Divorce is very common in the United States and has been categorized into two types mainly – no fault divorce and fault divorce. Each state has its own grounds of divorce depending on the type of divorce category the couple would fall into.
What is the meaning of grounds of divorce?
Grounds for divorce are the legitimate reasons for which a couple decides to separate and end their marriage. Each state government in the US specifies different circumstances under which a divorce would be granted to a person or a married couple. The person wishing to file for a divorce will have to prove their reason or reasons for wanting a divorce at the divorce trial which will be a date set by the family court. Before granting the divorce the court will ask the couple to live apart for some time and see a marriage counselor to try and resolve their issues and save their marriage.
Grounds for divorce in the U.S.
Grounds for divorce in the U.S. differ according to whether the divorce is classified as a fault or no-fault divorce. A no-fault divorce is one where neither party can be held accountable for the breakdown of the marriage and they want to separate mutually. A fault divorce is one where either one party acted with cruelty or ill-treated the other in which case the aggrieved party wants to file for a divorce.
Grounds for no-fault divorce
The following are the reasonable grounds acceptable in a no-fault divorce state such as California–
Irretrievable breakdown of the marriage – also known as irreconcilable differences, this is when the couple mutually agree that they do not wish to continue with the marriage due to major differences or incompatibilities between each other.
Living separately – a couple that is already living separately can file for a divorce under no fault divorce.
State acceptance – if, after hearing both parties, the state feels that it is better in the interest of both parties to get divorced it will grant the divorce accordingly.
Grounds for a “fault” divorce
The following are the reasonable grounds acceptable in a “fault” divorce state–
Adultery – when either party is guilty of being unfaithful or committing adultery the aggrieved or innocent party can file for a divorce. However, the party filing for a divorce must prove beyond doubt the adultery committed by the other party.
Cruelty – mental, physical and emotional abuse inflicted by one party on the other must be proved by the hurt or aggrieved party. Any form of physical and verbal abuse, beating, affairs, torture, etc. would qualify as cruelty.
Other grounds – abandonment or desertion, mental illness, criminal conviction, impotency, change of religion, impotency, infertility and change of sexuality are some other grounds for a fault divorce.
To learn more about the specifics about the divorce process in California and how mediation can help, please visit our page, What is Divorce Mediation.
Mediation is a way of resolving any issues or disputes that may arise between the couple, and is handled by a third party member, who can listen to both the people involved, and come to a conclusive decision. It is an effective way of managing divorce settlements, because everyone present can give their own inputs, talk about the own requirements and come to a negotiation. The husband and wife can take control over the matters themselves, and decide what would be best for them and their family, with the help of the mediator. In divorce litigation, there’s no single person overseeing the discussion. Both the husband and the wife need to hire their own attorneys who argue their cases.
The major difference
While a mediator isn’t representing either parties, and is acting as a neutral third person who has the husband’s and also the wife’s interests in mind, a divorce attorney cannot represent them both. He can be hired by either one of them, while the other hires their own divorce attorney to argue their case.
Legal expertise of a lawyer can be helpful even when the husband and wife are agreeing in most cases and have a fairly good idea of how they want the proceedings to go. This is because sometimes, in cases where the assets that need to be divided are too large, only an expert with proper financial knowledge can help in doing so. A lawyer is usually hired when the parties are conflicting, because in that case, they need someone who can help them in appealing their case and trying to direct the divorce in their favor. Custody battles are one of those issues, where both parents are likely to want to keep their children with them. This is where the lawyer can come in and try to prove why his client is better suited for taking care of the kids.
Amicable divorce
When the divorce is amicable, and the parties involved see eye-to-eye, then hiring a mediator can be the wiser decision. They are good at coming up with solutions for any issues that might come up during planning of the divorce. Also, hiring a mediator is a lot less expensive than hiring a lawyer, and usually the husband and wife share the fee.
The husband and wife can still hire their own individual attorneys, after having consulted a mediator, for additional advice and his expertise.
To learn more about the divorce process in California and how mediation can help, please visit our page, What is Divorce Mediation.
When a couple that intends to get married is allowed to forgo a traditional wedding and marriage license and still acknowledge their status as a married couple, this practice is known as the common law marriage. The purpose of this article is simply to explain what common law marriages are because some people have heard of it but don’t entirely understand the concept.
No formal registration is required in this form of marriage, and only a few jurisdictions allow it. California is one of those jurisdictions that does NOT recognize common law marriages. Couples in a common law marriage have the same rights as those who got married in a ceremony with legal licenses. They follow the same rules and have equal obligations as any other married couple.
When does a marriage become common law?
In order for a marriage to be regarded as common law, the partners involved must behave as a married couple. Simply cohabiting for a long duration will not constitute a common law marriage. If they live together for a long duration, share their last names, have children, refer to each other as their spouse, file joint tax returns, hold joint bank accounts or credit cards etc. then in the jurisdictions that allow it, their marriage will be considered as common law, and thus legal. Both partners must be of legal age and also of sound mind. They must also not be married to someone else, because in that case this marriage would be considered null and void.
Are common law marriages recognized outside of the jurisdictions that allow them?
Even though most states may not allow a couple to enter into a common law marriage and only recognize traditionally married couples, if a couple in a common law marriage moves to these states from a different one where it is allowed, then the marriage will be recognized. This is because when the couple entered the common law, they were still in a jurisdiction that considers it valid.
How can partners involved in a common law marriage be separated?
Even if the marriage was common law, once a couple has entered into it, they need to follow the same procedures to obtain a divorce as do other traditionally married couples. So a common law marriage is easy to get into but getting out of one is not as simple.
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.
Divorce isn’t the only part of family law. It includes laws of custody, domestic partnerships, stepparent adoptions and many other things one ought to know about. Here we’ll take a look at some of the matters that are included in family law.
Prenuptial and postnuptial agreements
Sometimes when a couple decides to get married, they sign a contract stating the terms of what should happen if the marriage ends in a divorce. This is usually done to protect certain assets of the parties. These agreements are used when either party brings a large amount of wealth into the marriage and wants to ensure its security. Usually, people getting married for the second time make use of this contract in case things end up badly again.
A postnuptial agreement or a post-nup on the other hand, is signed after the couple has gotten married. It is similar to a pre-nup because it too helps in protecting both parties’ wealth and assets. Couples who have been separated for a while but get back together usually opt to sign a post-nup to ensure security.
Stepparent Adoption
The parental rights of one of a child’s birth parents are terminated by consent or court ruling, paving the way for a stepparent adoption to become a legal parent of that child. A stepparent adoption decree is then issued to the adoptees by the court, finalizing their legal right to parent the child.
The ending of parental rights can either be voluntary or involuntary. If the parent agrees to his child being adopted, he waives his parental rights concerning that child but also is no longer responsible for supporting that child in the future.
Gestational carrier (surrogacy) contracts
Gestational surrogacy is an agreement in which a woman carries a baby for someone else who becomes the baby’s parent after his birth. The arrangement is made between the intended parents and the carrier and her partner. The contract carries details of the intended parents’ rights and about all custody matters. The contract also includes matters of financial compensation for the carrier and about the medical bills during this period, and their payment. This area of family law is controversial and the number of family law attorneys versed in this area is very limited, so finding one to assist you requires substantial research and vetting to locate someone qualified to handle such proceedings.
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.
Temporary restraining orders are well-documented and those in need move heaven and earth to make sure they get them to protect themselves and their children from potentially abusive situations involving their estranged spouse during a divorce. However, there are also other restraining orders applied to both partners, in some states, as part of the normal process even in the absence of any abuse or violence.
What is an automatic restraining order?
This kind of restraining order is one that comes automatically into force once divorce papers are filed and served to the other partner. The scope of this kind of order limits certain types of actions from being taken after the divorce is initiated and is prevalent in some states and doesn’t exist at all in others.
Automatic restraining orders apply to everyone
The terms apply to both the spouses, regardless of which of them filed for the divorce, provided they are in a state that has the system of applying these restraining orders automatically to all divorces.
Specifically, such restraining orders relate to things like putting liens against marital property, modifying insurance beneficiaries, sale of property, as well as withdrawal of funds from bank accounts.
How Automatic restraining orders impact child custody
If there are children involved, then the scope of the order also typically covers the process to be followed if a child is to be taken out of state during the divorce process – usually requiring the written consent of the other parent. This is done to prevent foul play or one parent taking the child away during the interim to potentially build a stronger case for their need to get full custody once the divorce is final. This way, a child still has access to both parents and the flight risk is also minimized.
Modifying an automatic restraining order
Even if you are in a state that has an automatic restraining order you can approach the court to make a change if needed, depending on the situation. For instance, if there is a dire need to make the sale of marital property in the interim for either or both of the spouses to eke out a living, or if one parent is unable to get hold of the other to sign off on approval to take the child out of state, the court can intervene and override the automatic restraining order.
Temporary restraining orders or permanent?
It is important to note that automatic restraining orders cease to be valid once the divorce is finalized. If some aspects of the restraining order need to be carried forward after the divorce, these will need to be explicitly mentioned in the final divorce agreement. Because automatic restraining orders are linked to certain stages of the divorce process, they end when the divorce ends. In that sense, they are not unlike a temporary restraining order. Just remember to be sure you have all your bases covered when the divorce does finally come through.
To learn more about the divorce process in California and how mediation can help, please visit our page, “What is Divorce Mediation.”
As divorce is almost always a messy situation, it is always prudent to ensure that there is enough professional help that you seek while going through the agonizing process. Divorce litigation is the process of taking divorce settlement matters to court. This is in case there is no settlement that is reached outside of court. If divorce mediators are unable to resolve certain issues, the case could proceed to court, although it is always better to find common ground and settle disputes outside of the court. However, if it is simply not possible, here are some steps to expedite the process.
Divorce petition
If a divorce petition must be filed, it must be done so by you or your spouse in the resident county of you or your spouse. The additional stipulation is to also have a minimum of six months of residency. There must be a domicile certificate that indicates that the plaintiffs are both residents and citizens of the area. A temporary restraining order could be filed if either of the party is not consenting with the general decorum and rules of consent.
Serving the petition
When a divorce petition is filed, it must also be served with due notice to the other party. If a petition is not acknowledged, and is not provided with enough notice period, it could be a null and void agreement. The reception must also be served with a witness for the notice. The minimum notice period for any petition may vary from region to region depending upon the state laws and regulations.
Temporary orders
After the petition is served and delivered, either parties may have a certain set of restraining demands allowing or disallowing the other party from certain privileges. This order is of temporary nature until the dispute is finally settled in court.
Discovery
Once the basic foundation is in place, it is important that both parties know their best interests and file for the pre-requisite documentation that will come in useful during the court case.
Divorce mediation
Even though an official petition is filed, the law allows both parties to try to work out situations amicably by finding common ground and reasonable settlements. This could be considered to be one last chance to settle matters out of court.
To learn more about the divorce process in California and how mediation can help, please visit our page, “What is Divorce Mediation.”
Are you contemplating a divorce? However, are you worried about the financial implications that come along with it? If the answer to these two questions are yes, then you might as well consider a legal separation. However, you might not be aware about what a legal separation is all about. So, here are a few broad guidelines based on which you would not only be able to decipher the differences between the two, you would also be able to take the best decision for yourself.
Whereas a divorce ends the arrangement of marriage between parties, the parties still remain married under the provisions of a legal separation. In clear and concise terms, a legal separation is orchestrated under a definite order of the court under which the responsibilities and rights of the couple are dictated while they are still legally married but living separately.
While, the parties can remarry following a divorce, remarriage is not an option when the parties are legally separated. Legal separations haven’t become too common yet. The provision could be substantially helpful if the couple decide to take a hiatus before they formally decide to annul their marriage. It is important to understand that legal separation also necessitates court proceedings and the court, akin to divorce proceedings, makes a decision on the following factors:
The maintenance for separation: The court decides on the support required for the spouse and children, if applicable. However, the terminology might at times be different in order to differentiate it from that of a divorce. The requisite documents for getting separation maintenance are filed in the court by a legal practitioner through a process known as ‘motion pending litigation’. This decision affects the outcome of any divorce petition that might follow the legal separation.
The decision for awarding the custody of the child.
The provisions for visitation of the child.
The provisions for dividing the property.
The decision to divide the property is taken by the court based on the financial situation of the partners and how the partners are related to the property.
The agreement to get a separation could play an instrumental role in safeguarding your interests till the point a decision is taken to file for a formal divorce. An increasing number of couples are resorting to legal separation as a viable option against a divorce.
To learn more about the divorce process in California and how mediation can help, please visit our page, “What is Divorce Mediation.”
Same-sex marriages like hetero-sexual marriage have the potential to head for a divorce. The divorce laws differ from state to state and the laws in the State of California is much more relaxed. In California, you don’t have to give reasons for a divorce. If you feel you need a divorce from your partner you can get one without showing any proof of why you need one. In California, it is all about giving a chance to both you and your partner to lead separate lives.
Like in any other marriage, same-sex marriages also have certain considerations. If you and your partner are heading for one, read through the following points to gain a better understanding of things you need to consider.
Dissolving domestic partnerships
In California, domestic partnerships are viewed as marriages. If you plan to divorce your partner, you must end your domestic partnership as well. Only after you have done this will the state declare you single and eligible for re-marriage. This is one important difference between a hetero-sexual marriage and a same-sex marriage.
Residency requirements
If you and your partner are getting a divorce in California but belong from a different state, then there’s lot to cheer about. In California, you don’t need to be a resident of the state to get a divorce. In other states, usually, you need to provide residency proof of at least 6 months before you can head for a divorce.
Custody rights
Custody rights are a big issue in America. The U.S. Justice Department take it very seriously and same-sex couples face the same issue. If you can resolve the issue amicably with your partner, then things become much easier. But if you can’t then the state courts will take weigh every information about the child and then come to a conclusion. Custody battles can be tough and it’s one of the reasons why divorces become difficult.
Dividing assets
Assets are divided based on who owns what. Most times, this can be difficult due t the length of marriage. Again, if you and your partner can decide on which asset belongs to whom, it becomes easy. But in case you can’t decide then the court looks at the duration of marriage and then comes to a conclusion. But mind you, Marriage and living together is not the same thing. It all depends on how the court views your marriage.
To learn more about the divorce process in California and how mediation can help, please visit our page, What is Divorce Mediation.
A divorce itself can be a complex and tight affair. Add retirement plans to your already complex divorce and you have lots of things to deal with. There is a term used in divorce cases known as deferred compensation. This is a word used to refer to 401K plans, pension plans and other assets of retirement. There are a number of ways that these plans can be made divisible regardless of them being one party or the other in a settlement agreement.
Their division usually depends on the nature and the value of the asset. Here is a list of a few common retirement asset types.
· Saving Plans
These are plans such as the ESOPs, 401k plans, Thrift saving plans, IRAs etc.
· Defined Contribution Plans
A define contribution plan is different to a savings plan. The value of this plan is determined with respect to the contributions that are made to this plan over the course. The money invested in such plans can be invested and can grow.
· Defined Benefit Plans
A defined benefit plan is one plan that compensates the spouse once they have retired to the date when their life time ends. This is usually done through a monthly payment every month for the rest of their lives.
Dividing Saving Plans
Saving plans are considered cash plan and hence can be divided as part of a divorce between two spouses. They can be liquidated, but before the liquidation happens, it is important that the accounts custodian is given a certified copy that has the court order clearly written down on it. The IRA proceeds can either be directly paid to the spouses or they may be used to make two separate IRA accounts for both the spouses. This could however result in a loss of the 30% for taxes as a penalty for early withdrawal.
Dividing Defined Contribution Plans
Before defined contribution plans can be divided because of a divorce between two spouses, they’ll need to be valued. Their valuation is carried out by multiplying the vesting percentage to the balance of the account. Generally when such plans are divided each spouse gets one half of the vested current value of the plan.
Diving Defined Benefit Plans
The workings of a defined benefits plan are different to the above mentioned retirement plans. In such plans the benefits of the participants will not be liquidated before the retirement age of the owner spouse is reached. Once the age is reached the participant spouse will receive her retirement plan in her name with respect to the marital interest they have in the participant’s plan. This plane given to the spouse will also have the same terms and conditions as the original retirement plan has.
To learn more about the divorce process in California and how mediation can help, please visit our page, “What is Divorce Mediation.”
A common phrase used by couples going through a divorce is to get “justice and what they are legally entitled to.” Often times, couples, wives and husbands who have had bitterness in the ending of the marriage look at the courts as their only savior. These couples look at Orange County divorce mediation as a compromise.
What most of these couples are unable to realize is that justice in a case can only be reached through detailed examination of the facts of the case and the application of the law that applies to it. Do you think the judges in a court case have that kind of time? Here is a lowdown of the reality of the family law court system.
· Thousands Of Cases
Typically a family law judge will have hundreds or thousands of cases assigned to them. Typically per day he or she is likely to hear around 15 to 20 cases. A court morning starts at 8:30am and has a break for lunch from 12pm-at 1:30pm. Once the break is over, the court’s day ends at around 4 30pm. All this adds up to around 6 1/2 hours of court time per day, which the court’s attention having to be divided by up to 20 cases during that time.
· No Prior Homework
Some judges will not have read your case file until the day before your case starts or right in the morning of the day your case begins. Detailed reading of the case requires time with motions, exhibits and moving papers, each taking considerable time. Consider the time he or she has per case, now do you think they can be fully knowledgeable about the detailed circumstances of your situation?
· Finish It In The Set Time Or Else
Depending on your luck, you may get a full day’s hearing in front of the judge. Yet you need to make sure that your lawyer is able to close the case in the time they estimated to the court at the start of the case. If you exceed the time limit set of the case, the judge may order a mistrial or have to schedule a new court date that could delay your case for a few months.
How Divorce Mediation Compares
You and your spouse dictate the pace of the Mediation process
There is no limit of time you can spend in your Orange County divorce mediation. Your mediation can either be one session or multiple sessions, whatever the parties wish.
The ample time and use of personal mediators means you are never pressed for time and the mediator makes it a duty to be well-versed in your case and know the situation in and out.
Unlike the courts, you and your spouse are the decision authority. You can choose to end the process by agreeing on a solution between you and your spouse.
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.
Divorce is very common in the United States and has been categorized into two types mainly – no fault divorce and fault divorce. Each state has its own grounds of divorce depending on the type of divorce category the couple would fall into.
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. 
