Spousal support, or alimony, is the legal obligation to financially support your spouse following the dissolution of your marriage. The concept of spousal support was created to help the spouse who earns lesser pay or has been unemployed to become self-supporting.
Kinds of spousal support
If you seek spousal support while your case is in process, it will be known as a “temporary spousal support order.” It will be called “permanent spousal support” if the court case and divorce has been finalized.
Calculating spousal support
In the courts of Orange County, judges refer to the factors listed in the California Family Code to determine how much spousal support is required as they decide the final spousal support order. The factors mentioned include:
- The duration of the marriage.
- The standard of living each person maintained while being married and the needs based on that.
- The amount of money each person can afford to pay to maintain the standard of living while they were married.
- Property and debts, if any.
- If there were any instances of domestic violence during the marriage.
- If one spouse had to quit their career to care for the children or the household.
- The impact spousal support would have on the payer’s taxes.
The long-term spousal support depends on the duration of the marriage and the goal of the idea is to ensure that the spouse will be able to support themselves after a reasonable amount of time. The judge need not fix an end-date for the spousal support if the duration of the marriage was “long-term,” which is 10 years or longer.
Domestic violence and its impact on spousal support
If there has been any recorded evidence of domestic violence, the judge will take into consideration these details before the final decision has been made. If the abusive spouse is paying the spousal support, the judge will declare that any distress that was faced by the other spouse due to the violence must also be supported.
Once the court order has been published, the spouse must continue paying the alimony until a change has been declared by the court or until the end-date mentioned in the order. In Orange County and California in general, if you fall behind on your spousal support payments, you will have to pay 10% interest per year on the due balance which is known as “arrearages.” You can also be held “in contempt of court” if you are found to be willfully not paying the alimony.
Gerald A. Maggio is an experienced Orange County divorce and family law lawyer and family law attorney located in Irvine, California, serving the Orange County and Riverside areas. Mr. Maggio assists clients with legal issues including divorce, legal separation, divorce mediation, child custody, prenuptial agreements, stepparent adoptions, and other family law issues. Mr. Maggio has practiced law in California since 1999, and founded The Maggio Law Firm in 2005, focusing exclusively on divorce and family law matters.
Post divorce, stay-at-home moms, or ex-housewives in other words, face the dilemma of whether to get a job or not. This can cause high levels of anxiety and stress developing in them. The primary reason for this is that most of the moms, even those that had been employed pre marriage, would have been out of the game so to speak for too long. This makes them initially dependent on their husbands for financial support.
In this blog, we will talk about the impact of getting a job on the care and well-being of their children and on the support payments that they are receiving.
The Challenge of Balancing Children and Work
Raising a child can be a fulfilling but tiring experience. Balance that with holding a job for person who has been out of employment for a long time and it becomes an uphill challenge at the very least.
In today’s world, a college degree has become a norm and people are applying for jobs they are over-qualified for, just to make sure they are employed. In this situation, what are the odds that a stay at home mom who have undergone an Orange County divorce will be able to carve out a job?
Yet most of this largely comes down to a few factors. These factors determine if a mother that has gone through an Orange County divorce can and should get a job.
· The Age of the Children and the Number of the Children
The more the children a mother has to care for and the younger they are, the harder the chances of her being able to simultaneous work, depending on the custodial schedule. Another consideration is what is the point of getting a low wage job just to pay most of the amount you earn back to the day care provider.
This issue is more relevant for moms that are in their 40’s or less and the father of the children has been the primary breadwinner in the family. Hence when they decided to go for an Orange County divorce, it was decided that the mother would care for the children staying at home, while the dad would pay their expenses and needs.
What moms need to understand is that in the California and Orange County family law courts must consider the best interest of the child, so the age and number of children are certainly part of that consideration. However, pursuant to California Family Code 3900, both the parents of the child have a responsibility to support their children. Therefore, although the court will likely not force a stay-at-home parent to work at the first stages of a divorce case, at some point that parent will likely be held to make reasonable efforts to find employment and not leave the entire burden of supporting the child on the other parent. The subissues here are many and so it is advisable to seek legal advice concerning such issues.
Gerald A. Maggio is an experienced Orange County divorce and family law attorney and family law attorney located in Irvine, California, serving the Orange County and Riverside areas. Mr. Maggio assists clients with legal issues including divorce, legal separation, divorce mediation, child custody, prenuptial agreements, stepparent adoptions, and other family law issues. Mr. Maggio has practiced law in California since 1999, and founded The Maggio Law Firm in 2005, focusing exclusively on divorce and family law matters.
Orange County divorce cases can sometimes be complex affairs. A divorce cases usually involves a host of issues that need to be addressed by the two parties before a judge can decide on the final judgment. One of the most important factors in a divorce case is spousal support. Spousal support has multiple rules that can make it difficult to understand.
In this blog, we will take a look at the rules used in calculating temporary spousal support while the Orange County divorce case is going on (versus long-term spousal support considerations at the end of the divorce case at trial which requires a consideration of the marital standard of living and the factors under California Family Code section 4320). In California, the courts determine temporary spousal support using a computer formula that is known as Xspouse or Dissomaster. In cases that involve children, spousal support is calculated after the »”>child support requirements have been evaluated since the children come above everything else in a divorce case.
Yet despite the computer program, there are exceptions to the way spousal support is calculated. Here are a few rules that govern exceptions in calculating spousal support.
· When Tax consequences are different to what has been assumed by the Spousal support formula
The computer program that calculates the spousal support has an assumption of a tax consequence existing for all gross incomes. It will take into account what you would pay as tax. If however that is not the case, you need to notify the court as such as prove it using facts and evidences that prove your net disposable income has been calculated incorrectly.
· When you have support obligations from other relationships
The computer formula is not designed for special circumstances. If you have been in a prior Orange County divorce and still have support payments to make, you should tell that to the judge. The judge will take that into account when deciding on the spousal support amount in this case.
· The California Spousal Support Number doesn’t consider what you need
One of the leading criticisms of the system has been its inability to take into account the need of the spouse being supported. The computer will simply develop an amount using the net disposable income of the spouse. If the spousal support amount is disproportionate or inadequate for the needs of the spouse, they can put the matter in front of the judge for modification.
To prove you have need, the evidence needs to be factual, compelling and of an actual need and not a hidden want. Despite that, it will be on the court’s discretion to award an additional mount on top of has been decided or not.
· Extremely High expenses not considered by the Spousal Support Formula
If you have out of the ordinary expenses that you want the court to take into account before making the spousal support order. You need to lay it down in front of the judge. The judge will only listen to your claim if you can give tangible, compelling evidence. But the decision is solely on their discretion.
Gerald A. Maggio is an experienced Orange County divorce lawyer and family law attorney located in Irvine, California, serving the Orange County and Riverside areas. Mr. Maggio assists clients with legal issues including divorce, legal separation, divorce mediation, child custody, prenuptial agreements, stepparent adoptions, and other family law issues. Mr. Maggio has practiced law in California since 1999, and founded The Maggio Law Firm in 2005, focusing exclusively on divorce and family law matters.
When the time comes for couples to get divorced, one of the many bones of contention between the two is the state of their assets and how they are to be divided. Division of assets and finances is particularly important since it determines the type of life a person will have to lead after the relationship ends. Hence, matters of property division are often one of the most complex aspects of an Orange County divorce case.
When it comes to asset division, the leading terms used in the division of assets is the term community property and separate property. Community property is that property that is shared between the two spouses and has been made during the course of the couple’s marriage. On the other hand, separate property includes those properties that each of the spouses had before the marriage, and it is not divisible between the two in case of divorce.
While these two are the leading concepts in property division of your Orange County divorce case, there is a new concept with regards to the division of assets that has started to take roots only recently. That is the concept of Quasi Community property.
What is Quasi Community Property?
This type of property is covered in a relatively emerging field of law that has been part of the law for years, but has only recently come in frequent use. Quasi property – keeping in line with Orange County Family law section 125 – is such a property that would have been defined as community property had it been domiciled in the state of California.
This is an important consideration. Any property, situated anywhere in the world, that would have been termed a community property was it based in California is categorized as Quasi Community Property. The use of the concept of quasi community comes into play usually in two separate instances where:
- The couple lived elsewhere and developed a host of properties there before moving to the Orange County and starting their divorce proceedings here.
- The couple lived in the Orange County but went outside the state from time to time and started to own properties in other states and countries.
How is the Quasi Community Property Handled in Divorces?
The leading question in this regard as of now is how a court will divide a property that is not located inside the state of California. Practically speaking, if the Orange County family law court has jurisdiction over the two individuals seeking a divorce, the judge will then also have the authority under California Family Code 2660 on dividing property that is outside the state.
The rules of division of the property and which of the spouses gets how much of share in the property division will be the authority of the courts. Quasi community property will be dealt with in the same manner as community property is dealt with in Orange County divorce cases.
Gerald A. Maggio is an experienced Orange County divorce and family law attorney and family law attorney located in Irvine, California, serving the Orange County and Riverside areas. Mr. Maggio assists clients with legal issues including divorce, legal separation, divorce mediation, child custody, prenuptial agreements, stepparent adoptions, and other family law issues. Mr. Maggio has practiced law in California since 1999, and founded The Maggio Law Firm in 2005, focusing exclusively on divorce and family law matters.
Child custody are one of the biggest issues in Orange County divorce cases, with a large number of parents and spouses battling it out in bitter court cases. There are a large number of people however who fight their child custody and visitation cases with complete commitment but are unable to keep an eye on the financial implications of their child custody and visitation demands.
If you look at the California Family Code and the guidelines made through statutes for the calculation of the amount of child support. One of the most important features that these payments largely depend on is the amount of visitation and child custody a particular parent has. Simply put, the parent that has the larger amount of child custody will have to pay less child support to the other spouse if he or she is paying, and will receive a large amount of child support if they received it.
The Connection
When we look at California Family Code 4055, it talks about the factors that the California family law courts will need to take into account when deciding the amounts of support payments that will need to be paid. Some of the leading factors that need to be taken into account when deciding the amount of child support are:
- The tax filing status of each parent
- The amount of Income of each of the parent
- Union dues
- Deductions made for health care insurance
- Tax payments on property etc.
- Interest to be paid on mortgage
- Number of children that are involved in the support order
While these may be important factors that would need to be taken into account, the most important factor that should be taken into account continues to be custodial time of the child allocated to each parent.
While there are a host of advantages of trying to have the large share of child custody, there are also a few leading drawbacks. While most of the parents look to get the largest amount of the child’s time for them to get hold of the extra child support, they often forget that the cost of raising a child is often more expensive than the child support payments you receive.
A Double Edged Sword
Making sure that you raise a child by fulfilling all their legitimate and reasonable demands in addition to providing them with the best education and quality life can seriously cost you a fortune. While you have gone tooth and nail to try and win custody, unless and until you take the future financial situation in sight before making your child custody demands, your sincere efforts will continue to backfire.
Gerald A. Maggio is an experienced Orange County divorce and family law lawyer and family law attorney located in Irvine, California, serving the Orange County and Riverside areas. Mr. Maggio assists clients with legal issues including divorce, legal separation, divorce mediation, child custody, prenuptial agreements, stepparent adoptions, and other family law issues. Mr. Maggio has practiced law in California since 1999, and founded The Maggio Law Firm in 2005, focusing exclusively on divorce and family law matters.
A prenuptial agreement is an agreement that is meant to work out financial terms and post marital expectations as well as to preserve both party’s assets as separate property. The role of prenuptial agreements has increased in the past few years with more and more people trying to protect their assets legally.
Prenuptial agreements, also known as premarital agreements, basically outline the post divorce assets and finances that each of the spouse will be entitled to. These are drawn up usually by wealthier spouses to keep hold of more than a portion of the wealth they have built up, but also upper middle class individuals.
There are a few things that prenuptial agreements can do and some that they can’t. Here is a list of some of a few of the limitations on what prenuptial agreements can do.
Spouses Cannot Be Punished For Using A Prenuptial Agreement
No spouse can be punished using a prenuptial agreement. This is because the State of California continues to be a no-fault divorce state. This means that generally even though a spouse may have been unfaithful, the other generally cannot use the prenuptial agreement to punish them.
Yet, there can be some exceptions such as in the case of a spouse who physically or verbally abuses the other spouse. A spouse that is proven to be abusive can be punished using the prenuptial agreement and be refrained from receiving the finances and the support that he or she is entitled to.
Prenuptial Agreements Are Not Entitled To Change Child Support And Child Custody
When couples go through an Orange County divorce, the family courts decide on the cases of using the California Family Code. Keeping this in mind, while prenuptial agreements can define the division of assets etc., when it comes to the issues of children in divorce, the scope of prenuptial agreements is limited.
Family law courts don’t allow the agreements to overall or make determinations concerning child custody, child support, and child visitation. Prenuptial agreements can have a say with regard to the property and spousal support only. Yet, in matters related to the children, the final authority lies with the courts. This action is meant to protect the best interest of the child at all times.
Prenuptial Agreements Are Not Allowed To Reign Over Day To Day Affairs
Prenuptial agreements have been primarily made to protect the division of assets between the two spouses and hence it is restricted in its ability to dictate day to day affairs between the spouses. Any issue that interferes with the choice and free will of the spouses is not allowed to be in a prenuptial agreement. An example can be the number of children to be born out of the wedlock.
Gerald A. Maggio is an experienced Orange County divorce and family law lawyer and family law attorney located in Irvine, California, serving the Orange County and Riverside areas. Mr. Maggio assists clients with legal issues including divorce, legal separation, divorce mediation, child custody, prenuptial agreements, stepparent adoptions, and other family law issues. Mr. Maggio has practiced law in California since 1999, and founded The Maggio Law Firm in 2005, focusing exclusively on divorce and family law matters.
Prior to June 27, 2015, there were only several states in the U.S. that allowed for same sex couples to get married. Now, the United States Supreme Court has ruled that same sex marriages are legal and recognized in all of the states, meaning that same sex couples now have equal rights to get married as all other Americans. This is a huge development and advancement of rights for same sex couples and one that will likely lead to a wave of same sex couples entering into marriage over the next few years.
So what does that mean for existing domestic partnerships and for same sex married couples that seek to get divorced in the future in California? Because although same sex couples will appreciate their right to get married and will value the institution of marriage perhaps more than heterosexual couples who have always taken their right to get married for granted, same sex couples have the same relationship issues and problems that everyone else has that can lead to the deterioration and end of relationships. Inevitably, some same sex married couples will seek divorce, although no one knows what such rate of divorce will be for that segment of the population.
Also, those same sex couples that are part of a registered domestic partnership in California will now have the option of getting married and the length of their domestic partnership will be added to the length of the marriage for purposes of spousal support and division of assets, although the case law in California has not caught up to this situation quite yet, but undoubtedly will.
Furthermore, domestic partners and married same sex couples will now be under the jurisdiction of the California Family Code and case law just like heterosexual married couples are, which will apply to them when they seek to terminate their partnership or marriage. In other words, if parties look to end their registered domestic partnership or same sex marriage, they are in for much the same process as traditional divorce cases and involve most of the same issues, especially if same sex couples decide to legally adopt a child, as follows:
- Child custody
- Child visitation
- Spousal support
- Division of assets and property
It is a new world for same sex couples as they embrace their new rights and the final wall of inequality has been broken down. It will also lead to a new world for divorce and family in California and the other states. But in the end, it is important to recognize that we are all the same and we all have our faults and problems, which can ultimately lead to divorce. Same sex couples will not be immune to marital problems or to divorce any more than heterosexual couples, because a successful marriage is hard work for everyone.
Gerald A. Maggio is a trained Orange County divorce mediator who has amicably resolved cases many cases out of court, as well as an experienced divorce and family law attorney. Mr. Maggio founded California Divorce Mediators in 2012 with the belief that although “not every marriage can be saved, every family can” and a mission to save families from the financial and emotional distress associated with traditional divorce litigation. California Divorce Mediators is located in Irvine, California, and serves the Orange County area and other counties in California offering divorce mediation, child custody mediation and mediation of other family law matters.
In this blog, we are going to review the Orange County divorce case of “In re Marriage of Andrew and Andrea Left”. This case is a unique one. The case concerned the question of whether a commitment ceremony of an ex-wife with her boyfriend should be considered as a re-marriage amounting to her spousal support being cut by her former husband.
FACTS OF THE CASE
The facts of the case are that Andrew and his wife, Andrea, had a marriage that lasted less than 5 years. The marriage resulted in the birth of two children. In the subsequent Orange County divorce that followed, Andrew was asked to pay $15,000 for child support per month and $30,000 per month for alimony support. Andrea, in the meantime, met “Todd,” and ended the status of her marriage with Andrew through a legal Orange County family law procedure known as bifurcation of the marital status. Andrea and Todd subsequently wanted to get married and had a wedding ceremony planned and went through with it, yet with the case going on they didn’t want to formalize the marriage. They had a full wedding ceremony.
DID THE COMMITMENT CEREMONY CONSTITUTE A VALID REMARRIAGE?
Now the question to consider in this case is that whether the ceremony that happened was actually a marriage ceremony. Andrea said no, and instead opted to call the ceremony a commitment ceremony. Todd and Andrea signed a document that is called Ketubah and is equal to the Jewish marriage contract. However, they did not obtain a marriage license. Andrew Left argued that California Family Code section 4337 applied in the case, which states: “Except as otherwise agreed by the parties in writing, the obligation of a party under an order for the support of the other party terminates upon the death of either party or the remarriage of the other party.” Andrew further argued that Section 4337 and its predecessors have been interpreted to include a ceremony that resembles a valid remarriage — regardless of whether the ceremony resulted in a valid marriage. In support of his position, Andrew cited three cases: Sefton v. Sefton (1955) 45 Cal.2d 872 [291 P.2d 439] (Sefton); Berkely v. Berkely (1969) 269 Cal.App.2d 872 [75 Cal.Rptr. 294] (Berkely); and Fry v. Fry (1970)5 Cal.App.3d 169, 170-171 [85 Cal.Rptr. 126] (Fry), arguing that these three cases show that it has been clear for decades that a ceremonial marriage, whether valid, void, or voidable, represents a “remarriage” as that term has been used in section 4337 and its predecessors.
The appellate court found that Andrew had provided no authority that the term “remarriage” as used in section 4337 means anything other than a remarriage carried out in conformity with the statutory requirements. Because Andrea and Todd did not meet those requirements, they did not marry, and Andrew’s obligation to pay spousal support did not terminate under section 4337.
ANDREW LEFT’S ARGUMENT THAT HE HAD ALREADY PAID SPOUSAL SUPPORT FOR ONE-HALF OF HIS SHORT-TERM MARRIAGE
Andrew further argued that the spousal support should be terminated because the marriage lasted less than 5 years and he had already paid the spousal support for half the duration of the marriage which is the general rule for marriages less than 10 years in duration. The appellate court found that the trial court had correctly noted that: “The code provides a guideline, not a hard and fast rule that support should be paid for half the length of the marriage.” This guideline is found in California Family Code section 4320, which provides numerous factors for the trial court to consider when determining the amount and duration of spousal support. Among the factors that the court must consider is the duration of the marriage. (§ 4320, subd. (f).) The section further provides that the trial court shall consider: “The goal that the supported party shall be self-supporting within a reasonable period of time. Except in the case of a marriage of long duration as described in Section 4336, a ‘reasonable period of time’ for purposes of this section generally shall be one-half the length of the marriage. However, nothing in this section is intended to limit the court’s discretion to order support for a greater or lesser length of time, based on any of the other factors listed in this section, Section 4336, and the circumstances of the parties.” The appellate court found that the trial court had not abused its broad discretion so as to fairly exercise the weighing process contemplated by section 4320, with the goal of accomplishing substantial justice for the parties in the case before it. The court noted that the trial court must consider the mandatory guidelines of section 4320, but once it does so, the ultimate decision as to amount and duration of spousal support rests within its broad discretion and will not be reversed on appeal absent an abuse of that discretion.
DID EX-WIFE’S CO-HABITATION WITH HER BOYFRIEND ENTITLE ANDREW LEFT TO TERMINATION OF SPOUSAL SUPPORT?
Finally, Andrew argued that the trial court erred in not terminating the spousal support order because his ex-wife, Andrea, was co-habitating with Todd. The trial court had considered Andrea’s cohabitation with Todd, and exercised its discretion to continue the spousal support, at a reduced rate. The appellate court noted that the trial court had considered other factors, as well as the circumstances of the parties, as permitted under section 4320. Specifically, the court found that there was no competent evidence that Andrea could be self-supporting, and that Andrew had been slow to pay Andrea the amounts of community property that he agreed he owed her but still had under his control. Simply put, the court felt that Andrew could not “withhold money that rightfully belongs to [Andrea] and then argue his support should terminate.” Andrew presents no authority that the court’s consideration of the failure to turn over community property is impermissible, and the court upheld the trial court’s decision.
Andrew lost the case and all three reasons he gave were rejected. Andrew appealed the case. The appellate court upheld the decision of the previous Orange County family law court and rejected Andrew’s appeal. The basis for the courts’ decision was that under California Family Code section 4337, the marriage of Andrea and Todd was not a legal marriage and therefore the courts could not treat it as such.
The issue of spousal support can be a complex one in California, and it is advisable to seek the legal counsel of an Orange County divorce attorney in your divorce and when contemplating a possible motion to modify or terminate your spousal support order in the years after your divorce case has been finalized.
Gerald A. Maggio is an experienced Orange County divorce and family law attorney and family law attorney located in Irvine, California, serving the Orange County and Riverside areas. Mr. Maggio assists clients with legal issues including divorce, legal separation, divorce mediation, child custody, prenuptial agreements, stepparent adoptions, and other family law issues. Mr. Maggio has practiced law in California since 1999, and founded The Maggio Law Firm in 2005, focusing exclusively on divorce and family law matters.
Fathers are often unaware of their rights and seem to end up on the wrong side of the court’s decision in a whole host of cases in divorce and family law cases. One of the clearest examples of the lack of usage of father’s rights is with respect to child custody cases and especially ones that have false allegations of abuse leveled against the father. In most cases, where a father is falsely accused of such an abuse, they are unable to properly defend themselves in such situations or comprehend why such allegations have been leveled against them.
The other spouse usually levels false accusations against the fathers in child custody cases is because of the importance that courts give to such accusations. This, however, doesn’t mean such parents should be allowed to get away with making such grave false accusations. This blog talks about how a falsely accused parent can take custody back from the lying parent.
The Family Code and Father’s Rights
In cases of divorce that involve abuse allegations against another spouse, one of the most quoted sections of the California Family Code is Family Code section 3011. This code section states that a court may consider any history of abuse by the parents that are seeking custody. In the same code, however, the courts have also stated that any false accusations of this nature are not be tolerated and such parents who have been falsely accused should take action against the accusers.
According to the California Family Code 3027.1, the parent who has been falsely accused only need to show that the other parent knowingly made the false accusations against the father. If a father is able to show that, then the father can ask the court to impose sanctions on the mother for falsely accusing the father.
Supervised Visitation
A lot of fathers fighting divorce cases, and facing false accusations in child custody cases, are unable to realize that the courts have the discretion of giving strict orders against the parent who has made false accusations. One of these orders can be the order of supervised visitations for the mother. These kinds of orders are usually made in the cases which involve false accusations of sexual abuse. However, there is no hard and fast rule in this regard and other abuses may also amount to the same punishment.
Limiting Visitations
Simply proving to the court that the accusations were wrong and winning back custody may be what most fathers do in such cases but is it enough? Are you sure allowing the other parent to leave without having to pay will reform their behavior? In addition to monetary sanctions, fathers should press their attorney to pursue the other spouses and to try and limit their visitations to the child.
Gerald A. Maggio is an experienced Orange County divorce and family law lawyer and family law attorney located in Irvine, California, serving the Orange County and Riverside areas. Mr. Maggio assists clients with legal issues including divorce, legal separation, divorce mediation, child custody, prenuptial agreements, stepparent adoptions, and other family law issues. Mr. Maggio has practiced law in California since 1999, and founded The Maggio Law Firm in 2005, focusing exclusively on divorce and family law matters.
The world of law, even in family law court, is filled with complex legal terminologies and sections that have effect on the overall outcome of a whole host of cases. Family Code section 2640 is no different. When it comes to California divorce cases, Family Code section 2640 is used in several litigation proceedings. Section 2640 is broad and applicable in wide variety of situations and the most common of these is the reimbursement of a separate property down payment on a home.
For example, a down payment is made on a home which is purchased during the marriage. The source of the down payment money from one of the spouses is from a separate property source. When one spouse files for divorce, then what happens to the amount of down payment that was paid for by money from a separate source? Will the spouse who made this payment get their money back? How does the process work? The answer to all these questions is what Section 2640 deals with.
Property and Reimbursement Claims Under Family Code 2640
Section 2640 is one of the most detailed sections of the California Family Code which deals with all aspects of financial recovery of the down payments on marital real property and other aspects involved, done from separate source. The section in its wordings is clear with respects to the parameters of its authority and states what parties involved should do or should not do. It is however important to understand that as far as the statute is concerned, unless it is written in black and white about what it means and what it does not, it is the judge’s discretion to interpret it as they see it fit.
The 3 Step Process to Recover the Separate Property Down Payment
There are three ways that a spouse in the process of divorce litigation will be able to recover the amount of down payment that had come from a separate property source using Section 2640:
- Identifying the amount of the down payment that was made using the separate property source. Only then you will be able identify the amount that has come from a separate source, which has been used in down payment, and will be able to start the process of recovering it.
- The separate source that the money came from should be clearly a separate source with no dispute or claim of ownership by the other party on it. Typically, a clear and clean separate source is likely to fund from the sale of property that had been in the possession of the spouse prior to the marriage that was kept in the bank. Even gifts from third parties that are given directly to one of the spouse come in the category of clear separate property source.
- The evidence needs to be drawn which proves the exact amount of money with the separate source of finance used. Proofs of transactions are likely to hold significance in this regard.
Gerald A. Maggio is an experienced Orange County divorce and family law attorney and family law attorney located in Irvine, California, serving the Orange County and Riverside areas. Mr. Maggio assists clients with legal issues including divorce, legal separation, divorce mediation, child custody, prenuptial agreements, stepparent adoptions, and other family law issues. Mr. Maggio has practiced law in California since 1999, and founded The Maggio Law Firm in 2005, focusing exclusively on divorce and family law matters.
A decision for divorce not only affects you, it also has an effect on other people that are part of your family, most importantly your children. The effect of divorce is felt most closely and severely by the children of the broken couple. Over the years, the role of the child has become more important in determining the parent that they want to live with.
The child is one of the most important assets to a parent. Contrary to popular belief though, the child continues to have a greater role in determining the parent that he or she wants to live with. This blog takes a look at the aspects of California family law with regard to determining the child’s preference.
The Preference Of The Child Aged 14 Or Older
Keeping in line with California Family Code 3042, the court must take into account the child’s preference and choice with regards to the parent they want to be with. This needs to be done for children who are of the age 14 or over, unless of course the court has reasons to believe that it is not in the child’s best interest to do so. This means that before the child is allowed to voice his opinions in front of the court, the court will decide on whether that would be in the child’s best interest or not. California family law courts give the utmost importance to the best interest of the child or children involved in the case.
It should be clear at this point that the set bar of age 14 has been set by the legislature, since according to them a child of the age 14 years is mature in terms of emotions and has the mental capacity to take decisions of such significance.
How Can The Choice Be Made By The Child?
This is another instance in California family law courts where the courts have their utmost discretion over the way that the child can convey his/her choice. Despite this, family law judges can take the direct approach of hearing the choice straight from the child. Here are a few things that judges consider before deciding how the child’s choice can be made:
- The location of the testimony
- Whether the parents or attorneys should be present. In some cases, the stakeholders’ presence may make the child feel pressurized into making a decision.
- The method of questioning, i.e. whether the lawyers of the parents or the judge will ask the child.
At this point though, it is important to understand that despite the choice of the child, it is not binding on the court of law to follow the choice and the judge can disregard it if he/she deems fit.
Gerald A. Maggio is an experienced Orange County divorce and family law lawyer and family law attorney located in Irvine, California, serving the Orange County and Riverside areas. Mr. Maggio assists clients with legal issues including divorce, legal separation, divorce mediation, child custody, prenuptial agreements, stepparent adoptions, and other family law issues. Mr. Maggio has practiced law in California since 1999, and founded The Maggio Law Firm in 2005, focusing exclusively on divorce and family law matters.
Abuse of any kind is bad and against the law, such as when husbands physically abuse their wives (and vice versa to a lesser extent).
If you add abuse to a bad marriage, the situation goes from difficult to dire. For a wife, divorcing an abusive husband can be difficult, because you don’t know how a violent man would react. However, if the abusive husband is putting the well-being and the life of the wife and children in jeopardy, divorce may pretty much be the only solution.
Divorcing an abusive husband becomes difficult in cases where the marriage has been going on for a long time, and the husbands are the only providers of the family.
What is Abuse in Terms of Family Law?
In the context of family law, the word abuse has a broader meaning. Abuse is when someone recklessly or intentionally tries to cause or is successful in causing:
- Sexual assault
- Injury to any part of the body
- Causing the person to live with a serious threat of grievous bodily harm or damage at any stage
- Engaging in any kind of behavior that is defined in the California Family Code section 6320, which defines such behavior as, threatening, battering, striking, stalking, harassing, etc.
Divorcing an Abusive Husband
The key to divorcing a husband who has a history of frequent abuse is to act immediately and decisively. The law in California protects the spouses from any kind of abuse from their other half and you should try and use those avenues of the law to your advantage.
One of the first and most immediate actions that need to be taken is to seek an immediate restraining order in the family law court. Sometimes though, owing to the situation of the couple or any other legal issues, restraining orders might be unavailable. In such cases, you should ask your divorce lawyer to ask the court for protective orders that limit and regulate the contact between the two spouses. In addition to this point though, there is also a need for more practical steps on the side of the wife, where she needs to move out of the house or away from the abusive husband.
Gerald A. Maggio is an experienced Orange County divorce attorney and family law attorney located in Irvine, California, serving the Orange County and Riverside areas. Mr. Maggio assists clients with legal issues including divorce, legal separation, divorce mediation, child custody, prenuptial agreements, stepparent adoptions, and other family law issues. Mr. Maggio has practiced law in California since 1999, and founded The Maggio Law Firm in 2005, focusing exclusively on divorce and family law matters.
Divorce proceedings can sometimes turn out to be full blown affairs of emotions and accusations. One such accusation that should be used with care but is used rather sparingly is that of child abuse. Child Abuse is a serious accusation and can shatter even the strongest reputation to pieces. Making an allegation of such sorts is supposedly easy and yet its affects can be far reaching on the spouse and Orange County divorce proceedings.
Most of these accusations are used when the child is an infant or unable to understand the situation and comprehend his or her viewpoint. The Orange County family law court has always encouraged both the parents to stay in contact with the child but have one exception to that rule. If the parent is accused of abusing or neglecting his child voluntarily, he or she can be preventing from contact with the child for an extended period of time and often supervised.
This is what you get if you actually abused your child, but what if the claims were false? What happens to the parent that makes false accusations regarding child abuse in courts?
Curtailed or Supervised Visitation
In case of the court finding one spouse to have lied in the accusation, the court can order a punishment that can affect the falsely accusing parent’s visitation rights. They can be ordered to only have supervised and monitored visitations, or the courts can even curtail the amount of visitation time and number of visits to make sure they are brought to justice for tarnishing someone’s reputation.
Monetary Sanctions
False accusations of child abuse in Orange County divorce cases lead not only to punishments by the courts on visitation rights but it can also involve financial fines. The court can order and impose financial sanction on the accusing parent to pay a lump sum amount to the other parent. This lump sum amount’s sanction; however, cannot exceed the amount of money the accused spent on his/her family lawyer’s fees and other procedural costs to defend him/her against the false accusations.
To claim these sanctions under California Family Code 3027.1, there is no need to show the falsity of the claim in court. The falsely accused parent only has to show that he/she prevailed in the court where this claim was originally made.
Gerald A. Maggio is an experienced Orange County divorce and family law attorney and family law attorney located in Irvine, California, serving the Orange County and Riverside areas. Mr. Maggio assists clients with legal issues including divorce, legal separation, divorce mediation, child custody, prenuptial agreements, stepparent adoptions, and other family law issues. Mr. Maggio has practiced law in California since 1999, and founded The Maggio Law Firm in 2005, focusing exclusively on divorce and family law matters.
For most couples that have been part of a divorce, finances and declaration of the financial situation of the spouses is vital to the mediation process. All through this blog, we’ll talk about why financial declaration is vital for couples to carry out.
A divorce mediator should help their clients complete their Preliminary Declarations of Disclosure forms before the mediation process begins, which includes the Schedule of Assets and Income and Expense Declaration forms. For those of you who are wondering about the importance of these forms and the reasons as to why they are filled, here are a few answers that will help you out:
If you neglect to properly complete your Financial Disclosure, your Agreement can be nullified
California divorce mediators want the couples to have an agreement at the end of the mediation process. This agreement should be fair and equitable to both parties so that it can be adjudged as legal in the Family law courts. According to the Section 2107(d) of the California Family Code, a judge can set aside any such agreement if there hasn’t been complete financial disclosure. Mediation and sorting your issues out can be a strenuous and tedious task. Nobody wants a simple mistake like non disclosure to destroy their mutually agreed on terms.
It can be a calming influence
Going into divorce is just like going into a dark room. There is a considerable amount of uneasiness and stress underlying in the minds of both the spouses. The most important reason for this is usually the uncertainty over financial security and wellbeing. The best way to avoid such situations and make the divorce easier is by getting the couple to talk about their finances candidly. A good Orange County divorce mediator will make sure financial disclosure is the first thing couples go through so that calmness and certainty can prevail.
A bed rock for Cooperation
Divorce mediation unlike litigation requires harmony, peace, and collaboration between both the parties in order to be fruitful and beneficial. Transparency and good faith are the roots of an effective California divorce mediation. This transparency and good faith can only be achieved when the couples are open about one of the personal aspects of someone’s life, i.e. their finances. If each spouse is upfront and honest about their finances, there will be a greater cooperation and team work among the divorcing couples.
Makes your decisions better
What is the key to a good decision? Information! The more knowledge you have about something, the higher the chances of you making a better decision. Financial disclosure allows the couples this leverage of information. The more they know about each other’s financial positions, the more equitable an agreement they’ll agree on regarding financial security.
Gerald A. Maggio is a trained Orange County divorce mediator who has amicably resolved cases many cases out of court, as well as an experienced divorce and family law attorney. Mr. Maggio founded California Divorce Mediators in 2012 with the belief that although “not every marriage can be saved, every family can” and a mission to save families from the financial and emotional distress associated with traditional divorce litigation. California Divorce Mediators is located in Irvine, California, and serves the Orange County area and other counties in California offering divorce mediation, child custody mediation and mediation of other family law matters.
Child support is the amount one spouse has to pay the other after a divorce or custody case to be spent on the needs of the parties’ child. Child support cases can sometimes be a little complex in nature while most commonly they are contested in courts by both parties rigorously. There are often times though, when a spouse can fight the child support case just because they can, which ultimately causes them a financial setback. Here are instances when fighting a child support case might not be worth it.
The Case For The W-2 Employees That Have An Agreement On Visitation
In the case of those parents that are W-2 wage earners, which means that they are paid through pay check and taxes are automatically deducted from it and such parents have an agreement on the visitation time percentage between each, which can be 50/50 to 10/90, the child support issue is not a difficult issue at all and can be resolved quickly.
The amount of child support in such cases is calculated through computer software, such as Dissomaster and Xspouse, which are based on the statewide formula for child support under California Family Code section 4055. The program processes the data that’s entered in it and gives an amount of “guideline” child support that should be paid. Such cases are simple and should be mutually decided between the parties and their lawyers instead of going to court.
Self-Employed Income Earners
The case of a self-employed spouse is usually a more complex case, with each spouse having different accounts of the self employed spouse’s income. These cases often end up in Orange County family law courts. The need for litigation in this matter is felt, because child support and its amount depends on the income of the parent and disagreement on the income needs to be resolved in court before the child support amount can be calculated.
Disagreements Concerning The Parenting Schedule
The above two examples also require an agreement or court order on what percentage timeshare each parent has with the child. The amount of time spent with the child is a major component in calculating child support. The custodial schedule must be either agreed to between the parties or otherwise determined by the court before the amount of child support can be calculated. The percentage timeshare is determined most accurately by calculating the number of hours that each parent has per year or month and divided by the number of hours in the corresponding year or month.
Gerald A. Maggio is an experienced Orange County divorce and family law attorney and family law attorney located in Irvine, California, serving the Orange County and Riverside areas. Mr. Maggio assists clients with legal issues including divorce, legal separation, divorce mediation, child custody, prenuptial agreements, stepparent adoptions, and other family law issues. Mr. Maggio has practiced law in California since 1999, and founded The Maggio Law Firm in 2005, focusing exclusively on divorce and family law matters.
Not all relationships are happy, well balanced unions. There may be issues of domestic violence involving either spouse. The end result is that it leaves not only a criminal record, if the perpetrator is convicted, but may also affect other situations in the future.
An example of domestic violence affecting something in the future would be a male spouse, prior to marriage, being involved in an incident with his partner in which she brandished a firearm at him. Although the wife was arrested and charged, contrary to the uncooperative man’s direct wishes, she was ultimately granted probation on a lesser charge. The case was dismissed when she completed probation.
About a decade later, the marriage disintegrated and the husband wishes to avoid paying temporary spousal support because of the wife’s previous history of violence. Is that possible?
The ruling legislation for situations such as this is the California Family Code – specifically sections 3600, 4320(l)(m) and section 4325. As with any stated legislation, there are often exceptions or legal work-arounds. For instance, the most applicable section in this example is section 4325, which is a rebuttable “presumption” that permanent or temporary alimony for an abusive spouse should not be ordered in the presence of a conviction within a five year period before filing for a divorce.
In the example above, the couple were not married when the violence occurred and the incident took place longer than five years ago – two points that may possibly go against the man being able to avoid paying temporary spousal support. Whether or not there is a conviction for spousal battery is irrelevant, as it can be any lesser-included defense. What is relevant are the facts of the case, not the plea.
The more relevant applicable section is Family Code section 4320(l), which experienced divorce attorneys argue in court. This subsection says the courts “must” hear evidence of domestic violence between the “parties” (the legislation does not specifically say spouses). Thus, section 3600 of the California Family Code, applies to temporary spousal support and it states courts may order any amount of spousal support necessary that is consistent with either section 4320(l) and/or (m) or section 4325.
The take away in this is that the courts may make spousal support orders consistent with either or both relevant section/subsections, that there is no mandated five year time bar in section 4320 and that domestic violence may be used as a defense to judgment or temporary orders for spousal support.
Gerald A. Maggio is an experienced Orange County divorce and family law lawyer and family law attorney located in Irvine, California, serving the Orange County and Riverside areas. Mr. Maggio assists clients with legal issues including divorce, legal separation, divorce mediation, child custody, prenuptial agreements, stepparent adoptions, and other family law issues. Mr. Maggio has practiced law in California since 1999, and founded The Maggio Law Firm in 2005, focusing exclusively on divorce and family law matters.
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:
Residency
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
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.
Property Distribution
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.
Child Custody
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
Alimony
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.
Gerald A. Maggio is an experienced Orange County divorce and family law lawyer and family law attorney located in Irvine, California, serving the Orange County and Riverside areas. Mr. Maggio assists clients with legal issues including divorce, legal separation, divorce mediation, child custody, prenuptial agreements, stepparent adoptions, and other family law issues. Mr. Maggio has practiced law in California since 1999, and founded The Maggio Law Firm in 2005, focusing exclusively on divorce and family law matters.
