How Is Legal Separation Different From A Divorce?

Posted by: Gerald A. Maggio, Esq.

Top family lawyers Orange County; The Maggio Law FirmA legal separation is a legal process that allows a couple to live separately but remain married, even though they can divide their assets and make other agreements.  The procedure for legal separation in California is very similar to that of divorce.

Agreement for separation

An agreement on separation includes terms that are quite similar to those if the concerned couple was getting a divorce. This means there will be a distribution of their marital property, agreement on child visitation and custody if applicable. Not only this, the couple opting for a legal separation will also have to come to a decision on dividing any debts that were incurred by them after they got married.

Ideally, the above-mentioned terms should be binding in case the couple wants to get divorced. Moreover, both parties should hire their individual attorneys for negotiating all the details of the agreement on their legal separation. In case the spouses eventually make up their mind to go one step ahead and file for a divorce, it has been observed that the judge usually keeps the same terms as both the parties agreed to them earlier.

Differences between a legal separation and a divorce

Check out some of the following key differences between a divorce and a legal separation.

Name

While the spouse continues with the legal married name in the case of a separation, a wife may revert back to her maiden name after the divorce comes throughout the divorce be.

Child support

The conditions related to child support are ascertained when the legal separation takes place. When a couple decides to go for a divorce after being legally separated, ideally, the same terms are followed that were mentioned in the document for legal separation.

Marital status

A couple is still married even though there is a legal separation going on. But when the divorce is finalized, the marriage ends.

Child visits

Visitation rights of the child are decided when the legal separation takes place. If a divorce comes through after the legal separation, most of the times, the same terms are followed as mentioned in the document of their legal separation.

Alimony

The terms for alimony are ascertained during the legal separation. The conditions are typically kept same if the divorce gets finalized in the future.

Split of marital property

The couple agrees to the terms while going for a legal separation. When they do decide to finally divorce, the sane conditions that are mentioned in the document for legal separation are followed. 

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.  

Should You Opt for a Legal Separation Rather than a Divorce?

Posted by: Gerald A. Maggio, Esq.

Divorce Attorneys in Orange County; The Maggio Law Firm, Inc.There are many couples who opt for a legal separation instead of a divorce. There are distinctions between legal separation and divorce, and it is important to understand their meaning so that you can ask the right questions while contemplating your future options.

Before going any further, you need to understand the meaning of a legal separation. This is a special binding agreement through a court’s order which will define handling of different types of financial matters such as liabilities and assets when a spouse opts to lead a separate life from his or her spouse.

Why should you prefer to be legally separated rather than getting divorced?

There are many couples who prefer separation over divorce for a host of financial, logical and personal reasons. The personal reasons could be when both the spouses decide to stay separately for some time to find out whether they really want their marriage to end or not. Moreover, there could be religious beliefs, which treat divorce as an unacceptable option or the desire to live a separate life while protecting your financial future.

Alternatively, there could be certain financial and logistical reasons to opt for a legal separation rather than going for a full-fledged divorce. Check out some of them:

  • You may be in a position to get spousal benefits like health insurance, which will not be possible in case you were divorced.
  • When you are living separately on a trial period, you could be worried about the debts being accumulated by your estranged spouse. When you go for legal separation, your financial liability gets limited and assets that you procure moving forward are protected.
  • It is possible for you to get tax benefits when the marriage is terminated and you can continue filing your returns jointly. Any kids born while you are in the phase of separation is regarded as legitimate by the law since the couple’s marriage is still legal. But it also means that during your legal separation phase, you cannot marry someone else.
  • Though you and your spouse may have come to an agreement to live separate lives, it is less expensive when both of you share the same house. So, you opt to be legally spared over divorce.
  • A spouse gets protection from being deserted, that is the ground for divorce in several countries or states. This signifies that if you live separately without an agreement, charges of abandonment or desertion can be brought against you.

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.  

Changing from Legal Separation to Divorce in California

Posted by: Gerald A. Maggio, Esq.

Orange County divorce lawyers; The Maggio Law FirmThe terms “divorce” and “legal separation” are distinctly different. Legal separation does not mean the dissolution of marriage while divorce means the end of a marriage. After a divorce, couples can go back to their single status. Legal separation means the couples are still married but do not stay together. There are many reasons why legal separation takes place before a marriage. Some couples feel that opting for a divorce is a serious matter and should be taken slowly. Being legally separated allows couples to reflect on the issue they have with their marriage.

In certain cases, couples change from legal separation to divorce. In California, it is easy to convert a legal separation to a divorce and all that is required is a simple conversion. It can be done anytime during the legal process and it takes only one spouse to make the request. It also involves filing a petition which the other spouse must comply to.

Amended petitions

In California, judicial counsel form, FL100, is used for making petitions in legal separation and divorce. Couples who want to change the petition simply need to file a second petition known as the Amended petition. In cases where one of the spouses hasn’t responded to the first petition, the other spouse simply needs to file the petition and send a serving notice. There are no charges for filing the amended petition.

If a legal separation is still in process and one of the spouses has still not responded to the petition, then the other spouse can file the amended petition. It is important for both spouses to meet the residency requirements of the state because the law for legal separation is different in each state. In certain cases where the legal separation has not been obtained but the petition has been filed, the spouse would require an approval request from the court.

After a legal separation gets finalized, spouses who want a divorce have to file a new case and start over again. Sometimes, couples prefer to stay as legally separated for an extended period of time when such cases arise.

Conclusion

The State of California believes that every individual has the right to decide the fate of their marriage. In California, it’s an easy process to change from a legal separation to a divorce and only takes a simple petition to change the status.

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.  

The 7 Step Divorce Process In California

Posted by: Gerald A. Maggio, Esq.

Orange County divorce lawyer; The Maggio Law Firm, Inc.Are you a husband or a wife that has been married for two years or 22 years and have reached a place in your relationship where you cannot see the two of you existing together as a couple?  When one is looking to take a decision with regards to divorce, there can be a whole lot of apprehension, confusion, and uncertainty about the process of California divorce and their own future.

Here is an explanation of the California divorce process to help ease some of the uncertainty.

Step 1: The Period of Separation

The first step in the seven-step process of California is the period of separation. This step deals with the question of whether moving out of the house or staying put. It is important with regards to this step to point out that if you are the spouse who is likely to be on the receiving end of spousal/child support, you should leave the house only after clarity of issues such as finances and custody, etc. is resolved.

Step 2: Filing and Service

Formally, the divorce process in California starts from here. Either of the spouses that want to initiate the divorce proceedings needs to file the divorce petition in court. When you are filing in the Petition it is important to be careful with regards to the information being put in it and its factual accuracy. Once the Petition is filed, the court then assigns the number of the case which is then used in future correspondences.

Step 3: The Financial Disclosures

This is an important step in the divorce process. California family law courts require both of the spouses to be clear and open with the courts in terms of their financial positions. Disclosure usually includes the couples disclosing their own income, debts, expenses, and assets.

Step 4: Temporary Orders

The use of temporary orders is widespread in California divorce proceedings. Temporary orders are orders passed by the judge at the initial stage of the case. These orders will often be enforceable until the final judgment of the court isn’t given. The most common types of Temporary orders include:

  • Spousal Support Orders
  • Orders for Child Support
  • Orders for visitation and custody of the child
  • Orders regarding property and assets.

Step 5: The Process of Discovery

The discovery process is an optional process that courts can order on their discretion or the request of one of the spouse to obtain greater information with regards to any subject of the spouse or the relationship of the couples. The information for this method is likely to be gathered through direct questioning and providing of documents etc.

Step 6: Negotiations for Settlements

This is one of the final steps of the process. Settlement negotiations are when the spouses or their lawyers sit down to discuss the matters that they can conclude the divorce and agree on mutually acceptable answers to child custody, alimony payments, and division of assets and finances. The best negotiations of this kind tend to occur once the spouses are fully informed and try to keep emotions out of the negotiation process.

Step 7: Trial

If and when the settlement stage proves unsuccessful, the spouses come to the family law courts and put their arguments before the judge in the form of a trial. Trials are often one of the most emotionally-charged instances in a person’s life.

Legal Landscape Divorce Tips for Guys

Posted by: Gerald A. Maggio, Esq.

Top Orange County divorce attorneys; The Maggio Law FirmDivorce is one of the hardest times in a person’s life. A divorce simply put is a decision that changes your life, your routines and your acquaintances. Divorces can be one of the most complexes, sad and even sadistic cases in the family law courts. Yet for guys divorce more often than not can be even harder than for a woman because they aren’t as expressive about it as women perhaps are.

To make sure that guys aren’t left alone to face the wrath of divorce, here are a few tips for guys to help them get through the divorce proceedings and the divorce with relative ease.

Don’t Move out Immediately, Think about it Carefully

In life there are nice guys, who want to have peace all around them even in situations where there is actually very little of it. Such guys are likely to have the desire to leave their homes to try and give their soon-to-be-former spouses peace. While doing so though, they without realizing it leave the fate of their child’s custody and visitation at the mercy of their mother only. Only when you have considered such facts about moving out should you make your decision.

Be Careful of the Lawyer You Choose

This is one of the most important tips.  As much as you may hate your wife and want to drag her to the cleaners, hiring an aggressive, fiery, lawyer is not necessarily the answer. The work of a lawyer is to be calm, collected, calculated and reasonable. If you are looking to have the best chance of getting something from your divorce case make sure you get a lawyer that has a clear plan, focus and strategy and not just a loud voice and a fiery tone.

If You Want Cheap, You Are Very Well Going to Get Cheap

There are loads of times in your life where the opportunity for saving money must have arrived and gone begging. Saving money off your lawyers’ fees or divorce proceedings costs is definitely not the thing you should be saving money on. While saving money may be a healthy habit, in the legal world if you go looking for cheap lawyers in terms of costs you are likely to get what you paid for, like anything else in life.

Keep Your Lawyer on Speed Dial

When you are going through a divorce, it is important that you have clear, open and constant communication with your Orange County divorce attorney. A clear and frequent communication means that you will be delving into the affairs of your case and are likely to be up to speed with all the developments. This is important to avoid complacency in your lawyer and to keep you focused on your divorce proceedings.

The Importance of the Date of Separation in Divorce Cases

Posted by: Gerald A. Maggio, Esq.

Top Orange County divorce attorneys; The Maggio Law FirmDo you recall when you and your partner called it quits? For some people, their date of separation sticks out in their mind. Mainly because the decision to part ways resulted from a full-blown fight or your partner was unfaithful, or one of the parties moved out. Whatever your reason was to end things, you will always remember your separation date. Although you may not want to keep that memory intact, when it comes to filing for divorce, the date of separation is quite important to remember.

What Role does the Date of Separation Play?

Knowing the date of separation is important in order to:

  • Ensure a proper division of property for assets acquired between the date of marriage and the date of separation
  • Determine the length of time that either party may be entitled to receive or pay spousal support to the other.

1.     Fair Division of Property & Debts

Equalization of property and debts depends on the date you separated from your partner. It can have a significant impact on the sum of money allotted to the partner during divorce settlements. There have been cases where the partner got more money due to the date they separated. The reverse for this is also true. The reason for getting more or less money is also due to the value of shares increasing or decreasing during the time of separation.

2.     Support Payments

The law states that the partner needs to start paying support to their ex on the date they separated. Therefore, knowing your separation date will help disputing couples settle many arguments. What happens when the disputing partners clash on what the exact date of separation is? Look at the next heading to find out.

Figuring Out the Exact Date of Separation

It is helpful for your partner and you need to sit down, with a divorce mediator or your lawyers, to come to an agreed-upon date of separation. The questions that may arise to solve this issue are:

  • Do you remember when you decided to separate?
  • When did you tell your family and friends that you both are not living together or sleeping in separate rooms?
  • When was the last time you had marital relations with your partner?

More questions to determine the date may be asked.  If there is a disagreement between the parties as to the date of separation, that issue would otherwise have to be resolved first in your divorce case in order to be able to determine property division and long-term spousal support issues.

Looking At the Impact of Divorce Through the Eyes of Children

Posted by: Gerald A. Maggio, Esq.

Top Orange County divorce lawyers; The Maggio Law FirmThere is an excellent documentary movie called Split (www.splitfilm.org) that was released in 2013, which looks at divorce from the vantage point of the children of divorce.  There is an excellent trailer at their website and the complete movie can be purchased on DVD.

Split offers a realistic and sometimes heartbreaking look at how children are often affected with the separation and divorce of their parents.  Although children can be resilient, divorce can have a life-long impact on children depending on how their parents handle their divorce.

The reality is that divorce is never easy on anyone, i.e. parents or children.  However, parents can do much to reduce the stress of divorce for children and shield them from the conflict and disputes.  For instance, parents should avoid arguing or verbally fighting with each other in front of their children.  Use emails or other online resources for communications regarding parenting (such as www.ourfamilywizard.com) when face-to-face communications are difficult.  Also, do not put the children in the middle.  Do not make them have to choose between which parent to live with or side with.  Work as a parental team as much as possible.  Your children should not know everything going on in your divorce.  They are your child, not your friend, so don’t treat them as some sort of sounding board because you think they are old enough to understand and you feel like you do not have anyone else to talk to.  Do the right thing, because it is not all about you or your spouse.  Your children should be your focus first and foremost and that in turn will make the divorce itself easier to resolve and also produce a good, functioning parenting relationship after your divorce is done.

For further information or to schedule a consultation with Orange County divorce attorney Gerald Maggio of The Maggio Law Firm, please call (949) 553-0304 or visit www.maggiolawfirm.com.  The Maggio Law Firm is an experienced Orange County divorce and family law firm serving the Orange County and Riverside areas and neighboring counties, serving clients with legal issues including divorce, legal separation, prenuptial agreements, divorce mediation, and other family law issues.

Don’t EVER Consider A Do-It-Yourself Divorce, Unless You Have No Other Options!

Posted by: Gerald A. Maggio, Esq.

Top Orange County divorce lawyers; The Maggio Law FirmFor most people, the decision to file for divorce is itself one of the most stressful and gut-wrenching ones in their lives, and is often made after many months or years of going back-and-forth deciding what to do.

The next step after deciding to file for divorce is whether to retain a divorce attorney or not. California family law courts do allow you to present yourself “in pro per” in family law proceedings.  However, is that the right way to handle your divorce case?  NO!

Although that answer is coming from a divorce attorney, it is an honest answer based on years of experience handling divorce and family law cases.  Even if your divorce is uncontested, there are very few assets of the marriage, and perhaps there are no children involved, you should still at least have legal counsel for guidance and to make sure your case is resolved properly.

There is a reason why the saying goes “He who represents himself has a fool for a client.”  

I once handled an Orange County family law case for an ex-husband where the parties had both settled their case by themselves and seemingly he thought he had gotten a good resolution of his case.  However, he had thought that he had gotten a waiver of spousal support from his wife in the divorce judgment, but the wording in the divorce judgment was clearly not drafted by an attorney.  Ultimately, having handled his divorce himself came back to bite him, because the spousal support waiver was not worded properly and did not hold up. I assisted him in working out his case at that point but in reality he spent more money than he would have had to pay if he had retained a divorce attorney in the beginning to do the job right.

Most divorce cases are never “easy.”

Even when you think your divorce is “easy,” the divorce process, the steps involved and, most importantly, the potential pitfalls that may arise in resolving your case are all more complicated than you may realize.  You are better to retain competent legal counsel to represent your best interests in your divorce case and get it done right, thereby avoiding vagueness and potential loopholes and pitfalls in your divorce judgment that could come back to haunt you later.

Moreover, the divorce process itself can be very confusing and overwhelming, and I have had many clients who originally tried to handle their case themselves, only to realize that it was a task that they could not really take on and handle adequately themselves.  Moreover, with all of the issues generally involved in a divorce case, including division of assets and debts, custody, child support, spousal support, division of retirement accounts, etc., the resolution of those issues fairly and properly by yourself can be daunting when emotions are already high.

If you have to go to court because you cannot resolve all issues with your spouse, appearing in court in front of a judge by yourself is incredibly nerve-whacking, and unless you have a legal background, you do not possess the knowledge and skills to represent your own best interests and get the best possible outcome.

If your spouse has a divorce attorney, YOU need a divorce attorney.

I have sometimes been asked if a potential client should retain a divorce attorney because the other party has legal counsel who says he can “handle everything” for both parties.  My answer generally is “yes.”  Even though that other attorney may appear to have the best intentions, the fact of the matter is that the attorney is representing your spouse, not you.  At a minimum, you need a divorce attorney to review the divorce paperwork and any proposed divorce judgment in your case to advise you of your rights and to make suggestions.  I generally tell someone whose spouse has legal counsel that they also need legal counsel, because there is always a possibility that without one, you will get taken advantage of.

For further information or to schedule a consultation with Orange County divorce lawyer Gerald Maggio of The Maggio Law Firm, please call (949) 553-0304 or visit www.maggiolawfirm.com.  The Maggio Law Firm is an experienced divorce and family law firm serving the Orange County and Riverside areas and neighboring counties, serving clients with legal issues including divorce, legal separation, divorce mediation, spousal support, child support and child custody issues.

Top 3 Considerations For Avoiding Tax Problems In Your Divorce Settlement

Posted by: Gerald A. Maggio, Esq.

Orange County divorce attorneys; The Maggio Law FirmNo one wants any problems with the IRS as a result of their divorce!  In any divorce case, there are tax issues both during and after divorce that need to be considered and addressed.  Divorce is anguishing enough, and dealing with a tax problem thereafter is even worse.  Here is some information and tips on what to consider as part of your divorce in relation to taxes:

  1. Division of Property

Generally, for property transfer between divorcing parties as part of a divorce settlement, there is no tax implication.  That can include transfer of ownership of real property.

However, there can be tax implications when an asset like a retirement account is split.  For example, to divide a 401(k) plan, you cannot simply withdraw funds from the plan without penalties and taxes.  Therefore, a Qualified Domestic Relations Order is often required to divide such plans by a rollover IRA to the other spouse to avoid taxes.

  1. Income Tax Filing Status

If a couple is separated and going through a divorce but have not finalized the divorce, they can generally file as “married filing jointly” or “married filing separately.” However, if one of the parties is not willing to file jointly under these circumstances, that party cannot be forced to do so.  Only a tax professional can truly determine what filing status makes the most sense for the parties.

The timing of entry of the divorce judgment also determines how a divorcing couple can file their taxes.  If the divorce judgment is filed and entered prior to the end of the year, that judgment terminates marital status and that means the parties cannot file jointly or “married filing separately.”  So it sometimes makes sense to wait to file the divorce judgment until after January 1st if the parties wish to file jointly.

After the divorce judgment has been filed, generally the divorced parties will each file as “single” or “head of household” filing status.  It is important to know that pursuant to the IRS Code, a parent that has over 50% physical custody of a child is entitled to file as “head of household” and the other parent cannot.  Even if the other parent has 49.9% physical custody, they are not entitled to file as “head of household.”  The parent with over 50% custody is generally also entitled to claim the child as a tax exemption too.

  1. Child and Spousal Support

There are 2 simple rules regarding the deductibility of child and spousal support payments are as follows:

  • Child support is not tax-deductible to the person paying the support, and does not have to be claimed as “income” by the receiving party.
  • Spousal support (a.k.a. “alimony”) is tax-deductible to the person paying the support, much like mortgage interest.  For the divorced party receiving spousal support, that party has to claim such spousal support payments on their income tax returns and will be taxed on those payments, so that party should pay accordingly and adjust their tax payments during the year pursuant to the recommendations of their tax professional.

The tax issues related to divorce can be complex, and it is highly advisable that divorcing parties consult with an experienced tax professional both during their divorce and when working towards a final divorce judgment that will include a division of property, support orders, and so on.  The more information available to parties enables for a more carefully-negotiated divorce settlement that avoids tax pitfalls.

For further information or to schedule a consultation with Orange County divorce attorney Gerald Maggio of The Maggio Law Firm, please call (949) 553-0304 or visit www.maggiolawfirm.com.  The Maggio Law Firm is an experienced divorce and family law firm serving the Orange County and Riverside areas and neighboring counties, serving clients with legal issues including divorce, legal separation, spousal support, child support and child custody issues.

What Is a “Legal Separation” and Should I File for It Instead of Divorce? What About An Annulment?

Posted by: Gerald A. Maggio, Esq.

what is legal separation, orange county divorce attorney, maggio family lawLegal separation is much like filing for divorce, in that you can obtain many of the same orders regarding custody, division of property, and support.  However, there is one key difference:  at the end of a legal separation case, you are still legally married to your spouse.

In situations where a party wants to obtain orders for child custody, visitation, and/or other issues but has not lived in the same county for the past 3 months or in California for the past 6 months to meet the time requirements for filing for divorce, that party can file for Legal Separation and amend his or her Petition to a divorce after 6 months have passed.

Legal Separation is also appropriate for some parties for religious and/or insurance coverage issues. Medical insurance companies who had previously insured a spouse under the other spouse’s medical insurance during the marriage generally terminate such coverage options when a divorce is finalized. Therefore, for spouses who would have difficulty in obtaining their own medical insurance coverage after termination of their marriage due to pre-existing medical conditions, a legal separation can make sense because it enables such medical insurance coverage to continue. The Court can make orders relating to child custody, visitation, child and spousal support and divide property in a legal separation case, but the parties otherwise remain married to each other.

Unless your circumstances fit one of those circumstances above, you should consider divorce instead of legal separation because you will still be married at the end of a legal separation case and if you later decide to divorce, you will have to file a new case for divorce.

What About An Annulment?  In order to qualify for an annulment instead of obtaining a divorce, the party seeking an annulment must be able to prove that the parties’ marriage was “void” (i.e. an incestuous marriage or where one of the parties was still legally married to another individual at the same time) or “voidable (where the party seeking annulment was under 18 years of age at the time of marriage or that the marriage was entered into based upon fraudulent representations, force, or mental and/or physical incapacity). It is generally substantially more difficult to obtain an annulment than a divorce.

For more information or to schedule a consultation, please contact The Maggio Law Firm at 949-553-0304 and at www.maggiolawfirm.com.

 
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.