercussions when dating while you are in the midst of a divorce,” said Gerald A. Maggio from The Maggio Law Firm, a family law practice based in Irvine, CA. “The decision to date while divorcing should not be taken lightly. Don’t date while divorcing, point blank. Wait until the divorce is final.”
Platonic relationships with the opposite sex, however innocent they may be, are still a social contact and could raise suspicions of a sexual or romantic one in the eyes of the bereft or jilted spouse. The presence of someone new parading in front of the spouse and children and can start a suspicion of an affair, and the new partner can be deposed and subjected to questioning by the other lawyer – subpoenaed and forced to testify under oath.
Dating during a divorce will draw further scrutiny and make it even more complicated, increasing both stress and cost of the divorce trial and proceedings.
To learn more about the Maggio Law Firm visit http://www.maggiolawfirm.com/.
Posted by: Gerald A. Maggio, Esq.
The discovery itself is very broad, and your deposition can seem very invasive and even scary. But preparation is the key to a better resolution.
Before the deposition, a deponent should review any documents that they reviewed as part of an expert report or, if the deponent is a party, any documents that have been submitted to the court and/or opposing counsel. Parties in a divorce proceeding should review pleadings and affidavits, interrogatory answers and documents responses. It is not necessary to memorize any statement or document. Some questions may arise during the deposition, especially financial ones, to which you won’t remember the exact numbers. It is permissible, even preferable, if you refer to the documents that have been submitted to the opposing attorney. For instance, “That information is on my tax returns.” If you continue to be pressed by the opposing attorney, state that it will be necessary to review the document in order to respond further.
Behavior at a deposition plays an important role. Think before you speak. Listen very carefully to each question. If there is anything that isn’t understood in the question, ask for it to be repeated or rephrased. Pay attention to the questions, there may well be double meanings and assumptions that you have testified to something that you didn’t.
After understanding the question, answer honestly and in a straightforward manner. Less is more. Don’t worry about a “bad” answer, just give right answers. If something is unknown or being estimated, make it very clear. Take your time answering. Think and formulate your answer before speaking. Remember to speak slowly and clearly, as this is all being transcribed. If you must point to something, describe what you are pointing to.
Do not argue. Never argue with the attorney or refuse to answer any questions, unless instructed by your counsel. Refusing to answer is only playing into the opposing attorney’s game plan; the opposing attorney may consider such a response as evasive or having struck a nerve. Joking is also a no-no. Humor doesn’t go well in the transcript, coming off as insincere or crude.
Do not lie. Always answer truthfully, your lawyer can deal with the truth effectively but is hindered when the truth is kept hidden.
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.
Orange County divorce attorney Gerald Maggio often has to field the following question from female clients: My husband and I have a lot of assets we acquired during our marriage. How can I be sure that I get my fair share?
Orange County divorce attorney Gerald Maggio often must field the following two-part question from female clients who are in the process of divorcing: My husband and I have a lot of assets we acquired during our marriage. How can I be sure that I get my fair share?
It’s a simple question, but deceptively simple. The term “fair share” is relative. While almost everything that you and your spouse acquire during your marriage is marital property, everything from the family home to such non-tangible assets as retirement benefits, fairness is in the eyes of the beholder.
“No matter where you live in the United States, you will not automatically receive half your marital assets in a divorce,” says Orange County divorce attorney Gerald Maggio. “Not even in California.”
California is a community property state. “In California, division of property begins at 50-50,” Maggio says. “But there are some important things you should know about community property.”
All assets are considered to be community property, but so are all debts. “Both are generally split right down the middle,” Maggio says, adding that it can also get tricky when spouses become evasive. “Spouses who are aware of the community property provisions may hide debt or increase debt because they know that their estranged spouse is equally responsible.”
If you don’t solely live in California, but have residency in two states (for instance, one that is community property and one that is equitable distribution), your divorce could become a daymare. “Here you might want to ask your attorney which state would be more beneficial for you to file in,” Maggio says. “As a general rule, the higher wage owner will come out better in an equitable distribution state, while a stay-at-home spouse would benefit from the community property state.”
Besides California, only eight other states use the divorce standard of community property for distribution of marital assets. These are Arizona, Idaho, Louisiana, New Mexico, Nevada, Texas, and Washington. The remaining 41 states do not have community property laws as their standard.
To learn more about the Maggio Law Firm visit http://www.maggiolawfirm.com/.
Posted by: Gerald A. Maggio, Esq.
Being asked to sit for a deposition in a divorce may seem a bit intimidating at first. Deponents will find themselves a lot more relaxed and in control if they know what to expect during the process.
At a divorce deposition, the deponent will be giving testimony under oath. He or she will be asked detailed questions about the case and answers will be recorded by a court reporter. The record of this process will be used to form a deposition transcript that will be sent to attorneys on both sides. In addition, a copy will be sent to the court for the judge to review at time of hearing or trial.
“It is important to remember that portions of depositions may be read aloud in court, especially if the opposing attorney is trying to demonstrate that there are discrepancies between your deposition and your testimony in court. Due to this, you’ll need to make sure you answer questions carefully and honestly,” noted Maggio.
Before being deposed, a deponent needs to review the case with his or her divorce attorney. This includes a careful review of any complaint, petition or affidavit that has been submitted to the court as part of the case. This also includes the original pleadings and any affidavits submitted as part of any motion. In addition, you will want to review any responses that the party has made as part of discovery. In a divorce proceeding, a party may have answered interrogatory questions by providing notarized responses to the opposing attorney. Finally, the deponent will want to review any financial documents such as paystubs, tax returns, or lists of monthly expenses that have been provided to the court or to the opposing counsel. The opposing attorney will generally question each item that appears on a party’s list of monthly expenses to determine if the claimed expenses are legitimate expenses and to understand how these expenses were determined.
“The deposition process does not need to be difficult for deponents in divorce cases. A careful review of all documentation involved in the case and a discussion with your divorce attorney can make the process go much more smoothly. If a deponent is familiar with the facts of the case, he or she will be able to answer questions without difficulty,” stated Maggio.
During a divorce deposition, the deponent has three main responsibilities: to listen carefully, to understand what is being asked, and to answer each question honestly and carefully. Deponents will answer the questions a lot more easily and confidently if they don’t succumb to pressure and take their time with each question.
“Remember that while you must tell the truth during a deposition, you will not be expected to have the answer to every question that is asked of you. In addition, you will not be expected to know all the facts of the case. You’ll only be expected to answer each question to the best of your ability,” noted Maggio.
To learn more about the Maggio Law Firm visit http://www.maggiolawfirm.com/.
Posted by: Gerald A. Maggio, Esq.
Collaborative divorce is a way for a couple to get divorced without going through the contentious process of litigation. The goal of a collaborative divorce is for the couple to end their marriage in a peaceful way and to create a plan for the future.
Collaborative divorce is a combination of the mediation and litigation alternatives. The first key factor of a collaborative divorce is an agreement by all parties involved that no one involved will pursue litigation or threaten to pursue litigation. Instead, the parties must agree to amicably work toward an appropriate settlement agreement that is in everyone’s best interest.
“A court battle often results in a display of hostility that can be damaging to families, especially to children. Using the collaborative divorce process is a way to avoid this hostility and foster a sense of cooperation that will protect a family’s interests,” explained Gerald A. Maggio, an Orange County divorce attorney.
In a collaborative divorce, each party hires his or her own team to assist throughout the process. The team consists of an attorney and a psychologist that will be the party’s representatives throughout the collaborative divorce. In addition to these individuals, a financial specialist, usually an accountant, is jointly retained by the parties to assist in the financial items involved in the dissolution. Also, if there are children involved in the case, a child life specialist will be retained as well. Usually this individual is another psychologist who assists in determining custody and visitation matters.
Once these parties have been identified, the collaborative process involves a series of meetings between these parties to reach agreements that are in the best interest of all interested parties, including the children. During a collaborative dissolution, the parties have more control of the process than they would during litigation. This is because they are involved in the decision making each step of the way. Instead of litigating the matter and putting life changing decisions in the hands of a judge, the parties are responsible for making the decisions that will determine their lives.
Collaborative divorce has a great chance of success if all parties agree to work together to achieve a fair outcome and follow the appropriate procedure. In choosing this option, all parties involved can proceed with their lives with much less disruption than other alternatives provide. “The atmosphere of a collaborative divorce is respectful and causes much less stress than traditional litigation. While a collaborative divorce is not right for all couples, it is a viable option for many couples who have children and are concerned with their continued emotional well-being,” noted Maggio.
To learn more about the Maggio Law Firm visit http://www.maggiolawfirm.com/.
Posted by: Gerald A. Maggio, Esq.
In a divorce, it can be children who suffer the most. The upheaval that divorce causes can have a lasting effect on children’s lives, so it’s important for parents to try and minimize the impact of divorce on their children.
Every member of a family struggles to get through a divorce. It’s not just the parents who have a hard time adjusting to the new situation. To ensure that your children adapt to their new family dynamics during and after a divorce, there are several actions you can take.
Start by telling your children the truth about your divorce. Children need to understand that their parents’ decision is final and is not something that is up for debate. When explaining divorce to children, you will want to consider their age. Younger children may not need as many details as older children will require. You should, though, encourage questions from your kids about your divorce. Open the communication lines early, so they can tell you about their feelings now and in the future.
When explaining divorce to your children, you will need to make it clear that the divorce was not their fault. All too often, children end up believing that their parents have split up because of something they have done.
You should make sure to tell your children about upcoming events or life changes they will experience as a result of the divorce. Telling your children about these events, activities, and schedules earlier rather than later will allow them to adjust to these changes more smoothly.
Working with the other parent to set consistent rules is also important during a divorce. The goal should be consistency, and parents should work together to enforce rules that the kids have been expected to follow all along. This will be particularly important if children begin to act out as a result of the divorce. If children act out by misbehaving, parents should seek to validate their feelings first. Your children’s bad behavior may be a result of the anger, sadness, and confusion they feel regarding the divorce.
One of the most important things you can do during a divorce is spend quality time with your children as often as possible. This means you should allow for no distractions when you are devoting time to your family. Spending this quality time with your children can help them through many of the issues the divorce might cause.
A family law attorney can offer you a wide-range of advice on minimizing the impact of a divorce on children.
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.
Going through a divorce is a stressful event that can significantly impact your future, but you don’t have to let your divorce ruin your life. There are things you can do now and later to minimize the emotional impact of your divorce.
Regardless of whether you or your spouse started the divorce proceedings, it is important to take the time to recognize the positive things that may result from your divorce. You can overcome the emotional challenges of divorce by looking at things differently. You should think of your divorce as a new beginning, a chance to start a new chapter in your life. Take the opportunity to try new things, such as creating hobbies and discovering new interests. The busier you are with your life, the less time you have to think about the past and the challenges of a divorce.
Amicable divorces usually end with a better result than those that are hostile. To avoid stress, you should try to put aside any negative feelings you have for your former spouse, especially if you have children together. You should also avoid saying negative things about your former spouse. Negative talk doesn’t make things any easier for any party involved. If you have children, it’s especially important not to talk badly about your former spouse. You should not make your kids a sounding board and should do everything possible to prevent them from getting stuck in the middle of the divorce.
Another thing you can do to minimize the emotional stress brought on by a divorce is to ask for help from your friends and family. During any difficult time in your life it is important to have a social network available to support you, and divorce is no different. You should seek to surround yourself with loved ones and allow them to help you through the divorce process. Family members are not the only ones you should trust during your time of need. You should also enlist the help of attorneys, mediators, therapists and financial planners. These trusted professionals can also help you through your time of need.
You can also cope with the emotional challenges of divorce by believing in and standing up for yourself. While you should seek to end things with your spouse amicably, it does not mean you should not stand up for yourself. You should get what you deserve by standing your ground on issues of child support, spousal support, property division, and other issues impacting your children.
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.
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/.
