Think of having a divorce, and automatically there is a fear that starts to set in. The fear of failure, and the fear of the unchartered waters. One of the first questions that come to one’s mind is about their assets. These fears are legitimate, and likely to materialize into reality for people that go for divorce litigation.
Divorce through the court system is usually an emotionally-sapping experience with fights, feuds, and bitterness being the norm in such situations. This means that even if litigation doesn’t break you financially, chances are you’ll end up emotionally broke. Orange County divorce mediation, on the other hand, is a much more cost effective and predictable alternative to litigation. Divorce mediation is a process that warrants the couples to sit down and disclose their assets, debts, incomes, and other sources of expenses to their Orange County divorce mediator. Once that is done, the couple can then sit down and talk about the best solutions to the issues at hand and to make sure they are able to agree on things mutually.
When it comes to assets and the financial aspects of divorce, divorce mediation can have an important role to play. The role of the mediator will be to encourage the spouses to have a healthy discussion about the financial aspects in a relationship. The role of the mediator doesn’t end there. More often than not, mediators will also give the clients legal advice with respect to the rules that can govern assets. This choice, however, will be left to clients and not to the mediator or the judge as is the case in litigation.
Asset distribution is an extremely important aspect in mediation agreements. Divorce, as mentioned in the first paragraph, is heavily dependent on the financial well-being of a person. This is why proper asset distribution, where each party is satisfied, is extremely important. The role of mediation in asset distribution is particularly important. The primary reason for this is the flexibility that mediation affords. Then lack of set rules to decide cases and the customized solutions for each couple allows for asset separation agreements that could never be possible in a divorce litigated in court.
To learn more about the divorce process in California and how mediation can help, please visit our page, “What is Divorce Mediation.”
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.
The process of divorce is not only the separation of two individuals but it also contains the separation of a whole host of other things such as children, assets, properties, and also businesses. What if you have a business that belongs to you and your partner? Rest assured that your divorce is going to have an effect on your partner as well as your business. At this point in time, if you have a carefully crafted prenuptial agreement, you are likely to have matters in black and white. However, if you don’t have a prenuptial agreement, your Orange County divorce in terms of your business can get complicated.
This is where divorce mediation comes in. Mediation can alleviate a whole host of risks that are likely to be involved in the handling and potential division of a community property business.
Situations of Complication
Before we outline the benefits that mediation is going to provide you. Let’s take a look at situations where complications can occur in a business due to divorce:
When both of the spouses have been involved in the operation and the owning of the business during the time the marriage lasted.
When one spouse has been the owner and operator of the business while both the spouses have been married to each other.
When one of the spouses has inherited the business or has been operating and owning the business before the marriage and does so during the marriage (this is only applicable to case complications if there has been a change in the value of the business).
In situations where there is no need for spousal and child support to be paid, instead there needs to only be finding out of the self employed spouse’s income.
The Mediation Solution
There are lots of things that divorce mediation can do to make divorce transition easy for you, your business, and your business partner. A few examples of it are:
The use of mediation will make sure you have to ample time to spare and spend in the running of your business. The flexibility of divorce mediation allows you to manage your business and mediation side by side with neither overlapping the other.
There is nothing that can hurt you and yours more than emotional distress. The best business decisions are done with a clear head. Divorce mediation is a conversational process to a divorce allowing for amicable relations between the former spouses to prosper and a healthy understanding to develop.
The lower costs of divorce mediation are also an advantage to lessen the complications to a business that might occur from it. Litigation is likely to cost a considerable amount of money, and unless you have unlimited resources in your business, that decision may ultimately hurt your business. The best way to avoid it is by pursuing divorce mediation services.
To learn more about the divorce process in California and how mediation can help, please visit our page, “What is Divorce Mediation.”
Building a relationship based on love and trust is one of the hardest, most arduous tasks in the world, yet it is the breaking of the bond of marriage i.e. a divorce, which can be even tougher. Divorce is one of the last options that couples can turn to when they can no longer save their relationship. The process of divorce, however, in most cases, is likely to take a bit of time with the process going on for weeks or even months in the Orange County family law courts.
In the time between filing a divorce and the decision of the divorce coming, the dealings in between spouses can tend to be ones that have an increasing level of discomfort and uneasiness between the spouses. A situation like that is particularly compounded when through the process of getting an Orange County divorce; the spouses live in the same house.
Thus there are often question asked in this regard by annoyed spouses who can no longer tolerate the presence of the other spouse. They ask whether they can kick their spouses out of the house. That is easier said than done, because in the absence of domestic violence, the court will generally not kick out the other spouse where the parties both own the home.
Here is a lowdown on the answer to that question in a bit more detail:
How to Kick the Spouse Out on Emergency Basis?
To be able to get a good measure of how this is possible, we need to take a look at what the law says in this regard. According to the California Family Code Section 6321, the court can issues and ex parte order that will allow them to exclude a party from a dwelling irrespective of who owns the property as long as the person who has care and custody of the child is being protected by this order.
For such an exclusion to happen though, the court needs to be shown either of the three things to make sure the other spouse is excluded. These three things are:
The proof that the property making the claim to oust the other party from the dwelling under the law has the right to possession of the premises.
The proof that the party that is being asked to be excluded has threatened or assaulted any other party, or child, with either of the parties.
The proof that the presence of this party is likely to result in emotional, mental, or physical harm.
How to Kick the Spouse Out on a Non-Emergency Basis?
The availability of the process to kick the spouse out of the house is not only limited to emergency situations. In non-emergency situations, the process is similar to the one in emergency situations only that in normal situations a threat of violence, mental, physical, or emotional damage still needs to be proven to the judge.
To learn more about the divorce process in California and how mediation can help, please visit our page, “What is Divorce Mediation.”
Marital settlement agreement is a contract signed by both parties, agreeing on the terms and conditions decided by them during the divorce mediation process. The contract is then made part of the dissolution of marriage order and has the same impact as a judge would have if he or she had decided on who gets what in court.
If the contract is just, both divorcing parties will be content with what they agreed upon during the mediation sessions. However, in the case of a family court, the judge may view the agreement to make a ruling on the fairness of the agreement drawn up.
Normally, the agreement is final, which is a relief for both parties, as the conflicts were put to rest during the divorce mediation sessions. In some cases, the partners may require the assistance of a lawyer if the combined assets are high in value or if minor children are involved. If you’re not facing any such issue, you won’t need a lawyer to assist you negotiate the terms and conditions of the contract and through divorce mediation, you’ll be able to take care of all the major aspects of the divorce.
What Does a Marital Settlement Agreement Contain?
Marital settlement agreement contains important categories that will have a profound effect on your life after the divorce is finalized. The divorce mediator will go over one category at a time during the several sessions that you will have with him or her.
The discussion will be about various issues that need to be sorted out before anything is signed. Some of the issues that are discussed include the division of property, division of debts, alimony, visitation rights, child support, and child custody.
These issues during a litigation proceedings can take days to decide, but not during divorce mediation sessions. The reason for this is that both parties enter the mediation session with a cool head and on the basis of creating an understanding between the two instead of adding more fire to the fuel. Here is a list of issues discussed in the meetings:
Minor Children– Who gets the children, visitations days and time, and other issues are discussed.
Alimony– This depends on the laws of the state you filed for divorce in.
Division of Assets– Personal property such as money, stocks, bank accounts, bonds, life insurance policies, retirement accounts, furniture, clothing, cars, and other assets are discussed. Next, on the list to be discussed is real property such as the house or any stores that you own.
Debts– Both of your debts will be discussed in detail, and then will be divided amongst the both of you. However, the debt must be applicable to you and if you were responsible for it, you should take ownership for it to minimize conflict.
After all of these points are covered in detail, the partners will decide what they want to do and draft the marital settlement agreement.
To learn more about the divorce process in California and how mediation can help, please visit our page, “What is Divorce Mediation.”
How do you know when it’s finally over between the two of you? Taking off your wedding ring is an obvious sign that you’re no longer interested in working on the marriage. So, do you bury it in your closet or sell it? Burying it in the closet will not help you move on, but selling it will give you some composure.
Your wedding ring can be included as part of the divorce proceedings. The fate of the wedding ring will be in the hands of the judge, not you. Well, that is somewhat unfair, as you should be the one to decide the fate of your property, from the house down to the wedding ring. Do you know what?
We agree with you! You should have a say, as it’s your future that’s being decided here. Divorce litigation will be unfair to both of you, and not to mention brutal, if the judge decides to award your wedding ring to your partner. If both of you come to a mutual understanding and decide to go with divorce mediation, your views and opinions will be heard.
How Divorce Mediation Works in Your Favor
Divorce mediation requires your partner and you to be upfront with each other regarding all the financial documents such as pending debts, income, retirement, assets, and property, including the wedding ring. During divorce mediation, you can raise questions regarding the validity of the financial documents presented before you that is if you suspect your partner isn’t disclosing something he or she should.
After everything is out in the open and you don’t suspect foul play, you can raise the question about the future of the wedding ring. Since your partner and you understand the sentimental value behind a small piece of jewelry, you will be better suited to make a decision regarding its fate.
Even though selling the wedding ring is the most chosen option, people have opted to keep the wedding ring to turn it into something new or pass it down to their daughter or son, if they have children. Sometimes, the partners don’t mind their ex not sharing the profit of the ring with them, if they decide to sell it. Therefore, divorce mediation tops the list of ways to obtain a divorce on your own terms and conditions, without harboring any bad blood in the end of it.
To learn more about the divorce process in California and how mediation can help, please visit our page, “What is Divorce Mediation.”
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.
It is said that entrepreneurs have a high divorce rate. If this is true, it is because building a business can require years of dedication, effort and singular focus.
And this is one reason that anyone who owns a business should consider divorce mediation before litigated divorce.
As Crain’s Chicago Business noted in a recent article, divorce has taken down many businesses, and it is often because lawyers have more financial incentive to draw the process out and create more conflict than to swiftly and levelheadedly resolve all of the issues.
In the article, Steve Thorne, an accountant with Deloitte Tax, exhorts divorcing couples to work together on the financial and practical issues. For example, business valuations can be expensive, so Thorne advises that couples agree on a single valuation company and divide the cost rather than paying for separate valuations (which can cost tens of thousands of dollars).
Many business owners think that mediation simply isn’t an option, because of the complexity of the financial and legal issues at hand. And it is true that for some issues, a lawyer will be necessary to draw up a particular legal agreement as it relates to the business.
But a trained divorce mediator, working in conjunction with accountants and other professionals, can create agreements between the divorcing spouses on all of the issues, so that the use of a lawyer can be targeted, limited, and cost effective.
Divorcing spouses who intend to continue running the business together can benefit greatly from mediation. A successful, low-drama mediation can be a cornerstone for the kind of collaboration that will be needed to work together on the business.
But perhaps the most important benefit of divorce mediation, when it comes to the health of the business itself, is that it resolves the divorce with less money and time spent. As Thorne indicates, litigated divorces can cost hundreds of thousands of dollars and take years to complete. That is a lot of time and money to take away from a business intended to support you and your loved ones for years to come.
To learn more about the divorce process in California and how mediation can help, please visit our page, “What is Divorce Mediation.”
Over the years, you and your partner acquired many things together, but now that you are in the midst of a divorce, it’s time to divide the assets. Deciding on who gets what is a difficult task to tackle successfully. Depending on the number of years you were married, dividing the assets can become an even more complex process. Where there is property, there will be disputes.
How to Avoid Angry Partners? Play Nice
Disputes over assets have been going on for years between divorcing parties. The outcome of fighting over assets isn’t a satisfactory one, as by the end of it, both are bitter, exhausted, and may not have gotten what they really wanted. Their lawyers probably fought ferociously to get their client the best deal, but one person’s lawyer was just a better arguer. So, is there a better way to handle the division of assets? Of course, there is.
Both of you can sit together and make a list of all the assets in a good-natured way. Usually, partners use their attorneys to send the other partner a message, but that only makes things worse and may even delay the process. Instead, coming up with an agreement together will help speed up the divorce proceedings. When both parties refuse to meet up alone then they should go for divorce mediation.
Hire a Divorce Mediator
When both partners refuse to see eye to eye, they may need a push in the right direction. They need the assistance of a divorce mediator to facilitate communication amongst them. Through divorce mediation, both parties will be able to come to an agreeable resolution regarding the distribution of assets. Later, they can take it to a divorce lawyer for a second opinion. However, if you choose litigation, the process of dividing assets such as house and car will differ.
Dividing a House and a Car
In many circumstances, judges can award the house to the partner who has primary custody of the kids. If children are not involved, dividing the house is a major issue which most couples solve between themselves or by putting it on the market. The next issue that arises is dividing the cars.
Regardless of who owns the vehicle, in a marriage they become marital property. The first thing that people look at is to figure out the car’s market value, which can be determined by Kelly Blue Book or other online car valuation websites. If you own a leased car, the car is more of a financial liability than an asset. In addition to dividing cars and the house, you need to divide household items.
Dividing Retirement Benefits and Co-Owned Family Business
Working people often don’t believe that their partner is entitled to their retirement benefits. However, this is a common misconception because just like with vehicle ownership, retirement benefits are community marital property. With joint businesses, a person can buy their partner’s share or provide them with financial compensation.
To learn more about the divorce process in California and how mediation can help, please visit our page, “What is Divorce Mediation.”
Under current Federal tax law, if you have lived in the same house for two of the last 5 years as your principal residence, individuals are exempt from capital gains taxes of up to $250,000 in taxable profits on the sale of your house, and $500,000 in taxable profits for married couples.
For any profits above these amounts, capital gains taxes are assessed of 20% would be assessed, which married couples would be equally liable for.
There are occasions where one of the spouses involved in a divorce wishes to “bifurcate marital status” while their divorce is pending, meaning that the Court can restore the parties to single persons while the rest of the dissolution case is still pending. For example, one of the spouses may wish to remarry, and they cannot legally do so without first terminating their marital status.
However, the parties must first determine the approximate amount that their residence has appreciated in value since they bought it, because if one spouse decides to keep the marital residence and marital status has previously been determined, that spouse would be considered a single person for purposes of state and Federal tax laws and thereby only be entitled to the $250,000 tax exemption instead of the $500,000 tax exemption. The tax implications are be substantial and should be considered in any settlement negotiations.
You should always consult with your tax professional before making any decisions in your divorce case.
To learn more about the divorce process in California and how mediation can help, please visit our page, “What is Divorce Mediation.”
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.
Under California law, most property and debts of the marriage will generally be characterized as either community property or separate property.
“Community Property” is all real property (i.e. real estate) or personal property that you and your spouse acquired through labor or skill during the marriage (i.e. from date of marriage to date of separation). Community Property means that each spouse has a one-half interest in such property, regardless of whether property is in only one of the spouses’ names or whether only one of the parties worked during the marriage.
In addition, debts incurred during the marriage are generally considered community obligations, even if the debt is in only one of the spouse’s names. There are some exceptions to this rule, such as student loans, which are considered the separate property debt of the spouse who incurred such student loans because they also get the benefit of the education obtained as a result of such student loans.
Pursuant to California law, Community Property assets and debts are generally divided equally between the parties. However, the parties can agree to a division of property that favors one spouse over the other.
It is highly advised that any marital debts be paid off from the proceeds of the property division so that both parties can start over with a “clean slate” and also so that there is no risk that the other party may default in paying a debt that they agreed to do in the divorce. However, this is not always an option in situations where the parties have more marital debts and obligations than assets.
“Separate Property” is property and debt acquired prior to marriage, property acquired and income earned after date of separation, and any gifts or inheritances received before, during or after marriage. Such property is not divided in the divorce because separate property is not marital property.
In addition, Family Code Section 2640 entitles the reimbursement of a spouse’s separate property contribution of the down payment made on a community property home and any improvements made to such community property home, if you can prove such payments with sufficient documentation.
Unfortunately, property division can become complicated in situations where separate property has become commingled (i.e. mixed) with community property, such as bank accounts. Moreover, there can be situations where one spouse contends that an asset is their separate property asset while the other claims that there was a “transmutation” of the character of the property from separate into community property. Such determinations can be complicated and you are best advised to seek legal advice to deal with those issues.
To learn more about the divorce process in California and how mediation can help, please visit our page, “What is Divorce Mediation.”
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 Assetsand 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.
To learn more about the divorce process in California and how mediation can help, please visit our page, “What is Divorce Mediation.”
Think of having a divorce, and automatically there is a fear that starts to set in. The fear of failure, and the fear of the unchartered waters. One of the first questions that come to one’s mind is about their assets. These fears are legitimate, and likely to materialize into reality for people that go for divorce litigation.
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. 
