Obtaining a Legal Separation in California

Legal separation in California is an alternative to divorce. Since legal separation and divorce decisions can have extremely serious consequences for both the parties and their children, it is usually a good idea to involve an experienced attorney in the process. An attorney can safeguard all of your legal rights while your case is pending and can assist you with drafting a valid and workable separation agreement.

Legal separation negotiations can take place – and agreements can be drafted – at the parties’ home, during mediation, or in a law office where the attorneys for both sides play a key role in the negotiation process. Fresno attorney Rick Banks has been representing clients in divorce and legal separation proceedings for many years. He can answer all of your California divorce and legal separation questions and can help to streamline the entire process for you.

Legal Separation in California versus Divorce

Once a California judge signs off on a divorce decree, the parties’ marriage ends forever. Unlike divorce, however, a legal separation in California does not end the parties’ marriage completely.

There are many reasons why some couples choose legal separation over divorce. Some parties may choose legal separation for religious reasons, while others may have more practical reasons for their decision, such as remaining on a spouse’s health insurance plan throughout a period of separation.

Steps for Obtaining a Legal Separation in California

In order to obtain a legal separation in California, you will need to follow many of the same steps that you would follow in a divorce case. For example, you will need to file a petition with the court; make decisions about child custody, support, alimony, and property division and distribution; and obtain a final judgment of legal separation from the court. Once a California judge signs off on an order, the legal separation becomes effective.

Many legal separation decisions, such as those pertaining to child custody and support, as well as martial property division and distribution, may be agreed upon by the parties beforehand or decided by the court.

Drafting a Separation Agreement

When spouses in California decide to separate rather than get a divorce, they may enter into a separation agreement. A separation agreement, like all agreements, is a contract which is binding on both spouses. As such, all of the rules of contract law apply to a separation agreement.

The separation agreement resolves all issues pertaining to the separation, child support and visitation, property division, and alimony (i.e. spousal support). It is not necessary for the parties to attend a court hearing in order to enter into a valid, binding separation agreement.

An agreement for legal separation in California may provide for some or all of the following:

  • The location where the minor child or children will reside
  • When and where the children will spend time with each parent
  • How the couple will pay their bills and expenses while they are separated, including rent, mortgage, loans, and car payments
  • Whether either spouse will pay spousal or child support to the other over the course of the separation, and if so, how much and when
  • How the couple will manage their assets, including bank accounts, stocks, bonds, retirement accounts and other investments, over the course of their separation
  • Whether the couple will divide or sell any of their property while they are separated, and if so, how the proceeds will be distributed
  • How the couple will deal with post-separation income – or income that goes directly to one of the spouses after the parties have signed off on a separation agreement

It is important that a separation agreement be reduced to writing, so that there is no question as to either party’s wishes. A written separation agreement is also helpful if and when disputes arise over the course of the parties’ separation.

Contact a Fresno Lawyer Today for More Information about How to Obtain a Legal Separation in California

In cases where spouses have minimal property and no children, many legal separation disputes can be resolved by the parties themselves. However, the average layperson would have difficulty negotiating and drafting a comprehensive separation agreement that would pass legal muster and hold up in a California court of law. Therefore, it is advisable to retain legal counsel for representation throughout complex separation proceedings.

If you are considering legal separation in CaliforniaAttorney Rick Banks can be your advocate in negotiations with the other side and can work with opposing counsel to draft a separation agreement that fully resolves any disputed issues. You can reach attorney Rick Banks at any time by calling (559) 222-4891, for a free initial consultation about how to obtain a legal separation in California.

Obtaining a Divorce in California

Getting a divorce in California is a complex process with many stringent requirements and time deadlines. Divorce attorney Rick Banks can help you navigate your way through the court system and work toward resolving all of your divorce issues, including child custody, child support, and marital property division and distribution disputes.

Residency Requirements for Divorce in California

In order to obtain a divorce in California, you must satisfy the State’s residency requirements. Specifically, you or your spouse must have been a resident of California for at least six months — or 180 days. After you have filed the divorce paperwork and delivered it to your spouse, you must then wait at least six months from the date of service before a judge can sign off on your divorce decree.

Common Law Marriage

While some states recognize common law marriages, California does not. Under a common law marriage in some states, you are considered “married” if you live with your partner for a certain period of time or take your partner’s surname. However, California requires that you do the following in order to be married legally:

  • Obtain a marriage license
  • Enter into a legal relationship

If you are not legally married under California law, you cannot obtain a divorce in California.

Grounds for Divorce in California

California, like many other states, is a “no-fault” divorce state. This means that in order to obtain a divorce in California, you do not necessarily need to prove that your spouse did something wrong, such as commit adultery or behave in a violent manner towards you. However, these facts may become important when it comes time for the court to award alimony or divide marital property.

Same Sex Marriage

The United States Supreme Court’s 2015 landmark decision in Obergefell v. Hodges requires all states to grant same-sex marriages and give full faith and credit to same-sex marriages granted in other states. As a result, any same-sex couple who married in California at any time may likewise obtain a divorce in California.

Distribution of Marital Property

When parties acquire assets over the course of their marriage, those assets must be distributed among the parties when they divorce. Unlike most states in the country, California is a community property state. This means that if you and your spouse decide to obtain a divorce in California, all of the property and debts that you acquired over the course of your marriage must be divided equally between the two of you.

Community property includes all of the following:

  • Real property (such as a home or real estate)
  • Income of all kinds
  • Savings accounts
  • Retirement accounts (such as a 401(k) or pension plan)
  • Motor vehicles

Community property does not include either spouse’s separate property. The following types of property are not considered community property in California:

  • Inheritances to one spouse
  • Gifts to one spouse
  • Property that one spouse owned or acquired prior to the marriage (assuming that the separate property was not combined with any marital property over the course of the marriage)

Child Custody

When the parties to a divorce in California have children, child custody, visitation, and support will automatically become part of the divorce proceedings. Child custody decisions are always based on the best interest of the minor child or children. The presumption in California is that it is in the child’s best interest to have a relationship with both parents following a divorce.

Prior to finalizing a divorce, some spouses agree to child custody and visitation arrangements, and this agreement is formulated into a parenting plan which the court then approves. If the parties cannot agree on these arrangements, a judge will usually require them to attend mediation, or the judge will make the decision himself or herself.

Child Support

California requires that parents support their children even after a divorce decree has been finalized. The amount of child support that a non-custodial parent must pay usually depends upon some of the following factors:

  • Each parent’s income
  • Each parent’s occupation
  • Each parent’s resources
  • Each parent’s ability to spend time with the children

A court may also “impute income” to a parent who “voluntarily impoverishes” himself or herself (i.e. in cases where a parent has the capacity to earn more than what he or she is actually earning, but, for whatever reason, chooses not to do so).

Contact a Fresno Divorce Lawyer Today for More Information about How to Obtain a Divorce in California

If you are at the beginning or in the midst of obtaining a divorce in California, divorce attorney Rick Banks is ready to assist you with your case. Attorney Rick Banks can meet with you to discuss your case, file the necessary paperwork with the court, and work with the other side to facilitate a favorable resolution of any disputed issues. You can reach attorney Rick Banks at any time by calling (559) 222-4891, for a free initial consultation about how to obtain a divorce in California.

Guardianships: What is a Guardianship and How to Become A Guardian

guardianship of a grandchildDuring a guardianship proceeding, a probate court judge gives someone – other than a parent – custody of a child. The recipient can also gets the power to manage the child’s estate or property. A guardian may be classified as a guardian of the person, a guardian of the estate, or a guardian of both the person and the estate. Under this arrangement, the child is known as the guardian’s “ward.”

Reasons for Guardianships

A court usually appoints a guardian when the ward cannot care for himself or herself – usually due to one or more of the following on the part of the parents:

  • Infancy (under the age of majority)
  • Incapacity
  • Disability

A court may also appoint a guardian when the child’s parents can no longer care for the child due to:

  • Physical illness
  • Military deployment
  • Drug or alcohol addiction
  • Incarceration
  • Child neglect

A family law attorney at the Law Offices of Rick Banks can assist you with determining whether or not a guardianship petition may be filed in your case, given your unique facts and circumstances.

Guardianships of the Person in California

In many cases, appointed guardians are relatives, family friends, or other interested individuals. Guardianship proceedings can be complex, and the knowledgeable lawyers at Rick Banks Law can help you navigate the process and assist you with filing a petition.

A personal guardian is responsible for meeting the child’s basic needs, including the following:

  • Food
  • Clothing
  • Shelter
  • Medical care
  • Education

Guardianships of the Estate in California

A guardian of the estate is charged with managing the child’s financial affairs until the child reaches the age of majority (i.e. 18 years). A guardian of the estate is usually appointed when the child inherits a large sum of money.

Guardianships may also be categorized as “full,” “limited,” or “joint.” A full guardianship allows the guardian to make all decisions about personal or financial affairs, while limited guardianships allow for limited decision-making power – usually in the case of an adult who cannot make health care decisions for himself or herself. In a joint guardianship, more than one person serves as the guardian and may make decisions on behalf of the ward.

A a lawyer at the Law Offices of Rick Banks can help you determine which type of guardianship is applicable to the facts and circumstances of your case.

Steps for Beginning a Guardianship Proceeding

In order to begin a petition to be a guardian, the following must occur:

  1. The guardian must file a petition with the proper court.
  2. The court must approve the petition.
  3. The guardian must follow through with all required duties and obligations.

Although they are similar, legal guardianships are different from adoptions. The court may terminate a guardianship at any time, depending upon the best interests of the child. However, a court cannot legally terminate an adoption.

If you are interested in obtaining legal guardianship of a person, a lawyer at the Law Offices of Rick Banks can help you file your guardianship petition with the court and can ensure that all filing deadlines are met.

Contact a Fresno Guardianship Lawyer Today for a Free Initial Consultation

In order to best begin the process of legal guardianship, it is essential that you have a Fresno guardianship lawyer on your side. A good lawyer will be able to answer all of your legal questions and concerns and can help you navigate your way through the complex process.

The knowledgeable lawyers at Rick Banks Law are prepared to file a guardianship petition on your behalf and ensure that all of your legal rights are safeguarded. Contact a guardianship lawyer from Rick Banks Law at (559) 222-4891 for a free initial consultation.









Tips for Obtaining Legal Guardianship of a Grandchild

grandparents guardianshipObtaining guardianship of a grandchild can be a complex process. Legal guardianship allows a grandparent (or some other qualified person) to care for a minor child and make decisions on the child’s behalf.

In order for a grandparent to obtain legal guardianship of a grandchild, the following steps must first take place:

  1. The grandparent must file a guardianship petition with the court.
  2. The court must approve the petition and grant the grandparent or grandparents guardianship over the minor child.

An experienced attorney can be extremely helpful in streamlining the complex guardianship process. The skilled guardianship lawyers at Rick Banks Law can help you obtain guardianship of a grandchild by preparing and filing the guardianship petition for you and addressing all of your legal questions and concerns.

Types of Guardianships

When it comes to legal guardianships in the grandparent-grandchild context, there are four main categories you should be aware of: (1) planned guardianships, (2) dependency guardianships, (3) voluntary guardianships, and (4) contested guardianships.

1.    Planned Guardianships

Planned guardianships arise when parents name a guardian for their child in the event they become incapacitated. If the child’s parents named the grandparent as their child’s legal guardian upon their death or incapacity, you may be able to obtain legal guardianship over your grandchild without hiring an attorney to represent you. However, a knowledgeable guardianship lawyer may still be able to assist you if the court questions any one of the following:

  • Your age
  • Your health
  • Your financial circumstances

2.    Dependency Guardianships

A California court may also appoint a grandparent or other close relative as temporary guardian if the child has been abused, neglected, or abandoned by a parent. In dependency cases, the courts oftentimes impose stricter standards and may require the potential guardian to do the following:

  • Complete and pass a home study
  • Meet with a social worker

The guardianship attorneys at Rick Banks Law can assist grandparents with obtaining guardianship of a grandchild in cases where the child has nowhere else to turn.

3.    Voluntary Guardianships

Voluntary guardianships come about when parents believe that, for whatever reason, they are not capable of caring for their child or children on a temporary or permanent basis. In that event, they may set up a guardianship arrangement in which the child’s grandparents will act as legal guardians.

In most circumstances, both parents must approve a voluntary guardianship by providing written consent. If one parent contests guardianship of a grandchild, you should seek legal representation from an experienced lawyer at Rick Banks Law.

4.     Contested Guardianships

In some cases, other family members – including the child’s biological parents – may contest your right to guardianship of a grandchild. When this happens, you should seek legal representation. The guardianship lawyers at Rick Banks Law can assist you with filing a petition and seeking your guardianship rights through the California court system during a contested proceeding.

Contact a Fresno Guardianship Lawyer Today if you are Seeking Guardianship of a Grandchild

If you are attempting to obtain legal custody or guardianship of a grandchild, it is usually helpful to have experienced legal counsel on your side throughout your case. An attorney can address all of your legal questions and concerns and can assist you by filing a guardianship petition and representing you at court hearings. A good attorney can make all the difference in obtaining the legal result you want.

The skilled lawyers at Rick Banks Law can ensure that your legal rights are safeguarded from beginning to end. Contact the guardianship lawyers at Rick Banks Law by calling (559) 222-4891, for a free initial consultation.