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.

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.

How To Choose The Best Divorce Attorney Based On Your Needs

Posted by: Gerald A. Maggio, Esq.

Top Orange County Divorce Lawyer; The Maggio Law Firm

One of the biggest and toughest decisions in your life can be filing for divorce, something generally most people do not want to do except as a last resort.  The next biggest issue is choosing a divorce attorney to represent you in your case.

So, how does one go about choosing a divorce lawyer exactly?  It can be a daunting task and ultimately a subjective decision that only you can make.

First, doing your research is always a good idea.  The internet allows you to search divorce attorneys online, look at their websites, and get a feel for the attorneys out there in your area.

Speaking of divorce attorneys in your area, you should generally try to choose an attorney in your city or county, depending on where you are.  For example, if you live in Orange County and your case is in Orange County, you generally should find and retain an Orange County divorce attorney.  Why?  There are 3 reasons:  (1) your attorney will have to travel less time to get to court, which in turn will save you in legal fees, (2) a local divorce attorney will know how the court in your county works (i.e. the little “ins and outs” of the court system) which is invaluable, and (3) a local divorce attorney will be known by the other attorney in your case and, even more important, the judge will likely know that attorney.  All those factors can have an effect on your case in terms of legal fees, the duration of the litigation in your case, and in how your case might be resolved.

Chances are you know someone, i.e. a friend, family member, or someone you work with, that has gone through a divorce.  If they are willing to talk about it, ask for an attorney referral because that person has gone through the process whereas you likely have not.  That person can give you a lot of helpful information and assist you in choosing a divorce attorney that fits your needs.

Much like asking someone you know about their divorce attorney, checking out and reading the client reviews of divorce attorneys is also a good way to narrow the attorneys you will want to set up consultations with.  Such reviews can be helpful in getting a sense of what those attorneys are like.  Some of those reviews are posted on attorney websites, but there are independent websites like Avvo.com that has helpful information about attorneys including client reviews.

It is always advisable to meet with more than one divorce attorney once you have narrowed your choices.  Set up consultations with each.  Some will offer free 60 minute consultations, some will offer a free 30 minute consultation, and some will require a charge for their time, often at the attorney’s hourly rate.  Do not let the issue of free vs. paid consultation be the determining factor in choosing an attorney.  Instead, in meeting each attorney, ask questions about the attorney, about how they handle their cases, about how available they are by phone/email/in person when needed, etc.  Make an informed decision about the divorce attorney you pick after doing all of this.  You want to pick an attorney that you feel comfortable with, is accessible and who actually listens to you.

A word of warning:  if a divorce lawyer that you meet promises or guarantees an outcome in your case, run out of their office.  NO divorce attorney should EVER promise or guarantee an outcome, because there are many factors involved if your case goes to trial that may affect the final outcome.   Don’t ever choose an attorney that says only what you want to hear, but one that also tells you what you need to hear.

In the end, there is no such thing as “the best attorney.”  There are many qualified divorce lawyers out there.  Rather, the issue is choosing the best attorney for you.

For more information or to schedule a consultation with Gerald Maggio, please call our Orange County office at (949) 553-0304 or go to 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.

Top 5 Things You Need To Know To File For a California Divorce

Posted by: Gerald A. Maggio, Esq.

Top Orange County divorce lawyers; The Maggio Law Firm

1.  In California, there are only two legal reasons for ending a marriage: [1] “Irreconcilable Differences” or [2] incurable insanity. Irreconcilable differences means that no amount of marital counseling will save your marriage.

2.  California is a “no-fault” divorce state, meaning that you do not have to give the court any other reason for filing for divorce.   You are, in essence, suing for divorce and contrary to what you see on television, you do not have to “ask” for divorce.

3.  You must have lived in California for 6 months and for 3 months in the county where you file for divorce.

4.  Part of the initial paperwork filed for divorce is a Summons.  In a divorce case, the Summons includes automatic restraining orders preventing either spouse from concealing, selling or disposing of any property, changing any insurance policies or beneficiaries, or taking any children of the marriage out of the State of California without the  written consent of the other spouse.

5.  To personally serve the initial divorce paperwork, the party initiating the divorce cannot serve the paperwork, but anyone who is at least 18 years or older can or you can use a professional process server.  A minor investment of less than $100 well worth the money versus asking a family member or friend to do so.

For more information or for a consultation, contact Orange County Divorce Lawyer Gerald A. Maggio at The Maggio Law Firm, Inc. at www.maggiolawfirm.com or (949) 553-0304.

How to Dissolve a Domestic Partnership in California

Posted by: Gerald Maggio

Top Orange County divorce lawyers; The Maggio Law Firm

Those of a certain generation may recall Woody Allen’s famous line in his Oscar-winning film Annie Hall: “A relationship, I think, is like a shark. You know? It has to constantly move forward or it dies. And I think what we got on our hands is a dead shark.”

The “dead shark” phenomenon can happen to any relationship, of course, including those within a domestic partnership. Ending a domestic partnership in California, however, has some specific requirements of which those wishing to terminate their legal bond should be aware.

Whether between a man and a woman or a same-sex couple, a domestic partnership can be ended in two ways. The first is by a Notice of Termination of Domestic Partnership filed with the California Secretary of State. The second is through the Superior Court. Both of these options are fraught with their own potential pitfalls, not least of which because not every domestic partnership termination is eligible to be filed with the Secretary of State. To qualify couples interested in this route, the office of the California Secretary of State provides a 13-point checklist with such questions as whether or not children were born, will be born or were adopted during the course of the relationship. Likewise, the form asks how much debt was mutually accrued (it can’t exceed more than $6,000) and how much community property is owned (must be less than $38,000).

Clearly, it gets complicated quickly, which is why many of these types of separations often end up in California Superior Court. This could be a good thing as it gives you the right to a court hearing in front of a judge. When filing a Notice of Termination of Domestic Partnership, there is no hearing. Moreover, you forfeit the ability to have a new hearing or the right to appeal whatever decision is rendered to a higher court. In court, however, you also have the right to an attorney. This is where we can help expedite an amicable end to your domestic partnership and navigate you to a satisfactory settlement. Then, no longer burdened by the “dead shark,” you are legally free to pursue the other fish in the sea.

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.

Lay Off Social Media During a Divorce

Posted by: Gerald Maggio

Top Orange County divorce lawyers; The Maggio Law Firm

Gone are the days when one’s personal life was, well, personal. Thanks to the explosion of Facebook, Twitter, texting and other forms of social media, it is easy for folks to broadcast anything and everything about their lives — no matter how mundane — for all the world to read and see.

However, anyone going through a divorce or involved in a marriage that is clearly on its last legs is best served putting the reins on such activity. Venting about the soon to be ex should probably be limited to a conversation with a trusted confidant, preferably in person.

A recent survey of the American Academy of Matrimonial Lawyers says that 81 percent of the nation’s top divorce attorneys state they have seen an increase in the number of cases using social networking as evidence over the last five years. Not surprisingly, Facebook, which is wildly popular across the globe, leads the way in producing divorce evidence. It was cited as the top divorce evidence source 61 percent of the time.

What this means if a man is going through a divorce, he should not post photos of him and his buddies in a club surrounded by scantily clad women with a post that says something to the effect of, “Out on the town, no wife, no kids, the way my life was meant to be.” Women, of course, also should keep the level of discretion as high as possible, no matter how bitter they are about the ex-husband in waiting.

Anyone who thinks antics that could be deemed as bawdy or showing a lack of character or self-control will not be used as evidence in the courtroom is way off base. In fact, when it comes to deciding alimony, child support and visitation rights, bank on social media activity coming up during a hearing.

“You’re finding information that you just never got in the normal discovery process — ever,” said Denver attorney Leslie Matthews recently.”People are just blabbing all over Facebook. People don’t yet quite connect what they’re saying in their divorce cases is completely different from what they’re saying in Facebook. It doesn’t even occur to them that they’d be found out.”

Former AAML president Linda Lea Viken agreed.

“(We’ve told) our clients when they come in, ‘I want to see your Facebook page,’ Viken said.’I want you to remember that the judge can read that stuff, so never write anything you don’t want the judge to hear.’

“It’s all pretty good evidence… the judges don’t really have any problems letting it in.”

Besides the social sites, bear in mind your cell phone could be the bane of your existence during divorce proceedings. The new Apple iPhone 4s has a “Find My Friends” application. A spouse is able to load you and other friends on their phone and see where you are on a map. So if you say you’re at a Ducks or an Angels game, but are instead at an address in San Clemente, home to someone who just happens to be a prominent Facebook friend, that relationship will be inspected.

All in all, anyone in the middle of a divorce should keep social media activity as vanilla as possible. Of course, avoiding it altogether until everything is done is the best way to go.

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

Divorce Mediation Helps to Create Fairer, More Amicable Dissolutions

Posted by: Gerald Maggio

Top Orange County divorce attorneys; The Maggio Law Firm

A new book The Longevity Project sheds light on many interesting aspects of how to live a long life and those people who end up the healthiest and happiest. Amongst many other topics, it discusses marriage and divorce. Staying married just for the children is not a good idea when the home environment is clearly troubled, they noted.

A home environment where parents are always in arguments, hiding things from each other, and taking sides with the children can have worse effects on a child’s long-term health than if they were to get divorced. A divorce blogger, Mandy Walker, wrote that, “…the Longevity Study reinforces the importance of putting the best interests of your children first when divorcing. There are some that will argue putting their needs first means not divorcing, period. But the reality is that life is more complicated than that, and divorces happen and will continue to happen.”

Divorce mediation can create a more stable way to break up the marriage and create a tailored solution that benefits the kids and the couple. Within a handful of sessions, the adults can discuss what their interests are for the division of assets, any property, and the parenting agreement. This is in stark contrast to a litigated divorce where a judge will decide everything and the process can take up to a year with a lot more costs.

As the blogger said, “…we can make significant improvements to how children weather the divorce of their parents by normalizing divorce.” Mediation allows the dissolution to happen in an amicable way. With each spouse’s input they will be able to more actively have a hand in the parenting agreement and learn more about the collaborative parenting process.

The divorce mediator is a neutral party, so he or she will facilitate the discussion and move it forward when there is a roadblock. The process shows each parent how they can take part in their child’s education and health care decisions, amongst other things. Mediation helps each parent find a way to be civil and cooperative, which can have great effects on how they carry themselves post-divorce.

Mandy Walker notes that, “…people who can face the end of their marriage as a learning opportunity can have the resilience and capacity to reinvent themselves.” Mediation can help a couple consider issues they might have never thought about, increase awareness of what is a fair settlement, and help them start a better chapter of their lives.

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.

 
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.