Not all family law cases can be mediated and resolved amicably, particularly where domestic violence or child abuse is involved where emergency restraining orders may be necessary to obtain. Emergency restraining orders are granted only on certain instances such as a threat or an incidence of domestic violence or child abuse, child support and custody disputes, alimony requests and so on. The California Family Court, though, does not term everything under Family Law as an ‘emergency’.
Domestic Violence
If you have been a victim of domestic violence, you should ask your lawyer to file a domestic violence restraining order petition on your behalf and request for a restraining order against your spouse immediately. You will be granted a temporary emergency order till the time of the hearing on the domestic violence case.
During the hearing, you and any other witness will have to testify. Your lawyer will provide the court with documentary evidences. The court will then give a verdict that will either revoke the temporary emergency restraining order or will make it a permanent one. Most attorneys ask for a restraining order of 3 years. If there have been multiple instances of domestic violence, the court can increase it to 5 years.
If you are contesting a restraining order for domestic violence, you need to respond within 24 hours or less of receiving the notification. You will be barred from contacting and communicating with your spouse and children. You may also have to pay a support amount. You need to provide the court with evidences and testimonies from witnesses that prove you have not carried out the alleged act of domestic violence. You should declare your innocence under oath before the hearing.
Child abuse
An emergency restraining order for child abuse will immediately withdraw all visitation rights of the accused parent. Allegations of child abuse include instances of physical, sexual and extreme emotional abuse. Cases of emotional abuse are difficult to prove. Any parent filing a restraining order for child abuse should enlist the help of the local police and the child protective services.
If you are contesting a restraining order for child abuse, you must respond immediately and with great caution. You must gather witnesses for testimony. You must ask the court to appoint a forensic psychological evaluator and ask the alleging parent to depose.
To learn more about the divorce process in California and how mediation can help, please visit our page, What is Divorce Mediation.
In a majority of divorce cases, both the parties involved are caught up in a perpetual cycle of resentment and retaliation. Both partners are willing to go to extremes in trying to avenge the psychological damage a divorce brings to them. However, if a child is involved in a parental separation, the situation becomes even worse. In order to create a peaceful transition from a happy family to a single parent upbringing for your child, you need to ensure that the co-parenting is carried out amicably with the other parent. There are a few co-parenting guidelines which you may follow in order to achieve minimum stress for your child.
Understanding your divorce settlement
Most of the co-parenting issues stem from a misunderstanding of the divorce settlement, which often leads to skewed notions about how one needs to carry out co-parenting. Asking questions regarding the visitation arrangement and having a sound understanding of its instructions is critical to a smooth co parenting procedure. Fighting over who will take the kid out on Halloween or what is the duration of the visit will be highly detrimental to the mental well being of your child. Since separate states have separate laws for visitation and custody related settlements, you need to consult your attorney and obtain a thorough understanding of what your divorce decree entails.
Think practical
It is understandable that in a highly hostile situation such as a divorce, the parties involved find it extremely difficult and draining to fight back their overflowing emotions. However, if you really care about the best interests of your child, it is utmost essential to do away with all lies, manipulation and resentment that might fuel your battle further. While it might seem tempting to vent all your pent up anger at every chance you get, it is best advised to remove all extreme emotions from your communication with your spouse.
Prevent any outside influence
It is best to keep your new spouse or partner out of the co parenting process with your ex. Asking your new boyfriend to pick the kids up from a dance class, will do no good in subduing the hostility with your ex. A replacement for your ex might actually be viewed as a threat to them, and might provoke unsolicited arguments. It is best advised to keep your new involvements away from co-parenting, until both you and your ex are emotionally detached in an entirety.
It is only when both parties become indifferent of each other’s existence, that the co-parenting actually becomes peaceful. Although, till the time both parties get affected by each other’s actions, the process might require a lot of effort from both sides, yet it is definitely worth a shot.
To learn more about the divorce process in California and how mediation can help, please visit our page, What is Divorce Mediation.
Alimony is referred to as “Spousal Support” in California. When a divorce is under process, the court might require that the partner with the higher income has to pay the other partner a certain amount so that they can cope with their current lifestyle.
The duration of alimony
Spousal support is usually paid for a predetermined period of time. It could be spread over a period of time or paid in full during a one time payment. The duration of the support period usually depends on the length of the marriage. If the marriage has lasted over 10 years, then the court most probably will not set a specific termination date for the support to end and both partners can request modification or termination of support at later hearings. These days, judges don’t order permanent support even for long term marriages, although it is sometimes referred to as permanent support by attorneys.
How is spousal support calculated?
In California, the court can request for spousal support for any amount, after taking the needs of the other partner into consideration. The aim of spousal support is to maintain the financial status that was present during the marriage while also making the supported spouse independent. Certain courts have their own formulas for calculating the support amount. If the supported spouse has dependent children then child support will be in addition to the spousal support payments.
Before deciding the amount of the payments, courts usually take various factors into consideration. These include the dependent spouse’s current financial status, his/her ability to get and hold a job, the current job market, support required for the dependent spouse to get a vocational education or improve existing skills in order to get a stable job. Other factors like age, health and legal issues like domestic violence during the course of the marriage are also considered.
For periodical payments, the recipient is taxed for the payment while the sender can list it as tax-deductibles. Spouses can also have predetermined agreements to make sure that the tax scenario is beneficial for both parties.
Termination or Modification
If the spouses have a pre-written agreement not to modify the spousal support terms, then they are required to follow the terms. Otherwise, either partner can request for changes or termination of support. If either of the divorcees die or if the supported spouse gets remarried, then the spousal support will end.
To learn more about the divorce process in California and how mediation can help, please visit our page, What is Divorce Mediation.
A decision of divorcing your spouse does not really imply that it is all downhill from there forward. Although, a majority of the separating couples do not reconcile after they file a divorce lawsuit, in some cases it does happen. After filing for a divorce, a couple may realize that they might be making a wrong decision by parting ways. However, there are several concerns which border around the decision of reconciling after filing for divorce from your partner.
The legal ramifications
In the event that you decide upon a mutual reconciliation during the lawsuit proceedings of your divorce, you would need to consult your attorney regarding the steps to be taken to put a stop to the trial. Since the family laws are different for different states, it is important to understand the procedural ramifications of withdrawing a divorce petition in accordance with the specific laws of your state. Usually, a couple needs to pay a non-refundable initial filing fee for their divorce petition. However, if after stopping the divorce trial and reconciling, the couple again decides to separate, they would need to pay a fresh filing fee for their new petition.
Is reconciliation the thing for you?
Before deciding upon reconciliation, both the partners need to understand the implication of it. It is a mutual decision that requires genuine efforts from both the parties in nurturing their relationship with renewed vigor. In some cases, however, reconciliation is absolutely a big no. For divorces that stem out of mental abuse or domestic violence, reconciliation might be the worst option for your kids and even yourself.
Stay connected
If you see any rays of hope that might lead you to reconciliation with your partner, it is always advisable to maintain a good line of connection with them. Counseling is an option worth considering in your specific case. You may even want to ask your spouse to attend the counseling sessions with you. A professional counselor can actually help widen your viewpoint on divorces and reconciliations and might considerably guide you on the ‘how to’ of maintaining healthy relationships. If you think your case is not yet a lost cause and there is a little bit of hope for reconciling with your spouse, it is best advised to maintain a standard of civility when communicating with him/her. It is never too late to give your relationship a second chance.
To learn more about the divorce process in California and how mediation can help, please visit our page, What is Divorce Mediation.
Many people get confused between the terms ‘separation’ and ‘divorce’. In a divorce, the marriage has legally broken up and the married couple is separated. In a separation, the couple lives separately but they may or may not still be married. Separation is of different kinds.
The division of property and other assets depends on the kind of separation the couple has agreed on. Each state has its own rules regarding division of property. The various kinds of separation have been discussed here.
Trial separation – Couples living apart for a short period on a trial basis go through trial separation. It is during this period that they decide if they want to live separately on a permanent basis or not. Even if they decide not to start living together, their assets and debts from the trial period is considered as marital property. Such a separation is not recognized legally.
Living apart – Couples who do not live under the same roof anymore are living apart. Living apart (with no intention to get back together), in some states, changes the property rights of the couple. While some states will consider the assets and debts during the living apart period as separate, other states will consider the property as joint until a divorce has been legally filed in a court. Some states make it mandatory for couples to live separately for a certain period of time before they can file for a divorce.
Permanent separation – It is when the couple decides to separate permanently. A permanent separation may come after a trial separation or the couple may separate without any intention of reuniting. The assets or debts after a permanent separation are considered to be separate. But certain debts incurred may be considered as joint if they are related to expenditures for the children or for the maintenance of the marital home. A permanent separation may not be legal if nobody files for a legal separation.
Legal separation – It is somewhat like a divorce but not quite so. Many a times, couples do not want to divorce for financial, religious, or other reasons. But they approach a court to grant them a separation and divide their property as would be done in a divorce. The court also gives a ruling on alimony, child custody, child support, and visitation rights.
To learn more about the divorce process in California and how mediation can help, please visit our page, What is Divorce Mediation.
Divorce or a legal separation is the ultimate culmination of all your marital conflicts with your spouse. Sometimes, the process of separation itself can become a major cause for conflict, when both the parties have to agree upon a common settlement. In some of the cases, both the parties might resolve their property division and custody related issues peacefully, with mutual consent. On the other hand, some of the separating couples might end up in an extended litigation, fighting for their individual rights, to achieve maximum benefit for themselves. The third category, however, involves couples who agree upon an out of court settlement of their post separation rights, through the process of mediation, also referred to as mediated divorce.
What exactly is mediated divorce?
As the name suggests, the medidated divorce is an approach to negotiating the rights, of the divorced couple, with the help of a third party professional mediator. In this process, both the partners hire a neutral mediator who works together with the parties towards settling on an agreement favorable for both the parties involved.
The mediated process generally involves ‘three-way’ mediation sessions, of both the parties and the mediator meet and discuss the issues together and try to reach a settlement of their own accord. The mediated divorce process may also demand the additional involvement of other professionals, such as neutral accountants or child custody specialists, who would also assist the parties, mediator, and the parties’ attorneys, if they have one, in reaching an out of court settlement.
How mediated divorce is beneficial for the parties involved
Despite the fact that in due course, the couple has to get the legal separation or divorce mandated by a court, the mediated process can considerably shorten the length of the court proceedings. Through divorce mediation, the couple can reach mutually agreed upon out of court settlements for post- divorce rights. Additionally, the mediated divorce enables both the parties to reach a conscientious settlement, which is beneficial to both of them.
The mediated divorce not only spares you the grueling court trials that often take years to resolve the issues, but also saves you a lot of unnecessary expenditure involved with a legal lawsuit.
To learn more about the divorce process in California and how mediation can help, please visit our page, What is Divorce Mediation.
Almost all women change their last name to their husband’s last name when they get married. After a divorce, most women want to change their last name again. Doing so should not be problematic and there are provisions to help you do so.
There are different ways of doing it. Depending on the laws of the state that you live in, you can choose from the methods discussed below.
Request for a formal order – You can ask the judge dealing with your divorce case to make a formal order about changing your marital name back to your birth or former name. You should retain certified copies of the formal order as proof of your name change. You will need this proof to make changes to your personal records and identification.
Request for modification of divorce decree – If the law does not permit the judge to make a formal order, request for a modification of the divorce decree where it will be mentioned that your name has been changed back to your former name. In some states, such as California, you can fill a form called Ex Parte Application for Restoration of Former Name after Entry of Judgment of Order (FL-395) after a ruling has been made to change your name.
Other method – If you cannot get your name changed by an order from the judge or cannot file for name change after the divorce ruling, you need not worry. If you have any proof of your former name (your birth certificate or an old passport), you can still change your last name by filing a petition to do so in probate court.
Restoring your earlier name is not much of a hassle. Recent immigrants and those without some sort of identification or legal documentation (that can serve as proof of your earlier name) will have trouble changing their last names but not the others.
Sometimes you may be allowed to change the last name of your children to your last name. Generally, it is the accepted norm that the children will retain their father’s last name. But if the father does not have an active role in parenting, the children’s last name can be changed too. Just file a petition in the court.
To learn more about the divorce process in California and how mediation can help, please visit our page, What is Divorce Mediation.
In parentage or paternity cases, a determination of to who the legal parents of the child is necessary are where the parents were not married to each other. Paternity needs to be determined legally in cases where the parents are not married. Same-sex parents need to take legal advice regarding parentage because parenting laws have not been stated too clearly for people from the LGBT community.
For unmarried or same-sex parents, legal parentage of their child needs to be declared. It is only then that the court will decide on child support, child custody and visitation rights. Once a person has legal parentage, he or she will not have any problems in requesting for custody or other rights related to the child.
Unmarried parents, in case of a separation, will also be responsible to pay child support and half of uninsured healthcare costs if the other parent wins child custody. Failure to provide financial support for your child, when directed by the court, will be considered a criminal offense.
Establishing parentage
The state of California has laws where there are two ways of establishing parentage when the parents of the child are unmarried.
By signing a voluntary Declaration of Paternity – It is a form approved by the California government that, when signed voluntarily by both parents, declares them to be the legal parents of the child. The Declaration, once signed, it has to be filed with the Paternity Opportunity Program (POP) in the California Department of Child Support Services for it to be effective.
By getting a court order – It is very similar to the ‘Declaration of Paternity’ but for this you need to go to the court and follow all the legal procedures. It also officially establishes and legalizes the paternity of the unmarried parents to their child.
Reasons for establishing parentage
A legally established parentage allows the child to enjoy the same rights and privileges as the children of married parents. These include financial as well as social benefits.
Financial support from parents
Health and life insurance coverage
Legal documentation identifying both parents
A valid birth certificate with names of both legal parents
Right to inherit from both parents
Right to receive social security
To learn more about establishing custody in California and how mediation can help, please visit our page, What is Divorce Mediation.
Property and debts have to be divided during a divorce. Many times, the divorcing couple does it itself or enlist the help of a mediator (a neutral third party). But if the couple fails to reach an understanding, it takes the dispute to a court and the judge gives a ruling based on state laws.
The court categorizes property and debts under equitable distribution or community property and then divides them among the couple.
Community property – Any marital property jointly owned by the married couple is known as community property. In certain states such as California, community property gets divided equally among the spouses. Apart from this, each spouse retains their share of the separate property (individual ownership).
Equitable distribution – The rest of the states divide all marital property, assets and income equitably or in a fair manner but not equally. The separate property may be awarded to one spouse to balance out the division.
Division of property does not necessarily mean a physical division. A spouse may be awarded a certain share of the total value of all the property. Apart from this, they will have their share of personal property, assets and debts.
Determining community and separate property
Community property – All earnings and acquisitions made, debts incurred during the period of marriage fall under community property.
Separate property of one spouse – Gifts and inheritances received by one spouse becomes their separate property. Any property purchased using their funds become their separate property. If the spouse owned any business before the marriage it will remain their personal separate property. But if the value of the business increased during the marriage, the increased value will be considered community property.
Separate and community funds used to purchase property – Any such property will become part community and part separate property. But you need to show that separate funds were used. But if separate property and community property is mixed, it usually becomes community property.
Determining who gets the marital home
If there are any children, the parent who is the primary care taker of the children retains the marital home. But if there are no children and both the spouses jointly own the property, it can become quite tricky.
To learn more about the divorce process in California and how mediation can help, please visit our page, What is Divorce Mediation.
Your divorce or separation ordeal can be an agonizing time for your children. There are a million questions that flash across the tender mind of a child when his/her parents are parting ways, and he/she is left in the custody of any one of the two. And if these questions are left unanswered, your child might be left befuddled with the circumstances, and start forming negative opinions about your character. Such children often grow up, with a distorted mindset about the sanctity of the institution of marriage. However, if you choose to discuss the situation with your child openly and with a clarity of mind, he/she might be better equipped to deal with the painful ordeal.
Choose your timing wisely
The first and foremost thing to keep in mind when breaking the news to your child is the right timing. Avoid confusing your child with the uncertainty of your divorce before it has been finally decided upon. Also, remember that once your child comes face to face with the ugly truth, he/she would require you to be with him/her afterward, to offer him/her reassurances.
Break the news together
In the midst of the emotional turmoil and conflict, it might seem difficult to agree upon anything with your spouse. However, for your child’s sake, it is essential that you do the talking along with your partner, as a team. When your child hears the same story from both the parents together, it assures him/her that it is a mutual decision and allows reinforcement that they are still loved.
Assure him/her that it is not his/her fault
More often than not, children end up taking the blame of their parent’s separation, on themselves. The child might think that his/her parents are separating because he/she did not do well in school or because he/she misbehaved. It is your responsibility to clear his/her mind of any such negativity and explain to him/her that your divorce is an adult decision that does not involve him/her in any way.
Spare your child the intricacies of your divorce
It is best not to display your disagreements in front of your child. You might be having a thousand problems with your spouse and probably a million reasons to stay away from him/her. However, it is in your child’s best interest, not to reveal every single detail of your conflicts to him/her. Calling your spouse names or arguing with them in front of your child would end up destroying their image in his/her eyes.
The most important thing to keep in mind is that all your child need in this heart-breaking time is a genuine reassurance and a consistency of the routine he/she relies on.
To learn more about the divorce process in California and how mediation can help, please visit our page, What is Divorce Mediation.
Not all family law cases can be mediated and resolved amicably, particularly where domestic violence or child abuse is involved where emergency restraining orders may be necessary to obtain. Emergency restraining orders are granted only on certain instances such as a threat or an incidence of domestic violence or child abuse, child support and custody disputes, alimony requests and so on. The California Family Court, though, does not term everything under Family Law as an ‘emergency’.
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. 
