How Do California Family Courts Determine Child Support?

Posted by: Gerald A. Maggio, Esq.

Top Orange County divorce lawyers; The Maggio Law Firm

California has a child support formula that is used in all cases to determine the proper amount of “guideline” child support. Generally, the courts and all attorneys in California use one of 2 recognized computer programs based on the child support guideline formula:  either “Dissomaster” or “X-spouse.”

The factors considered in making child support orders are primarily the gross income of the parties and the amount of time each parent spends with the minor child. However, other factors that can be considered include any itemized deductions the parties can claim on their taxes, medical insurance premiums paid each month, and any mandatory retirement payments and union dues for individuals whose employment requires them to be part of a union and to contribute to a deferred compensation retirement plan (i.e. a pension).

In addition to the basic monthly child support, the court will generally also order that the parents equally share the costs of childcare expenses necessary for the custodial parent or both parents to work, as well as any medical, dental, and vision expenses for the minor child not covered or reimbursed by medical/dental/vision insurance.

Child support can also include expenses for the special needs of a child, such as tutors or other services, as well as the transportation costs for visitation of a parent.

Finally, the Court generally orders that both parents keep their child medically insured with medical insurance if it is available at no cost or at reasonable cost to both parents.

Child Support is generally paid until the minor child reaches the age of 18, or age 19 if they are still a full-time high school student at age 18, unless the minor child dies or becomes emanicipated prior to becoming an adult.

Child Support orders can be modified if there is:

  • A significant increase or decrease in either parent’s income;
  • A change in custody or the amount of time the child spends with each parent; or
  • Any other change that would affect the child support guideline calculations.

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

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.

Top 20 Financial & Legal Steps To Take After Your Divorce Is Done

Posted by: Gerald A. Maggio, Esq.

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In most divorce cases in most states, you cannot charge estate plans, life insurance beneficiaries, etc., until after your divorce case has been resolved and your divorce judgment has been entered by the court.  However, once your divorce is final, you need to take immediate financial and legal steps to reflect your new reality.  The following is a checklist of the actions that you need to take:

  1. Change your name on all of your financial documents, bank accounts, etc.
  2. Close and/or change the names on all joint accounts.
  3. Make sure that all credit card bills and loans are paid promptly and closed by you (or your spouse if such bills or loans were designed as their responsibility in the divorce).
  4. Open a checking and savings account in your name.
  5. Open a credit card in your name to establish your own credit history.
  6. Set up and start depositing money into an emergency bank account to cover 6 months of living expenses and don’t ever dip into it.
  7. Check all of your investment accounts to make sure that the stated ownership of stocks, bonds, mutual funds, annuities, and retirement accounts are correctly listed.
  8. Change your name with the Social Security department.
  9. Change your name on your driver’s license.
  10. Change the title on your automobile(s) into your name if necessary.
  11. Change your automobile insurance coverage into your name alone.
  12. Have your spouse’s name take off of the mortgage (or lease).  This may be difficult to do without a refinance of the mortgage.
  13. Make sure that you transfer ownership of all deeds for your real estate and record with your county recorder’s office if not accomplished in the divorce case.
  14. Change your beneficiaries on all life insurance policies.
  15. Change beneficiaries on all retirement and pension plans.
  16. Revise your health insurance coverage, dependent on the terms of your divorce judgment.
  17. Make sure any Qualified Domestic Relations Orders that need to be done to divide retirement benefits per your divorce judgment get done.
  18. Contact an estate planning attorney and have a new estate plan done.  Be sure to update your medical and financial powers of attorney.
  19. Speak with a financial advisor if you did not do so prior to concluding your divorce case and determine a financial roadmap for you post-divorce.
  20. Review your tax withholding allowances and taxes with your CPA, particularly if you are receiving or paying spousal support (alimony), and make any necessary adjustments with your payroll department.

For more information or to schedule a consultation, please contact the Orange County family law firm of The Maggio Law Firm at (949) 553-0304 or at www.maggiolawfirm.com.

 

What Role Does Social Media Play as Evidence in Divorce?

Posted by: Gerald A. Maggio, Esq.

Top Orange County Divorce Attorneys; The Maggio Law Firm

What happens when a spouse reads a “tweet” you sent about your latest date or your spouse sees photos of you on a vacation she didn’t know you were taking on your Facebook page? Is Social media acceptable as evidence in a family law case? Family law is determined by state law which means each state has its own unique requirements for property division, custody and support. All states now have some form of no-fault divorce though. In a no-fault divorce it doesn’t matter if a spouse had an affair or if a spouse was otherwise to blame for the dissolution of the marriage. The idea of no-fault divorce is to save couple from gathering evidence of wrong-doing and from blaming each other in order to get more property or something other advantage out of the divorce.

In custody disputes though, a parent whose behavior could be construed as harmful to the children, or as irresponsible for a parent, etc. evidence of drug use, drinking, or otherwise inappropriate behavior may be used against a parent in a custody case. State laws vary on what may or may not be considered in a court’s custody determination and in some states, adult behavior which does not occur in the presence of the children and does not impair a parent’s ability to parent may not be a factor. Judges have a great deal of discretion though so every case is different, even different cases in one state may have different outcomes based on each judge’s discretion.

Facebook and Twitter can be used against you.  Social media sometimes offers clues to the opposing side about the truth of matters.  A person who is claiming he cannot afford to pay child support and then posts pictures of his latest cruise to the Bahamas may have some explaining to do. An individual who claims she cannot find a job and then “tweets” about her new consulting business could be caught in a contempt situation. We live in a new world where people are constantly talking about their own day-to-day activities as well as those of the people around them. Even a careful individual who does not post photos on Facebook might end up on Facebook if a friend (or even a friend of a friend) posts a photo and tags a person in it.

Is social media admissible in court? This is a growing area of law and is not entirely clear in every state or in every situation. Tweets and Facebook pages must be verified as true and verified as coming from a reliable source. Like information in Wikipedia, not everything you see or read on the internet is true, so verifying the truth of anything in social media can be difficult from an evidentiary standpoint. It has created new questions and new challenges for attorneys and for the courts. Perhaps the best advice if you are going through a divorce is to steer clear of social media until your divorce is finalized. An experienced family law attorney can help you understand your specific rights and responsibilities with regard to social media and divorce under your specific state’s laws.

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

Proposed Legislation Would Eliminate Spousal Support for Convicted Sexual Felony Spouses

Posted by: Gerald Maggio

Top Orange County divorce lawyers; The Maggio Law Firm

Current California divorce laws will grant spousal support to a husband or wife when there is a significant difference in income. Temporary spousal support can be granted to help during a transition, or if the marriage lasted longer than 10 years permanent spousal support can be established. Currently, one of the exceptions to this rule is if your soon-to-be ex tried to murder you. Victims rights advocates say this does not go far enough. A recent bill ¨C AB1522 ¨C would extend this exception to spouses who are convicted of other violent sexual felonies.

“Victims of violent sex crimes already suffer physical trauma, fear, and an assault on their privacy and dignity,” said Assemblywoman Toni Atkins, D-San Diego, who recently introduced the bill. “To require them also to pay their abuser alimony or to give them a share of their pension or household goods is cruel and makes a mockery of the intent behind the laws governing the fair division of assets in a divorce.”

A victim of marital rape, sodomy, and forced oral copulation urged lawmakers to make this change in the divorce and spousal support laws. Crystal Harris was ordered to pay $1,000 a month before her husband Shawn Harris was convicted and sent to state prison for six years. The San Diego Superior Court judge considered the domestic violence when figuring the spousal support and reduced her obligation from $3,000 to $1,000. Crystal had a financial consultant job whereas her husband had been out of work for several years when their 12-year marriage ended. She was also ordered to pay $47,000 of the $100,000 legal fees from the divorce proceedings. Crystal felt victimized again when she was ordered to pay this even though he had committed three serious felonies.

Since Shawn is in prison, he does not receive spousal support but when he gets out, he could currently ask the courts for spousal support unless AB1522 passes. AB1522 would also allow the injured spouse to not pay the legal and attorney fees the convicted spouse owes in any divorce proceedings. This would make a big difference throughout all of California for victims of spousal assault and sex crimes.

Victims should contact a divorce and domestic violence attorney that can promptly and effectively uphold your rights when a situation occurs that harms you or the children. An experienced attorney can be your ally to help with legal and safety concerns in these times of need.

For more information or to schedule a consultation with Orange County divorce lawyer Gerald Maggio, contact The Maggio Law Firm by calling (949) 553-0304 or visiting www.maggiolawfirm.com.

Past Due California Child Support Reaches Near-Record Levels

Posted by: Gerald Maggio

Top Orange County divorce lawyers; The Maggio Law FirmIrvine, Calif. – An astounding $19.2 billion is owed in past due child support in California, according to the state’s child support services department. California has a formula that accounts for what a parent can afford and even a debt compromise program for parents who owe monies due to welfare payments. California’s interest rate on child support owed, currently at 10 percent, is sometimes blamed for the high back pay due; but ultimately a parent must pay for the livelihood of their child.

Hefty fines and even jail time can be the consequence of not paying child support. If a parent has a valid reason why their child support should be modified, they should get legal counsel to show proof of the change in circumstances. Job layoffs, a big cut in pay, or disasters and emergencies can greatly affect a parent’s ability to pay.

“An individual must show the change has substantially affected their income, is permanent, and was not a voluntary change,” says Irvine child support attorney Gerald Maggio, of the Maggio Law Firm. “Many people wait until they are already behind to get a modification, but the minute a big change has occurred you should be getting legal counsel.”

Support orders should be reviewed every three years to account for any financial changes of the parents or needs for the child. An experienced Orange County child support attorney will ensure the accuracy of filing the modification, and sometimes even an extension is needed for a child’s schooling or medical situation. It’s important to know that child support cannot be modified retroactively, so if a parent waits too long to modify, the back pay will still be due at the different amount.

The Maggio Law Firm has a successful track record of enforcing child support orders and modifying it for clients when a big life change occurs. They are accomplished in child custody, division of property, spousal support, and many California divorce matters. Maggio is known for aggressively pursing his client’s and their child’s rights with empathy, skill, and efficiency.

For more information or to schedule a consultation with Orange County divorce lawyer Gerald Maggio, contact The Maggio Law Firm by calling (949) 553-0304 or visiting www.maggiolawfirm.com.

How to Maintain a Unified Front with Your Former Spouse for Your Children

Posted by: Gerald Maggio

Top Orange County divorce lawyers; The Maggio Law Firm

Staying amicable with an ex-spouse who probably put you through veritable hell is something that is probably inconceivable. In some instances, such as when domestic violence or other egregious circumstances are involved, it is understandable or even advisable to stay your distances.

However, when children are involved, partners who were once bonded by marriage will, in some form or fashion, still have to deal with each other when it comes to joint parenting or issues concerning the children, no matter who is paying child support or who thinks they got the shorter end of the stick.

Divorced couples whose goal is to raise well-adjusted kids in light of the divorce and separation have some work ahead of them that requires balance, commitment and a keen focus from both sides. They both must come together as a unified front for the betterment of the children.

Of course, there are the classic emotional stages of divorce that most couples find themselves going through. There is the guilt and shame that usually occurs when there is the feeling of failure – all normal reactions to the drastic changes of divorce. No doubt that there may be an emotional roller coaster of grief. Subconsciously, or at many levels, there may be denial, bargaining, resentment, anger and acceptance –all are on the vast spectrum of emotions people feel after a divorce.

There can be much to be gained by remaining allies, even though communication or mutual respect has diminished in your marital relationship. Being civil and maintaining family ties on both sides can ensure balance and equilibrium for children who need stability and extended emotional support more than ever. It is always good to remember to put your children first. Do not be petty by rehashing old arguments and opening up old wounds. Try to also be inclusive. Involve each other in your children’s milestones, shortcomings and achievements.

To let go of resentment and the emotional baggage of a failed marriage and the many disconnects that might have occurred, the idea of maintaining some sort of harmony in front of and around the children will always speak volumes and can also help your children adjust to the divorce and become well-adjusted adults in the long run.

Gerald A. Maggio is an Orange County divorce attorney, in Irvine, California.  For more information or to schedule a consultation with Orange County divorce lawyer Gerald Maggio, contact The Maggio Law Firm by calling (949) 553-0304 or visiting www.maggiolawfirm.com.

What are the major factors used in calculating child support?

Posted by: Gerald Maggio

Top Orange County divorce attorneys; The Maggio Law Firm

How child support is calculated in Orange County divorce cases can be perplexing and even frustrating. But there is a method to the madness.

There is a child support guideline formula in the state of California that is used to determine the appropriate amount of money due to the parent who has legal custody. Net income and the quantity of time each parent spends with the children are two major factors in calculating child support payments.

With these two main factors in mind, the California Family Court calculates child support based on each parent’s net income and the amount of time a child spends with either parent. There are additional factors in calculating child support payments, such as: child care expenses, medical insurance premiums, home mortgage payments, tax filing status and any other expenses that can impact the family’s financial situation.

A judge will begin the process by looking very closely at the amount of time each parent spends with the 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.

An experienced family law attorney will know how to negotiate what gets calculated into the non-custodial parent’s net income. This can include bonuses, commissions, overtime pay or any other form of income that occurs on a regular basis. Such calculations will help to ensure that the proper amount of child support is received each month.

Because basic child support doesn’t include child care or uninsured medical expenses, the court will consider these expenses in addition to the guideline support. This is called a mandatory add-on. Generally, each adult is responsible for paying half of the child care expenses if the custodial parent is employed full time.

Gerald A. Maggio is an Orange County divorce attorney, in Irvine, California.   For more information or to schedule a consultation with Orange County divorce lawyer Gerald Maggio, contact The Maggio Law Firm by calling (949) 553-0304 or visiting www.maggiolawfirm.com.

Major Factors Used in Calculating Child Support in California

Posted by: Gerald Maggio

Top Orange County divorce lawyers; The Maggio Law Firm

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.

For more information or to schedule a consultation with Orange County divorce lawyer Gerald Maggio, contact The Maggio Law Firm by calling (949) 553-0304 or visiting http://www.maggiolawfirm.com/.

Can Long-Term Spousal Support Be Terminated or Modified in California?

Posted by: Gerald Maggio

Top Orange County divorce lawyers; The Maggio Law Firm

Long-term spousal support in California cases can be amended or terminated under certain circumstances. Supporting partners have a number of different options available to them, if they wish to pursue a modification or termination of the support they provide.

In most cases, long-term spousal support can be terminated or modified at any time during the support period. The only instance when this is not true is when there is a written agreement by the parties expressly stating that spousal support is non-modifiable. In the absence of such an agreement, the court generally retains continuing spousal support jurisdiction and can decide to terminate or reduce spousal support in later court proceedings.

If the court assumes continuing spousal support jurisdiction, then the court may grant a request to modify spousal support if the supporting party can demonstrate a material change of circumstance since the most recent court order outlining the spousal support. When reviewing a modification or termination request, the court will consider the following factors:

Reducing Support if Spouse Is Self Supporting – The California Family Code emphasizes that even in long-term marriages, defined as those which last 10 years or more, the supported spouse has a duty to become self-supporting within a reasonable amount of time, which is considered to be one-half the length of the marriage. Generally, if the duration of the marriage is less than ten years, a supported spouse is expected to become self-supporting in half the length of the marriage. Modification or termination of the support can be ended before this time. If the spouse has not made any reasonable efforts to become self-supporting, you may ask the court to terminate the spousal support. If, on the other hand, your former spouse has actually increased his or her earnings, you will be able to present evidence of this in court and argue that he or she now has a reduced need for support.

Reducing Spousal Support Based on Obligations – In some cases, the supported party’s separate estate, including any and all assets allocated to him or her in the community property division, and its reasonable income potential, may be enough for you to seek a reduction or termination of previously awarded spousal support.

Other Factors that affect Modification of Spousal Support include:

  • Remarriage – Unless the parties have made an agreement in writing, a spousal support order automatically terminates when the supported party gets remarried.
  • Cohabitation – Cohabitation may also be a basis for seeking a modification or termination of a spousal support order. If your former spouse is cohabitating with a member of the opposite sex in a romantic relationship, you can request that the court order a termination of support or a downward modification of support.
  • Retirement – The retirement of the supporting party may be sufficient basis to receive a termination of support; however, it will be important to prove that the supporting spouse has a right to retire and is not choosing early retirement.

Whether you can terminate or reduce your existing spousal support obligation depends upon the unique facts and circumstances of your case. If you are considering modifying or terminating your spousal support order, you should contact a family law attorney who will review your case and advise you on how best to proceed.

Gerald A. Maggio is an Orange County divorce attorney, in Irvine, California.   For more information or to schedule a consultation with Orange County divorce lawyer Gerald Maggio, contact The Maggio Law Firm by calling (949) 553-0304 or visiting www.maggiolawfirm.com.