The thing about a narcissist spouse that makes them one of the worst adversaries to have in a divorce case is that they can make use of any and all tricks in the book to get what they want.

How they can try to damage you

There are a number of different ways that a narcissist can damage you in a legal battle. Considering that they have the custody of the child momentarily they will make use of the child as a weapon to get leverage over you.  This could mean a number of things on their part. They can either interfere in your custody or visitation rights, deliberately use the child as a messenger against you or worst brainwash the child about how bad or irresponsible you have been.

Not only will that, sometimes a low-earning narcissistic spouse in a divorce case can level false allegations against you. While use of false allegations is looked down upon in the courts, to a narcissist nothing matters more than the feeling of victory they want to have over you.

How to deal with them

Here are some ways to deal with a narcissistic spouse:

·         Making Use of Contempt of Court

The use of contempt of court proceedings is often one of the last resorts for spouses. But if you are fed up of constant meddling in your custody rights and usurpation of any functions that you have been granted with respect to the child such as not letting you meet the child on you visitations can if proven in court be used against the other spouse and they fined and asked to comply.

·         Using the Attorney Fee and Sanctions

Any spouse that is behaving irrationally or causing undue delay or causing any hindrance can be penalized using this sanction in a divorce case under Family Code section 271.

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.

One of the landmark cases that has come to define the approach that the court must take when dealing with Orange County divorce cases with child custody issues involving military personnel is called the Marriage of E.U. and J.E. The greater emphasis of the court’s decision was with regard to parental rights enjoyed by members of service that are deployed for active duty.

This blog will outline what the courts decided and most importantly observed in this case.

A Brief Low Down on the Facts

The child between the married couple was born in the year 2000. A year after the birth of the child the parents filed for an Orange County divorce. The primary custody of the child was given to the father and the parental arrangements were formalized back in the year 2006 July. It was reaffirmed by the trial court as being in the best interest of the child.

However, there was a clause in the 2006 order which highlighted that in case a spouse was to be called for military duty, the other spouse would assume primary responsibility of the child. This would end when the deployed parent came back home and things would go back to the status quo decided.

The father was deployed from 2009 to 2012 in Afghanistan. Once the father returned, the mother refused to hand the primary custody back to the father arguing that it would damage the stability that the child had become accustomed to over the past few years.

What the Judges Thought

As a result of this development, the judge had to have a hearing on the 2006 order and ordered an Evidence Code section 730 child custody evaluation. The judge of the case accepted that there was to be a delay as a result of Family Code section 3047 being used, but placed some responsibility of the situation on the father. This was because the father had failed to provide information of his prospective deployment to the court back in October 2010 when they asked.

Once the 730 report came out, it suggested that the child should be left in the care of the mother because the age of the child was now 6 and he had become accustomed to the care and stability of his mother.  However, the parties couldn’t come to agreement on this fact. The father argued that Family Code section 3047 was designed to protect the parental rights of people that were deployed in service.

Importantly, the Court of Appeal on hearing the appeal, accepted the use of Family Code section 3047 and ordered for the custody to be returned to the father now that he was back from his service and that his deployment should not be used against him.

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.

Can you do something about it? Yes, you can. The vexatious litigant statutes of California give you the right to stop their claims unless they are pre-approved by the judge of the case.

How can you prove that a person is a vexatious litigant?

Any person who repeatedly files motions, applications and petitions can be found out to be a vexatious litigant. How you prove that in court though is defined in the Code of Civil Procedure of California. It states under section 391 a few requirements to prove that a person is a vexatious litigant.

• If the person has within a seven year period started 5 or more motions, petitions or applications that have either been decided against them or have been delayed unjustly.
• After the litigation has been decided, the person looks to challenge at first the decision repeatedly or challenges the facts, issues and controversy that have played a hand in the case being decided.
• Interrupts already existing litigations by filing newer motions, pleadings, etc. or makes use of other tactic just to delay the proceedings and incur costs on the other party.
• Has been previously declared a vexatious litigant in any other state or by the federal court.

How do the courts curb the activity of such litigants?

There are two ways that the courts will try and stop the activities of the vexations litigant. While originally the courts deter the spouses from filing false claims against one another by making the losing party pay the costs of the winning party. In addition those, to make sure vexatious litigants are unable to detract the Orange County divorce proceedings. They use two distinct ways.

• Making sure that if the vexatious litigant wants to file a new motion, petition or application they will need to take a prior permission to file it from the judge presiding the case.
• In addition to that, they will be asked to post a bond with their claim. Making sure that they put their money where their mouth is, literally.

Is filing such a motion worth it?

Yes, filing such a motion could be worth it because the financial strain and emotional and mental stress from having to deal with new litigation one after the other can start to take its toll. Yet before starting such a claim you need to make sure that your facts back you up.  In the alternative, you can seek sanctions against the other party pursuant to Family Code section 271.

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 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.

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:

1. 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.
2. 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.
3. 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.

Rules Regarding Child Custody

A common misconception among parents is that they tend to think that the rights to custody of a minor child are different for each parent. In reality though, according to California law, the rights of the parents on custody of the minor are the same and the decision by the courts is often only made keeping the best interest of the child in mind.

According to the courts, the responsibility of the parent is safeguarding the child’s health, welfare, and safety by the parents. Usually, courts encourage parents to share the responsibilities of upbringing the child between themselves. The courts strongly believe in letting both the parents have contact with the child after the couple has gone through a divorce or separation.

The Standard of “Best Interest of the Child”

The legal term “best interest of the child” is a very broad one, but it is the main standard upon which California court make decisions concerning child custody.. The best interest of the child basically means ensuring a child’s safety, health, and welfare. The standards that work against the standard of best interest are child abuse and illegal use of drugs or criminal convictions. Let’s look at the health, safety, and welfare in a little detail as the courts use them.

·         Safety

Does the parent have previous history of abusing the child physically? Or is he known to have a reckless behavior?

·         Health

How has each parent fared when the time comes to take care of the child with respect to health issues?

·         Welfare

What is the contribution of each parent regarding the common welfare of the child? Has either parent ever proven a hindrance in the welfare of the child such as going against education, etc?

The Role of the Status Quo

Judges in the Orange County family law courts tend to be firm believers in the status quo. The status quo in law means that the past parenting exercises that have been going on are encouraged by the judges to continue unless it is proven to them that they are impractical or lead to an unfavorable situation for the child.

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.

This blog is going to focus on disabled and noncustodial parents and what sort of impact social security benefits will have on child support obligations. When someone is suffering from a disability, he or she receives social security disability benefits, and if that person is a parent, there is often another derivative benefit paid for any minor children that they have.

Did you know? Over 2 billion dollars each month are distributed as derivative minor benefit to disabled parents with minor children who number around 4 million.

The Case Of Disabled Parent Who Isn’t The Custodial Parents And Is Obliged To Pay Child Support

Social security benefits are considered as income for child support and thus the disabled parent may have an obligation to pay the child support to the other parent who has custody. The less time the disabled parent has with the child, the more the amount of child support. Such an amount can create a financial difficulty for the parent.

There is good news though, derivative social security benefits can sometimes be paid by the Social Security Administration to the custodial parent directly. This does have a proper process that the disabled parent has to follow. To get this solution, the disabled parent has to notify the custodial parent that he or she receives social security benefits. Then the custodial parent will apply for the derivative social security benefits directly through the Social Security department.

What happens through this is that the amount for Social Security benefits is then credited towards the child support to some extent relieving the disabled parent of that financial burden.

The Case Of A Disabled Parent When The Custodial Parent Refuses To Apply For Derivative Social Security Benefit

It seems unimaginable how someone can refuse to receive something that they are entitled to and yet there are several cases where this is commonly seen. Whether it is because of California divorce or some prevailing bitterness between the parents, sometimes parents with high emotions can see the derivative socials security benefit as an advantage to the non custodial parent and thus refuse to do anything that helps the other.

Orange County family law has anticipated such a problem and has given us a solution to it.  Family Code 4504(a) states that the custodial parent must contact the Social Security administration within 30 days of receiving a notification from the non-custodial parent. The act is meant to reduce illogical fights and excuses of non-cooperation from the custodial parent.

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.

Does domestic violence being proven mean that the custody will remain the same? Will it result in the restrained parent staying away from the other parent only? Most importantly, will the custody be altered? The answer to all these questions is most usually “no.” There are substantial implications of domestic violence on child custody.

In California courts, if it is found that the parent seeking custody of a child – either sole or joint – has committed domestic violence against either the child’s siblings, the child himself, or against the other parent, in the previous five years pursuant to Family Code section 3044, the courts presume that the parent guilty of this offense should not be entitled to joint or sole custody because it is presumed to not be in the child’s best interests.

This presumption has far-reaching effects and implications.  The court will believe their presumption to be true unless proven otherwise, by rebutting the legal presumption under Family Code 3044.  The burden of rebutting the legal presumption is on the parent who then has to prove why he or she is entitled to get sole or joint custody.

The court has to consider many factors after a finding of domestic violence to determine what the appropriate child custody orders should be. Some of the factors are as follows:

1. Where does the child’s best interest lie?
2. Did the parent complete a batterer’s program which meets the criteria of the California Penal Code?
3. Did the parent complete a parenting class which the family court deemed necessary?
4. Did the parent follow the restraining orders issued?
5. Was there further domestic violence?

The issue of domestic violence and the implications of domestic violence on child custody are substantial and can affect child custody for years.  Therefore, if you have been the victim of domestic violence or you have been wrongfully accused of domestic violence, you must seek the services of a family law attorney familiar with these issues as soon as such incidents of domestic violence occur.  What you do in the very beginning of your case can have huge consequences as to how your case turns out.

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.

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.

In California, assets and debts that are acquired during the marriage are generally community property, meaning that each party is entitled to one-half of such assets (or responsible for one-half of such debts).  One MAJOR EXCEPTION to that principle of law is inheritance.  If a spouse inherits money or other assets from family or others, such assets are considered to be that spouse’s separate property, and would not be divided in a divorce.

However, it is highly important to know that you must have segregated such monies and/or assets in a separate account in your own name.  In other words, let’s say that you inherited $100,000 from your grandmother.  You received a cashier’s check for such monies in your name through her estate.  If you were to deposit that check into a bank account in your own name and it existed at the time of separation/divorce, it would be hard for any court to determine that it was anything but that spouse’s separate property.  On the other hand, if you were to have deposited that check into the joint checking account with your spouse and some or all of the funds were spent on various expenses and splurges, etc., you likely have a limited ability to claim any of those spent funds without proof and dependent on what you spent the money on.  You may have a claim for any remaining monies in the joint account assuming that there was not a valid transmutation into community property pursuant to Family Code section 852, which imposes certain requirements on marital transmutations, including that a transmutation “is not valid unless made in writing by an express declaration that is made, joined in, consented to, or accepted by the spouse whose interest in the property is adversely affected.” there is arguably a transmutation of those funds into community property by way of the deposit into the joint checking account.

In plain English, you will save a lot of headache, legal fees, and expert fees spent tracing the funds into and out of any joint account by simply keeping any inheritance segregated in your own account in your own name from the moment that you receive such inheritance.  If you do want to use such monies for joint purposes in the future, consider a transmutation agreement with your spouse.  For more information or to schedule a consultation, contact California Divorce Mediators at (949) 553-0911 or at www.cadivorcemediators.com.