Separation vs. Divorce: What’s the Difference?

separation vs. divorceKnowing what the difference is with separation vs. divorce can be difficult. Add the fact that there are different kinds of legal separation, including permanent separation, and the whole separation vs. divorce thing becomes cloudier. Are you married or not? And if you’re separated permanently, why aren’t you divorced?

If you’re wondering about the differences, the Law Offices of Rick D. Banks can help. Let’s take a look at each kind of separation, and how they may apply to you.

What Is Trial Separation?

Trial separation occurs when you and your spouse decide to try living apart for a while. It’s a test to see if you’re better off alone, or would prefer to stay together. Whether or not you reunite, your assets and debts remain marital property when this occurs. Most California courts don’t legally recognize trial separation.

What Is “Living Apart”?

Here’s where the “separation vs. divorce” concept starts getting hazy. Before January 1, 2017, spouses had to reside in different locations to be “living apart.” Now, however, the law considers a couple to be living “separately and apart” even if they live under the same roof while preparing to divorce.

Either way, living apart changes your property rights in California. Unlike some states, any debts incurred or assets acquired while living apart count as separate property or debt, equivalent to what you came into the marriage with or that you received by bequest or gift. This will make dividing assets less complicated when you and your spouse actually divorce.

What Is Permanent Separation?

If you don’t reunite after a trial separation, you and your spouse typically split up permanently. The law refers to this as “permanent separation.” This can also occur if you both throw in the towel and decide not to undergo trial separation. In this case, as soon as you start living apart, you’re permanently separated. Under the separation vs. divorce rules, it counts as separation because you may never divorce.

In California, as in most states, your assets and debts immediately become separate property and responsibilities. Certain necessities, like maintaining your marital home or taking care of your children, will remain joint debts during the period between permanent separation and divorce.

Note that your permanent separation may not be official unless you file for legal separation or divorce. When you do, a state of permanent separation will probably make it easier to divide your assets.

What Is Legal Separation?

This is a situation where you file for separation officially, whereupon the state provides for property division, spousal and child support, child custody, and visitation — but you do not divorce. While rare, this is one way to live apart when religious beliefs, personal reasons, or financial issues preclude a normal divorce, but you want a court order that treats you as divorced. The court may refer to spousal and child support as “separate maintenance” in such a case. Your lawyer, or your spouse’s, may file a temporary motion of pendente lite, or “pending the litigation,” while you and your spouse (and your representation) determine the awards in an upcoming divorce judgment.

Learn More About Separation vs. Divorce

If you’re about to separate and confused about the differences between the different types of separation or about the difference between separation vs. divorce, contact the Law Office of Rick D. Banks for a free consultation. We’ll be happy to help and may be able to represent you in your legal proceedings.

What to Know About Child Support Paternity Suits

child support paternityIf someone has named you in a paternity suit, you’ll need an attorney to represent you. Child support paternity issues are rarely as straightforward as they seem. The person legally identified as the father isn’t always the genetic father.

Surprised? Most people are. But we can help you better understand the situation by taking a look at the legal definitions of paternity .

What Counts as the Child’s Father?

Keep in mind: the court will act in what it considers the child’s best interests. You and the court may not always agree on the definition of father. In the next few sections, we’ll discuss the various kinds of fathers the court recognizes.

Acknowledged Father

You’re the acknowledged father if you or you and the mother admit or announce that you are the child’s father, despite being unmarried. As the acknowledged father, you must pay child support if the relationship ends, but you retain custody and visitation rights.

Presumed Father

Unless you or the mother can prove otherwise in court, you are the presumed father if:

  • You were married to the mother when the child was conceived or born.
  • You tried to marry the mother and failed (for example, due to annulment). And the child was born or conceived during the attempted marriage.
  • You agreed either to have your name on the birth certificate as the child’s father, or to support the child after his or her birth.
  • You welcomed the child into your home and openly treated them as yours.

The state recognizes all as conclusive evidence of paternity, even if DNA tests later prove otherwise. In other words, you must continue to pay child support even if you later prove the child is not yours, but you still retain custody and visitation.

Alleged Father

If you were not married to the mother when you impregnated her and admit parentage or a court determines you are the parent, you’re the alleged or unwed father. You must pay child support, but can seek visitation and custody rights.

Equitable Father

Under California law, if you are a non-biological father who steps forward to take responsibility from the child, but not allowed to take full custody, you are an equitable parent. This especially applies when you and the child maintain a close relationship and consider yourselves parent and child, especially when the biological parent encourages the relationship. Along with equitable custody or visitation comes child support.

Stepfather

You count as a stepfather if you’re the mother’s spouse but not the child’s biological or adoptive father. You need not support the child after the end of the marriage, even if doing so would be in their best interest.

About Court-Determined Paternity

Either the child’s mother or father can file a paternity suit against you if you had a sexual relationship with the mother. However, welfare officials usually initiate such lawsuits as part of Temporary Aid to Needy Families (TANF) proceedings. By law, they must try to get the father to reimburse them for TANF funds. They will threaten the mother with loss or reduction of TANF benefits if she refuses to cooperate.

Modern DNA testing is sufficient to determine or rule out parentage with near 100% accuracy. If such an action establishes a child is yours, you must pay child support, but will also receive custody and visitation rights.

Facing a Child Support Paternity Action? Get a Fresno Lawyer on Your Side

If you are facing a paternity suit, or the court has ordered you to pay child support for a child you aren’t sure is yours, call the Law Offices of Rick D. Banks. We’ll provide a free consultation to help determine if you have a case. Your child or not, the court may still want you to pay. We can help you avoid unfair child support paternity orders.

How to Create a Successful Parenting Agreement

parenting agreementThe divorce process can be overwhelming, and you likely have a long list of tasks to handle, none of which are very pleasant. One of the most important things you and your spouse will have to do is come up with a parenting agreement. Though tensions may be high, and you may be angry with your spouse, it is vital that you put your children first. If both parties fail to communicate and make decisions, the court will step in and make decisions for you.

Thus, do whatever it takes to reach a successful agreement with your spouse, even if that means seeking professional help. A child custody attorney can help you negotiate a plan that best suits your family’s needs.

How Does a Parenting Agreement Work?

Parenting agreements are documents that outline how you and your former spouse will split parenting duties. These duties can include the time each parent gets to spend with their children, as well as what decisions both parties can make. Because these agreements set the expectations of each parent, they often set the stage for a successful post-divorce relationship. You and your spouse will be able to discuss early how you will both handle important life event’s throughout your children’s lives.

Cover these important topics when outlining your agreement:

  • living arrangements and custody
  • visitation rights
  • how you will handle holidays
  • financial support and expenses
  • education
  • religious practices and training
  • medical care

Once your parenting agreement is complete, get it made into a court order. Doing so holds both parties accountable and legally enforces the terms of the agreement.

Crafting a Successful Parenting Agreement

Gathering the Documents

While you can work with your former spouse to draft and negotiate a parenting agreement, you may want to seek assistance from a child custody lawyer or mediator. Whether you seek help or not, collect all relevant documents before you begin the writing process. If you’re already in the middle of your divorce proceedings, and have been involved in custody negotiations, gather the following documents:

  • any document you’ve filed or received in court, including “petitions,” “summons,” “complaints,” responses,” “declarations,” or an “affidavit”
  • any correspondence shared among mediators, court officials, attorneys, or counselors that regard your divorce, separation, child support, paternity, visitation, or custody
  • all court orders that regard divorce, legal separation, declaration, award of custody, or paternity
  • any agreement that has been previously mediated, arbitrated or negotiated between you and your spouse
  • documents that dissolves your religious marriage or states your martial status
  • letters, evaluations, or reports from school counselors, therapists, school officials, or other people with insight into your children

Though you may not utilize all the documents outlined above, having certain documents ready can help expedite the process. This is especially helpful if you’re currently going through divorce or legal separation. Often, once the court proceedings begin, you and your spouse will be given a deadline for completing and submitting your parenting agreement.

Remember to carefully read each document you gather. If you ever need help understanding or finding certain documents, consider consulting an attorney, paralegal, marriage counselor, court clerk, or mediator. Furthermore, these same people can also help you and your spouse reach a successful parenting agreement.

Negotiating With Your Ex

Once all the necessary documents are gathered, it’s time to meet with your spouse. If you opt for professional help, invite the third party to the meeting. More often than not, parenting agreements take multiple meetings to complete. Effective communication and a level head is key to drafting a successful agreement. If arguments or disputes arise, mediate through your professional help or conclude the meeting for the day. The more you and your spouse are willing to negotiate, the faster and easier the process will be.

After the parenting agreement is complete, you should get a judge to approve it. You will also be able to keep the agreement in your divorce file. When the judge signs the agreement, it then becomes legally enforceable. This ensures that both parties are held accountable to their responsibilities and terms. If one parent fails their duties, the other parent can use the agreement to seek legal action.

Contact a Divorce Lawyer for Help

If you and your spouse need help creating your parenting agreement, you may consider seeking guidance from a family law attorney. An attorney can help you work out any issue and create a plan that meets everyone’s best interests. Call the Law Offices of Rick D. Banks today.

How Does Alimony Work?

how does alimony workIf you and your spouse are currently facing a divorce, you may be ordered to make alimony payments. But how does alimony work? And how exactly is it determined? Find out below.

How Does the Court Determine Who Pays What?

Generally, the spouse that earns substantially more money is ordered to make alimony payments. These monthly payments, sometimes known as “spousal support” or “maintenance”, are pre-determined by the court in order to provide financial support to the low income spouse. However, if your marriage is short lived, or if you and your spouse’s incomes are similar, alimony payments will most likely not be ordered.

If your spouse is awarded alimony, you will need to make payments each month until:

  • The date set by your judge (usually several years later)
  • Your ex-spouse remarries
  • Your children reach an age where a full-time parent isn’t needed
  • The court determines, after a reasonable time, that your spouse has neglected to become partially self-supporting
  • Other significant events occur, such as a retirement or successfully convincing the judge to modify the payment amount
  • Either you or your spouse dies

While you and your spouse can agree to length terms and payment amount, if you cannot agree, the court will determine those factors instead. With a court decision comes a trial, which can be time consuming and costly. Fortunately, seeking guidance from a family law attorney can help each party come to an agreement and avoid a trial.

What to Expect When Making Alimony Payments

Being ordered to make alimony payments does not make you a bad person. In most cases, it simply means that you make more money than your spouse. For more than 100 years, people have been ordered to pay alimony, and while it’s ordered less frequently today, it is still around. If you’re ordered to pay alimony, you will be legally obligated to make monthly payments of a predetermined amount.

What to Expect When Receiving Alimony Payments

Looking at your ability to earn will help determine if you’re eligible to receive alimony. Remember that this does not necessarily mean what you’re earning by the time you go to trial. Often, if you are awarded alimony, you will be requested to make life and work changes. For example, if you’re working a part-time, low income job, you can be required to find a full-time job in a higher paying field. If you have not been fully employed for a while, vocational evaluators can be hired to report your current job prospects to the court. These evaluators will administer a vocational test and share your experience and credentials with prospective employers to determine how much income you could make.

Keep Detailed Records for Tax Purposes

Whether you make or receive alimony payments, it is vital that you keep detailed records. For the paying spouse, alimony is tax-deductible, and for the support spouse, it constitutes taxable income. Without detailed records, you can lose your tax deduction or be required to pay back support if the IRS challenges the amount or a dispute arises.

Important notice: under a 2017 Republican Tax Bill, starting January 1st, 2019, alimony will no longer be tax deductible or required to report under gross income.

Here is a breakdown the records both parties should keep:

Paying Spouse

The spouse required to pay alimony should keep:

  • a detailed list of each payment (including the date, address, and check number)
  • the original check used for each payment–include a note for the month of support each check was used
  • get receipts for each payment, with recipient’s signature, if you pay in cash

Keep these records for at least three years from when you file the tax return deducting your payments.

Receiving Spouse

The spouse awarded alimony should keep a list of each payment received and include the following information:

  • date of each payment received
  • amount of each payment
  • check or money order number
  • account number
  • name of bank of each payment
  • a photocopy of the check
  • copy of any signed receipt for cash payments

What Happens If Your Spouse Refuses to Pay?

If your spouse refuses to pay, seek legal action immediately. Alimony payment orders have the same power as other court orders. Seeking legal action is the best course for obtaining your payments. Sometimes the court can jail a reluctant payer to show they’re serious.

Speak to an Alimony Lawyer Today

To learn more, contact the Law Offices of Rick D. Banks.