Is Legal Separation a Good Alternative to Divorce?

legal separationSome couples tend to think that legal separation is the first step on the road to a divorce – or a time to consider whether divorce or reconciliation is the better option under the circumstances. It is important to note, however, that legal separation cases involve the same basic issues as divorce cases. The only exception is that during the separation period, the parties remain married to each other in the eyes of the law.

Disadvantages of Legal Separation in California

Legal separation, like divorce, can be an extremely stressful process. In some cases, couples may be better off simply filing for divorce immediately, as opposed to going through the lengthy, drawn-out legal separation process. In fact, many couples who have obtained a legal separation, immediately followed by a divorce, have described the process as being like two separate divorce proceedings, as opposed to just one proceeding. Some of the main disadvantages include the following:

  • Complexity – Like divorce proceedings, separation proceedings involve a great deal of paperwork. The same issues that arise during divorce proceedings are equally applicable to legal separation proceedings in California. These issues include spousal and child support, legal and physical custody (i.e. in cases where minor children are involved), and distribution of marital property (i.e. assets and debts acquired by the spouses over the course of their marriage). As with divorce cases, if separating spouses cannot agree on these issues, they must still go to court for a resolution, necessitating additional time and money.
  • Stress level – Because separation proceedings are comparable to divorce proceedings, the stress levels associated with both are relatively the same. Sometimes the increased stress levels associated with legal separation can ultimately lead to final divorce proceedings anyway.
  • Lack of necessity – Although some couples use separation as a means to ‘feel the waters,’ they may be better off to informally separate and then make a decision about whether or not to go forward with the divorce proceedings. This allows the spouses more time to make their decision, without the added cost and complexity of legal proceedings.

Benefits of Legal Separation

Some of the benefits associated with legal separation in California include the following:

  •  Avoiding divorce – For couples who have personal, religious, or cultural objections to divorce, legal separation allows the spouses to live separate and apart – and to make provisions for child support, alimony, and property division/distribution – while still remaining legally married.
  •  Health care considerations – Being legally separated usually allows for one spouse to remain on the other spouse’s health care plan for a significantly longer period of time than if the parties were divorced.

Contact a Fresno Family Lawyer Today

Attorney Rick Banks has the legal knowledge and expertise to help you decide whether legal separation is right for you under your individual circumstances. Contact The Law Offices of Rick D. Banks today at 559-222-4891.  

What to Include in a Parenting Plan

parenting planLegal and physical custody issues and parenting plans commonly arise in California divorce cases involving minor children. Fortunately, when spouses work together, they can resolve most or all of these custody issues amicably via a parenting plan, without any input from a California court. It is only when the parties are unable to resolve these custody and visitation issues on their own that the court must become involved.

If you are currently at the beginning of divorce proceedings in the State of California, you need a Fresno family lawyer representing you throughout your case. An experienced Fresno family lawyer can assist you with developing an effective parenting plan for custody and visitation.

Legal Custody

Legal custody refers to parents’ decision making power regarding their minor children. It may be sole or joint (shared). A good parenting plan should establish which parent(s) can make decisions with regard to the following:

  • Schooling (e.g., public vs. private schooling)
  • After-school or day care
  • Emergency care
  • Religion
  • Extra-curricular activities

Physical Custody and Visitation Schedules

Like legal custody, physical custody may also be either sole or joint (shared). When one parent has sole physical custody of the minor child or children, the other parent will usually be entitled to reasonable and liberal visitation. A good parenting plan will establish physical custody arrangements and will set out visitation schedules. Many factors may influence the parenting plan and visitation schedule. The most important of these are the ages and interests of the minor children. A good parenting plan should establish which parent is in charge at which time and should make arrangements for the following:

  • Weekend visitation – When one parent has sole physical custody, the other parent may have entitlement to visitation on the weekend. The parenting plan should establish which weekend(s) in a given month the non-custodial parent will have visitation.
  • Transportation arrangements – The parenting plan should establish which parent will be responsible for transporting the children to visitation (including drop-off and pickup locations). It should also provide for transportation arrangements to and from after school activities and extracurricular activities.
  • Holiday and birthday visitation arrangements – The parenting plan should establish which parent or parents the children will spend time with over school breaks and on certain holidays, including birthdays. Many parenting plans provide for visitation over Thanksgiving Break, Christmas (Winter) Break, Easter (Spring Break), July 4th, and other holidays throughout the year. The parenting plan should also spell out what happens when a vacation period conflicts with a regularly scheduled weekend visitation.
  • Vacation arrangements – The parenting plan should set aside a certain number of weeks during the year fotheser vacation time with each parent.

Implementing a Parenting Plan

It is important for parents to communicate effectively with one another as business partners — and that they be polite and courteous in their dealings with one another. They should also refrain from making their children ‘mediators’ or ‘go-betweens’ when disputes inevitably arise. Rather, they should allow their children to voice any concerns they have about the process and learn to value their input.

A parenting plan becomes effective once both spouses and a judge of the court sign and approve the agreement.

Contact a Fresno Family Lawyer Today

If you are in the midst of a divorce proceeding involving minor children, you need a parenting plan in place. Attorney Rick Banks can represent you throughout your case and can assist you with drafting a workable agreement. Contact The Law Offices of Rick D. Banks at 559-222-4891 for an initial consultation.  

Uncovering Hidden Assets in Divorce

hidden assets in divorceDuring the pre-divorce or divorce processes, a situation may arise in which one spouse is under reporting income or hiding assets from the other spouse. There are many reasons why one spouse would hide income or assets from the other: he or she may want to avoid paying what that spouse should pay in support, does not want to share in the community pot, or simply would rather have anyone else other than his or her spouse have the asset. Here are some methods and techniques that you can use to uncover hidden assets in divorce.

What Happens Once You Have Uncovered Hidden Assets in Divorce?

Before you embark on a venture to uncover hidden monies and assets, you should have an idea of your spouse’s responsibilities.  Essentially, spouses have fiduciary duties to each other of the highest fair dealing and good faith. This includes the full disclosure of all separate and community monies, both at the time of separation and the actual divorce.  If your spouse does not disclose all assets to you, you could have a favorable case.  California Family Code § 1101(a) permits you to have a claim against your spouse for breaching this fiduciary duty if such breach results:

  • In impairment to your present undivided one-half interest in the community estate, including but not limited to a single, pattern or a series of transactions; and
  • Such transaction(s) have caused or will cause a detrimental impact to your undivided one-half interest in the community estate.

If you can prove your allegations, the Court has the authority to add your name to an asset, require further accounting and disclosures, as well as a host of other equitable remedies.  The most notable powers that the Court has are outlined in California Family Code §§ 1101(g) and (h), which sets forth remedies for breach of fiduciary duty by one spouse:

  • Award to you of 50%, or an amount equal to 50%, of any asset undisclosed or transferred in breach of fiduciary duty, plus attorney’s fees and court costs.
  • When the breach falls within the scope of Civil Code 3294 (your spouse is guilty of oppression, fraud or malice), your award is 100%, or an amount equal to 100%, of any asset undisclosed or transferred in the breach of the fiduciary duty.

Professional Help Uncovering Hidden Assets in Divorce

It is highly recommended that you have the assistance of an experienced family law lawyer and a good forensic accountant to assist you with this process.  Do not do this yourself or you could tip off your spouse or miss important evidence.  You should also consider the time and expense involved in this process.

Methods for Gathering Evidence

Some examples of the methods you can use to uncover hidden assets in divorce include:

The Lifestyle Audit

This refers to an evaluation of the other spouse’s lifestyle. A spouse will often say that he or she has no money, yet are living well beyond his or her stated means.  This could mean that your spouse is living off gifts, pay advances or loans, perks, exchanging favors or bartering instead of receiving cash, or has agreements with third parties to otherwise support him or her during the divorce process and until things cool down.  Some examples of the ways to prove this are witness testimony, description and a valuation of your spouse’s lifestyle, third party documents, and a comparative lifestyle analysis.

A Review of Tax Returns

A review of your spouse’s tax returns could yield helpful information. For example, if your spouse owns or is involved with a business or corporations, these entities are often a tool used to hide or shield income and assets for a divorce.  Review the individual and business’ tax returns for indications such as losses, entertainment, depreciation, use of a company assets, disbursements to other employees (if shown), overpayment of taxes or bills to receive a refund, evidence of employee compensation, and interest and dividends.

The Lifestyle Analysis of Your Spouse’s Business Associates, Friends, and Family

An analysis of your spouse’s lifestyle compared to that of the people your spouse socializes with could be a good indicator of what kind of lifestyle your spouse is really leading or where your spouse is hiding money. Privacy laws could prevent you from conducting an in-depth analysis of other people’s records without good cause but if you can uncover evidence of concealment or collusion by a third party, the Court may make an exception and allow you to review third party financial records.

A Review of Your Spouse’s Accounts

Debits or disbursements from one account to another could be evidence of a hidden account in another bank or under your spouse’s or a third party’s name.

Public Records Check

This can be done for any individual or business entity.

A Review of Credit Accounts

A quick check for accounts opened in your spouse’s name or in his or her business interests and his or her credit reports could lead to helpful evidence.

Loan Applications

A review of personal or professional loan applications could lead to direct or what could be helpful evidence to present your case.  People requesting loans are often more candid with banks than with their spouses. They want to look good so that the bank will approve their loan.

State and Local Records Searches

This could yield useful information about your spouse, individually, or their business interests.

Contact a Divorce Lawyer Today

If you are going through a divorce, contact attorney Rick D. Banks today. He can answer your questions regarding uncovering hidden assets in divorce, as well as address any other concerns you may have.

How to Prepare for Child Custody Mediation

child custody mediationIn many divorce cases, a court will require the parties to mediate their case before it will have a trial or hearing on the issues of the case. The court wants to save trial time from its already crowded court dockets. It believes that the parties will be better served by reaching an agreement themselves, with the help of a mediator, than having a judge make all important decisions. Child custody issues are one of the divorce considerations where mediation is helpful and productive.

What Is Mediation?

A mediation is a meeting among the parties, their counsel and a mediator. The mediator is usually someone who is trained in problem solving and helping the parties achieve consensus. They do not take sides. Rather, they guide the parties and offers suggestions that will bring an agreement that is workable and is in the best interest of the children. The mediator will meet with both parents together and also meet with both parents individually. He or she will take suggestions and proposals from one party to the other. If an agreement is reached, it will then become an official order of the court.

The Issues Involved in Child Custody Mediation

The basic, general guideline for custody issues is the determination of what is in the best interest of the children. There are many components to this determination.

Legal Custody

Legal custody involves each parent being involved in the decisions that impact the children. Often the parties are given joint legal custody as an acknowledgment that they should both be involved in making those decisions. A determination needs to be made as to which parent should have the final say if the parties cannot reach agreement on the major issues of:

  • healthcare
  • education
  • extra-curricular activities
  • religious training

You should be prepared to show any special expertise that you have in any of those areas that would make you the better parent to make those final decisions. If you have a history of being the parent who is more involved in certain areas, you should bring into the discussion. For example, if you are the parent who always goes to the parent-teacher meetings and the other parent does not, that would be an important consideration.

Physical Custody

This is the area that deals with the time the children spends with each of the parents. There is often the designation of primary and secondary physical custody. But the most important thing is being with the children. You should be prepared to tell the mediator any particular reasons the children should be with you most of the time.

If you are the more involved and nurturing parent, specific examples should be given. If there are specific examples of the other parent not having those qualities, you can subsequently bring those to the mediator’s attention. Physical custody can often boil down to logistics. If you are the parent whose job makes it easier to have the children live with you, then you should make that clear. A parent who has young children and who works will want to prepare a detailed plan for the after-school care for the children including specific day care facilities or care givers. If your work requires you to travel, you should similarly detail your plans for the children when you are away if the other parent is not a part of any backup plan.

The parent who can more easily ensure consistent reliability with respect to handling the children’s school functions and other activities may have a bit more leverage in receiving primary custody. You will likely need to suggest specific days and times. You should be prepared to do that. Preparing a calendar on paper or on your computer that shows your suggested custody arrangement day by day or month by month is strongly encouraged.

The Other Parent

While you do not want to purposefully turn this into a mud-slinging contest, you should be prepared to make sure the mediator knows any relevant information about the other parent that may be an important factor. If the other party has a problem with alcohol or drugs, you should relate it with specific examples. Any temper problems are just as relevant. Certainly, any incidents of physical abuse are extremely important. If you are doing most of the child rearing, you should be prepared to show evidence of that. It is important to remember that many of these things involve perceptions. You don’t want the mediator to think that one glass of wine after dinner indicates an alcohol dependency if that is not the case. In rare circumstances, one parent will be denied visitation. These situations are extreme, but you should be prepared to address them if they exist.

How to Prepare for the Process of Mediation

The mediator will spend some time with both parents and their counsel. However, they will spend most of the time meeting individually with each party and his or her attorney. Be prepared to tell the mediator all of the facts that you want to the court to know. Write them down in an organized fashion before the session. If there are certain things that you do not want shared with the other side, make sure you tell the mediator.

You may relate an incident to the mediator for the purpose of giving the mediator a greater understanding. However, you may also be aware that it will inflame things if it is mentioned to the other side. You should be prepared in advance to make specific proposals in connection with the major custody concerns stated above. This also includes other concerns which you think are important in your situation.

The job of the mediator is to help reach an agreement between the parents as to custody. The mediator is not an advocate for either side. Suggestions that the mediator makes should therefore not be taken as his or her being on a particular side of the issue. You should be prepared to engage in a good faith give and take with the other parent. This may involve compromising without, however, giving up your principles. The mediator will take suggestions and proposals back and forth. Subsequently, you will need to think and react. If a party has one position regarding custody and is unwilling to budge, the mediation is doomed to fail. This will thus be a waste of time, effort and money.

Contact Family Lawyer Rick D. Banks Today

A successful mediation of child custody will be the result of the contributions and compromises of both parties. It is far preferable to a court determining the custody of your children. You will stand a better chance of a successful resolution of this most important of issues if you:

  • are properly prepared,
  • know what to expect in the mediation session, and
  • have the right attitude.

Family attorney Rick D. Banks can answer your questions and prepare you for mediation. Call today for a consultation.