If you find yourself faced with divorce proceedings after your your spouse found out about your relationship or fling with someone else, you’re probably wondering how much this can affect your settlement. Handled carefully, you don’t need to be taken to the cleaners for your indiscretion. First off, it helps to understand the ramifications of adultery on a divorce – both financial and legal.
Not all states treat adultery alike
The law varies depending on where you are. Understand the intricacies of divorce law and the impact on your settlement with the help of your divorce attorney. In some states like California, adultery has little or no bearing at all on the divorce. If you live in a no-fault state like California, then you should be able to proceed as normal and no proof of adultery will be demanded.
How adultery impacts Spousal Support or Alimony
If you are the one accused of adultery in a no-fault divorce state like California, there is generally no impact on the ability to seek spousal support. However, if cohabitation with that person occurs, it can affect the amount and/or ability to obtain spousal support.
Division of Financial Assets in a divorce involving Adultery
How the financial assets are divided and the terms of the settlement are in general, not influenced by whether or not one partner or both have committed adultery. The only instance where it could come into play is if the family’s finances and assets were impacted or utilized for supporting the adulterous relationship. In case the family wealth was eroded to support this relationship, the betrayed spouse will make a bid for some form of compensation.
Special circumstances
In case you contracted an STD and passed it on to your spouse, you may find yourself vulnerable to personal injury action lawsuits. It is therefore, best to come to an agreement within the purview of the divorce proceedings and settlement and prevent things from getting out of hand.
Ultimately though, the divorce settlement will be most influenced by your own emotions, guilty and feelings towards your soon to be ex spouse. If you are feeling bad about what you did, you may agree to give in a little more and let your spouse get a better deal.
Gerald A. Maggio is a trained 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.
When you are going through divorce, your lawyer will tell you the importance and the role a judge has in your divorce case. It is their final decision which will be binding on both the spouses. This means that a judge has the power to decide your future.
There are a number of different aspects to an Orange County divorce case, and typically, a judge will make a number of different decisions in this regard. Some of the common areas of law and the power that the judges wield are outlined below.
How to Divide Property
One of the most important aspects in a divorce are issues of asset division. If two spouses are unable to reach an independent agreement, the judge will take a look at the facts, listen to the arguments of both sides, and then decide who is entitled to what. This decision will take into account the California community property laws. The judge will need to take into account whether the property is community property or separate property.
Parenting Plan
Part of custody determinations is making a parenting plan. The judge, in matters of parenting plans, will decide on issues that the parents are unable to agree upon. This could either be how the child-related decisions are made, how holidays will be celebrated, and how a parental move might affect these guidelines.
Spousal Support
For the court to rule in matters of spousal support, one of the spouses needs to raise the issue in front of the court. Typically, financially dependent spouses will bring the plea before the judge. In taking the decision of how much spousal support to grant, a judge will take into account the incomes of the parties, the ages of the parties, their health, their potential to earn, etc.
Child Custody
Children are obviously important aspects involved in divorce cases. Both of the spouses usually want to have their child live with them. Yet, the final decision will always be made by the judge if not made by the parties. This decision is often the mostly hotly contested and there are a number of things that a judge takes into account when deciding this issue. The most important consideration that they make is the child’s best interest. Wherever the best interests of the child lie, the custody will be awarded.
Child Support
Unlike spousal support, paying child support is often mandatory if sought. Yet, the rate of child support, the schedule of monthly payments and what would amount to a perfect monthly child support amount are all decisions that will be taken by an Orange County family law judge.
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.
Going through an Orange County divorce is almost always difficult. There are a number of different aspects that need to be taken into account and solved. These issues can be compounded in case you are going through a high net divorce. Primarily because there are higher net worth individual involved and hence the lawyers are likely to be more vigorous and willing to go to just about any level to ensure their client has the better share.
If you and your spouse is a high net worth individual you will need to plan and prepare before your Orange County divorce case so that you are able to make the most of the process. Here are a few tips to help you prepare.
Make a List of the Assets
The most important thing in a divorce irrespective of the size or the valuation of the divorce on the whole is the assets involved. When you are going into a divorce case you will want to make sure that you have the better portion of the assets divided in your favor. For that you need to make a list of the assets that you and your spouse have. A detailed list of the assets will ensure that there is no hiding of assets taking place. If you suspect that your spouse is hiding some assets having a list will ensure that you ask the court to have a full disclosure conducted.
Getting the Fair Amount of Child and Spousal Support
Typically all high asset divorces will involve considerable hackling over the amount of child support and spousal support. The important thing you will need to do in this regard is ensure that you have detailed account and evidences of all the expenses that you do as a spouse in your life during the marriage and all the expenses that are incurred on the child. When it comes time for the courts to award these supports the use of these evidences will ensure that the court are given an account of what is normal in your life as high net individuals and how that status quo needs to be kept intact.
Choosing the Right Lawyer
If you are getting into a divorce that involves high net individuals, the easiest thing to do before the case starts is to choose the perfect Orange County divorce lawyer to represent you in the divorce case. The use of top divorce lawyers will ensure that you have the best chance of winning the case. You are fighting a case that involves high monetary valuation and hence the best thing to do is to choose a lawyer that you are able to work with well.
Gerald A. Maggio is an experienced Orange County divorce and family law attorney and family law attorney located in Irvine, California, serving the Orange County and Riverside areas. Mr. Maggio assists clients with legal issues including divorce, legal separation, divorce mediation, child custody, prenuptial agreements, stepparent adoptions, and other family law issues. Mr. Maggio has practiced law in California since 1999, and founded The Maggio Law Firm in 2005, focusing exclusively on divorce and family law matters.
Orange County divorce mediation is becoming a more preferable alternative to traditional divorce litigation. A number of people are looking towards this new method as means to end their relationship peacefully without hassle. Yet, most people who are interested in mediation are reluctant to try this new method since they are unaware of the issues that mediation can handle.
Here is a lowdown on some of the leading issues that Orange County divorce mediation can handle:
Child Custody
Which spouse gets the custody of the spouse? Will it be a joint custody and what will be the visitation hours are all important issues that need to decide after a couple decides to end their relation. Children are one of the most important assets and should be dealt with by care. There are two types of physical custody available in Orange County family law; one is physical custody and the other legal custody. Spouses attending mediation are not quite bound by these laws; hence can often workout a workable parenting plan between themselves in the best favor of the child.
Spousal Support
Spousal support is another issue that can be mutually decided between spouses in Orange County Divorce mediation. Spousal support simply put is a payment made by the spouse that earns to then stay at home spouse to make sure they are able to sustain their lifestyle. The idea behind this payment is to make sure that the spouse that stays at home is not but at a disadvantage to the earning spouse.
Child Support
One of the leading issues of an Orange County divorce is with regards to child support. This simply means the payment that needs to be paid to maintain and guarantee the betterment of the child and to safeguard their future. While the law in California has a special way and set rules to decide how each of the spouses need to pay the support to the spouse who has the custody of the child, in an Orange County divorce mediation things are different. There is a realization that no two situations are same and spouses can decide mutually any amount that they see fit and just for their child.
Division of Debt
Debt division is an important issue, which unfortunately must come up in all divorce mediation cases. While asset division is thought to be one aspect which can result in conflicts between spouses, debt division can also divide opinions. Yet handling and dividing of debt is an important debt that comes up in mediation cases.
Property Division
Division of asset is an important part of your divorce case irrespective of whether it is mediation or litigation. In mediation spouses will have the chance to decide on their asset division in a more flexible comfortable way that can help both the parties in their future endeavors.
Gerald A. Maggio is a trained 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.
One of the areas of law that has been in the spotlight in recent times is the effect of bankruptcy on the payments of child and spousal support. A large number of people have started to file for bankruptcy in that a declaration of bankruptcy can bring an automatic end to the payment of child and spousal support. This area of law is one that continues to require further elaborations. This blog provides you with details on this aspect of law with respect to bankruptcy and spousal supports and child supports.
The Bankruptcy Code attempts to protect the rights of the former spouses and children, and therefore it states that any support that has been agreed on or ordered by the court is non-dischargeable in the case of bankruptcy.
The spouse that is being given the support needs not have to file any kind of documentation or proof of their claims to be able to enforce their right of continuing to get support. As far as the cases are concerned, once a debtor files for bankruptcy in the court, all the creditors need to stop all collection with respect to the collection of their debts. This is called an automatic stay. An automatic stay means that all kinds of garnishments, creditors, and banks refrain from calling you at all hours of the night.
What if my Alimony Support and Child Support comes from my Spouse’s Paycheck and My Spouse Files for Bankruptcy?
It is true that any child or spousal support orders which depend on the paycheck of a spouse are generally affected by the filing of bankruptcy. This, however, is subject to a few restrictions. In a wide variety of cases, the spouses can rack up a considerable amount of money by nonpayment of spousal support. The courts make sure that this is not the case and will make sure that these arrears are settled before the filing for bankruptcy takes place.
What if I file a Motion for an Increase in Child Support or Spousal Support and My Spouse Files for Bankruptcy?
In the most common circumstances, the courts are not likely to delay the hearing of the spousal support and child support until the case for bankruptcy has been decided. Instead, the bankrupcy will likely only delay the division of assets and debts for at least six months until the bankruptcy is resolved.
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.
Divorce Mediation is one of the most underrated methods of dispute resolution. California Divorce mediation services are underused by couples who are unaware of the potential of divorce mediation in Orange County. Most couples don’t know the benefits of divorce mediation, and end up going through messy divorces that hurt them financially as well as emotionally and psychologically. Why is it a better way? The answer to this question is plain and simple. All issues that a judge can solve can be solved by using divorce mediation services. Divorce mediation means not going to court and therefore protecting the privacy of the couples. Here is a list of issues that divorce mediation can solve:
Division of Property
Property in divorce proceeding means real estate, vehicles, savings accounts, retirement accounts, investment accounts, furniture, etc. A judge in this situation would probably order that the assets be divided into half, unless some kind of a prenuptial agreement is involved. Divorce mediation instead allows the couple to make trades on properties, meaning that they can decide which assets who should keep and what should be given to the other. While it sounds like a long and complicated process, it is made easy by experienced mediators.
Child Support
The State of California has set guidelines on child support. The guidelines outline how much of child support should be paid for each minor. Mediators help couples talk on a number of issues such as who will bear what parts of expenses, who will bear the education costs and the medical expenses, and help them decide on the child support number they can meet.
Division of Debts
Every household in one way or the other is somehow indebted to some bank or lender. This means that in every California divorce, debt discussion has to be done. Debts are usually ranging from loans, credit cards, and other debts that the couple has borrowed over time. There are several reasons for debts such as renovation and over expenditure, etc. Divorce mediators can help devise a plan for debt repayment which is agreeable to both parties.
Custody of the Child
Child custody involves two aspects: legal custody and physical custody. Legal custody means who gets to make the decisions concerning the health, education, and welfare of the children and their upbringing. Physical custody basically means where the child is likely to spend his time in weekends and holidays. Divorce mediators help you create a parenting plan that suits you. A parenting plan is a plan that contains all the details about the child’s time distribution in between the parents in weekends and holidays.
Spousal Support
Spousal Support is the title given to the money that is given by one spouse to the other to help her or him to maintain their lifestyle. These are decided on the standard of living that the couples enjoyed during their marriage. We identify the necessary lifestyle needs of the spouse and then help both the parties agree to a sum that they both feel is fair.
Divorce Mediation is one process that is detailed and all-encompassing, which means it allows the couples to end their marriage with a customized agreement that they both think is fair and just, and cost-effective.
Gerald A. Maggio is a trained Irvine 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.
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.
