Top Questions To Ask Before Hiring A Divorce Lawyer

Posted by: Gerald A. Maggio, Esq.

Orange County family lawyer; The Maggio Law FirmAre going through a divorce proceeding and are looking frantically for a good divorce lawyer? It is important to note that you should avoid hiring the first attorney you got in touch with. Selecting the right divorce lawyer to help you in getting a speedy divorce should be a crucial divorce-related decision, which you need to make.

Be cautious

It is possible that a close acquaintance has sent you a referral to a family law attorney but you should still need to do a bit of homework before saying yes. It is important to check the qualifications of the said attorney and ensure that the person concerned has adequate experience in handling your case. There is no dearth of lawyers in the market and you will find that many of them market themselves as “divorce” or “family law” attorneys.

Questions to ask

Here are some questions you could contemplate asking a family law attorney during your first interview with him or her. All these questions will help you to ascertain if the said lawyer is apt for your divorce case or not.

  1. Is divorce part of the lawyer’s practice? How long has he been associated with practicing family law? Is he a family law specialist? Is he aware of the total number of family cases handled by him?
  2. How will launch time it approximately take to resolve your case? Will there be any specific strategy for speedy resolution of your case?
  3. How will you contact him or her in the event of an emergency? How much time does he normally take to return the clients’ phone calls? What are the events he or she regards as an emergency situation?
  4. Will there be anyone else in his or her chamber who will be also working on your case? If yes, can you meet them? What is the kind of experience they hold?
  5. What is his hourly rate? How will he or she charge you? What is his or her retainer up front? Will he charge for the time you spend with some other lawyers or with the secretaries?
  6. What costs does he or she expect to incur apart their own legal fees? For instance, the costs could be incurred for psychologists, physicians, forensic accountants and private investigators. How does he plan to charge you for such costs?
  7. What does he feel about the estimated total cost of your divorced? You should be prepared as most of the times, a divorce law attorney will be unwilling to respond to this query since the divorce cost could depend on a great extent on the level and complexity of your individual case. But, the manner in which the said lawyer replies to this query of yours will help you to know what they are expecting? An attorney who is honest may usually respond by saying that it is tough to estimate the total expenses in advance. On the other hand, a lawyer who quotes too low an amount could be just making an attempt to get a business
  8. Will the lawyer permit you to do a direct negotiation with your estranged spouse? What are the ways of keeping your divorce cost down? Can you do any such tasks that will lead to the reduction of his or her fees?

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.  

Prenuptial Agreements Can Be A Great Act Of Prevention

Posted by: Gerald A. Maggio, Esq.

prenuptial agreements Orange CountyA preventive approach is always better than being careless and then repent later on. This is especially true for agreements related to the spousal property. In litigations related to the division of divorce property endless hours are spent by the lawyers for disputing factors like amount of spousal support, property classification among others. However, such conflicts can be easily resolved through a premarital agreement through just a few paragraphs. Moreover, such contracts can help in other departments too like resolving contentious questions related to an inheritance that may result in expensive probate litigation. Moreover, premarital agreements can convert divorce-related succession issues into family-owned businesses more hassle free that it could be otherwise.

In case you are contemplating about going ahead with a prenuptial agreement, you must know the major benefits associated with it which surpasses the advantages any day.

Benefits of prenuptial agreements

When you go for a prenuptial arrangement, you can get the following advantages out of it.

  • Your individual property is protected.
  • You can support your estate plan
  • You can also give a definition to which is a community or marital property
  • Set up ground rules and procedures to decide future matters
  • Get special agreements clarified between you
  • Save money and minimize conflicts in the event of your divorce

Prenuptial agreements can make your relationship stronger

When you go for a prenup, you may come out stronger in your relationship. Though there is a misconception among some people that there may be a conflict while negotiation through a prenup takes place when you communicate freely about your financial matters, your relationship quality can improve to a great extent and also ensures free communication between you and your spouse.

Though, you may not have your signature on the written document at the end of the day, speaking freely about property and money can do away with misunderstandings, which might otherwise pop between the both of you. You need to note that eventually you and your spouse will end up discussing financial matters. Most legal experts and psychologists will advise you that it is better to start doing it early, in case you are equipped to handle it.

Moreover, spouses who have become parents from an earlier relationship should also contemplate of going ahead with a prenuptial agreement.

After all, kids from earlier marriages also deserve to get all possible protection while one walks down the aisle once more. Prenuptial arrangement can easily achieve this by ensuring that some assets like insurance policies, retirement accounts, and some other assets should be in the names of such kids instead of in the name of their new spouses. Otherwise, the latter may inherit them when their partner is deceased.

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.  

Concepts About Terminating Spousal Support

Posted by: Gerald A. Maggio, Esq.

Divorce attorneys in Orange County; The Maggio Law FirmTerminating spousal support is a big issue. The party that is receiving the support wants to be supported for as long as possible and the party that is paying for the support wants to end it as quickly as possible.  There are reasons for ending spousal support, such as:

  • The person getting the support may no longer need it as they are self-sufficient
  • The person paying the support might not be able to afford to pay for it any longer
  • The person getting the support is making no efforts to be self-sufficient
  • The person getting the support has remarried

How to terminate spousal support?

The first step to terminating spousal support is to assess the living conditions of both the parties and the length and flexibility of the support. The attorney should then find out if the court order has a Gavron warning attached to it. A Gavron warning is a warning issued by the court that requires the person receiving the support to become self-sufficient within a reasonable amount of time.

For marriages that last less than 10 years, that reasonable amount of time for payment of spousal support is usually half of the length of the marriage. Marriages that are longer than 10 years have a different set of rules to follow. A point to be noted is that there is no such thing as a lifetime support. According to California Family Code Section 4320, the spouse who’s getting supported should become self-sufficient within a reasonable amount of time.

After assessing the spouse who’s getting supported for the steps that he/she is taking to become self-sufficient, the attorney will build a case to bring it to the court. If the spouse getting supported has increased earnings, the attorney can argue to reduce the alimony and possibly reduce it or terminate it if possible. If the ex-spouse hasn’t started working yet, a vocational examination can be done to determine the ex-spouse’s ability to work. These methods can be effectively used to reduce the alimony to an eventual zero.

Also, Family Code §4322 can be used as a potential argument to terminate spousal support if the ex-spouse:

  • has no children
  • has or acquired a separate estate from inheritance that earns income
  • has income from employment

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.  

Factors To Consider Regarding Moving During Divorce

Posted by: Gerald A. Maggio, Esq.

Orange County divorce lawyers; The Maggio Law FirmA house is frequently the most prized financial asset of any couple. Majority of house owners are emotionally attached to their home. Due to this, the decision of whether one spouse will move out at the time of the couple deciding to divorce can be hard to resolve. Situations are unique to each couple and the answers will also be a little different.

Personal safety above all

If the home is wracked by domestic violence, then you must do what is necessary to secure your personal safety. This includes visiting the court for protective order and also requesting the judge to give an order compelling the abusive nature spouse to move away. You may leave the temporarily in case you feel unsafe. Children at risk can also be taken with you. Do note that in case you and your kids move out, then it is important to go for a court order to get temporary custody at the quickest opportunity. This will help you to avoid any accusations of kidnapping.

There may be instances where the situations can be less transparent. Even in an absence of violence at home, it can be extremely hard for a once couple to continue to stay together post the divorce decision. This can be an extremely challenging affair and the children will suffer most in the middle of torturous home. When you consider a move, do consider issues of property and child custody.

Custody of the child

For children, repeated changes can be a torture and judges are aware of that. This is why a judge will always try to maintain status quo. In case the children have been living in family home at the time of divorce, the parent staying there could argue that varying the arrangement could be too disruptive while the moved out patent will object to this arrangement and say that the previous action was done to reduce conflict within the home. This argument can be avoided by parents through the creation of a written parenting agreement prior to one of them moving out. A parental schedule could also be established and it could be agreed that any parent who moves out is not surrendering any rights over the child by this action.

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.  

Dividing A Business or Professional Practice In Divorce

Posted by: Gerald A. Maggio, Esq.

Orange County divorce lawyers; The Maggio Law FirmSimilar to the other assets and property, the business and professional practice is also subject to division between the two parties involved in a divorce. The first consideration to be made in the deciding upon the division of a closely held business or professional practice is to determine whether it falls under the category of separate or community property.

Determination of a business or a professional practice as separate or community property 

The basic guidelines of establishing a business or professional practice as a marital asset are similar to those employed for other property and estate. A business or professional practice which was owned and operated by either spouse before he or she got married will be considered as separate property. However, if the spouse continued to operate the business or professional practice even after their marriage, the property will be considered as community and subject to adequate division in the event of a divorce. In addition to this, even if the business or professional practice is established as separate, the increase in its net worth will be considered as community property. 

Evaluation of the value of a business or professional practice 

There are several factors which are considered while assessing the value of a particular business or practice for the purpose of division in the event of a divorce. A professional appraiser will take into account the individual values of the real estate, inventory, finished goods, amount receivables, bank balances and even the goodwill of the said business to determine its net worth. Similarly, the value of a professional practice such as legal, medical, architectural or accounting will also be calculated on the basis of the individual worth of its physical property, account receivable, fees and goodwill. The most difficult aspect of assessment is the evaluation of the goodwill of a business or practice, since it is largely intangible and cannot be determined via simple figures and statistics. 

Distribution of the business or professional practice 

The final and most complex step in the process is the actual division and distribution of the business or professional practice between the divorce partners. In a majority of divorce cases, the owner of the business or practice is expected to compensate for the ex spouse’s interest in the property by ‘buying out’ of other partner’s interest as part of the division of property.

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.  

Rights Of Parents With Disabilities Regarding Child Custody

Posted by: Gerald A. Maggio, Esq.

best divorce attorneys in Orange County; The Maggio Law FirmIt is a given that a divorce can be one of the most stressful and traumatic situations for most people.  For divorcing parents, there can be several considerations regarding the custody and visitation arrangements of their children. However, the situation becomes more intensely complex and overwhelming when one of the separating parents has some kind of disability to deal with. The parent with disabilities is constantly surrounded by the fear of being on the losing side of the final child custody settlements to be announced by the court.

Understanding California family law on parent disability and child custody determination 

Whereas years ago a disabled parent might have been viewed by a court as incapable of financially, physically and/or emotionally providing for his or her children the same way as a parent with no disability would. However, with changing times, laws have also changed.  The State of California incorporated a provision in the family law dealing with custody cases involving a parent with disabilities. As per thelaw, courts are prohibited from relying merely on a physical handicap to establish a parent as being unable to care for a child. The provision states that the court will not decide upon any child custody, support or visitation related settlements against a parent merely on the basis of his or her disability.

The provision requires the court to make a few considerations while dealing with divorce cases involving a disabled parent.

  • The existing and potential physical capabilities of the parent
  • The individual’s capacity to cope with his disability
  • The response and adjustment of other family members with the individual’s handicap

In addition to this, it is also accepted that the health and physical condition of a parent should not be given undue importance while considering the best interests of a child.

Parenting by a disabled parent 

As per the findings of modern psychology, parenting involves much more than regular soccer practice and carpools. It is within the guidance, support and teachings of a parent that the true essence of parenting lays. It is a parent’s learning from his or her own life experiences, that he/she passes on as invaluable legacy to the child. Considering the bigger picture, a parent with disabilities can be cited as far more capable of imparting lessons of life to their children, as opposed to someone who has never seen the dark part of life.

As long as a disability does not hamper a parent’s capacity of rearing his child the correct way, a court of law cannot deny him or her the custody and visitation rights over his or her children.

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.  

How To Calculate Child Support in California

Posted by: Gerald A. Maggio, Esq.

child support attorney Orange County; The Maggio Law FirmThe calculation of the amount of child support in California is determined by a number of factors. Any child support payment includes the basic child support and health insurance coverage. There are other extra mandatory child support payments as well.

Factors influencing support calculations

There are mainly 4 factors that influence calculating the amount that is to be paid as support.

  • The number of children who are permitted to receive child support.
  • The parenting time or visitation right or custodial rights of each parent with the child.
  • The net disposable income of each parent. But computer software programs such as X-spouse and Dissomaster consider your gross income to determine how much can be set aside for child support.
  • In case there is more than 1 child, the youngest child receives the full amount of support an only child would have received. The other child or children is given an amount based on downward adjustment of the support amount.

Mandatory health insurance coverage

Every child receives a mandatory medical support from either or both the parents as long as the health insurance is free or is available at a reasonable premium. The health insurance should include medical, vision and dental coverage. Most commonly, group health insurance policies received at employment are the most reasonable of health insurances to be used in child support.

Mandatory child support extras or add-ons

  • Health care costs of the child that are uninsured are generally divided equally between the parents. California child support laws say not paying uninsured health care costs is akin to not paying child support. But payment of uninsured health care costs can be challenged in court which opens up scope for heavy litigation of such instances. All reasonable and necessary uninsured healthcare costs (those that are not related to cosmetic procedures) have to be shared by both parents.
  • A parent may be asked to pay an additional amount in support if the child needs special schooling or goes to a private school. But such costs are not needed if the child suddenly makes a transfer from a public to a private school. The parent’s ability to pay such costs will definitely be taken into consideration.
  • Travel expenses may have to be paid if the child has to travel a great distance to be with the noncustodial parent with visitation rights or the other way round.

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.  

Can I Spy On My Spouse During Our Divorce?

Posted by: Gerald A. Maggio, Esq.

orange county divorce attorneys; The Maggio Law FirmThe state law of California discourages inappropriate spying on spouses in cases related to divorce or legal separation. Although it might seem okay to spy on your partner in a bid to catch hold of significant evidence against them, following your spouse around, using computer spyware, tracing devices on vehicles, and recording phone calls can be considered an invasion of privacy, so you should never do anything that would be considered against the law.  Use of a professional private investigator licensed by the state, on the other hand, is commonplace and can be helpful in obtaining information that could be used in court.

The no-fault rule

The state laws declare California a no-fault state. A no-fault state implies that family courts do not have the right to single out a partner as the sole cause for the dissolution of a marriage. Furthermore, it signifies the fact that the post divorce settlement of rights involving property division, child custody, child support, and visitation, would be decided fairly, irrespective of whether, either of the party was involved in an extramarital affair, or not. Despite the fact that California law follows the no-fault rule, some people still resort to spousal spying, in their quest for revealing evidence of their partner’s behavior for their own curiosity or perhaps for custody purposes.   

The limitation in spousal spying

The Californian law states that, the use of a wiretap in non-consensual recording of your spouse’s confidential telephonic conversations is regarded as illegal and akin to a criminal act. Many people tend to think that recording their partner’s phone calls without their knowledge, would be a sure shot way of gathering evidence against them. However, the law strictly prohibits an individual from recording a confidential communication without the prior knowledge of all the parties involved. 

The exception

Records of telephone calls or voicemail messages can sometimes be brought up during divorce litigation to influence the custody or visitation related settlements. Although the nonconsensual recording of phone calls can be regarded as a form of spousal spying, there have been cases wherein the evidence was taken into consideration by the court. In such exceptional cases, the recorded voicemail or calls were regarded as an influential factor in deciding custody or visitation rights.   

Generally, recordings done without the other party’s knowledge and consent are inadmissible in court because of the right to privacy, pursuant to California Penal Code section 632.  However, this rule can be overcome if (i) there was no objective expectation of privacy at the time of the recording and (ii) even if there was an expectation of privacy (which there was not), the recordings are admissible as they fall under the exception of California Penal Code sectin 633.5.

California Penal Code section 632 requires all parties to any confidential communication must give permission to be recorded, the law, however, specifically excludes from its application any conversations made in public places, government proceedings, or in circumstances where the participants of the conversation could reasonably expect to be overheard or recorded.   The test of confidentiality is an objective one, but does not depend on a reasonable expectation the contents of the communication will remain confidential to the parties.  Construction of Cal Penal Code § 632(c) calls for a determination as to:

  1. Whether the circumstances reasonably indicate that any party to such communication desires it to be confined to such parties, or
  2. Whether the circumstances are such that the parties to the communication may reasonably expect that the communication may be recorded. This determination must be made by the finder of fact. 

Even if the Court were find that there was an objective reasonable expectation of privacy under the circumstances and the videos and audio recording fall under California Penal Code section 632, the recordings would still be permissible and admissible as an exception under California Penal Code section 633.5, which states that “nothing in Section 631, 632, 632.5, 632.6, or 632.7 of the Penal Code prohibits one party to a confidential communication from recording the communication for the purpose of obtaining evidence reasonably believed to relate to the commission by another party to the communication of the crime of extortion, kidnapping, bribery, any felony involving violence against the person, or a violation of Penal Code Section 653.

So, for example, if a party recorded an audio or video that depicted violence by the other party against their child that amounted to child abuse, such recordings could still be admissible despite privacy laws as the recordings were obtained for the purposes of collecting evidence of a crime involving violence against another person.

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.  

Who Pays Alimony in Divorce?

Posted by: Gerald A. Maggio, Esq.

Top divorce attorneys in Orange County; The Maggio Law FirmEvery time you hear the word ‘alimony,’ you are probably thinking of a man writing out all of his monthly salaries off to his vengeful ex-wife. It is normally taken to be that way in popular culture. Movies and TV shows often use this as a device for easy comedy. The loser husband going broke every month while the woman in question has an easy life spending all that money. It works as a plot device, but in real life, this is not the case. In fact, in a lot of ways, it can be quite misleading. If you think that alimony is something the man pays his ex-wife by default, you may be wrong.

The standard of living (of the marriage) 

One of the key things that are used to measure what a marriage is worth and how alimony is calculated is the standard of living, in this case, of the marriage. It is also the key to finding out if there will be any alimony at all. Standard of living is an economics concept, and it is used to find out whether the couple would be able to live by themselves, in the same or similar economic standing as they were able to when they got married, after divorce. The law is simple so far. If one person makes all the income and the other is a stay-at-home spouse, then the person who is employed will have to share a part of their income with the non-earning member. If there is no sharing, the earning member will end up with a lot more disposable income than that of the non-earning member whose standard of living will drop drastically. The concept of alimony is designed to protect the standing of the non-earning member.

The courts decide what the alimony amount will be and for how long it will have to be paid. In many cases, it will extend until a specified period, within which the recipient can find their own employment and sustenance.

It is important to remember that apart from extraordinary cases where one member has a sudden spike in income, it is almost impossible to return to the same standard of living levels that the couple enjoyed as a family. That is simply because it is costlier to run two households than it is to run one. The concept of alimony is simply there to make this downgrade as soft as possible.

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.   

Gray Divorce: Divorcing During Your Golden Years

Posted by: Gerald A. Maggio, Esq.

Orange County divorce attorneys; The Maggio Law FirmDivorce among seniors may not be talked about as much, but it is more common than you would imagine. Stepping into retirement, you may find time on your hands, but you may also discover that you and your partner have drifted apart. With the children long flown from the nest, you now have the independence to make this decision to live out the rest of your days as you desire. Here’s what you need to know about divorcing in your golden years.

Retirement Savings

Worries about your 401(k) and other retirement plans become more immediate when you go through a divorce after retirement.  Be sure that your divorce attorney is familiar with working on QDROs or Qualified Domestic Relations Orders. This separate court order deals with how retirement benefits are split during a divorce.

Be sure to involve your retirement plan administrator so you fully understand the terms of your plan. Learn about tax penalties as well as breaks on these penalties, check on survivor benefits and whether those hold even post divorce, find out if you can take a hardship withdrawal when needed, whether you have entitlements on contributions made post divorce, and get clarity on other specific concerns you might have.  For civilians that had a spouse who served in the military, also find out if the military retirements benefits you had been getting when you were married will continue as part of the Survivor Benefit Plan.

Don’t forget to check if your spouse has loans on the 401(k) that will need to be paid off before the funds can be split.

Social Security

With things like Social Security, the rules are fairly clear cut, with details available on the SSA website. For marriages that are 10 years or over, where the surviving spouse is 60 plus, and the survivor’s own retirement benefits are lower than their spouse’s, they become eligible to receive survivor benefits of 100% against their ex’s Social Security benefit. While both partners are alive, for those aged 62 and up, you are eligible to get as much as 50% of your ex-spouse’s benefit without impacting their benefits.

Your Home

Divvying up proceeds from the sale of the family home or deciding which spouse gets to keep it can play out differently when you’re 50-plus. As you grow older, you get certain tax breaks from the government which could be a game changer. Exclusions from gains when you sell the home, as well as deductions on mortgage interest will also be critical factors when you’re a senior.

You also could potentially earn rental income by letting out your home, if you choose to move into a smaller place or a nursing home. After 62, you become eligible for a reverse mortgage that can get you an additional income stream. For anyone qualifying for receiving public benefits like Medicaid, having a primary residence works in your favor.

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.

No Legal Advice Intended: This website includes information about legal issues and legal developments. Such materials are for informational purposes only and may not reflect the most current legal developments. These informational materials are not intended, and should not be taken, as legal advice on any particular set of facts or circumstances. You should contact an attorney for advice on specific legal problems. Full disclaimer.