In the State of California, there are only two legal reasons for ending a marriage: [1] “Irreconcilable Differences” or [2] incurable insanity. While you may believe that your spouse is afflicted with the latter, essentially everyone files for irreconcilable differences, which means that no amount of marital counseling will save your marriage. California is a “no-fault” divorce state, meaning that you do not have to give the court any other reason for ending your marriage, as opposed to other states which require proof of adultery, etc.
To file for a California divorce, you must have lived in California for 6 months and for 3 months in the county where you intend to file the divorce paperwork. So to divorce an California Divorce, you must have lived in California for 3 months prior to filing.
A “Petition” is filed with the county clerk’s office, along with a Summons. The importance of personally serving the Summons and Petition on your spouse is that the Summons includes automatic, built-in family law restraining orders preventing either spouse from selling or giving away any property, changing any insurance policies or beneficiaries, or taking any children of the marriage out of the State of California without the express written consent of the other spouse.
These automatic restraining orders state as follows:
“Starting immediately, you and your spouse or domestic partner is restrained from:
1. removing the minor child or children of the parties, if any, from the state without the prior written consent of the other party or an order of the court;
2. cashing, borrowing against, canceling, transferring, disposing of, or changing the beneficiaries of any insurance or other coverage, including life, health, automobile, and disability, held for the benefit of the parties and their minor child or children;
3. transferring, encumbering, hypothecating, concealing, or in any way disposing of any property, real or personal, whether community, quasi-community, or separate, without the written consent of the other party or an order of the court, except in the usual course of business or for the necessities of life; and
4. creating a nonprobate transfer or modifying a nonprobate transfer or modifying a nonprobate transfer in a manner that affects the disposition of property subject to the transfer, without the written consent of the other party or an order of the court. Before revocation of a nonprobate transfer can take effect or a right of survivorship to property can be eliminated, notice of the change must be filed and served on the other party. You must notify each other of any proposed extraordinary expenditures at least five business days prior to incurring these extraordinary expenditures and account to the court for all extraordinary expenditures made after these restraining orders are effective. However, you may use community property, quasi-community property, or your own separate property to pay any attorney to help you or to pay court costs.”
Personal service of the Summons and Petition can only be accomplished by someone who is 18 years or older who is not a party to the divorce, and alternate means of service may be necessary if the other spouse cannot be located.
For more information or for a consultation, contact California Divorce Mediators at (949) 553-0911 or at 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.”
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.
1. Contested divorces produce harsh emotional and financial tolls on children, not to mention the parties. Mediated divorce offers a quicker, less expensive and less burdening process of dissolving your marriage.
2. According to recent statistics on U.S. marriages, approximately 50 percent of first marriages end in divorce. In California, it is closer to 60%. Therefore, custody is often an issue in such cases and children often end up being victims of a power struggle between parents. Mediated divorce is a viable alternative to litigation and is gaining in popularity.
3. Divorce mediation is a negotiated settlement between the two parties using a third-party. The mediator has no power to make decisions for the divorcing parties, enabling the two parties to openly and honestly discuss and decide how to resolve the pending issues of their marital dissolution. Neither spouse is given preference over the other. As a result, the children of the marriage are not exposed to, and are spared, the emotional and psychological turmoil that often accompanies a divorce that goes to litigation.
4. Settling out of court through divorce mediation saves the marital finances from being spent on attorneys. That helps preserve the marital estate for the parties, but also for the children. Paying for a contentious, litigated divorce can drastically effect children’s present situation and future because when a couple’s financial worth is substantially reduced after paying each party’s attorney fees and the remaining assets are divided, there are less resources for everyone. This can result in lower standards of living for the parents and the children, and less opportunities for children regarding education, health, and other issues. In the end, the financial strain, compounded with the already emotional distress of the divorce, can cause deep emotional tolls on children.
5. A mediated divorce occurs out-of-court and is handled in an impartial and confidential way. In other words, the “dirty laundry” of your marriage is not put on display in court. Mediating your divorce is a less invasive, less stressful way to resolve what is likely one of the most difficult times in anyone’s life.
For more information or to schedule a consultation, please contact California Divorce Mediators at (949) 553-0911 or at 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.”
It is important to know that the occurrence of domestic violence has a direct effect on any child custody case. In California, the Court will consider your case to be a “domestic violence case” if the Court finds that a parent committed or was convicted of domestic violence against the other parent (or their child) in the last 5 years.
Pursuant to Family Code Section 3044, if the Court makes such a finding, there is a legal presumption that the party who perpetuated the domestic violence should not have sole or joint custody of the parties’ children. Such legal presumption can be overcome over time, if the perpetrator has completed a 52-week batterer’s treatment program, not committed any other domestic violence, and has complied with any other orders of the Court. However, by that time, there will generally be a “status quo” of a regular custodial schedule, and part of what the court has to consider in determining what is in the best interests of the child is stability and a regular routine.
Furthermore, if there is a pending or final criminal case for domestic violence against the other parent, there is likely criminal protective orders in place in that case and possibly a family law restraining order also in the custody case that will affect custody and likely shape the ultimate outcome of the custody case.
So, if you are a victim of domestic violence, need a restraining order to protect you, and are seeking a divorce or child custody, you need legal assistance. Likewise, if you are falsely accused of domestic violence by the other parent in an effort to alienate you from your children and affect your custody case by putting you on the defensive, you definitely need legal assistance to aggressively refute those false accusations.
Here is the entirety of California Family Code Section 3044:
Upon a finding by the court that a party seeking custody of a child has perpetrated domestic violence against the other party seeking custody of the child or against the child or the child’s siblings within the previous five years, there is a rebuttable presumption that an award of sole or joint physical or legal custody of a child to a person who has perpetrated domestic violence is detrimental to the best interest of the child, pursuant to Section 3011. This presumption may only be rebutted by a preponderance of the evidence.
In determining whether the presumption set forth in subdivision (a) has been overcome, the court shall consider all of the following factors:
Whether the perpetrator of domestic violence has demonstrated that giving sole or joint physical or legal custody of a child to the perpetrator is in the best interest of the child. In determining the best interest of the child, the preference for frequent and continuing contact with both parents, as set forth in subdivision (b) of Section 3020, or with the non custodial parent, as set forth in paragraph (1) of subdivision (a0 of Section 3040, may not be used to rebut the presumption, in whole or in part.
Whether the perpetrator has successfully completed a batter’s treatment program that meets the criteria outlined in subdivision (c) of Section 1203.097 of the Penal Code.
Whether the perpetrator has successfully completed a program of alcohol or drug abuse counseling if the court determines that counseling is appropriate.
Whether the perpetrator has successfully completed a parenting class if the court determines the class to be appropriate.
Whether the perpetrator is on probation or parole, and whether he or she has complied with the terms and conditions of probation or parole.
Whether the perpetrator is restrained by a protective order or restraining order, and whether he or she has complied with its terms and conditions.
Whether the perpetrator of domestic violence has committed any further acts of domestic violence.
For purposes of this section, a person has “perpetrated domestic violence” when he or she is found by the court to have intentionally or recklessly caused or attempted to cause bodily injury, or sexual assault, or to have placed a person in reasonable apprehension of imminent serious bodily injury to that person or to another, or to have engaged in any behavior involving, but not limited to, threatening, striking, harassing, destroying personal property or disturbing the peace of another, for which a court may issue an ex parte order pursuant to Section 6320 to protect the other party seeking custody of the child or to protect the child or the child’s siblings.
For purposes of this section, the requirement of a finding by the court shall be been convicted within the previous five years, after a trial or plea of guilty or no contest, of any crime against the other party that comes within the definition of domestic violence contained in Section 6211 and of abuse contained in Section 6203, including, but not limited to, a crime described in subdivision (e) of Section 243 of, or Section 261, 262, 273. 5, 422, or 646.9 of, the Penal Code.
The requirement of a finding by the court shall also be satisfied of any court, whether that court hears or has heard the child custody proceedings or not, has made a finding pursuant to subdivision (a) based on conduct occurring within the previous 5 years.
When a court makes a finding that a party has perpetrated domestic violence, the court may not base its findings solely on conclusions, reached by a child custody evaluator or on the recommendation of the Family Court Services staff, but shall consider any relevant admissible evidence submitted by the parties.
In any custody or restraining order proceeding in which a party has alleged that the other party has perpetrated domestic violence in accordance with the terms of this section, the court shall inform the parties of the existence of this section and shall give them a copy of this section prior to any custody mediation in the case.
For more information, please contact California Divorce Mediators at (949) 553-0911 or at 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.”
Trying to keep the marital house for the sake of the children is admirable and generally intended to be in their best interests, particularly during the instability of divorce and the adjustment of their life thereafter. However, there are real considerations that have to be weighed in order to determine whether it is wise to enter into such agreement.
First, you may have difficulty in qualifying for a new property you wish to purchase since you will be listed as a borrower under the existing mortgage for the marital property, thereby affecting your debt ratio that lenders use in qualifying borrowers.
Second, if the spouse remaining in the house makes late payments on the mortgage or defaults on payments, your own credit will also be detrimentally affected and seriously affect your credit score which in turn will affect your ability to borrow or lease anything in the future.
Finally, you will need to have a clear written understanding of what each spouse will be entitled to years from now after Junior has graduated from High School and now the time h
as come to sell the house. After all, should the spouse that did not keep the house still be entitled to one‐half of the equity in the property at the time of sale, or at the time of the divorce? Having a clear agreement is vital to avoiding future, costly problems in how to divide a property sold years after the divorce was over.
For more information or to schedule a consultation, contact California Divorce Mediators at (949) 553-0911 or at 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.”
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.
So you just found out that your spouse is cheating on you. Obviously never a pleasant experience. You should first try to determine possible causes for that behavior (if there are any) and then whether you are willing to work through it and the possible underlying issues or otherwise proceed with divorce.
The first instinct is to file for divorce and “make them pay!” Although each state has different standards and rules concerning marital infidelity, it is important to understand that in California, being unfaithful has no real relevance because California is a “no-fault” divorce state. In fact, there are only 2 basis for seeking a divorce in California: (1) “irreconcilable differences,” and (2) incurable insanity. Although you may believe that your cheating spouse is guilty of the latter, 99.99% of California divorces end for “irreconcilable differences.”
Furthermore, your spouse’s cheating ways does not generally entitle you to more spousal support or a bigger piece of the marital estate. If you can prove that your spouse spent your community monies on his or her fling (easier said than done), you may be able to recover your one-half of those monies. Otherwise, unless you have children and the other adulterer, whom your spouse may decide to have an ongoing relationship with, is a drug addict or other danger to your children, the issue of adultery will not no real relevance in your divorce case. However, those spouses who have been cheated on tend to find other ways to make the other spouse pay one way or another.
For more information or to schedule a consultation, contact California Divorce Mediators at (949) 553-0911 or at 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.”
One of the best bits of advice that you should adhere to is to seek and retain a family law/divorce attorney to handle your divorce case. Just because you were referred to an attorney by a friend or family member does not mean that you should hire them, particularly if they practice another area of law other than family law/divorce. An attorney whose main area of practice is family law/divorce is going to know family law, the local court rules and procedures, the family law judges, and the opposing counsel, and that will have a direct bearing on getting a better settlement or better outcome if your case otherwise goes to trial.
Moreover, your case may involve a family business or other complicated joint assets, or underemployed spouse, and may require the use of forensic accountants, vocational evaluators, and other experts, and only a family law/divorce attorney is going to know the best options of who to use based on the need. Such experts will also assist with settlement, and assist in litigation if your case otherwise does not settle.
For more information or to schedule a consultation, contact California Divorce Mediators at (949) 553-0911 or at 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.”
California Family Lawyer Gerald A. Maggio of The Maggio Law Firm is a top California Divorce Lawyer and a top California Family Law Attorney who not only offers first class, first rate service, but has an extensive track record of helping divorcing people get back on their feet and through the legal system as quickly and painlessly as possible. The Maggio Law Firm is experienced in all aspects of divorce and family law matters, including child custody, child support, spousal support, complicated high asset marital property cases, and domestic partnerships. Mr. Maggio recently founded California Divorce Mediators.com, with the mission of providing clients with a cost-effective way to resolve their cases out of court.
At the Maggio Law Firm and at California Divorce Mediators, we combine a wealth of experience in divorce and family law to provide individuals with the best legal representation. We are known for helping clients achieve fast and fair results so you can begin a better chapter of your life. Whether you need representation during mediation or litigation, call on the Maggio Law Firm or California Divorce Mediators to handle your concerns with skill, professionalism, and empathy.
We offer first-class representation to enforce your rights and help you understand your options. At every step, we represent you in a caring, cost-effective manner. When you have a question about family law or divorce or to schedule a consultation, contact The Maggio Law Firm at (949) 553-0304 or at www.maggiolawfirm.com or contact California Divorce Mediators at (949) 553-0911 or at 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.”
By: Gerald Maggio, Esq.
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. 
