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.

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.

 

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.

California Child Custody Cases Redefining Who is the Parent

Posted by: Gerald Maggio

Top Orange County divorce lawyers; The Maggio Law Firm

A recent California child custody case shows how the state is redefining who it deems a child’s parent. Typically, the courts have given custody to a child’s biological or adoptive parents. But since 2002, groundbreaking child custody cases have looked at who the child considers the parent and who is carrying out the parenting duties. The main objective is that the courts want a person who is financially supporting the children and providing for their wellbeing. As a progressive state, California child custody cases involve not only straight couples but gay couples who also provide a strong foundation for children in the middle of a divorce.

“The state has a great interest in having those who want the benefits of parenthood to take on the responsibilities and obligations that go with parenthood,” said Pacific McGeorge School of Law Professor Larry Levine in Sacramento.

In the latest case of assigning the parent child custody, a woman who did not adopt her ex-girlfriend’s kids was ruled as their parent because she provided for them monetarily, tended to them when they were sick and even volunteered at their school. Plus, she could not adopt the children as she was in the Air Force and did not want to violate the “don’t ask, don’t tell” policy that was only recently lifted. Because she was carrying out the parental responsibilities and rights, she was now deemed their parent.

Child custody decisions are, therefore, looking more at who is truly functioning as the parent. Adults who do not have blood ties or adopted a child used to be classified as “legal strangers”, but if they are carrying out the role of a parent, courts will want to keep what is in the best interest of the child. A child-centered approach versus a child as property mentality is what the courts are shifting too. Who do the children rely on? Who do they think their parents are?

This can have a big impact on not only child custody, but matters of child support. The state wants to side with whom will provide the best health, education, and home environment for the child if both parties cannot agree on joint custody. The courts really take each decision on a case by case basis, as no two scenarios are exactly the same. The biggest constant is that they will rule in the best interests of the children. An experienced child custody lawyer can help the individual who seeks child custody to create an agreement that upholds what is best for the children and takes into consideration all the actions they carry out for the children.

Gerald Maggio is an Orange County divorce attorney, in Irvine, California. The Maggio Law Firm specializes in divorce and family law.  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.

Resolve to Divorce Amicably in 2012 and Try Mediation

Posted by: Gerald Maggio

Top Orange County divorce attorneys; The Maggio Law Firm

In the New Year, couples who are getting divorced and can amicably do so can utilize mediation to make the dissolution process far less contentious. This process is far more attractive than a long, drawn-out courtroom battle. Mediation not only cuts out unneeded stress, but it saves money and time. For many, it is more of a team concept of both spouses, a mediator, and a few sessions to iron out the specifics of the divorce.

A mediator will provide guidance to reach a resolution on the issues that still need to be worked out. They bring critical negotiation skills to listen to each party’s interests and concerns, and then help to find a common resolution that each person can agree to. The mediator is a neutral party, and oftentimes an attorney, so they will be able to provide you with a background of what is legally permissible. When an impasse is reached or negativity stalls progress, the mediator knows how to get the conversation back on track. For some couples this means not doing the mediation all in one day. But in two to three sessions, you can resolve all the big priorities of the dissolution.

It is important for you to know what your future needs are so that child support, spousal support, and the division of assets and debts are done to help you find as stable of a future as possible. What many people like about mediation is that it allows you to express your values and opinions. A litigated divorce, in contrast, follows a more strict formula and what some call a “one size fits all” approach. Mediation is more sensible for two adults who can be in the same room together and hash out the details. You can take into account the budgets you live with everyday and the future needs you and the kids will have. Mediators also know how to look for tax savings and alternative settlement options to increase the chances of financial stability post-divorce.

Couples who have been through a mediated divorce say that it is far better to have the two people who intimately know their finances and assets decide how to dissolve the marriage versus a judge or pair of attorneys. At the end of the mediation process, a final divorce settlement will be created and approved by the courts. Months down the road, you will thank yourself for doing mediation. The money you saved can go towards the kids, a savings or emergency fund, or establishing yourself in a new home.

Gerald A. Maggio is an Orange County divorce attorney, in Irvine, California. To learn more about Orange County divorce lawyer, Gerald A. Maggio, visit Maggiolawfirm.com or call (949) 553-0304.

Parenthood Rises Even as Marriage Decreases for the Millennial Generation

Posted by: Gerald Maggio

Top Orange County divorce attorneys; The Maggio Law Firm

The concepts of marriage and parenthood are vastly changing as the Millennial Generation comes of age. The Pew Research Center published a report earlier in the year showing that Millennials – people born between 1977 and 1998 – want parenthood over marriage. The survey showed 52 percent believe that being a good parent is one of their biggest goals. Marriage was only a big goal for 30 percent of people.

As these attitudes have shifted, marriage has become less of a focus. Out of wedlock babies have increased, though. Being a good parent, to Millennials, does not necessarily mean that marriage is a must. Many couples are choosing to delay marriage, live together, and break away from the social norms of their parents.

Even though marriage is delayed or not a preference, when a couple has a child it can make them refocus their priorities. Some decide to create a cohabitation agreement to help spell out their responsibilities and rights as parents and a couple. This can help protect each person and set up a framework should something happen to one of the parents. A modern-day cohabitation agreement includes:

  • each person’s parental rights and duties
  • financial obligations
  • property rights
  • health care directives
  • estate planning and inheritance wishes
  • how long the agreement is good for and/or how it can be revised

For some Millennials, this is a good warm-up to getting married. The agreement helps safeguard each person yet also sets out how each person will be looked after. As a couple establishes more assets, property, and moves up in the work world, it can be a critical document to help them create a prenuptial agreement once it is time to get married.

Sometimes, though, the cohabitation and relationship does not work out, even if there is a child that both parents mutually love and want to care for. In these instances, the cohabitation agreement can provide a path for the main caregiver to receive child support. It will also help to modify each parent’s duties and set up a visitation agreement that both parties can agree to. For couples that can amicably agree on the parenting agreement, litigation is not necessary. A family law attorney can assist in creating a plan that the courts will approve for child custody and the visitation schedule.

Gerald A. Maggio is an Orange County family law attorney, in Irvine, California. To learn more about Orange County family law attorney, Gerald A. Maggio, visit Maggiolawfirm.com or call (949) 553-0304.

A Cheating Spouse Can Be Caught By Bank and Credit Card Charges

Posted by: Gerald Maggio

Top Orange County divorce lawyers; The Maggio Law Firm

The process of realizing your married life is over can be a difficult one. Especially for those that have a hunch that their spouse is cheating on them, you want to prove that in fact your husband or wife is seeing another person. Beyond hiring a private detective or lurking in the shadows, there are ways to find out if your spouse is cheating.

  1. Checking account and credit card statements can reveal a lot. Look at each line item for odd spending habits. The biggest warning signs can be:
  2. Places that do not fit your spouse’s personality. If your spouse did not dare eat sushi, for example, but then charges start to rack up, this is a sign.
  3. Excessive purchases at bars, restaurants, jewelry, flower, and other gift shops
  4. Charges from hotels
  5. Higher gas costs than normal
  6. Extra cell phone charges or other electronic purchases that are excessive note that your spouse could have purchased equipment to communicate with the person they are seeing
  7. Vacation and luxury purchases when your spouse is supposed to be on a work trip
  8. Charges from oddly named businesses
  9. Membership dues to video chat companies and dating websites

It can also be a big sign if you are used to receiving these statements at home and suddenly they are not appearing. Be sure you can still access these financial accounts online to see if they have been re-routed to a post office box or if you have been locked out of your own account. These are tell-tale signs that your spouse is up to no good.

Banks also offer a feature to receive text alerts. For joint accounts that you are suspicious your spouse is using to cheat with, set this up. You will get texted in real time and the spouse will not be able to make up an excuse so fast as to what the charge was for. It is also advised to order a copy of your credit report that you are allowed to get for free one time a year. Go over it carefully to see if there are new accounts, inquiries, large balances, or other items that you have no idea about.

Be sure to keep all paperwork of the wrongdoing so when you confront the spouse or meet with a divorce attorney, you have as much evidence as possible. It is also important to start a savings fund so that you can start a new chapter on your own. If there are co-signed accounts that you are worried about getting depleted or charged, call to get your name removed or close the account.

Gerald A. Maggio is an Orange County divorce attorney, in Irvine, California. To learn more about Orange County divorce lawyer, Gerald A. Maggio, visit Maggiolawfirm.com or call (949) 553-0304.

Get a Postnuptial Agreement Before Your Marriage Falls Apart

Posted by: Gerald Maggio

Top Orange County divorce attorneys; The Maggio Law Firm

One piece of paper can do a lot to save a marriage. For a couple who is on the brink of divorce, but does really want to stay together, a postnuptial agreement can help clear the air of any financial differences and other concerns the two have. This piece of paper can be just the shock to the relationship that a couple needs.

With the expertise of a family law attorney, disputes about spending, the kids, the family business, and even how many guys’ fishing trips and visits by the mother-in-law can be defined. Half of all family law attorneys surveyed nationwide have noted an increase of postnuptial agreements in the last few years.

For couples with issues that are causing a strain, the postnuptial can provide them a way to reset their behaviors and get back on a level playing field. If a budget has never been used in the household, this is a good time to set one and hold each spouse to it. If child raising duties need to be better divided, this is an opportunity to have each parent take their fair share.

The postnuptial agreement process will inform both spouses about each other’s financial status if they are not aware of it previously. For some couples, this is particularly helpful as it highlights what could occur if divorce were to happen. Hefty spousal support, child support, and liquidation of investments and savings could have occurred if the two had not worked hard to save their marriage.

This is exactly the premise behind getting a postnuptial agreement. The reality of what the couple has worked hard to create together could be divided if they split. If they can use the postnup opportunity to reframe their attitude toward each other and how they interact on a daily basis, the marriage can get back to its better days.

And if the postnuptial agreement does not work months or years down the line, the couple will already have some understanding of the family law system. They will have utilized one aspect to save their marriage before they call it quits.

Gerald A. Maggio is an Orange County family law attorney , in Irvine, California. To learn more about Orange County family law attorney , Gerald A. Maggio, visit Maggiolawfirm.com or call (949) 553-0304.

 
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.