Posted by: Gerald A. Maggio, Esq.
Prenuptial agreements can be designed to protect more than just premarital assets. They can outline how couples want to divide their future earnings in the event of a divorce.
While many people assume that prenuptial agreements are only useful when one partner brings a significant amount of wealth to the marriage, this assumption is incorrect. Prenuptial agreements are not limited to specifying the division of assets attained before the marriage. They can also be useful in specifying the division of assets that are accumulated during the marriage. There are a number of different situations which warrant a prenuptial agreement when neither partner has a lot of assets before the marriage.
A common example of a situation in which a prenuptial agreement might be necessary is when one partner agrees to support the other during professional or graduate school. Even though neither one of the partners has a lot of money at the beginning of the marriage, supporting the other partner through school can have a great impact on that partner’s future financial success. In a situation such as this, the earning potential of the partner who receives the advanced degree is likely to be much greater than that of the supportive partner.
Without a prenuptial agreement the partner who earned the advanced degree isn’t likely to be obligated to share his or her earnings with the other spouse in the event of a divorce. However, a prenuptial agreement can be used to protect the interests of the supporting spouse by specifying terms for spousal support in the future.
More and more Americans are choosing to become small business owners, and a prenuptial agreement can also protect spouses who have individual interests in forming a business and those who choose to go into business together. A prenuptial agreement can set out rules for how business assets should be handled and divided in the event of a divorce. By agreeing on these issues in advance, both spouses can be confident that their earnings will be divided fairly.
Prenuptial agreements can thus provide couples with a feeling of security about the assets couples accumulate together. An expert family law attorney can help couples draft a prenuptial agreement that will protect the interests of both parties and their future earnings.
To learn more about the Maggio Law Firm visit http://www.maggiolawfirm.com/
Posted by: Gerald A. Maggio, Esq.
Although California is a community property state, the courts have special rules regarding settlements from personal injury cases. Personal injury settlements may or may not be considered community property, depending on when the injury occurred.
If you are considering a divorce, you may be wondering if your spouse’s personal injury award will be considered separate property or community property. In California, any reward that is the result of a personal injury settlement may or may not be characterized as community property.
Whether or not a personal injury settlement is classified as community property depends on when the cause of action occurred, not when the proceeds were received by the injured spouse.
The proceeds of a personal injury settlement are characterized as community property, if the cause arose during the course of the marriage, and before separation. If the cause of action occurred outside of this time frame, the proceeds of the settlement are considered separate property of the injured spouse under California Family Code 760 and 761. If the damages from a personal injury settlement were commingled with other community property funds, then it may be difficult to trace the source property and, as a result, the funds may all be considered community property.
Normally, the court will award the damages to the spouse who suffered the injury, unless there are special circumstances to be considered. Factors that the court may consider include the financial needs of each party, economic conditions, costs incurred by the non-injured spouse if he or she cared for the injured spouse, the time that has elapsed since the injured party recovered the damages, as well as any other factors relating to the case. In the event that the court considers these issues, damages will be assigned to the parties in a manner that the court finds to be just. Ultimately, though, the court will award at least one-half of the damages to the injured spouse when the damages are characterized as community property under California law.
If you are contemplating filing for divorce in California and are concerned about how a personal injury settlement will be divided, make sure you hire an expert divorce lawyer who can provide you with all of the details about community property.
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.
Same sex marriages may take place in some US states, but not others. Find out which states allow the marriage and benefits that go with it before tying the knot.
“Rather than make a major error by getting married in a state that does not recognize same sex unions, it’s wise to spend some time researching the matter. This will let you choose a state where unions like this are acceptable. Also make sure you find out if you need to be a citizen of that state as well,” said Gerald A. Maggio, an Orange County family lawyer.
Partners that want a legally recognized union and any benefits that go with it should aim to get married in New Hampshire, Connecticut, New Jersey and Vermont. These states will allow same sex civil unions and accord them with the same legal rights and obligations as marriages.
“A handful of states also offer limited same sex civil unions, but you need to check to see if you must be a resident of that state. In many cases, the states offering civil unions, as opposed to legal marriages, insist the people involved be citizens of that state,” Maggio explained. Things are very different in California and Massachusetts, where same sex couples may get legally married, just the same way a heterosexual couple would and thus get the same legal rights.
“Be aware that California will legally marry any couple from any state, but in Massachusetts, this isn’t the case. You need to live there to get married,” Maggio outlined. When it comes down to the date, time and place, if a same sex marriage is the goal, getting hitched in California may be the best option, as if offers much greater flexibility in circumstances like this.
There are some California counties that won’t sanction same sex marriage, but these same counties also can’t perform a wedding for a heterosexual couple either, or they may face charges of discrimination. Doing due diligence on wedding locations is a smart idea. So is researching the various fees in different counties and their operating hours.
“There is no problem when it comes to the paperwork for a same sex marriage, as it’s the same as for other marriages, but for the fact the papers don’t say bride and groom, but instead, Party A and B. Bring photo ID and if there is a divorce involved in the history of one or both of the partners, bring the divorce papers. There is no requirement in California for a blood test or health check,” commented Maggio.
Same sex marriage should not be confused with domestic partnerships, something that needs to be discussed in detail with a dedicated and skilled family law attorney.
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.
Stalking is one of the most frightening behaviors a person may experience. One out of every twelve women and one out of every forty-five men will be stalked at least once during their lives.
Stalking in the 21st century isn’t just what we have come to associate as being the “typical” stalker-like behavior. Now, thanks to the advent of the Internet, there is also a category of stalker referred to as cyber stalkers. It too is illegal, and it is a great deal more difficult to catch and prosecute an online stalker.
The typical definition of a stalker refers to a person who wants to force a relationship on a victim. In most instances, the relationship is not wanted, which is usually the trigger for the stalking behavior; actions that include vandalizing the victim’s property, threatening or harassing the victim, obsessive messaging either by cell phone or online, or obsessive phone calling at all hours of the day and night. Some stalkers define their modus operandi by delivering certain types of gifts that they know will upset their target.
Stalking is one of the most gut-wrenching experiences any man or woman will ever go through. The feeling of fear, loss of control of their lives, the physical stress and anxiety, and the emotional rollercoaster many victims ride while being stalked takes a significant toll on their health and mental well-being. Victims may experience extreme fatigue, depression, intense fear, anger, anxiety, insomnia, PTSD, overwhelming helplessness, and yo-yo weight problems.
In some instances, stalkers don’t realize what they are doing; don’t understand that they are doing something wrong. Their perception is that they are doing something that other person should like and don’t comprehend why their advances are met with such violent reactions. Put another way, they are ignorant as to how their actions affect others. Nonetheless, stalking in California is still illegal. In fact, California was the first state to make stalking a criminal act in 1990.
The rest of the states now have similar laws in place to deal with stalkers, however each state also approaches the definition of a criminal act differently. For instance, some states call stalking illegal only if the stalker endangers or threatens the victim. There are also 13 states that charge the first count of stalking as a misdemeanor and subsequent charges as felonies. It’s best to ask a qualified attorney what laws are applicable to stalkers in your state. Shockingly, every year, there are approximately 2 million felony and 4 million misdemeanor stalking charges.
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.
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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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In any California child custody case, including divorce and separation cases, whenever an Order to Show Cause (OSC) hearing addressing child custody and visitation issues are filed, the Court will order that the parties attend mediation at no cost through the court’s mediation department prior to the Order the Show Cause hearing date. Although the law requires that the parents participate in mediation, there is not a requirement that they reach an agreement.
Mediation is intended to reduce conflict between the parties by encouraging cooperation and assisting parents in creating their own parenting plan the meet the needs of their children with their best interests in mind.
The court mediators are generally trained professionals who have at least a Master’s Degree, have extensive experience in psychology and marital/family counseling and are trained in conflict resolution.
In mediation, the mediator meets with the parties wither together and/or individually. If there has been domestic violence between the parties, the mediation is usually held in separate sessions with each parent for safety reasons and to avoid any appearance of intimidation.
The mediator works to assist the parties in focusing on parenting arrangements that are in the best interests of their children and can put together a partial or full parenting agreement schedule (including legal custody, parenting plans, holiday and vacation schedules, transportation and other issues) depending on what the parties are able to agree upon in mediation.
Parents can sometimes resolve all of their parenting issues in mediation, sometimes only a partial agreement can be reached, and otherwise no agreement is reached. Mediators only draft agreements that are acceptable to both parties. If the mediation agreement is still agreeable to both parties at the time of the Order to Show Cause hearing, in can be adopted and incorporated into a court order.
Only the parties attend mediation, with no attorneys, spouses or other family members present, although a second session can sometimes be requested so that the mediator can speak with the parties’ children, if it is believed that such feedback would be helpful in assisting the parties to develop parenting plans.
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In Orange County, mediations are merely efforts for the parties to meet face-to-face without their attorneys to attempt to resolve such issues. Mediators in Orange County do not make recommendations to the Court of parenting plans.
However, in Riverside County and other Inland Empire Family Courts, the court mediator can make recommendations regarding child custody and visitation that the Court judge will very likely give substantial consideration to in making court orders.
Mediators in all California Custody cases are allowed under law to make recommendations to the Court where there are allegations of domestic violence, drug and/or alcohol abuse, and other concerns of the mediator affecting the welfare and best interests of the children. Such recommendations can include an emergency child custody evaluation, a domestic violence investigation, a full psychological child custody evaluation, or the appointment of a “minor’s counsel,” who is a private attorney appointed to represent and protect the best interests of the minor children.
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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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For couples who have been married for less than 5 years, have no children together, will not seek spousal support from each other, have very little property or debts together, and can mutually agree on how to divide their property and debts, a California “summary dissolution” is a simplified alternate to a regular divorce. Such couples can complete and file special forms together with the court and will not need a court hearing to finalize their divorce.
Legal Requirements:
1. The parties have been married for 5 years or less.
2. The parties have no children from their relationship.
3. Neither party owns a home of other real estate property
4. The value of all community property totals less than $25,000.
5. The combined total debt of the parties is $5000 or less.
6. The parties mutually agree to waive spousal support from the other.
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In divorces that require determination of the fair market value of marital assets, community businesses, debts, and self-employment incomes for support purposes, “discovery” requests served on one of both spouses may be necessary. Such discovery requests can require responses to general and specific questions, production or documentation of other tangible items, and depositions of the parties or third parties.
Completion of the discovery process is generally necessary before a divorce case can be set for trial and can slow down the divorce process. However, such discovery is necessary to protect the parties’ rights and ensure and fair and reasonable division of the parties’ assets and debts.
