Posted by: Gerald A. Maggio, Esq.
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.
To learn more about the Maggio Law Firm visit http://www.maggiolawfirm.com/.
Posted by: Gerald A. Maggio, Esq.
Going through a divorce can be a difficult time for couples. Not only must they decide on an attorney to hire, but they must also consider whether a divorce can be handled through mediation rather than litigation.
Mediation is a practical option that can offer couples a chance to end their marriage in the spirit of cooperation rather than hostility. Once mediation is chosen as an option, the couple will work with a mediator to reach an amicable resolution of any issues that remain at the dissolution of the marriage.
“Mediation can offer couples the opportunity to end their marriage in a manner that minimizes stress and maximizes cooperation. During mediation, both parties can work together to achieve a positive outcome where both parties get some of what they want,” explained Gerald A. Maggio, an Orange County divorce attorney.
One of the most common reasons couples choose mediation is because it is less expensive than litigation. A couple will need to hire only one person to assist them in their divorce, rather than two separate attorneys. It is a flexible, inexpensive way for a couple to end their marriage without much conflict.
Mediation is also a good choice for couples because it offers them a greater degree of control than other options. When couples choose to pursue litigation, all of the decisions regarding their future rest in the hands of a stranger who really does not know their situation and personal circumstances.
“If divorces are settled through litigation, a judge will be responsible for making decisions that will affect a family’s future. A judge will have limited time to hear the details of each divorce case and cannot carefully consider how a decision will affect a family in the long-term. Mediation, on the other hand, offers families the flexibility to take as much time as necessary to consider how these decisions will impact their future,” indicated Maggio.
A divorce can have a traumatic effect on children, and pursuing mediation instead of litigation is often easier on them. When choosing to use a mediator, it can help families move forward in a way this is amicable. Children will not be subjected to a bitter battle in a court room, and the couple will be able to work together to find the best solution without putting the children in the middle. “Placing children in the middle of difficult divorce proceedings could impact their ability to have healthy relationships and may cause them to suffer emotional problems that can carry into adulthood. Mediation allows parents to discuss important decisions in an arena that is less stressful on child,” added Maggio.
Mediation is also a great option because it does not limit couples from going to court. If a couple is not satisfied in mediation and cannot come up with a solution that fits both parties, they can stop at any time, retain separate attorneys and have a judge decide their important issues.
Mediation is not the only alternative to an unpleasant divorce experience, but it is an option that deserves serious consideration. A family law attorney is an excellent choice for a mediator, as he or she will know and understand the rules of divorce and will understand the type of decisions a judge could make, if the matter has to be litigated. A divorce attorney serving as a mediator can also prepare the necessary documentation to complete the divorce process in the court.
To learn more about the Maggio Law Firm visit http://www.maggiolawfirm.com/.
Posted by: Gerald A. Maggio, Esq.
Unmarried mothers face a number of legal issues that must be dealt with to secure the health and happiness of their child. A family law attorney can help unmarried mothers navigate these difficult legal issues and secure adequate child support.
Unfortunately, many unmarried women find themselves alone after they become pregnant and the father of their child leaves. This abandonment can be emotionally taxing for a young woman by itself, and there are a number of legal issues at stake that must be handled as well. Not only must the child’s paternity be confirmed, child support must be secured from the baby’s father, and a child custody arrangement must be worked out between the parents.
Once an unmarried woman becomes pregnant, determining the paternity of the child is essential in pursing child support. With married parents, paternity is established automatically. However, if parents are unmarried, paternity establishment is not automatic. Both parents should start the process as soon as possible, so that the child will not have to suffer. Once the child is born, unmarried parents can establish paternity by signing the voluntary Declaration of Paternity. If the father contests the paternity, a paternity test can be administered.
Once paternity is established, a family law attorney can then work to get an order of child support from the father, and the California Department of Child Support Services can assist unwed mothers with child support collection and enforcement. Securing child support is an essential step for unwed mothers, as it offers the financial support necessary to make sure that the child is properly taken care of.
Child custody arrangements between unmarried couples can be quite complex and difficult to navigate. An experienced family law attorney can help unmarried mothers construct a child custody arrangement that will work for both parents and will serve the best interests of the child. When establishing custody, the courts will take a number of factors into consideration including:
- The child’s health, safety and welfare
- The stability of each parent’s home environment
- The history of physical abuse
- The parents’ criminal history, as it may restrict custody or visitation orders
- Whether or not siblings are involved
- The wishes of the child, if he or she is old enough to make them known
A family law attorney can provide assistance in working through all of these issues. Just because a young woman is not married when she becomes pregnant doesn’t mean that the mother, and child, do not have legal rights.
To learn more about the Maggio Law Firm visit http://www.maggiolawfirm.com/.
Posted by: Gerald A. Maggio, Esq.
Dealing with divorce is complicated enough, but having to deal with dividing debts makes it considerably more difficult. How a couple’s debt is divided depends on a number of different factors.
In California, the community is liable for all debts that were incurred during the marriage, regardless of which partner actually incurred the debt and whether this debt benefitted the family or the individual. Both parties are thus equally liable for the debt, and this debt should be divided evenly when settlements are being discussed unless the parties come to some other agreement. For example, one spouse may agree to pay off the joint debts in exchange for a greater share of the community property. A spouse may be inclined to do this because it will ensure that he or she is not responsible to the creditors.
Couples often face issues when one party has been off the other’s pre-marital debts. Oftentimes, a couple is married and one spouse has a great amount of pre-marital debt that the other spouse agrees to help pay off. In this case, the couple has used community property to pay off a separate debt. If either party files for dissolution of the marriage, California case law states that the community is entitled to reimbursement for the amount it paid to discharge one party’s separate property.
Debt that occurs after a couple has separated can be a more complex affair. If there is no court order or written agreement established in the separation that outlines payment of the debts incurred, then those debts that are deemed “necessaries,” will be confirmed to either spouse according to their respective needs and abilities to pay at the time the debt was incurred. Debts incurred by either spouse for things deemed “non-necessaries,” of that spouse or children of the marriage for whom support may be ordered shall be confirmed without offset to the spouse who incurred the debt.
Divorce can be a difficult process and dealing with debts incurred during the marriage and afterwards can be hard to navigate. It’s a smart idea to consult a California attorney who can provide guidance about how debts incurred during a marriage are likely to be divided by the court.
To learn more about the Maggio Law Firm visit http://www.maggiolawfirm.com/.
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.
Many parents choose mediation over litigation because it eases the stress their children might feel during a divorce. Involving children in mediation proceedings will help parents ensure that their children’s interests are being protected.
When parents decide to get a divorce, all of their decisions will have consequences for their children. All parents want to protect their children from the pain and suffering that can stem from a divorce, but the involvement of children is often necessary in divorce proceedings. Today, more and more parents are turning to this option rather than risking the negative impact litigation might have on their children. In fact, many parents choose to pursue mediation precisely because they have the common goal of doing what is best for their children.
Through the mediation process, parents will be able to establish a parenting plan that will work best for all members of the family. While it is the adults in the relationship that will make decisions during mediation, the input of children can be valuable and is something that parents should consider when making these plans.
If parents have made the decision to consider their children’s input during mediation, then this may require an interview. The mediator may choose to interview the child himself, or a child therapist may conduct the interview instead. These interviews can be difficult, though, because children may not want to speak about their parents’ divorce to a stranger, they may not want to disappoint one parent, or they may have been coached to give certain answers. In such cases, a child therapist may be used to conduct an interview, as he or she will be highly qualified to deal with the children’s emotional issues.
Sometimes, a mediator may believe that an interview is not necessary and may simply ask parents about their impressions of their children’s wants. This actually focuses parents on their children and encourages them to consider their children’s needs. Once this has been discussed, the mediator will then try to incorporate what the parents have communicated into the mediation decisions.
By including their children’s interests in their divorce mediation proceedings, parents will ensure that the mediation process goes smoothly. Mediation will ensure a better outcome will be achieved for the entire family and will help family members lay the foundation for a more cooperative future.
To learn more about the Maggio Law Firm visit http://www.maggiolawfirm.com/.
Posted by: Gerald A. Maggio, Esq.
Step parent adoptions are quite common these days and not as complex as many people think.
The fact of the matter when it comes to step-parent adoptions is that they are a whole lot easier and faster than other forms of adoption. This is because many of the states tend to bypass the home-study requirements as well as the waiting or adjustment period.
“It’s best to check these issues out with a highly-skilled family law attorney because there are also some states that mandate the custodial parent has to be married to the step-parent at least one year before adoption is allowed to proceed,” indicated Gerald A. Maggio, of the Maggio Law Firm in Irvine, California. In these instances, only the step-parent is allowed to petition to adopt the children. The custodial parent is not a part of the process in terms of the application, etc.
To start a step-parent adoption the first thing that needs to be done is to find out the applicable laws in the state of residence. An expert family attorney that handles this kind of work will have that knowledge at their fingertips.
In the alternative, researching online will also answer some of the questions that might arise. “While this might be the route that makes the most sense in terms of finances, some states require the adopting parent have legal representation,” outlined Maggio. A skilled family attorney will also know where to source case law that will assist with the adoption process and help getting the adoption application approved.
Make sure the right court system is accessed to proceed with a step-parent adoption. Depending on the state, this could be probate court, family court or even juvenile court. The court is responsible for handing out the adoption information paperwork. If it happens to be pre-packaged then all the information should be available in the package. If not, the first thing to ask is if legal counsel is required.
Make sure all the proper forms are filled out prior to filing. A skilled family attorney will assist in completing the documentation. In fact this is the smartest thing to do since most of the legal forms are confusing to someone who isn’t an attorney.
“There are many other things that need to be done to finally complete a step-parent adoption and a good family attorney will outline what those steps are in order to make the whole procedure go smoothly,” explained Gerald A. Maggio, of the Maggio Law Firm in Irvine, California.
To learn more about the Maggio Law Firm visit Maggiolawfirm.com.
Posted by: Gerald A. Maggio, Esq.
Considering a prenuptial agreement prior to marriage and feel it shows a lack of trust? On the contrary, it’s a smart move.
These days, more and more Americans are opting to have a prenuptial agreement drafted prior to marriage. “Premarital agreements, also known as prenuptial agreements, are a smart move to protect your assets going into the marriage,” said Gerald A. Maggio, of the Maggio Law Firm in Irvine, California.
Once upon a time these agreements were regarded as a lack of trust in the other party, regarding the upcoming marriage. Nowadays, those about to be married, particularly those who are older or on second marriages, realize the value of having a premarital agreement in place should anything go sour later. In addition, prenups are for the protection of both spouses, not just the one with the most money.
Are prenups “unromantic?” “Perhaps in some respects they are, but not signing one in the State of California means the marriage would then be governed by a convoluted set of rules known as the California Family Code. What all this legal jargon boils down to is that either the people planning on getting married choose their own rules to live by, or live by the rules of the State. Most people prefer living by their own rules,” added Maggio.
Of interest is the fact that Jewish marriages have traditionally called for a prenup called a Ketubah. It is considered the whole foundation of marriage in the Jewish culture. The Catholic Church also has a similar idea, called a “Prenup Dialogue” as part of their marriage preparation courses called Pre-Cana. The bottom line here is that prenups prepare people for the marital journey ahead of them. “Talking about money ahead of time may save heartache later,” explained Maggio.
While it might cause a few moments of utter stress as the negotiations for a prenup get started, the whole process may result in a surprising turn of events. It may actually strengthen a relationship in that both sides need to be brutally honest and open about how they handle money and plan for the future. Knowing the rules going into the marriage is far better than being surprised later by rules no one was aware of and disagrees with as well. This only makes good common sense.
“When in doubt, make certain to have a consultation with an expert family law attorney who will outline what is required for a prenup in the State of California and how the prenup may be affected by California community property law,” suggested Gerald A. Maggio, of the Maggio Law Firm in Irvine, California.
To learn more about the Maggio Law Firm visit Maggiolawfirm.com.
Posted by: Gerald A. Maggio, Esq.
In any child custody dispute in California, mediation is mandatory per California Family Code 3170.
Mediation is considered to be a form of alternative dispute resolution and it is this form of resolving differences of opinion that is used in California to settle child custody and visitation disputes. This lets the parents have the chance to try and get their differences sorted out without having to go to court and have the judge intervene in the affair.
Mandatory mediation means that if you file for an Order to Show Cause hearing requesting initial child custody and visitation orders or modification of existing custody/visitation orders, the court orders that the parties attend a mediation session at the courthouse on a date prior to the hearing date.
When it comes to mediation, there aren’t too many mysteries, as it’s a fairly straightforward process. Both sides get to discuss their problems and concerns, and the mediator helps them meet in the middle and find a resolution that works for both parties. Put another way, the whole purpose of mediation in a nutshell is to assist the parents embroiled in a child custody argument to resolve their disagreements and focus on creating a parenting plan that is in the best interest of the children.
Just because mediation is considered to be mandatory doesn’t always means that the process will work. Some of the cases that do come to mediation in California are far too complex or communications have totally broken down between the divorcing couple and they refuse to speak to one another.
There are other instances when even though a mediation agreement has been signed, the other party changes their mind. The agreement may be altered if a written cancellation request is given to the mediator. Rather than take any chances that things may go wrong at this stage, it’s wise to consult with an expert family attorney to find out what is required to cancel and what time constraints you may be under.
While mediators can do a lot of things, there are just as many things that they cannot do. It is for this reason that you should speak to a highly qualified attorney and find out the limits of mediation. If mediation doesn’t work, then there is always recourse to the courts. Just bear in mind that particular route does cost more and needs expert legal representation.
It is highly advised that you consult with a California child custody attorney to prepare you for your mediation, because each county handles custody mediations differently. In Orange County, for example, if nothing is agreed in mediation, that is the end of it and the parties continue to hearing.
In the Inland Empire, such as Riverside and San Bernardino County, even if the parties are unable to work out an agreement in mediation, the mediators there are empowered to make custody/visitation recommendations to the judge, based on only having met with the parties for one hour. The court can and often times does adopt those recommendations as a court order! So it is extremely important to take the mediation seriously and is also why having skilled legal counsel is highly advised.
Renee Cary writes for Irvine divorce attorney, Gerald Maggio of The Maggio Law Firm. To learn more about Irvine divorce lawyer, Gerald Maggio visit Maggiolawfirm.com.
Posted by: Gerald A. Maggio, Esq.
The courts look at marriages like partnerships in the State of California, so when it comes to divorce, spouses are co-owners.
If you live in California and are contemplating or about to actually file for a divorce, you need to be aware that California is a community property state, one of only nine like it in the United States. Community property means that spouses are regarded as co-owners of property, like being in a partnership.
There are three categories that married spouses may fit into when facing a divorce in California, the first being community property; the second being separate property; and the third being quasi-community property. Why the different categories when a couple is getting divorced?
The category the property happens to fall into controls how it is divided when the divorce is final. For instance, California’s community property law says community property is considered to be “all” property, no matter where it is located, that was acquired by the married couple while they lived in California. If the property is located within California, the California law classifies such property as community property. If the property is located outside the State of California, it is called quasi-community property.
Generally speaking, the couple both own property that they bought between the time they were married and the day they separated. Each of them owns a one-half interest in that property. This is what is referred to as community property, with both people owning it at the same time.
On the other hand, separate property is property that either spouse owned “before” the marriage or after separation. Or, it might also be assets that were received during the marriage as a gift or an inheritance. An example of this might be if a relative gifted an ancestral home to the wife. That home is then hers and is considered to be separate property at divorce time.
On another note relating to separate property: if any money is earned from that property, it is considered separate. However, if income is generated by both spouses and it is not related to the separate property, it is community property and it doesn’t matter if the money is in separate bank accounts.
Things tend to get a bit complicated when it comes to the quasi-community property category. The law looks at that as all property, no matter where it is located, or if it was bought before or after the operative date of the community property code. Wait, it gets worse, as here are the various ways property may be acquired: by either partner while living someplace else, which would have been community property if the person who bought it had been living in California when it was purchased; or if the property was acquired by exchange, then it would have been community property if the person who exchanged it had been living in California when the property was exchanged.
Talk about confusing to say the least. So to simplify things a bit, typically quasi-community property means a property acquired by a couple when they lived in an equitable distribution state prior to living in California. Once they move to California, their quasi-community property is treated like community property.
There’s one other thing that divorcing California couples need to know and that is that there are instances where separate property may become community property during the course of the marriage. To say this would come as a really unpleasant surprise is an understatement.
If you are contemplating filing for a divorce in California, make sure you hire an expert divorce lawyer who will outline the details about community property and guide you through the tangled divorce process.
Renee Cary writes for Irvine divorce attorney, Gerald Maggio of The Maggio Law Firm. To learn more about Irvine divorce lawyer, Gerald Maggio visit Maggiolawfirm.com.
