Dividing community property and debts is one of the primary goals of a divorce settlement. California is a community property state, which means that most property and debts acquired during a marriage are considered to be community property by default.
When divorcing, it is important to remember that community property and debts are still owned jointly by the couple until a settlement agreement is reached and the judge issues a final order based on that agreement. This is true even if the couple has already come to a personal agreement on how property should be divided. Therefore, financial actions should be performed with caution until the final order is issued.
Date of Separation
Only property and debt acquired by the couple over the course of the marriage is considered community property; property and debts acquired before or after the marriage is separate property. Therefore, it is very important to establish the date of separation.
After the date of separation, it is best to keep new earnings and debt separate as much as possible. For example, each spouse should open their own bank account and credit card to handle their separately following the separation.
Dividing Assets and Debt
The distribution of assets and debt must be equal when divorcing. Ideally, the couple will be able to reach a settlement agreement that outlines who receives which assets and which debts. One spouse might receive the condo and the other all of the furniture and cars, or the divorcing couple may sell all property and split the proceeds.
Debt can be used to even out the division of property. For example, the spouse who gets the house may also take over more of the debt. It can take some creative thinking to distribute assets and debts evenly.
Debts should be divided carefully in order to ensure that only the spouse who is assigned the debt in the divorce settlement is legally responsible for that debt. For example, if the credit card debt is in both spouses’ names, it may be necessary to do a balance transfer to a credit card that only has the name of the spouse responsible for the debt.
Importance of Transparency
Each spouse must be transparent about their financial situation as the divorce proceeds, both for the sake of separation of property and for the sake of establishing spousal and child support if necessary.
Divorce requires full financial disclosure of the assets and debts owned by each spouse, under penalty of perjury. In more complex divorces, such as cases where one spouse owns a business, forensic accountants may be hired to gather the information for an accurate financial picture.
Dividing community property and debts can be a challenge even when both parties are committed to reaching a settlement agreement through divorce mediation. For further information or to schedule a consultation with Orange County divorce mediator Gerald Maggio of California Divorce Mediators, please call (949) 553-0911 or visit www.cadivorcemediators.com.
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.
While generally women are more willing to seek counseling with a therapist to deal with issues both during and after divorce, men are often much less comfortable with admitting that they may need such support and assistance to work through their issues and feelings associated with separation and divorce. Men are also generally much less likely to discuss divorce issues with their friends and family, leaving them emotionally isolated and feeling alone.
Men should consider individual counseling to help work through their issues in order to be able to effectively move forward in their lives, and perhaps avoid problems they themselves may have caused in their marriage. If that is something that seems daunting, another option is to seek a men’s support group near where you live or work devoted to issues associated with the effects of divorce and separation. One such men’s support counseling group is offered by Orange County therapist Lawrence Marquez, Psy.D. Dr. Marquez leads a small men’s divorce support group in Irvine, California on a weekly basis that provides continuing support for men caught in the crossfire of divorce. The members of the group collaborate with the other men to help each other navigate the effects of divorce.
Dr. Marquez states that “the purpose of the group has been to provide a safe and supportive environment where divorce-related issues can be shared and explored. As the group leader, I provide insight for the men as they each work through their process. However, I must admit the most impressive aspect of the group has been the support that I see from each member of the group towards one another.”
Some of the topics discussed in this men’s group include the men’s court and legal experiences, the restructuring of the family following the divorce, how to deal with the ensuing emotional & financial stresses, and common or unique circumstances or struggles as they are presented. Dr. Marquez states that his role as group leader is to “encourage self-awareness, the ability to process, understand, and deal with feelings appropriately, foster improvement in areas of communication, stimulate growth and strengthening of parenting skills & healthy parent-child relationships, promote healthy boundaries with ex-spouse and others, provide guidance through issues of grief, and help renew personal focus and self-direction.”
The benefit of such men’s support groups is to show men of divorce that they are not alone and that there are many other men out there that are going through the same experiences. They are able to help each other with their feelings and with some skills to move forward with their lives. Another benefit is that such support groups are often moderately priced. Such support groups should not necessarily take the place of individual counseling that may also be needed, but it can be a healthy component to any counseling plan.
If interested in more information about men’s support counseling or in Dr. Marquez’s men’s support group, Dr. Marquez can be reached at (949)633-5355 or by email at enduringsupportcounseling@outlook.com.
For any legal information about divorce issues or to schedule a consultation with Orange County divorce attorney Gerald Maggio of The Maggio Law Firm, please call (949) 553-0304 or visit www.maggiolawfirm.com. The Maggio Law Firm is an experienced and compassionate Orange County divorce and family law firm serving the Orange County and Riverside areas and neighboring counties, serving clients with legal issues including divorce, legal separation, prenuptial agreements, divorce mediation, and other family law issues.
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.
There is an excellent documentary movie called Split (www.splitfilm.org) that was released in 2013, which looks at divorce from the vantage point of the children of divorce. There is an excellent trailer at their website and the complete movie can be purchased on DVD.
Split offers a realistic and sometimes heartbreaking look at how children are often affected with the separation and divorce of their parents. Although children can be resilient, divorce can have a life-long impact on children depending on how their parents handle their divorce.
The reality is that divorce is never easy on anyone, i.e. parents or children. However, parents can do much to reduce the stress of divorce for children and shield them from the conflict and disputes. For instance, parents should avoid arguing or verbally fighting with each other in front of their children. Use emails or other online resources for communications regarding parenting (such as www.ourfamilywizard.com) when face-to-face communications are difficult. Also, do not put the children in the middle. Do not make them have to choose between which parent to live with or side with. Work as a parental team as much as possible. Your children should not know everything going on in your divorce. They are your child, not your friend, so don’t treat them as some sort of sounding board because you think they are old enough to understand and you feel like you do not have anyone else to talk to. Do the right thing, because it is not all about you or your spouse. Your children should be your focus first and foremost and that in turn will make the divorce itself easier to resolve and also produce a good, functioning parenting relationship after your divorce is done.
For further information or to schedule a consultation with Orange County divorce attorney Gerald Maggio of The Maggio Law Firm, please call (949) 553-0304 or visit www.maggiolawfirm.com. The Maggio Law Firm is an experienced Orange County divorce and family law firm serving the Orange County and Riverside areas and neighboring counties, serving clients with legal issues including divorce, legal separation, prenuptial agreements, divorce mediation, and other family law issues.
Prior to considering divorce, you generally should consult with at least one divorce attorney so that you know what your legal rights are and also what you can except to either pay or receive in terms of child and/or spousal support. It is helpful to bring a basic written breakdown of what the assets and debts of the marriage are for the divorce attorney to review, as well as your last 3 years of income tax returns.
Once your divorce case has commenced, both parties in a California divorce case are required by California law to complete and exchange their own financial disclosures known as “Preliminary Declarations of Disclosure.” These disclosures are comprised of 2 main documents: (1) an Income and Expense Declaration, and (2) a Schedule of Assets and Debts. Your divorce attorney will help prepare those forms and organize the supporting documentation for that disclosure. These disclosure are signed under penalty of perjury, and each party is held to a high fiduciary duty to the other party to disclose all known assets and debts and to be transparent in such disclosures.
Determining All of the Marital Assets
Creating an inventory of all the marital assets is necessary for the financial disclosure and also in preparation of the filing for divorce. In addition to the marital home, cars, bank accounts, and other main assets, there are also secondary items that need to be accounted for such as furniture, jewelry, artwork, and other more personal belongings. Determining values of all such property is necessary, and for homes and vehicles, obtaining such values will usually involve getting a professional appraisal. Furniture and furnishings should be valued at “garage sale value,” not what you paid for them, the reason being that if they were to be sold or disposed of, the court would either order them sold by garage sale or perhaps by consignment. The divorce attorney will guide you through this process of evaluating the marital assets.
It is important to understand that California is a community property state, which means that generally, all assets acquired during the marriage is generally presumed to be community property, i.e. each party is entitled to a one-half interest in the assets. The exception is an asset acquired by inheritance or by gift, which is generally considered the receiving party’s separate property. An experienced divorce lawyer will help determine what should be considered community property and what should be considered separate property.
Establishing The Marital Liabilities
Your divorce attorney will help ascertain how your marital liabilities and debts should be divided and what is community debt. Like marital assets, marital debts incurred during marriage are generally presumed to be community debt, meaning each party is responsible for one-half thereof. However, your divorce lawyer will work with you to determine a proposed division of property that takes the big picture into consideration factoring in all of the assets, debts and income of the parties to determine an equitable division.
Only until the parties have completed and exchanged their Preliminary Declaration of Disclosure can any marital settlement agreement for the division of assets and debts as part of a divorce judgment be an enforceable one under California law.
For further information or to schedule a consultation with Orange County divorce attorney Gerald Maggio of The Maggio Law Firm, please call (949) 553-0304 or visit www.maggiolawfirm.com. The Maggio Law Firm is an experienced Orange County divorce and family law firm serving the Orange County and Riverside areas and neighboring counties, serving clients with legal issues including divorce, legal separation, prenuptial agreements, divorce mediation, and other family law issues.
It goes without saying that divorce is one of the most difficult and stressful events that can happen in an adult’s life. For children, divorce can be a much more confusing, emotional and uncertain time.
So having a strategy for how to tell your children that you and your spouse are divorcing is very important, as well as how to guide them through the divorce process without being emotionally damaged in the process.
What is most important for the sake of your children is to avoid conflict with your spouse as much as possible, particularly in front of them. The more that you and your spouse can communicate and act objectively with regard to parenting and co-parenitng for the sake of your children, the better, even if you are experiencing emotional pain and anger yourself.
A divorcing parent must make every effort to support their children through the divorce even if they struggle to do so because they do not really know how to do so. The key to this whole process is for your children to know that despite the pending divorce, they are not at fault and they are loved. Where children of divorce often start having problems at school, with drug and alcohol abuse, and have behavioral problems is when the parents are fighting, do not work together, and put the children in the middle of their disputes.
Here are a few tips in how to tell your children that you and your spouse are going to divorce and how otherwise to discuss the divorce:
- Sit Down Together With Your Spouse
When the time comes to tell your children that divorce is going to happen, you should not be doing so without your spouse there with you. Your children will feel better having you both together in that setting, and you and your spouse will be a united front. Each spouse will also know exactly what was said and not have to wonder. That will instill more trust in your children and your spouse will also trust you more as a result.
- Honesty Is Necessary
You do not have to get down to the “nitty gritty” details of what led to the divorce, but giving honest yet simple responses to their questions will go a long way in helping deal with their understanding of the situation. Honesty will also help with trust.
- Avoid The Blame Game
Do not be critical of your spouse when speaking with them at the beginning of or at any point during the divorce. That will not accomplish anything other than insecurity in your children. Perhaps your marriage did not work out, but that does not mean that you and your spouse do not still have a responsibility to act maturely and as a co-parenting team for the sake of your children. Today’s children are very smart and intuitive and they know more than you think they do. So do the right thing for them and make sure that they feel like you are taking their best interests to heart.
- Listen to Your Children
Much more than half of effective communications is listening to what the other party is saying. Communicating with your children is no different. Really listen and consider the concerns expressed by your children and do not take what they say lightly. They may be young, but their feelings and concerns about the divorce have as much validity as yours.
Following these simple tips will help reduce the level of stress associated with the divorce on your children. Be proud of how you handled your divorce!
For further information or to schedule a consultation with Orange County divorce attorney Gerald Maggio of The Maggio Law Firm, please call (949) 553-0304 or visit www.maggiolawfirm.com. The Maggio Law Firm is an experienced Orange County divorce and family law firm serving the Orange County and Riverside areas and neighboring counties, serving clients with legal issues including divorce, legal separation, prenuptial agreements, divorce mediation, and other family law issues.
In any divorce, each party has to be smart and also realistic in terms of what the new reality of their life will be post-separation and post-divorce. The money that was spent on a life together is now being split to maintain 2 separate lifestyles. Before you sign your marital settlement agreement, consider these potential mistakes that you will want to avoid:
- Settling for less in the division of property and assets than you are entitled to in order to obtain more child custody or visitation.
These are 2 separate issues and one should not be contingent on the other.
- Underestimating your monthly budget and needs.
You must be realistic in what you will need to not only financially survive but live a semblance of what your marital standard of living was.
- Trusting your attorney to know or determine what is financially best for you.
Although your attorney can offer you sound legal advice and information, you must also be knowledgeable of your finances and take responsibility for your financial future.
- Making money decisions one-at-a-time.
It is best in divorce proceedings to consider the big picture of what the impact of child support, spousal support and division of property will be as they relate to taxes, inflation, and related issues. You should strive to work out a “global” settlement on all financial issues together whenever possible.
- Failing to prepare for future problems.
Although there is generally no legal requirement for life or disability insurance to be required as a guarantee on child and spousal support in the event of death or inability to work. However, given that term life insurance is generally very affordable nowadays, an agreement that the payor of support will maintain sufficient life insurance to act as a guarantee on the support is reasonable and smart. Generally, the party paying support wants to make sure that their children (or hopefully spouse too) are protected in such an event. In the alternative, such a life insurance policy can be maintained at the expense of the supported party (payee) for the same reasons.
- Failing to work out how debts and liabilities will be paid off.
In most divorces, it is best for the parties to try to pay off all debts of the marriage from the assets in the divorce so that both parties can start out with a clean slate. Otherwise, failing to do so can come back to haunt you. If you have joint debt with your spouse, most creditors are going to come after both of you if such debt is not paid and could care less about what your divorce judgment says.
- Not determining how to handle post-divorce financial matters.
The division of pension and other retirement benefits as well as transfer of accounts and obtaining health insurance after you no longer qualify to be on your spouse’s coverage are several issues that need to be addressed in your divorce judgment, so that there is no doubt about how they will be handled. Avoiding vagueness and ambiguity regarding such issues will save you a lot of headache after your divorce is completed.
For further information or to schedule a consultation with Orange County divorce attorney Gerald Maggio of The Maggio Law Firm, please call (949) 553-0304 or visit www.maggiolawfirm.com. The Maggio Law Firm is an experienced divorce and family law firm serving the Orange County and Riverside areas and neighboring counties, serving clients with legal issues including divorce, legal separation, prenuptial agreements, divorce mediation, and other family law issues.
When you are in an unhappy relationship and all you want to do is get out, then divorce may be a viable option for you. There is one thing you need to consider, however, and that is whether or not you are willing to take the matter to court. Many people want to settle the matter outside of court in a peaceful manner.
Especially for a couple having kids, divorce can become a messy affair. Therefore, it is far better to sit and converse, rather than to waste your valuable time and resources fighting in court. There are numerous ways in which you can avoid going to court, but still file for divorce.
Getting the Right Attorney
The first thing you need you need to do is to hire the right attorney for the job. This means that you should try to get a competent lawyer, who has the expertise to settle the matter outside court. Then you need to communicate with your spouse, and try to find the same footing on the ground. This way both of you will be on the same page, and your attorney will be able to draw a divorce settlement contract for you. Your attorney will handle all the matters related to the division of assets, property, support and children.
Remembering That The Goal Is To Reach A Settlement Agreement
It is very important that you draw a settlement agreement by agreeing with your spouse. This agreement falls under the uncontested divorce in California. Sometimes, cooperating with your spouse regarding this matter can be difficult, but you just need to keep your head down and stay patient. In Orange County, divorce is a matter which many people try to solve through the settlement agreement.
This is mainly because people want to avoid causing any more problems. They want to settle the matter quickly, and in an amicable, friendly manner.
The benefits you can gain through this agreement are so many that most of the attorneys will always advise you for it. Divorce in California can become a daunting process when it goes through the court. This means, that when you are looking for a quick escape, it is best to stay out of court. A speedy divorce requires you to put in more effort and ensure that your spouse is on board with everything.
Understanding That Compromise Is Necessary
When you are trying to settle things peacefully, you will have to compromise at one point or another. Working together with your spouse, towards one goal, i.e. getting divorce without a fight, will make filing for divorce much easier. This means that you might have to give more than you want. However, the benefits gained later on, will make you for all that you have lost.
Make sure to consult your attorney on the right course of action, and let the attorney handle the rest. Then all that remains is for you and your spouse to sign the settlement contract. This will help you from a lot of problems that are faced by divorcing couples in court.
For further information or to schedule a consultation with Orange County divorce attorney Gerald Maggio of The Maggio Law Firm, please call (949) 553-0304 or visit www.maggiolawfirm.com. The Maggio Law Firm is an experienced divorce and family law firm serving the Orange County and Riverside areas and neighboring counties, serving clients with legal issues including divorce, legal separation, prenuptial agreements, divorce mediation, and other family law issues.
Small businesses in America account for a substantial amount of the workforce and businesses in the U.S. economy. Many small businesses are family-owned, with many owned together by married spouses with other family members.
When the primary owners of a family business go through a divorce, the implications can be tremendous. Therefore, with so much at stake with a family business, couples who co-own a business should consider a prenuptial agreement (premarital agreement). Such an agreement can identify which property should be considered a spouse’s separate property and which should be counted as marital property, or it can deem that the other spouse will have no interest in the family business under any circumstance.
Furthermore, if one or both spouses have an ownership interest in a larger family business that would be viewed as marital property subject to division in divorce, a prenuptial agreement – and thus subject to property division in a divorce – a prenuptial agreement can give guidance on how it should be divided in the event of divorce, when it can be sold or one spouse bought out, and under what circumstances.
In other words, a prenuptial agreement can help protect the interests of the family business which can become caught in the middle of divorce proceedings, so that the family business does not experience negative ramifications simply because of a pending divorce, such as a rushed sale of the business or, worse, the closing of the business.
Divorce is a complicated and emotional process, and when a family business is involved, the process is substantially more emotional and complicated. Use of prenuptial agreements is one tool to help avoid future pain and problems that might occur in the event of a future divorce. A family law attorney can help you in that regard, for the sake of you, your family and your family business.
For further information or to schedule a consultation with Orange County divorce attorney Gerald Maggio of The Maggio Law Firm, please call (949) 553-0304 or visit www.maggiolawfirm.com. The Maggio Law Firm is an experienced divorce and family law firm serving the Orange County and Riverside areas and neighboring counties, serving clients with legal issues including divorce, legal separation, prenuptial agreements, divorce mediation, and other family law issues.
For most people, the decision to file for divorce is itself one of the most stressful and gut-wrenching ones in their lives, and is often made after many months or years of going back-and-forth deciding what to do.
The next step after deciding to file for divorce is whether to retain a divorce attorney or not. California family law courts do allow you to present yourself “in pro per” in family law proceedings. However, is that the right way to handle your divorce case? NO!
Although that answer is coming from a divorce attorney, it is an honest answer based on years of experience handling divorce and family law cases. Even if your divorce is uncontested, there are very few assets of the marriage, and perhaps there are no children involved, you should still at least have legal counsel for guidance and to make sure your case is resolved properly.
There is a reason why the saying goes “He who represents himself has a fool for a client.”
I once handled an Orange County family law case for an ex-husband where the parties had both settled their case by themselves and seemingly he thought he had gotten a good resolution of his case. However, he had thought that he had gotten a waiver of spousal support from his wife in the divorce judgment, but the wording in the divorce judgment was clearly not drafted by an attorney. Ultimately, having handled his divorce himself came back to bite him, because the spousal support waiver was not worded properly and did not hold up. I assisted him in working out his case at that point but in reality he spent more money than he would have had to pay if he had retained a divorce attorney in the beginning to do the job right.
Most divorce cases are never “easy.”
Even when you think your divorce is “easy,” the divorce process, the steps involved and, most importantly, the potential pitfalls that may arise in resolving your case are all more complicated than you may realize. You are better to retain competent legal counsel to represent your best interests in your divorce case and get it done right, thereby avoiding vagueness and potential loopholes and pitfalls in your divorce judgment that could come back to haunt you later.
Moreover, the divorce process itself can be very confusing and overwhelming, and I have had many clients who originally tried to handle their case themselves, only to realize that it was a task that they could not really take on and handle adequately themselves. Moreover, with all of the issues generally involved in a divorce case, including division of assets and debts, custody, child support, spousal support, division of retirement accounts, etc., the resolution of those issues fairly and properly by yourself can be daunting when emotions are already high.
If you have to go to court because you cannot resolve all issues with your spouse, appearing in court in front of a judge by yourself is incredibly nerve-whacking, and unless you have a legal background, you do not possess the knowledge and skills to represent your own best interests and get the best possible outcome.
If your spouse has a divorce attorney, YOU need a divorce attorney.
I have sometimes been asked if a potential client should retain a divorce attorney because the other party has legal counsel who says he can “handle everything” for both parties. My answer generally is “yes.” Even though that other attorney may appear to have the best intentions, the fact of the matter is that the attorney is representing your spouse, not you. At a minimum, you need a divorce attorney to review the divorce paperwork and any proposed divorce judgment in your case to advise you of your rights and to make suggestions. I generally tell someone whose spouse has legal counsel that they also need legal counsel, because there is always a possibility that without one, you will get taken advantage of.
For further information or to schedule a consultation with Orange County divorce lawyer Gerald Maggio of The Maggio Law Firm, please call (949) 553-0304 or visit www.maggiolawfirm.com. The Maggio Law Firm is an experienced divorce and family law firm serving the Orange County and Riverside areas and neighboring counties, serving clients with legal issues including divorce, legal separation, divorce mediation, spousal support, child support and child custody issues.
No one wants any problems with the IRS as a result of their divorce! In any divorce case, there are tax issues both during and after divorce that need to be considered and addressed. Divorce is anguishing enough, and dealing with a tax problem thereafter is even worse. Here is some information and tips on what to consider as part of your divorce in relation to taxes:
- Division of Property
Generally, for property transfer between divorcing parties as part of a divorce settlement, there is no tax implication. That can include transfer of ownership of real property.
However, there can be tax implications when an asset like a retirement account is split. For example, to divide a 401(k) plan, you cannot simply withdraw funds from the plan without penalties and taxes. Therefore, a Qualified Domestic Relations Order is often required to divide such plans by a rollover IRA to the other spouse to avoid taxes.
- Income Tax Filing Status
If a couple is separated and going through a divorce but have not finalized the divorce, they can generally file as “married filing jointly” or “married filing separately.” However, if one of the parties is not willing to file jointly under these circumstances, that party cannot be forced to do so. Only a tax professional can truly determine what filing status makes the most sense for the parties.
The timing of entry of the divorce judgment also determines how a divorcing couple can file their taxes. If the divorce judgment is filed and entered prior to the end of the year, that judgment terminates marital status and that means the parties cannot file jointly or “married filing separately.” So it sometimes makes sense to wait to file the divorce judgment until after January 1st if the parties wish to file jointly.
After the divorce judgment has been filed, generally the divorced parties will each file as “single” or “head of household” filing status. It is important to know that pursuant to the IRS Code, a parent that has over 50% physical custody of a child is entitled to file as “head of household” and the other parent cannot. Even if the other parent has 49.9% physical custody, they are not entitled to file as “head of household.” The parent with over 50% custody is generally also entitled to claim the child as a tax exemption too.
- Child and Spousal Support
There are 2 simple rules regarding the deductibility of child and spousal support payments are as follows:
- Child support is not tax-deductible to the person paying the support, and does not have to be claimed as “income” by the receiving party.
- Spousal support (a.k.a. “alimony”) is tax-deductible to the person paying the support, much like mortgage interest. For the divorced party receiving spousal support, that party has to claim such spousal support payments on their income tax returns and will be taxed on those payments, so that party should pay accordingly and adjust their tax payments during the year pursuant to the recommendations of their tax professional.
The tax issues related to divorce can be complex, and it is highly advisable that divorcing parties consult with an experienced tax professional both during their divorce and when working towards a final divorce judgment that will include a division of property, support orders, and so on. The more information available to parties enables for a more carefully-negotiated divorce settlement that avoids tax pitfalls.
For further information or to schedule a consultation with Orange County divorce attorney Gerald Maggio of The Maggio Law Firm, please call (949) 553-0304 or visit www.maggiolawfirm.com. The Maggio Law Firm is an experienced divorce and family law firm serving the Orange County and Riverside areas and neighboring counties, serving clients with legal issues including divorce, legal separation, spousal support, child support and child custody issues.
There are several procedures that occur in an Orange County divorce case after the initial divorce paperwork has been filed and the other spouse has been served. There are the three main ones
1. Temporary Orders
After the initial divorce paperwork has been filed with the court, either spouse may file for a “Request for Order” (RFO) hearing with the court requesting a hearing to decide temporary orders for child custody, visitation, child support, spousal support, and other orders while the divorce is pending. Other orders can involve temporary use of marital property, restraining orders and orders that one party pay the other party’s attorney fees and costs.
Whenever a Request for Order (RFO) hearing addressing temporary child custody and visitation issues are filed, the Court will order that the parties attend mediation at no cost through the court’s mediation department prior to the Request for Order hearing date. Although the law requires that the parents participate in mediation, there is no requirement that they reach an agreement.
2. Disclosure of The Spouses’ Financial Assets, Debts, Incomes and Expenses
The next step after service of the Summons and Petition for Marital Dissolution and the Response thereto is for both parties to complete and exchange their own “Preliminary Declaration of Disclosure.”
Both parties in a California divorce are required to disclose detailed, accurate information to the other about their respective incomes, expenses, property (both marital and separate property), and all debts and obligations. These mutual disclosures are called the parties “Preliminary Declaration of Disclosure. These formal disclosures are signed under penalty of perjury. A Final Declaration of Disclosure can be completed at approximately the time of trial or settlement in the case, unless the parties mutually agree in writing to waive such final disclosure.
These Declarations of Disclosure consist of special forms required by the court, and except for proof that the parties served each other with such forms, these forms are otherwise not filed with the court. The 4 forms that generally comprise the Declaration of Disclosure are:
- Declaration of Disclosure (Form #FL-140)
- Income & Expense Declaration (Form #Fl-150)
- Schedule of Assets & Debts (Form #FL-142)
- Declaration Regarding Service of Declaration of Disclosure (Form #FL-141)
The purpose of such financial disclosures is to make settlement negotiations easier to proceed because of the generally clear picture of the parties’ financial situation given by such formal disclosure. Moreover, it protects the parties in the event that either spouse failed to disclose all assets.
California law requires that the disclosure documents be completed and served twice, once at the beginning of the divorce (i.e. Preliminary Declaration of Disclosure) and then again near the end of the case immediately prior to trial or Judgment (i.e. Final Declaration of Disclosure). However, the parties can agree to waive service of the Final Declaration of Disclosure, as long as such waiver is in writing on the appropriate legal paperwork.
3. Legal Discovery
In divorces that require determinations of the fair market value of marital assets, community businesses, debts, and self-employment incomes for support purposes, “discovery” requests served on one or both spouses may be necessary. Such discovery requests can require responses to general and specific questions, production of documentation and other tangible items, and depositions of the parties or third parties.
Completion of the discovery process is generally necessary before a divorce case can be set for trial and can slow down the divorce process. However, such discovery is necessary to protect the parties’ rights and ensure a fair and reasonable division of the parties’ assets and debts.
For more information or to schedule a consultation, contact Orange County divorce attorney Gerald Maggio at The Maggio Law Firm, by calling (949) 553-0304 or visiting www.maggiolawfirm.com.
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.
