Property Rights for Unmarried Couples

Posted by: Gerald A. Maggio, Esq.

Orange County divorce mediators; California Divorce MediatorsIt is easier for unmarried couples to separate or breakup mutually rather than go through a divorce. If both the parties can agree on the division of their assets, there is no need to approach a court of law. At most, you may need to employ the professional help of a legal mediator.

If you and your partner cannot reach an agreement and have to go through a divorce procedure, here are some of the legal rules pertaining to property division that you need to be aware of:

  • Divorce laws governing married couples are not applicable to unmarried couples who are separating – Only those couples recognized under a legal marriage or registered as domestic partners get to divide their property following the family law available to married couples.
  • Each unmarried partner has right to their own property – If the unmarried partners have not signed a deed establishing joint ownership of the house or do not have joint accounts in the banks, each partner is the owner of their own property. All debts and assets remain with the original owner unless the partners have signed any agreement.
  • Partners have signed a written agreement – If written agreements have been signed, the partners will get shares as stated in the agreement even if they approach a court for a separation.
  • If everything is jointly owned – If the unmarried couple jointly own any property or assets or debts, everything gets divided 50 -50. An exception can be made if an agreement stating otherwise has been signed.

If a situation arises where you have to approach the court for a settlement on matters related to property, it would be considered similar to the dissolution of a business. The ordinary business section of the state’s civil court will settle the matter.

To avoid such confusing and difficult situations related to unmarried separation, unmarried partners are encouraged to prepare and sign a written ‘living together agreement’. The agreement should cover matters related to property, house, and other assets.

Written agreements are legally enforceable in all courts of law. A written document can, in most instances, do away with the need of going to the court. It makes the separation a lot less difficult.     

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

Divorce Mediation for the Modern Family

Posted by: Gerald A. Maggio, Esq.

Divorce mediation Orange County; California Divorce MediatorsAs time goes on, it seems that change is the only constant, and every aspect of life is undergoing a more modern transformation. The rapid speed at which these changes are happening has rendered several segments of the society unable to cope. Therefore, such segments have become incompatible in many regards to these changes. This is particularly true for some aspects of family law.

The Changes to the Family in Modern Times

The scale of changes has meant that divorce laws have started to be questioned by recent developments. A few of these notable changes can be:

  • A generation or so ago, women having full time jobs was not as common as it is today. Now they are working outside of their houses, with many households having not one but two incomes.
  • A few years ago, there were only a few states in the US, one of which was California, which had legalized same sex marriages. Yet, now with the recent decision of the Supreme Court making it legal throughout the US, the family laws such as those of divorce seem incompatible.

Incompatibility of the Law

These changes mean that the scope of the modern family has changed drastically. The California divorce and family laws for example are not meant to handle the complex issues that are arising as a result of these changes.

How do you determine the custody of the child between two same sex parents only one of whom is biologically related to the child? While the child may view both of them as parents, legally only one of them is the real parent owing to biological relations.

In addition, in homes where there are two sources of income one from each spouse, property division can be a serious issue, because neither party would want to settle for a smaller share or a share they don’t feel is proportionate to their contributions.

Mediating the Solution

Instead of using the courts to solve disputes, if we turn to Orange County divorce mediation, the needs of the modern family can be catered to, with decisions made based around common sense, mutual wisdom, and the needs of the family.

If both of the spouses can talk it out and make sure they understand each other’s point of views, Orange County divorce mediation gives them the chance to make a legally binding decision as they see fit, irrespective of its compatibility with the law. This, however, will only be applicable as long as both the spouses are mutually agreeing on the provisions of the agreement.

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

Protecting your Assets in Divorce without a Prenuptial Agreement

Posted by: Gerald A. Maggio, Esq.

Premarital agreement orange county; California Divorce MediatorsMost California and Orange county divorce cases have assets at the core of the fight between the two spouses. The importance of assets to each of the spouse is paramount since the word assets is used to describe all kinds of properties, personal, commercial, and even business stakes. The reason both spouses are willing to give their all in divorce cases is because they are looking to have the largest amount of assets for themselves.

Increasingly, spouses have started to get into pre-nuptial (premarital) agreements to make sure that their assets are protected from that dreaded day in divorce court. Some spouses however cannot agree on pre-marital agreements to have their assets protected. Here is a list of a few other options that such spouses can use to make sure their assets are protected despite not getting into a pre marital agreement.

Make Sure You Keep Your Funds Separate

This step is fairly simple and will allow you to escape lots of complexities in your divorce case moving ahead. If you have separate funds that belong exclusively to you, and were in your possession before you got married, make sure you keep the money that you had prior to your marriage in an individual account. This will allow it to be easily distinguished from the joint assets.

Separate Your Separate Property

One of the most important things in the assets category tends to be property. Property is often the most valuable of all assets and therefore will be fought over with the most commitment by the spouses. The best way to make sure that you protect the property that you have had in your possession even before the marriage is to keep it separate from your joint property with your spouse. This is trickier than handling separate funds.

If you have separate property that belonged to you even before you got married, the best way to keep it away from your divorce proceedings is to manage all its expenses from money from your pre marriage wealth exclusively. Any use of mutual funds to pay off the properties recurring expenses could drag what should have been your exclusive property into your Orange County divorce proceedings.

Making A Trust To Protect Assets

One of the easiest ways you and your spouses can protect their assets is by creating a trust before marriage. A trust will mean that there is a clear determination by the spouses to keep some parts of the property separate. When a trust ownership is involved in assets cases of divorces, judges will be more willing to accept that the spouses intended to keep certain aspects of the assets separate from the division.

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

Ending Same Sex Marriages And Domestic Partnerships in California

Posted by: Gerald A. Maggio, Esq.

same sex divorce; California Divorce MediatorsPrior to June 27, 2015, there were only several states in the U.S. that allowed for same sex couples to get married. Now, the United States Supreme Court has ruled that same sex marriages are legal and recognized in all of the states, meaning that same sex couples now have equal rights to get married as all other Americans.  This is a huge development and advancement of rights for same sex couples and one that will likely lead to a wave of same sex couples entering into marriage over the next few years.

So what does that mean for existing domestic partnerships and for same sex married couples that seek to get divorced in the future in California?  Because although same sex couples will appreciate their right to get married and will value the institution of marriage perhaps more than heterosexual couples who have always taken their right to get married for granted, same sex couples have the same relationship issues and problems that everyone else has that can lead to the deterioration and end of relationships.  Inevitably, some same sex married couples will seek divorce, although no one knows what such rate of divorce will be for that segment of the population.

Also, those same sex couples that are part of a registered domestic partnership in California will now have the option of getting married and the length of their domestic partnership will be added to the length of the marriage for purposes of spousal support and division of assets, although the case law in California has not caught up to this situation quite yet, but undoubtedly will.

Furthermore, domestic partners and married same sex couples will now be under the jurisdiction of the California Family Code and case law just like heterosexual married couples are, which will apply to them when they seek to terminate their partnership or marriage.  In other words, if parties look to end their registered domestic partnership or same sex marriage, they are in for much the same process as traditional divorce cases and involve most of the same issues, especially if same sex couples decide to legally adopt a child, as follows:

  • Child custody
  • Child visitation
  • Spousal support
  • Division of assets and property

It is a new world for same sex couples as they embrace their new rights and the final wall of inequality has been broken down.  It will also lead to a new world for divorce and family in California and the other states.  But in the end, it is important to recognize that we are all the same and we all have our faults and problems, which can ultimately lead to divorce.  Same sex couples will not be immune to marital problems or to divorce any more than heterosexual couples, because a successful marriage is hard work for everyone.

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

Making Your Divorce Mediation Checklist

Posted by: Gerald A. Maggio, Esq.

orange county divorce mediation; California Divorce MediatorsThere are several factors that play a part to determine the failure or success of Orange County divorce mediation. The levels of trust between the couple, the willingness to negotiate, the case’s complexity, and the level of contention are just a few of these. There are two parts to divorce mediation – one can be described as the work of the Orange County divorce mediator while the other is the work of the two spouses. One of the most important thing spouses need to do, to make their mediation successful, is to come to mediation prepared and having thought about important aspects.

It is advisable to make a divorce mediation checklist prior to the start of mediation so that you have your goals and the list of issues that you want to address in mediation, listed in order of importance to you.  Here are some of the issues that you will likely address as part of your checklist.

·         The Children in the Marriage

Children are often considered the most important issue in a divorce mediation. Before a couple decides to part ways, the children in the family are likely to have spent their time under co-parenting by both the parents. This however cannot be the case after divorce. Spouses need to, before they come to an Orange County divorce mediation, deliberate on the amount of time they can give their child, the timings that will be feasible for them and their own activity time table. These are important matters to consider, since during a divorce, the most affected people after the spouses are their children. All through the process, make sure you are there for them to support and calm their fears.

·         Debts

This is never a topic that couples love talking about. Yet, it is one of the most important assets (or liability) that needs to be divided between the spouses much like the rest of the assets. Before coming to mediation, it is best for you to have a private one on one conversation with your spouse to avoid any surprises that might await him/her in the mediation process.

·         Real Estate

We have talked about children being the most important assets, but real estate is one asset that comes a very close second. These are often the largest chunk of the monetary materials and hence are the most hotly contested aspect of a divorce. Any property that has been created in between the time the marriage lasted can be regarded as joint property. This aspect is likely to involve all kinds of homes, lands, etc., including the one you currently live in making this one of the most important aspects to think about pre mediation.

·         Business

People who own business are likely to derive their source of income from them. Business, if jointly run or made/ significantly enhanced during the marriage, would have to be divided between the two parties. This might not work out too well for a business’ profitability and hence you need to talk about this aspect with your spouse before your mediation date to make sure your financial interests are protected.

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

Why Peaceful Divorce Mediation Works Well

Posted by: Gerald A. Maggio, Esq.

Divorce mediation attorneys Orange County; California Divorce MediatorsDivorce is one of the hardest fought cases between the people, since it involves not only assets and children, but it also involves lots of emotions each of which can take a toll on  spouses. The process of divorce can be divided into two broad categories legally, i.e. divorce through mediation and divorce through litigation. On the more practical side of things, this can also be divided as peaceful divorce mediation and bitter divorce litigation proceedings.

Orange County divorce mediation is becoming a more common methods for couple to get divorced. The primary reason for this is the emotional and procedural benefits that such a method gives to spouses. Peace is one word that is important when associated with a process as emotionally sapping and bitter as divorce.

Here are a few reasons why peaceful Orange County divorce mediation is what you want to consider.

·         Peace will nurture the parental relationships

One of the things that hurt a child most is seeing their parents fight it out against each other. In the process of divorce litigation, this is one of the norms. More often than not, spouses will be logger heads against each other, will bad mouthed one another in the process, among other things. This will not harness but destroy their relationship with their children. The bitterness created from such ruckuses is hard to get away from. In the case of Orange County divorce mediation, however, the tables are likely to be turned. The fact that the process is based on cooperation means that even when getting divorce the parents will have a sense of cordiality and cooperation between them.

·         You can get what you want without fuss

Divorce mediation is all about the cooperation, communication and coordination that go on between the spouses. The role of the mediators is simply one to try and facilitate the proceedings and not dictate them. As opposed to bitter litigations, a mediator will not give you any order that both the spouses have to follow. The mediation agreement is all about spouses and how much they are willing to work towards a peaceful resolution. The cooperative nature of the divorce means that mediation will allow you to agree upon what is best for you and what you want.

·         Peace also comes with a variety

No one size fits everyone. This is one of the most famous statements that have come to define the world.  Everyone in the world is different and the fact of them being different means that they are all in need of something that is made specifically for them instead of being treated generally. While litigation has set court procedures that cannot be truly modified, it is mediation that allows such spouses the chance to make the most of the flexibility of options.

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

Dealing with a Business in Divorce Mediation

Posted by: Gerald A. Maggio, Esq.

divorce mediation orange county; California Divorce MediatorsThe process of divorce is not only the separation of two individuals but it also contains the separation of a whole host of other things such as children, assets, properties, and also businesses. What if you have a business that belongs to you and your partner? Rest assured that your divorce is going to have an effect on your partner as well as your business. At this point in time, if you have a carefully crafted prenuptial agreement, you are likely to have matters in black and white. However, if you don’t have a prenuptial agreement, your Orange County divorce in terms of your business can get complicated.

This is where divorce mediation comes in. Mediation can alleviate a whole host of risks that are likely to be involved in the handling and potential division of a community property business.

Situations of Complication

Before we outline the benefits that mediation is going to provide you. Let’s take a look at situations where complications can occur in a business due to divorce:

  • When both of the spouses have been involved in the operation and the owning of the business during the time the marriage lasted.
  • When one spouse has been the owner and operator of the business while both the spouses have been married to each other.
  • When one of the spouses has inherited the business or has been operating and owning the business before the marriage and does so during the marriage (this is only applicable to case complications if there has been a change in the value of the business).
  • In situations where there is no need for spousal and child support to be paid, instead there needs to only be finding out of the self employed spouse’s income.

The Mediation Solution

There are lots of things that divorce mediation can do to make divorce transition easy for you, your business, and your business partner. A few examples of it are:

  • The use of mediation will make sure you have to ample time to spare and spend in the running of your business. The flexibility of divorce mediation allows you to manage your business and mediation side by side with neither overlapping the other.
  • There is nothing that can hurt you and yours more than emotional distress. The best business decisions are done with a clear head. Divorce mediation is a conversational process to a divorce allowing for amicable relations between the former spouses to prosper and a healthy understanding to develop.
  • The lower costs of divorce mediation are also an advantage to lessen the complications to a business that might occur from it. Litigation is likely to cost a considerable amount of money, and unless you have unlimited resources in your business, that decision may ultimately hurt your business. The best way to avoid it is by pursuing divorce mediation services.

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

A Team-Effort Divorce Mediation

Posted by: Gerald A. Maggio, Esq.

Orange County divorce mediators; California divorce mediatorsDivorce mediation is becoming one of the leading sources for spouses to turn to and look for an alternative solution when they are going for a divorce in Orange County and elsewhere. The reasons for such a thing happening can be many, one of the primary ones though are the hard work that divorce mediators put in to make things work out and an agreement reached between the two spouses. The agreements to divorce mediation are one of the best agreed upon ones particularly because there is a large amount of time, effort and communication that is involved in it to try and make it work.

The key to the success of divorce mediation is team work. One has to realize that at the end of the day, the process of mediation is all about making friends and not adversaries. Team work is given due importance in divorce mediations. This is particularly because only teamwork and working together will take the spouses close to the resolution of the disputes. Here are a few tips that are going to help the spouses in their efforts for teamwork to try and make the most of divorce mediation:

A Willingness to Cooperate

A divorce mediator, no matter how good they are, cannot despite all their efforts be able to get an agreement out of the mediation process if either of the spouses is unwilling to cooperate. Cooperation is key to all kinds of teams, whether it is a team sport, a team meeting or a team work. In the context of divorce mediation, cooperation means being truthful in the process, bringing documentation, etc.

Open and Effective Communication

One of the widely cherished features of divorce mediation is its transparency. Divorce mediation is a process that is about openness and making sure that nothing is hidden from the other or kept in the dark. Communication is the key in all areas of life, and it is no different in case of Orange County divorce mediation. The better the spouses are able to communicate with each other, the greater the chance of the mediation process becoming a success. This is because communication is likely to enhance trust which is the key to team work.

Being Open-Minded

If you come into any team work job with a set pattern of work that you have developed on your own, it is unlikely to work. Team work requires appreciation of idea and being willing to adapt and change. This is why open mindedness is integral to team work in divorce mediation. You shouldn’t come to mediation with a set goal and expectation. The best way to make the most of mediation is to go into it with an open mind.

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

The Dilemma of Filing for Divorce – First or Second?

Posted by: Gerald A. Maggio, Esq.

orange county divorce mediation attorneys; California Divorce MediatorsIs it better if I am able to file for divorce before my spouse?

What is the benefit or drawback of filing for divorce first before the other spouse is able to?

These are common questions that people going through a divorce tend to ask their lawyers. Before the answer to that question is given, let’s be clear on something. Divorce is a serious and life changing decision and no one should be rushed into making such a decision. When you come to the conclusion that your best interests lie outside the marriage, only then after careful deliberations can you attempt at getting a divorce.

Now let’s come to the answer of the question, should you file for divorce first?

In our society, filing for divorce is seen in the same sense as trying to pick a fight. The typical thinking for a long time has been that if you are the one who is filing for the divorce first, then you are likely to be the one who wants out i.e. you are the bad spouse. This kind of thinking is what makes most spouses reluctant to file for divorce. Yet, there is another side to the coin too.

If you file first, it is believed that the process is in your hands since you are then going to be the petitioner. Yet, will the judge care about who filed first or second? Can the spouse who files first claim a sort of advantage in the case? The answer to that question is no. However, there are a few exceptions.

The Advantage On Venue Or Jurisdiction Of Filing First

What is the importance of words like venue and jurisdiction? Simply put, they show the power that the judiciary is able to exercise in the case. More often than not, there can be case where both the spouses live in different counties and therefore fall under the jurisdiction of different courts. This is where filing first can be to your advantage. If you are able to file first, your divorce case will be dealt with in your locality i.e. the Orange County and not the other county that your spouse resides in.

The Danger To The Child And Filing First

If you have reasons to believe or it is clear that your children are in danger because of your spouse, the wisest thing to do is to be able to file immediately. In cases where the spouse files first against the spouses who is threatening the children, the courts have discretionary powers to give an immediate sentence for the protection of the children. If you delay the case filing and then claim the danger to your children, the first question you’ll face will be about the delay in filing for divorce.

Filing for divorce first or second is an important decision, but it poses a question that has no clear cut answer. If you are clear on your decision, it is best that you file for divorce as soon as possible to keep the marriage from going on unnaturally.

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

Advice for Divorcing Parents – From a Child’s Perspective

Posted by: Gerald A. Maggio, Esq.

child custody mediation Orange County; California Divorce MediationDear Mom and Dad,

Please think of me when you think about getting a divorce. I love you loads but you must remember that I am going to get affected by your decision. I don’t know why both of you can’t get along, but now that you can’t and want to have a divorce, can you at least take a few steps that will help us. I just do not want our family to suffer during this time.

The points I want you to follow in your divorce are:

·         The Present is Important

Taking a leaf out of history will help you, but living in the past and continually dwelling on it is likely to give rise to nothing but hatred and enmity. When and if you keep concentrating on what happened in the past, you are likely to continue to fight with the other parent. The best way to avoid this is to focus on what is at hand, the present, and how you can maximize the situation to everyone’s advantage.

·         Look Ahead to the Future

A divorce can be a bit like the dark tunnel that one sometimes has to go through. There is very little known about how and what the future holds for you. The best way for you in this situation is to look ahead to the future and plan for it all the while the divorce proceedings are going on.

·         Put Yourself In My Shoes

The spouse that you want to leave is also my parent. I love both of you dearly and I want the same from both of you. I would like the love and care of both my parents in their own separate way of course, but I need to be loved by both. I want to spend some time with you and sometime with the other parent so that I don’t miss either one of you.

·         Don’t Criticize My Parent In Front Of Me…Please

You are the world to me, but so is my other parent. I don’t want to have to choose between the two of you and I respect and love both of you. It would be a great gesture from your side if you don’t hurl abuses at my parent in my presence. I know you might be upset, but they are good to me and I love them as much as I love you.

·         Choose a Peaceful Way to get Divorced

I don’t like courts…everybody seems to be arguing, fighting, it’s just too unsettling and uncomfortable. I don’t want to be in that environment. I want you to adopt a divorce method that involves you talking to each other and getting divorced. I have heard that’s called Orange County divorce mediation and I want you to use mediation to settle the divorce.

Love, Your Child

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