Posted by: Gerald A. Maggio, Esq.
If you are a spouse in a divorce proceeding, how can you make sure you are paid a fair and equitable share of bonus income? How can the spouse paying support avoid overpaying? The main issue is that bonus income is discretionary and rarely known until it is paid. If a spouse’s income history for the last calendar year, plus bonus, is tallied and divided by 12, the result is the amount spousal support due. This is a flawed calculation, as bonuses vary and may also not be given every year. However, the spousal agreement remains in place, causing a financial inequity.
To try and avoid a Catch 22 situation, both parties and the family court judge must clearly and openly discuss financial circumstances and all possible variables. The judge, who holds the discretion to design a fair and equitable method to determine what cash is on hand to pay support, is then able to design a relatively balanced approach for payments.
There are cases where this is not done and the spouse paying support ends up in a difficult financial position attempting to juggle payments and their own personal obligations. It is difficult to accurately calculate phantom income and thus it is vitally important to retain an experienced divorce attorney who understands how the system needs to work with such unpredictable numbers and percentages. Both parties are entitled to equity in a divorce settlement.
The California Family Code sections dealing with income earmarked for child support awards are laid out in section 4058 and 4058(1). Section 4064 empowers the courts, based on both parties earnings, if applicable, to make adjustments to include fluctuating incomes, for those who work on commissions. Even with such limited guidelines in place, there is very little case law dealing with this issue. There are three “go to” cases with the most relevance, with the 1990 case of Marriage of Ostler & Smith being the one most often cited in relation to analyzing and presenting the issue of bonus income as part of child and spousal support orders in California.
Marriage of Ostler & Smith is most noted for the judge’s even-handed approach to base support on the husband’s dividends and salary (not phantom bonuses) and determine a percentage of support for each child and the wife. The conclusion was the husband would pay 35 percent of the gross bonus income. The decision was appealed and upheld. Each case is determined based on its merits and the case law may only provide guidelines even if Ostler & Smith is being argued in court.
Determining spousal and child support when one or both partners derives income from bonuses is a complex matter. Since there are only three reported cases in California dealing with this type of situation, hiring an experienced divorce attorney is the best way to ensure an equitable and fair resolution relating to support.
Posted by: Gerald A. Maggio, Esq.
Do 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.
Posted by: Gerald A. Maggio, Esq.
California law makes a distinction between “short-term” and “long-term” marriages in determining the duration of spousal support payments and the jurisdiction of the court to award spousal support. For marriages less than 10 years in duration, California law and case law precedent maintains that the spouse obligated to pay spousal support is obligated to do so for one-half the length of the actual marriage.
However, for marriages 10 years or more, the court generally has continuing jurisdiction over the issue of spousal support and the longer the marriage, generally the prospect of continuing spousal support for many years to come.
Temporary spousal support, also known as “pendite lite” spousal support, is generally an award of support while the divorce is still pending in the court. It is calculated using the same formula and computer programs as for child support.
Permanent spousal support, which is determined by the court at time of trial or agreed to by the parties, does not involve a formula or computer program. Instead, it is a factual analysis of the factors of the marriage, including the marital standard of living and the following factors:
- The extent to which each party’s earning capacity is sufficient to maintain the standard of living established during the marriage;
- The contributions of the supported party to the paying party’s education, training, career position, or professional license;
- The ability of the supporting party to pay spousal support;
- The needs of each party based on the standard of living established during the marriage;
- The obligations and asset, including separate property, of each party;
- The duration of the marriage;
- The ability of the supported party to engage in gainful employment without interfering with the interests of dependent children;
- The age and health of the parties;
- Any history of domestic violence between the parties;
- The immediate and specific tax consequences to each party;
- The balance of the hardships to each party;
- The goal that the supported party become self-supporting within a reasonable period of time (usually one-half the length of the marriage);
- Any criminal conviction of an abusive spouse; and
- Any other factors the court deems just and equitable.
In situations where neither party needs spousal support at the moment, the Court can reserve jurisdiction to order spousal support in the future if there were any change of circumstances, such as serious illness, disability, or loss of employment.
Posted by: Gerald A. Maggio, Esq.
Whether you are opting for full legal representation or self-representation for divorce, you must have a good understanding about the basics of divorce law in California. There are certain rules and restraining orders that you have to follow during the divorce procedure. Violating these rules might cause you to pay stiff legal penalties. Moreover, learning about California divorce law can help you choose the right legal alternative and divorce attorney.
Here are some quick and important facts about California divorce law that can help you understand the legal requirements and implications of divorce in California:
If you are filing for divorce in California, you must have lived in the state of California for the last six months and for the last 3 months in the county where you are filing the case. If both spouses have California residency but have been living in two different counties for the last 3 months, they can file for divorce in either of the two counties. For example, if you have lived in Orange County for the past 3 months, you can file your divorce case with the Orange County Family Law Court.
Summary dissolution is a joint filing process which requires less paperwork and in which both spouses mutually agree to an out-of-court settlement. You can only opt for summary dissolution if you and your spouse have mutually decided to divide your assets and debts uniformly between each other and the following conditions are also met:
- You must have been married for less than five (5) years (from date of marriage to date of separation).
- Combined joint debt or loan amount must not exceed $6,000 (excluding car loans).
- The total worth of community property should be less than $40,000 (excluding vehicles).
- The total worth of separate property should be less than $40,000 (excluding vehicles).
- Neither of the spouses can own land or a home.
- Couples applying for summary dissolution must not have any children (biological or adopted) from the relationship.
- Neither party shall ever receive spousal support from the other party.
California is a community property state. Regardless of the employment or financial state of spouses, California divorce law ensures uniform distribution of assets and valuables between spouses. Property owned by spouses is either community property or separate property. Community property is the assets and debts acquired during the marriage (in and out of the state). This property is divided equally between the spouses. Separate property, on the other hand, is the property acquired by either of the spouses before getting married or by inheritance or gift, and this property is not divided during the divorce.
Depending on the best interests of the children of the marriage, court may reward joint or sole custody. Following are some of the factors that can influence the decision of the court:
- Wishes of the child
- Financial stability of parents
- Frequent and continuing contact of the child with both parents
- Child’s safety
- Parents’ health records
- The history of drug use or alcohol abuse
- History of domestic violence
The court may also reward alimony (spousal support) to a spouse. The amount and period of alimony can depend on the length of marriage, the marital standard of living of the couple during the marriage, and other factors under California Family Code section 4320. It is advisable to speak with a divorce attorney to fully understand how the family court determines alimony.
Just keep the above-mentioned facts about California divorce law in mind when filing for divorce. This can help you deal with all the legal proceedings in accordance with California state law.
Posted by: Gerald A. Maggio, Esq.
Prior to considering divorce, you generally should consult with at least one divorce attorney so that you know what your legal rights are and also what you can except to either pay or receive in terms of child and/or spousal support. It is helpful to bring a basic written breakdown of what the assets and debts of the marriage are for the divorce attorney to review, as well as your last 3 years of income tax returns.
Once your divorce case has commenced, both parties in a California divorce case are required by California law to complete and exchange their own financial disclosures known as “Preliminary Declarations of Disclosure.” These disclosures are comprised of 2 main documents: (1) an Income and Expense Declaration, and (2) a Schedule of Assets and Debts. Your divorce attorney will help prepare those forms and organize the supporting documentation for that disclosure. These disclosure are signed under penalty of perjury, and each party is held to a high fiduciary duty to the other party to disclose all known assets and debts and to be transparent in such disclosures.
Determining All of the Marital Assets
Creating an inventory of all the marital assets is necessary for the financial disclosure and also in preparation of the filing for divorce. In addition to the marital home, cars, bank accounts, and other main assets, there are also secondary items that need to be accounted for such as furniture, jewelry, artwork, and other more personal belongings. Determining values of all such property is necessary, and for homes and vehicles, obtaining such values will usually involve getting a professional appraisal. Furniture and furnishings should be valued at “garage sale value,” not what you paid for them, the reason being that if they were to be sold or disposed of, the court would either order them sold by garage sale or perhaps by consignment. The divorce attorney will guide you through this process of evaluating the marital assets.
It is important to understand that California is a community property state, which means that generally, all assets acquired during the marriage is generally presumed to be community property, i.e. each party is entitled to a one-half interest in the assets. The exception is an asset acquired by inheritance or by gift, which is generally considered the receiving party’s separate property. An experienced divorce lawyer will help determine what should be considered community property and what should be considered separate property.
Establishing The Marital Liabilities
Your divorce attorney will help ascertain how your marital liabilities and debts should be divided and what is community debt. Like marital assets, marital debts incurred during marriage are generally presumed to be community debt, meaning each party is responsible for one-half thereof. However, your divorce lawyer will work with you to determine a proposed division of property that takes the big picture into consideration factoring in all of the assets, debts and income of the parties to determine an equitable division.
Only until the parties have completed and exchanged their Preliminary Declaration of Disclosure can any marital settlement agreement for the division of assets and debts as part of a divorce judgment be an enforceable one under California law.
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.
Posted by: Gerald A. Maggio, Esq.
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.
Posted by: Gerald A. Maggio, Esq.
Legal 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.
Posted by: Gerald A. Maggio, Esq.
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:
- Change your name on all of your financial documents, bank accounts, etc.
- Close and/or change the names on all joint accounts.
- 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).
- Open a checking and savings account in your name.
- Open a credit card in your name to establish your own credit history.
- 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.
- 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.
- Change your name with the Social Security department.
- Change your name on your driver’s license.
- Change the title on your automobile(s) into your name if necessary.
- Change your automobile insurance coverage into your name alone.
- Have your spouse’s name take off of the mortgage (or lease). This may be difficult to do without a refinance of the mortgage.
- 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.
- Change your beneficiaries on all life insurance policies.
- Change beneficiaries on all retirement and pension plans.
- Revise your health insurance coverage, dependent on the terms of your divorce judgment.
- Make sure any Qualified Domestic Relations Orders that need to be done to divide retirement benefits per your divorce judgment get done.
- Contact an estate planning attorney and have a new estate plan done. Be sure to update your medical and financial powers of attorney.
- 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.
- 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.
Posted by: Gerald A. Maggio, Esq.
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.
Posted by: Gerald Maggio
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.