What Happens To Family-Owned Businesses In A Divorce?

Posted by: Gerald A. Maggio, Esq.

divorce mediation orange county; California Divorce MediatorsDividing family owned businesses can be very tough if you and your spouse are not on the same page. And by being of the same page it means understanding how importance the family owned business is. You might be the owner of a business that was passed down to you by your family and suddenly your divorce splits it into two. Your partner may not be interested in the business but despite that gets a half of the business. It can be very disappointing.

Businesses can be viewed as property

During a divorce, businesses are viewed as properties. Two important factors that play a major role in determining this are classification and worth of your business. Your business can be classified as either a community property or a separate property or even both. How much your business is worth depends on the amount of money generated by your business and the net worth of your business.

Equal division of business

If you own a business then you know how much time, effort, and money you have spent to establish your business. Now, imagine if everything that you built were divided in half and one half was given to your wife? Heart-breaking, isn’t it? Well in California this is exactly what happens to your property during a divorce. California, being a community property states, require that every property belonging to the marital “community” be divided in half. This includes family owned businesses as well.

The best solution to save your business from splitting in two would be signing a prenuptial agreement or some other exit strategy cleverly developed by an experienced lawyer. Another option would be to work with your partner in the same business. Both solutions are tough because you need an amicable relationship with your spouse and if you have that why would you be heading towards a divorce then?

Protecting the business

The first way to protect your business is to talk with your partner and agree on some mutual understanding. While talking, you need to keep your personal squabble out of it.

You must get your business valued if you are getting a divorce. If you both are joint owners, doing this is not a problem but if you’re not then things can get complicated.

If you both work in the same business, you can expect both of your roles and responsibilities to change. This reduces conflict of ideas and save the business from utter devastation.

To learn more about the divorce process in California and how mediation can help, please visit our page, What is Divorce Mediation

Custody Issues for Military Personnel in Divorce Cases

Posted by: Gerald A. Maggio, Esq.

Orange County child custody attorneys: California Divorce MediatorsChild custody can be a big issue if you are in the military. Deployments and relocations are frequent and when you’re constantly on the move, it becomes obvious that you cannot spent time with your children. It leads to custody battles and you may have to temporarily give up your custody. Military parents have faced this issue for a long time now and the State of California have developed laws that help such parents.

Making a family care plan

Making a family care plan is very important in divorce cases involving children. If you know someone who is in the military or if yourselves are in the military, then you know the importance of a family plan. A family care plan creates a set of guidelines to take care of your children. It describes the care provider and the roles he/she needs to play. It includes food, education, healthcare, clothing and other emotional support that will be provided to your children during your absence. It also includes short-term and long-term custody and the name of the person(s) who will provide it.

Another important aspect of creating a family care plan is keeping things transparent between you, your children, and the court.

Custody issues during relocation

Child custody is not a subject of federal laws but depends on state laws. Every state has their own set of laws to answer child custody issues. When you get deported or relocated, courts make decision based on these laws. In California, before you leave you must show the amount of support you can provide for your children. The family care plan plays an important role because you are already prepared. In case you fail to provide any proof, your leave might get delayed.

In case your relocation is not pre-planned then the court might take it into consideration and modify the court order.

Senate Bill 1082

The Senate Bill 1082 was passed in 2005 by then Governor, Arnold Schwarzenegger. The Bill was passed to ensure that parents who serve in the military are protected from child custody battles. It provides certain benefits and helps children of military personnel from legal problems.

This Bill was one of the first solutions provided to military parents who otherwise face huge problems. If you are in the military you are entitled to such protects.

To learn more about the divorce process in California and how mediation can help, please visit our page, What is Divorce Mediation

Understanding The California Child Support Laws

Posted by: Gerald A. Maggio, Esq.

Top Orange County divorce mediators; California divorce mediatorsSection 4053 of the California Family Code lays down the intent and purpose of laws related to child support. These laws have evolved over the years to suit the needs of the time. Section 4053 of the Family Code has enabled fast resolving of child support cases and has also determined the calculation of support payments.

Scope of the law

The child support laws have been framed keeping in mind the best interests of the child involved in a child support case. The basic intentions of the child support laws are as follows –

  • It wants to remind the court and the parents that it is an obligation required by the law for the parents to support their child.
  • The most important role of the child support laws is to ensure that conflicts between the parents are minimized and litigations are reduced so that the child does not have to unnecessarily suffer because of his or her parents’ egos and differences of opinion.
  • A child should have the same standard of living as the parents.
  • The ability of the parents to support the child is taken into consideration. Both the parents are equally obligated to care for their child. Their income and time should be devoted reasonably to be look after the child.
  • The custodial parent’s standard of living can be improved by receiving child support which is also meant to improve the standard of living of the child.
  • It is wrong to presume that the parent who is the sole custodian of the child already has used enough of his or her resources to support the child. That is to say, the parent paying child support has the right to request the court to modify support payments.
  • Child support orders in California are generous because the city is quite expensive to live in.

California child support cases sometimes get delayed for a number of reasons. Parents sometimes withhold valuable information about their income hoping they will either receive more or have to pay less child support. Sometimes parents don’t show any interest in their child.

To learn more about child support and the divorce process in California and how mediation can help, please visit our page, What is Divorce Mediation

How Are Alimony Payments Affected by Bankruptcy?

Posted by: Gerald A. Maggio, Esq.

Orange County divorce mediator; California Divorce MediatorsWhat is bankruptcy?

Bankruptcy can put a person in a huge financial predicament and occurs when that person has not been spending his money wisely and his expenditure has exceeded his income. Bankruptcy disallows the person from making necessary or important payments, paying off creditors, getting loans from banks and has a lot of other negative impacts on a person’s financial situation.

If a couple is undergoing a divorce and one spouse is required to make alimony payments to the other spouse and that spouse has filed for bankruptcy, then it can be very difficult for him or her to make the alimony payments. If the spouse is bankrupt, he can use this as a tool to avoid or escape making spousal support payments.

Dischargeable and nondischargeable debts

Bankruptcy disallows a person from discharging his debts. There are certain bills, payments, and expenses that are completely avoidable when a person files for bankruptcy and these are specified in the laws in the state of California. But some debts are nondischargeable which means they cannot be avoided or eliminated just because the person is bankrupt. These include tax payments, loans taken and alimony.

Even though alimony or spousal support and child support are some of the payments that fall under the nondischargeable debt category there are two situations in which alimony payments would be exempted from this category and the spouse would be discharged from making these payments.

U.S. State laws regarding alimony and bankruptcy 

Section 523 of the U.S. Bankruptcy Code clarifies that persons or debtors cannot be discharged from making spousal or child support payments because of bankruptcy. It states that alimony payments are nondischargeable debts under the laws of federal bankruptcy, however, there are two exceptions to this rule –

Involvement of third parties 

If a third party becomes involved in the spousal support arrangements, then the alimony payments become dischargeable even though the spouse is declared bankrupt. If the spouse hands over the burden of alimony payments to a relative in his family, then he is discharged from making the alimony payments himself.

Incorrect divorce documents

When a couple gets divorced the court awards them a divorce decree. This document is one of the most important documents in a divorce and specifies the reasons for the divorce and the terms and conditions of alimony/child support payments. If for any reason there are some mistakes or errors made in the divorce decree with regard to the nature and type of alimony required to be paid, then the spouse who is required to make the payments can be discharged of those debts if he is bankrupt.

To learn more about the divorce process in California and how mediation can help, please visit our page, What is Divorce Mediation


Division of Debts in The State of California During a Divorce

Posted by: Gerald A. Maggio, Esq.

Orange-County-divorce-mediators; California Divorce MediatorsWhat are community debts and separate debts?

In the state of California debts between a couple are divided into two types – community debts and separate debts. Community debts are those debts that are accumulated by both parties to the marriage during the marriage until the date of separation. These debts are to be equally divided between both the parties even if only one spouse was responsible for incurring these debts. Separate debts are those debts that were incurred separately by the parties before the marriage or after separation and belong to the individual spouses who were responsible for incurring them.

Treatment of debts in California between a divorced couple

All debts in the state of California are to be treated as community debts as California is regarded as a “community property” state. This is of course unless the parties to the marriage had entered into a prenuptial agreement before the marriage regarding the division of assets and debts between them in the event that they decided to get divorced. If there is no prenup, then the court equally divides all debts between both spouses equally.

However, there is one exception to this rule and that is when the total value of the community debts exceeds the total value of the community assets jointly held between the two spouses. In this case, the court will order for a higher portion of the debts to be borne by the spouse who earns a higher income or who is in a better financial position to pay off these debts.

Importance of the date of separation

In the division of community debts in the state of California during a divorce, the date of separation of the couple is extremely important as only those debts that were incurred before the date of separation will be included in the community debts and all other debts incurred post the separation date will be assigned to the spouse who individually incurred them and the burden of paying those debts post-separation will not be borne or shared by both spouses.

Deciding the date of separation is sometimes a difficult task especially when the couple is in total disagreement with each other. Two tests can help confirm the actual and legal date of separation between a divorcing couple in the state of California:

  • The first test is to determine the date of physical separation between the spouse, that is the date on which they began living or sleeping separately or the date on which one of either spouse moved out of the house.
  • The second test is to determine when either spouse expressed their clear intention to end their marriage. This does not include a trial separation.

To learn more about the divorce process in California and how mediation can help, please visit our page, What is Divorce Mediation

How Does Having a Criminal Record Affect Child Custody During Divorce?

Posted by: Gerald A. Maggio, Esq.

Orange County divorce mediators; California Divorce MediatorsIf there are children involved in a divorce and there is a battle over which spouse gets custody of the child or children, then either spouse having a criminal past or record can lower or even completely eliminate their chances of getting joint/shared or sole custody of the child. Also, one spouse can use the past criminal record or history of the other spouse to eliminate their chances of child custody and even rights of visitation. This is permitted by state laws in California under certain legal provisions, hence it is vital that the spouse with the criminal past hire a professional divorce lawyer to help fight his/her case.

Best interests of the child

Section 3011 of the California Family Code deals with the best interest standard. This section basically deals with what the family or civil courts take into consideration while determining the terms of child custody. One of the main factors that the courts consider is what is in the best interest of the child. So if one spouse has been engaged in criminal activities or conduct in the past this would be a major detrimental factor to the courts while determining which spouse should get custody of the child. The family courts will consider the following factors while determining child custody:

  • Whether either spouse has had a history of domestic abuse or violence towards any child that he is related to by blood, or an adopted child or any other child that is under their care and supervision.
  • Whether the spouse has been violent with or has shown violent behavior towards the other spouse.
  • Whether the spouse has a history of alcohol abuse or any kind of substance abuse.
  • Whether the spouse has a history of criminal activities or malpractices or any kind of criminal conduct or behavior in the past.

The court will carefully consider all these factors while determining which spouse will be granted custody of the child. The above factors also help to determine what would be best for the child and the child’s best interests are always put first to ensure his safety, happiness and good future.

A past history of criminal conduct would include any felonies and misdemeanors that fall under any of the categories mentioned in section 3011 of the Family Code. Custody and visitation rights would be affected based on the type and severity of the offense, time elapsed since the commission of the offense and expungement of the offense. These offenses include sex and hate crimes, child abuse, etc. The more serious or violent the offense the higher the likelihood of the spouse losing all custody or visitation rights.

To learn more about the divorce process in California and how mediation can help, please visit our page, What is Divorce Mediation

What Is A Marital Settlement Agreement?

Posted by: Gerald A. Maggio, Esq.

Orange County divorce mediation attorneys; California Divorce MediatorsMSA stands for Marital Settlement Agreement. It marks the end of the negotiation process in a divorce case. The MSA substitutes ideas held by you for fair divorce for the one forced upon you by judge. Research has estimated that about 30 percent of all divorce cases come back to court. This happens as the correct thing is not done the first time around. A number of experts in law agree that a best agreement is one which is not necessary to be looked at. If an agreement is done right, the agreements work.

Successful MSA

Ensuring a successful MSA needs a few basic steps. You must find a third party who can be trusted. This party must also know the art of facilitating a negotiation. This role frequently falls to the mediator. However, if you want to make this process productive, it is important for you to know how the process works of negotiation works. The preparation should include the trying and identification of what matters the most in the larger scheme of things. This includes ensuring that the children do not get traumatized by the divorce, the matter of both spouses actively participating in raising children. It also includes one spouse wanting to know whether a secure financial future awaits and ensuring that both spouses remain as “friends”. You must have a complete knowledge of all rights and obligations enjoyed by you. This includes a part where the court has the discretion in making the orders.

You should carefully study the manner the children are cared for. Make all general, tentative and flexible plans for the future care of children. You can prepare by thoroughly identifying and then disclosing all debts and properties. Do take time to comprehend fully the present financial situation enjoyed by you. This includes both money flowing in and money flowing out. You should project the financial requirements when the divorce becomes final.

Important topics

In general, five particular topics come under discussion during the divorce mediation. They are then incorporated into the MSA. Such topics are frequently presented and then explained using P.E.A.C.E acronym: Parenting and Equitable Distribution followed by Alimony and Child Support. Last comes Everything Else. Do note that equitable distribution is a fair but may not be equal division of all assets, debts and marital property. The alimony is defined as money which is paid as fulfillment of duty to support a spouse post-divorce or separation.

To learn more about the divorce process in California and how mediation can help, please visit our page, What is Divorce Mediation

Going for A Collaborative Or Mediated Divorce

Posted by: Gerald A. Maggio, Esq.

divorce mediation attorneys Orange County; California Divorce MediatorsDivorce courts in California work under the same rules used to courts to tackle other disputes. It is seen  frequently that such courts are unable to function properly in solving disputes related to divorce. Collaborative or mediation law can turn out to be better in such cases.

Court alternatives

Divorce issues can be resolved by three ways. All of them are regarded as much superior to the court methods.

Work out solutions together

Both you and your partner or spouse may sit down and then reach agreements on how the possessions and debts be divided. You two should also decide whether you or your spouse will pay support to the other and the amount of money. In case you two have children, how they will be raised. To some couples, these can be easily solved and could be done in a single meeting. Many couples may find the proceedings difficult and may complete this task over a number of meetings.


In such a case, the couple meets with another neutral person. This third person is termed a mediator. This person will help the both of you through the complete process of reaching a particular agreement on possessions, child custody, debts and support.

Collaborative law

Both your spouse and you choose a specially trained attorney who is proficient in collaborative law. This divorce method is growing in popularity. This process is dependent on a pledge made in writing by both spouses where they reach the agreement on divorce terms without visiting a court. It will be agreed that in case either party disrupts the agreement, and moves towards a court proceeding, both the attorneys should withdraw from that case and the spouses should hire new lawyers to restart the process.

When court is the best option

There can be situations where these alternatives may not work. In such cases, taking the matter to court could be the only way out. This especially happens if there is a combative counsel. This involves one of the spouses to act upon directions dictated by an aggressive lawyer. The latter has in all probability convinced the client that collaborative law will not generate a good outcome- and judges are the best way forward. In case your spouse has such a lawyer, then prepare for expensive and unproductive days at court.

To learn more about the divorce process in California and how mediation can help, please visit our page, What is Divorce Mediation

Religion & The Issue of Child Custody

Posted by: Gerald A. Maggio, Esq.

Orange County child custody; California Divorce MediatorsIf the parents of a child are of different faiths, and they separate, there may not be agreement on the religion the child will follow. This is increasingly common as the number of interfaith marriages are on the rise. High divorce rate can also follow.

Child welfare

The courts when called to resolve disputes between divorced or separated parents disagreeing about matters that concern about religious upbringing of the children try to balance the competing concerns.  The courts will protect the First Amendment rights of the individual parent when it comes to freely choosing the preferred religion and also the right to raise a child as a parent sees fit. These can be followed as long the choices of parenting does not put in jeopardy the concerned child’s welfare. On the flip side, the courts, when taking decisions about visitation arrangements and custody, must protect the child’s best interests.

If the courts hear that one parent has complained about the religious activity of the other parent and that they are not in the child’s best interests, they have the hard task to decide whether it is needed to encroach on the First Amendment of the other parent and his or her parenting rights by the restriction of religious activities. In a number of cases, courts will take the child’s wishes into account. In one particular case, the Supreme Court in a state sent back a case to the trial court. They instructed the trial judge to accept evidence concerning opinions of the child-in this case, a 12 year old boy, about whether the latter should be circumcised. The parents have disagreed on this for a number of religious reasons. In normal cases, courts will consider views of any child over 12 years of age on issues concerning religion and also on issues of visitation or custody.

Law in custody cases and religion

As the Supreme Court in the United States has not yet made a decision in a case which involves custody or religious upbringing, no uniform national law exists. The law changes from one state to another. A majority of state courts will apply any of the three legal standards like substantial or actual harm, risk of harm or no harm needed. It must be remembered these decisions may not be followed by the courts locate in other states.

To learn more about the divorce process in California and how mediation can help, please visit our page, What is Divorce Mediation

The Correlation Between Child Support and Parenting Time

Posted by: Gerald A. Maggio, Esq.

Divorce mediators in Orange County; California Divorce MediatorsAs per child support laws in California, a direct correlation exists between visitation or parenting time and child support. Many lawyers consider it as a kind of double edged sword. A parent who enjoys more time with the child will have a more compelling requirement of child support. This is good in theory. In practicality, connecting child support and parenting time means giving parents with dubious motives the use of parenting time and custody as a kind of leverage in the child support scheme.

Termination of child support

There will be a termination of child support when that child becomes 18 years of age. There can be exceptions to this rule. This rule cannot be applied if the 18 year old continues to study in high school and lives with his or her parent. For this kind of situation, support of the child will terminate with him or her turning 19 years of age or the person being a high school graduate- whichever comes first. The laws in California also state that support of the child will also be terminated in case the child gets married or joins the military or is emancipated. Child support will also end if the recipient dies. Parents, however, may agree on continuing to provide child support even beyond that age if both of them agrees to do so. 

Guideline child support

In California, a computer program informs the judge what the child support will be. It must be mentioned that the correct information must be inputted into the program. The Family Court has no compulsion to follow the child support guideline of California. There must be a proper reason, however, to deviate from it. It is not permissible for the California Courts to simply fail when it comes to order the amount of child support as stated by the guideline for reasons not applicable by law. The reason for this is that the child support number as stated by the guideline is presumed to be correct. This presumption of being correct could be rebutted both up and down. It is required by the court to have the needed admissible evidence which shows that the formula for guideline will be inappropriate or unjust in that case. It is to be kept in mind that the person who wants the California court to deviate from guideline formula must be the one to plea the court that it is needed.

To learn more about the divorce process in California and how mediation can help, please visit our page, What is Divorce Mediation