April 22, 2011 in Family Law, Legal Articles by jferris

Grandparent Rights are Relevant in California Child Custody Cases

Grandparents are entitled to have quality time with their grandchildren, even if their son or daughter is getting a divorce.

Grandparent rights are not to intrude on the parents rights, as they still have authority over their kids’ lives. If a spouse is trying to prevent or ignores a request for grandparent to be involved, grandparents should seek legal counsel to understand and fight for their options. Oftentimes, a child custody attorney can push to include grandparent visitation rights in the overall child custody agreement.

Unfortunately, in some circumstances the birth parents are unfit to take care of their children, thus leaving grandparents to raise the kids. Parents who are incarcerated, have mental health problems, abuse drugs or alcohol, deceased, or have abused, neglected or abandoned a child will not be given the right to take care of their child. Throughout California, close to seven percent of all children are living with their grandparents.

Grandparents as caregivers are divided into two categories. Custodial grandparents have legal custody and provide daily care, security, and decision making for the kids. Usually the child’s birth parents are so unfit to take care of the children that this is the best way for the child to succeed. A court must grant guardianship to the grandparent.

This process starts with a petition the grandparent will file in court for Guardian Ad Litem. All individuals must receive notice of this petition, so that if one parent is willing to renew their care for the child, they have the opportunity to do so. The only way to go around this is if the guardian can prove that the parent is unfit and contests the guardianship. Grandparent guardianship can be terminated when a parent shows the court they are ready, willing and able to care for the child again and files appropriate motions to do so.

The second category of grandparents, known more as caregivers, helps with daily care but does not have legal custody of the grandkids even though they are living with them. The kid’s parent can live in the home, but the grandparent is in charge of giving an emotionally and financially stable home environment. These types of grandparents assist kids when the parents are out of town, deployed with the military, or absent for longer periods of time. Power of Attorney documents should be drafted and notarized so that the grandparent will be allowed to get the child medical care, make certain education and school decisions, and apply for California assistance programs.

In Orange County, Irvine child custody attorney Gerald Maggio has helped uphold the best interests of children and the rights of grandparents for visitation and guardianship. The Maggio Law Firm is experienced in all child custody matters and will strive to achieve fast and fair results through understanding, tenacity, and professionalism.

Gerald A. Maggio is an Orange County divorce attorney, in Irvine, California. To learn more about Orange Country divorce lawyer, Gerald A. Maggio, visit Maggiolawfirm.com.

April 21, 2011 in Family Law, Legal Articles by jferris

Legal Counsel Needed in Divorces After 20 or More Years of Togetherness

An increase in marriages ending after 20 to 40 years is making news headlines and being dubbed “gray divorce”.

Many psychologists are attributing divorces after long-term marriages to the kids leaving home for college or life on their own, and a spouse who has felt trapped or unhappy finally has the drive to begin a new life. The ease and perception of divorce is also far better for couples now than it was decades ago.

With collaborative divorces, mediation and experienced divorce attorneys more accessible to couples, divorce doesn’t have such a bad stigma or price tag anymore. There are many asset and financial matters that need to be addressed in divorces after a long-term marriage, so this is where a results-oriented divorce lawyer is critical and can go over every facet that must be divided.

Gray divorces usually involve lots of marital property and assets, including real estate, vacation properties, bank accounts, retirement plans, pensions, and other assets. Without legal counsel, the divorce can be a messy, financial nightmare. A huge factor is that one spouse usually has a short period of time to make up for any difference in the division of assets before retirement.

As people in California and the U.S. lead longer and more active lives, U.S. Census statistics are showing older, married couples have only a 54 percent chance of reaching a 30th wedding anniversary. Couples married before 1965 fared better, but every marriage year after that shows lesser chances of staying married. Spouses tend to have raised children and kept their finances in order, but the marital relationship took a backseat.

With gray divorce, couples are finding that they stand to be happier pursuing different goals and starting new relationships. Women are far less dependent on their spouses for income and can afford to start a new chapter on their own. “Each person has to decide whether they can deal with the flawed, not just sparkly parts of their spouse,” says Christine Carter, doctor, author of Raising Happiness and columnist at the Huffington Post. If the flaws are a deal breaker and obstacle, divorce might be the only route to resolution.

Every divorce has its unique challenges and financial considerations, so no matter the years of marriage, expert legal counsel will ensure each spouse has peace of mind for the future. In California, Orange County divorce attorney Gerald Maggio is known for helping clients go through their options, protect their interests, and seek the most favorable divorce outcome. The Maggio Law Firm combines years of legal expertise in divorce law with compassionate guidance.

Gerald A. Maggio is an Orange County divorce attorney, in Irvine, California. To learn more about Orange Country divorce lawyer, Gerald A. Maggio, visit Maggiolawfirm.com.

March 16, 2011 in Family Law, Legal Articles by jferris

Stepparent Adoptions Increasing with Thousands of Stepfamilies Forming Every Day

Stepfamilies are a huge part of American society, yet the mainstream media rarely mentions the unique needs of both parents and children when they are assimilating into one family. The U.S. Census Bureau reports 1300 new stepfamilies are forming every day and more than 50 percent of families are remarried or recoupled with kids less than 13 years old.

Unlike normal adoption, stepparent adoption is for individuals who want to solidify their commitment as a stepfather or stepmother and adopt their stepchild. An experienced stepparent adoption attorney is critical to draft legal documents, review them, and counsel on a stepparent’s rights as well as legalities of which the biological parent must be aware. Expert legal counsel will ensure that a stepparent adoption will not have a chance to be reversed.

A stepparent adoption does end the absent biological parent’s legal ties to the child, including custodial and visitation rights and financial support. There are four main ways to do a stepparent adoption with an accomplished California family law attorney.

The non-primary biological parent can sign a state authorized form consenting to the adoption by the stepparent. The Department of Social Services will investigate to determine if it is in the child’s best interests and create a report with their findings. Children should be informed that the stepparent wants to adopt them as the social service investigator will interview the child about what he or she wants and what they understand about the adoption. Also, children older than 12 years must give written consent of the adoption. An adoption hearing will then be held and if everything is successful, the stepparent will have the adoption certificate.

In contrast, if the biological parent has not spoken or financially provided for the child in more than a year, then the custodial parent will have full custody of the child. The stepparent must prove these facts and give testimony, but no investigation is mandated. Only if the absent parent can give a sufficient reason for not communicating or supporting the child will the court not give its consent. Otherwise, it takes only one court hearing to get the certificate.

Yet in some cases the absent parent has only failed to communicate or give financial support, but not both shortcomings. This makes the stepparent adoption process a bit more complex, and the Probation Department will have to research and report if abandonment has occurred. California courts will hear the testimony of the party who wants to adopt and incorporate the probation report. One legal petition is required to terminate the absent parent’s rights and a second petition completed to adopt the child. Two separate court orders must be done and the absent parent’s relatives must be notified of the proceedings. If the child has been deemed abandoned, the court will then allow the adoption decree.

The last way to get a stepparent adoption is if the parents of the child were never married, and thus there is no natural father. A court order to terminate the alleged natural father’s rights is far easier than the aforementioned routes. The couple can then go about the stepparent adoption in the normal way.

After an adoption, the child is then eligible for Social Security and life insurance benefits should either of their parents pass away. Some couples get legal assistance to change the child’s last name and modify the birth certificate, too.

The Maggio Law Firm has guided many stepparents and the couples in solidifying their bond with the children. As an experienced Orange County stepparent adoption attorney, Gerald Maggio is well versed in all the steps of the stepparent adoption process.

Gerald A. Maggio is an Orange County divorce attorney, in Irvine, California. To learn more about Orange Country divorce lawyer, Gerald A. Maggio, visit Maggiolawfirm.com.

March 15, 2011 in Family Law, Legal Articles by jferris

High Levels of Domestic Violence and Divorce in California Prompt Legal Action

Sadly, one in four women will experience domestic violence during her lifetime. Each year, 1.3 million women will be victims of physical assault, according to the Alternatives to Domestic Violence organization in Riverside, Calif. California’s domestic violence shelters had more hotline calls in 2010, with an average of 5,261 individuals needing their services and support.

The recession has caused financial and marriage stressors to increase, and victims sometimes feel they have no escape route to improve their life. A recent Orange County domestic violence case emphasizes the need for legal counsel when dealing with divorce, child custody and restraining order concerns. Travis C. Unholz, an Orange County sheriff’s deputy, recently pushed his wife to the floor and she hit her head. The couple’s two children were at home during the argument. The wife called the sheriff’s department and they arrested Unholz. He was able to post bail, was charged with domestic violence, but then tried to buy a gun. He asked a friend to help him buy an automatic weapon, survival kit, and call his wife. All these actions violated the bail conditions.

Unholz now is charged with a litany of felony and misdemeanor charges – domestic battery, violation of a protective order and attempted possession of a firearm, sentencing enhancement for crime-bail-crime – and could face six or more years in state prison.

Every victim of domestic violence has the right to seek legal guidance and court protections to overcome a traumatic situation. If there are children involved, a restraining order can be requested to protect you and the children. Custody, visitation and child support orders can be requested at the same time, as well.

If you have been a victim of domestic violence, you have a right to look to the court for protection. There are several different types of restraining orders that can provide domestic violence victims with this kind of protection. If a judge wants a mediation to decide on these matters, an individual will want to bring their divorce lawyer and a support person. Sometimes it is even best to meet with the mediator separately, depending on what type of abuse has occurred.

Current California statutes call for custody to be granted in line with the best interests of the child. Domestic violence that has been done in the previous five years does not bode well for the perpetrating parent seeking any type of custody. Only if the perpetrator can provide sufficient evidence that he has completed a batterer’s treatment program, an alcohol or drug abuse counseling program, parenting classes, and complied with a restraining order, will the courts perhaps consider joint custody.

One of the most prominent divorce and family law offices, The Maggio Law Firm in Riverside and Irvine, Calif., is skilled in representing a client’s and child’s best interests. Their firm will ensure that all of the proper documents are filed, any questions that a judge might ask will be done so in a quick, proactive manner, and will assist with any unusual circumstances that might come up in the divorce and child custody hearings.

Gerald Maggio, their lead Riverside County domestic violence attorney, recommends individuals get help early on who are being abused. He represents domestic violence victims that are married, have domestic partnerships, in dating relationships, and same-sex partnerships. Their exceptional legal counsel will aggressively advocate for an individual and child’s legal and human rights.

Gerald A. Maggio is an Orange County divorce attorney, in Irvine, California. To learn more about Orange Country divorce lawyer, Gerald A. Maggio, visit Maggiolawfirm.com.

February 16, 2011 in Family Law, Legal Articles by jferris

Child Custody is Decided Through Several Methods

Before understanding how child custody is decided, it is important to know the types of child custody there are.

Types of custody include the following:

• Legal Custody
• Sole Custody
• Physical Custody
• Joint Custody

Legal custody means a parent has the right to make decisions on the how to bring up the child In sole custody, the legal and physical custody goes to one parent. Physical custody means a parent has the right to have the child live with him or her. Lastly, joint custody establishes that both parents share legal and physical custody of a child.

A judge looks at each case and awards child custody to whomever he or she thinks would be in the best interest of the children. The factors that determine the judge’s decision are the age of the child or children, gender, what the current living situation is, any health factors and the relationship with each parent.

But even before a judge hears the case, child custody can be agreed mutually before hand, either by an agreement made by the parents, or by going through mediation and drafting up a formal agreement. A licensed mediator is a third party that helps couples resolve most of the issues before it moves further ahead in the court system.

If, however, the parties do not come to a decision about child custody and visitation rights, the court will more than likely order a formal evaluation on the case, which involves psychological assessments and an in-depth interview process of everyone involved in the child’s immediate family. The interviewer is likely to be a licensed board psychologist because of the involvement of using psychological testing in the evaluations.

The judge might even consider taking testimony from older siblings or teenagers to find out which parent they would prefer to stay with and have custody. In any case, placing the child in the most stable environment is what takes priority to help maintain the child’s routine and lifestyle. This is why approximately 67 percent of the children of divorce tend to stay in the marital home.

Gerald A. Maggio is an Orange
County divorce attorney, in Irvine, California. To learn more about Orange Country divorce lawyer, Gerald A. Maggio, visit Maggiolawfirm.com.

February 15, 2011 in Family Law, Legal Articles by jferris

People Face Five Major Psychological Stages During a Divorce

Going through a divorce and ending an intimate relationship is quite possibly one of the hardest things to endure. Not only that, but feeling the loss and separation along with the entire lifestyle change and financial struggles are added stressors that make it all so difficult at times. Not to mention, if you have children involved, the trauma they go through due to the separation and upheaval makes it hard to sometimes be there for children’s emotional needs when the custodial parent feels overwhelmed and overloaded. The family experiences a void when the absent parent is not around anymore for the routine family events and sometimes it feels like experiencing and accepting a death that some would even parallel to divorce. Recovery time from this emotional state varies from person to person. The psychological stages that one undergoes do not come in a neat, sequential succession, but more randomly and at one’s own pace. The five major psychological stages are:

• Denial – Felt even by the initiator of the divorce. The denial stage can last for a long time.
• Anger – An inevitable stage of unmet needs and dreams unrealized. Usually erupted by money and children issues such as custody and access to them but usually stem from the couple’s own issues with each other.
• Guilt – Both parties are likely to feel guilty because of the failed relationship and for their children’s emotional trauma during the divorce.
• Grief – Usually happens when the full impact of the divorce is felt. Saying goodbye to a failed relationship is a painful and sad process.
• Acceptance – When each person recognizes the totality of the experience as a part of who they are and a part of their lives. This stage is the moving-on outlook to a new set of goals and identity.

These stages are not all-inclusive and may also include fear and anxiety from financial insecurity or even safety. Ultimately, these stages usually give way to acceptance that the stages and the trauma were all part of the adjustment to finally gain some sense of stability. It also helps to seek guidance and counseling for the whole family when undergoing a divorce.

Gerald A. Maggio is an Orange County divorce attorney, in Irvine, California. To learn more about Orange Country divorce lawyer, Gerald A. Maggio, visit Maggiolawfirm.com.

January 15, 2011 in Family Law, Legal Articles by jferris

How to Maintain a Unified Front with Your Former Spouse for Your Children

Staying amicable with an ex-spouse who probably put you through veritable hell is something that is probably inconceivable. In some instances, such as when domestic violence or other egregious circumstances are involved, it is understandable or even advisable to stay your distances.

However, when children are involved, partners who were once bonded by marriage will, in some form or fashion, still have to deal with each other when it comes to joint parenting or issues concerning the children, no matter who is paying child support or who thinks they got the shorter end of the stick.

Divorced couples whose goal is to raise well-adjusted kids in light of the divorce and separation have some work ahead of them that requires balance, commitment and a keen focus from both sides. They both must come together as a unified front for the betterment of the children.

Of course, there are the classic emotional stages of divorce that most couples find themselves going through. There is the guilt and shame that usually occurs when there is the feeling of failure – all normal reactions to the drastic changes of divorce. No doubt that there may be an emotional roller coaster of grief. Subconsciously, or at many levels, there may be denial, bargaining, resentment, anger and acceptance –all are on the vast spectrum of emotions people feel after a divorce.

There can be much to be gained by remaining allies, even though communication or mutual respect has diminished in your marital relationship. Being civil and maintaining family ties on both sides can ensure balance and equilibrium for children who need stability and extended emotional support more than ever. It is always good to remember to put your children first. Do not be petty by rehashing old arguments and opening up old wounds. Try to also be inclusive. Involve each other in your children’s milestones, shortcomings and achievements.

To let go of resentment and the emotional baggage of a failed marriage and the many disconnects that might have occurred, the idea of maintaining some sort of harmony in front of and around the children will always speak volumes and can also help your children adjust to the divorce and become well-adjusted adults in the long run.

Gerald A. Maggio is an Orange
County divorce attorney, in Irvine, California. To learn more about Orange Country divorce lawyer, Gerald A. Maggio, visit Maggiolawfirm.com.

December 30, 2010 in Family Law, Legal Articles by jferris

The Fine Details of a Postnuptial Agreement

Most people have heard of prenuptial agreements where a couple has certain conditions spelled out before they get married in likelihood of a divorce. Usually, a discussion about a possible divorce down the road is something most engaged couples do not even want to consider, but it perhaps is the wisest choice, especially if one of them is bringing more income and assets into the relationship, or other unique situations.

But the often overlooked post-relationship insurance (insurance to protect assets and interests) is also a postnuptial agreement – a written contract put into stone after the couple is married – and have all the contractual law elements with five additional requirements: 1) the agreement must be written 2) must be voluntarily executed 3) must have full and fair disclosure 4) must be unconscionable (not exclusively unfair to one party) and 5) must be executed by both parties before a notary public.

Postnuptials didn’t come into play until after the 1970s as a result of the number of no-fault divorces upon the crest of legislative and statutory changes that led the American legal system to begin accepting postnuptial agreements.

Typically, there are three types of postnuptial agreements: 1) an agreement of a division of property when one spouse dies; i.e., the surviving spouse can waive certain inheritances, for example; 2) a separation agreement, usually an agreement that can minimize the time and cost of a divorce because division of property, custody or alimony has already been determined at time of separation; 3) one that affects the right of future divorce, limiting or waiving custody, division of property, etc.

California validates postnuptial agreements per California Family Code Part 5, Chapter 1, §1500 which reads: “The property rights of husband and wife prescribed by statute may be altered by a premarital agreement or other marital property agreement.” Also, §1502 says that such agreements are to be “executed and acknowledged or proved in the manner that a grant of real property is required to be executed and acknowledged.”

Postnups can be used in creative ways. Sometimes they can also save a marriage, particularly ones that are struggling financially. A couple with different money styles can breathe easier knowing that their assets are on the table and dealt with in the advent of divorce.

An experienced family law office can help you guide you through the postnuptial process.

Gerald A. Maggio is an Orange
County divorce attorney, in Irvine, California. To learn more about Orange Country divorce lawyer, Gerald A. Maggio, visit Maggiolawfirm.com.

December 28, 2010 in Family Law, Legal Articles by jferris

Divorcing Seniors Are A Sizable Segment of Divorcing Couples

There are a number of couples that wait until their children are well on their own before they finally divorce.

When we think of people who divorce, we think of couples with smaller children, or middle-aged couples, going through a mid-life crisis. Most programs and resources are geared for this segment of the population. However, there is a segment that goes less noticed. These are the couples that stayed together for the sake of the children.

Though some would think that this option would be the most viable solution to custody battles and saving their children from the emotional trauma of divorce, there are also some sobering truths these couples have to face once they finally decide to go their separate ways later in their lives. Though they may have lived separately emotionally and maybe even physically for all those years, one thing that is hard to sever is the years steeped with deep connections, their past together spanning many years. They are forced to face that because of their age, it is so hard to financially recover from divorce.

One hardship is coming up with coping skills that would work for them, that probably would have been easier to garner when they were in their youth. They will have to separate who they are from their marriage. Usually, these couples did not come up with a financial plan to reflect this long-term goal. Divorcing seniors are probably well into their retirement years, have a pension and maybe even a house paid for. But more often, they did not have a financial plan and they are forced to watch every purchase and cut back when they can in order to get by, or even in some cases, place a burden or a strain on their children for a place to stay or for financial support.

The couple that waits later in life to get a divorce has many facets that are truly unique to their situation that does not fit in some prescribed notion or category. What they have to do is assess all their assets quickly to accommodate their new lifestyle.

An experienced family law office can help you guide your way to your new life.

Gerald A. Maggio is an Orange
County divorce attorney, in Irvine, California. To learn more about Orange Country divorce lawyer, Gerald A. Maggio, visit Maggiolawfirm.com.

September 14, 2010 in Family Law, Legal Articles by jferris

How should I prepare myself for the deposition of my divorce?

The discovery itself is very broad, and your deposition can seem very invasive and even scary. But preparation is the key to a better resolution.

Before the deposition, a deponent should review any documents that they reviewed as part of an expert report or, if the deponent is a party, any documents that have been submitted to the court and/or opposing counsel. Parties in a divorce proceeding should review pleadings and affidavits, interrogatory answers and documents responses. It is not necessary to memorize any statement or document. Some questions may arise during the deposition, especially financial ones, to which you won’t remember the exact numbers. It is permissible, even preferable, if you refer to the documents that have been submitted to the opposing attorney. For instance, “That information is on my tax returns.” If you continue to be pressed by the opposing attorney, state that it will be necessary to review the document in order to respond further.

Behavior at a deposition plays an important role. Think before you speak. Listen very carefully to each question. If there is anything that isn’t understood in the question, ask for it to be repeated or rephrased. Pay attention to the questions, there may well be double meanings and assumptions that you have testified to something that you didn’t.

After understanding the question, answer honestly and in a straightforward manner. Less is more. Don’t worry about a “bad” answer, just give right answers. If something is unknown or being estimated, make it very clear. Take your time answering. Think and formulate your answer before speaking. Remember to speak slowly and clearly, as this is all being transcribed. If you must point to something, describe what you are pointing to.

Do not argue. Never argue with the attorney or refuse to answer any questions, unless instructed by your counsel. Refusing to answer is only playing into the opposing attorney’s game plan; the opposing attorney may consider such a response as evasive or having struck a nerve. Joking is also a no-no. Humor doesn’t go well in the transcript, coming off as insincere or crude.

Do not lie. Always answer truthfully, your lawyer can deal with the truth effectively but is hindered when the truth is kept hidden.

Gerald A. Maggio is an Orange
County divorce attorney, in Irvine, California. To learn more about Orange Country divorce lawyer, Gerald A. Maggio, visit Maggiolawfirm.com.