What Is a QDRO?

What Is a QDRO  Family Law Attorney  Fresno CADivorce can be a difficult situation for anyone, especially if you’re dealing with complex assets like retirement accounts. A qualified domestic relations order (QDRO) can ensure that you get your fair share of any retirement benefits that were acquired during your marriage. But what is a QDRO, and how can it benefit you?

Understanding How a QDRO Works

A QDRO is a legal order that divides a private retirement plan in a divorce. It allows both spouses to get a fair share of a retirement plan that was contributed to during the marriage.

The spouse who originally earned the retirement benefits is called the “participant,” and the other spouse who will receive part of the benefit is called an “alternate payee.” A QDRO generally awards part of the retirement account benefit to both the alternate payee and survivor benefits in the event that the participant dies.

A QDRO isn’t automatic in California divorces. It must be requested as part of a property settlement during a divorce. It is a federal law that these retirement plans must be divided by a QDRO issued by a state court. The divorce decree or agreement between the parties is not enough to divide a retirement plan. Spouses can make an agreement regarding finances that do not include retirement accounts.

What Types of Retirement Plans Does a QDRO Cover?

A QDRO generally covers any private retirement plans that are covered by the Employee Retirement Income Security Act (ERISA) of 1974. This includes the following:

  • Private pension plans
  • IRAs
  • Thrift plans
  • Profit-sharing plans
  • Money purchase plans
  • 401(k), 403(b), and 457 plans
  • Employee stock ownership plans
  • Tax-sheltered annuities
  • Business/corporate defined benefit plans

Retirement plans associated with public job, such as military and government pension plans, are not typically addressed by a QDRO.

What Happens When a QDRO Is Made?

If you obtain retirement funds through a QDRO, then the court order will be signed by the judge and it will be sent directly to the pension or retirement plan administrator. It must be completed accurately for the court to sign it and for the plan administrators to carry through with the directions of the QDRO.

In some cases, when you are already at retirement age, the benefits will begin paying out immediately. In other cases, when you are not yet of retirement age, you will have to wait for retirement funds to begin paying out.

Amounts Payable to the Alternate Payee

Unless the QDRO specifies a specific amount that is payable to the alternate payee, the QDRO preparer will use a formula to tell the plan administrator how much should be paid to the alternate payee. The formula can allow for adjustments to be made in the benefit over time.

Some QDROs allow for lump sum payments to the alternate payee, and others offer payments much like a retirement benefit. Lump sum payments may be rolled over into a personal IRA or other eligible plan. Monthly installments may be made over a period of time.

Speak to a Fresno Family Law Attorney About Preparing the Order

Because the QDRO will go directly to the court and requires in-depth legal knowledge, it should be prepared by an experienced Fresno family law attorney. Call the Law Offices of Rick D. Banks today.

Court Ordered Child Support Not Being Paid — What Can You Do?

Court Ordered Child Support Not Being Paid Fresno Child Support LawyerBoth parents have an obligation to support their children financially and emotionally. However, when is court ordered child support not being paid a problem? If payments are missed, they can negatively impact the life of a child and the ability of a custodial parent to fully provide for them. A child support lawyer can help you enforce a child support order or file a motion against the non-paying parent.

Enforcing Child Support

If you have a child support order, the court can help you enforce nonpayment and collect overdue payments.

Seeking a Motion for Contempt

A court order for child support demands that the noncustodial parent pay money to the custodial parent. If they fail to do that, they may be considered “in contempt” of court. That means the noncustodial parent failed to obey a court order.

A contempt order may be criminal or civil. If a parent who has not paid child support is held in criminal contempt, they may face fines on top of the amount of money they owe to the custodial parent. They may also have to spend time in jail if they do not pay the child support. If a contempt order is civil, a person may also go to jail, but they will be released as soon as the past due support is paid. Penalties may be a combination of civil and criminal contempt.

In order to obtain a contempt order, the parent seeking enforcement of child support must file a motion, or written legal request, for contempt. The motion for contempt should be submitted in the county where the child lives and where the custodial parent is supposed to receive child support. In some situations, the local DCSS office will file a motion or another person acting on the child’s behalf. A child may also file a motion on their own behalf.

There is a time limit, or statute of limitations, on bringing a motion for contempt for nonpayment of child support in California. You only have three years from the date the payment was due to file a contempt action. Thus, if a parent does not pay child support for six years, you can only file a contempt motion regarding the last three years’ worth of payments.

Court Orders to Collect Support

If you file a motion for contempt against a parent who has not paid child support, the court will hold a hearing. If it is determined that they willingly refused to pay, the judge may order a number of penalties, including:

  • Fine of up to $1,000 and up to five days in jail
  • Up to 120 hours of community service for a first or second contempt or up to 240 hours for a third contempt
  • Payment of the custodial parent’s legal fees and costs
  • Selling of delinquent parent’s property to pay child support
  • Lien on real property
  • Wage garnishment to pay child support
  • Bank account garnishment
  • Garnishment of other benefits or accounts

If a parent can prove they don’t have the ability to pay child support, the court will not hold them in contempt.

Speak to a Fresno Child Support Lawyer

Court ordered child support not being paid? Contact a child support lawyer at the Law Offices of Rick D. Banks as soon as possible.

How to Stop Supervised Visitation

How to Stop Supervised Visitation Visitation Lawyer Fresno CASupervised visitation may be imposed when the court is concerned that a noncustodial parent may not be able to properly care for a child during their visitation time. In that case, visitations may be supervised by a third party. However, these types of visits can make it difficult for noncustodial parents to truly engage with their children and build meaningful relationships. Below, we discuss how to stop supervised visitation, and how a child custody attorney can help.

Can Your Supervised Visitation Order Be Overturned?

The court may order supervised visitation for a number of reasons, and some of those reasons automatically prevent the noncustodial parent from ever being alone with a child ever again.

The most common reason for a permanent supervised visitation order is when the child is a sexual abuse victim of the parent. Even if the noncustodial parent has completed their term in prison, they will likely be required to adhere to visitation with a third party nearby.

In some states, a sexual assault conviction on any minor will result in a permanent supervised visitation order. For example, in Missouri, visitation rights would be granted if they were in the best interest of the child, but the time would be limited and someone else must always be in the room.

The court may also refuse to overturn a supervised visitation order where there was severe abuse or neglect of the child, where the noncustodial parent was the abuser or is still with the abuser and mental health issues are unaddressed.

Proving That You Are a Fit Parent

A supervised visitation order was put into place because the court felt you were a danger to the child. When determining how to stop supervised visitation, you must first prove to the court that you are now a fit parent. You will need to provide evidence that the issues that deemed you unfit have been resolved.

For example, if you were ordered to adhere to supervised visitation because you were addicted to alcohol, then you should show that court that you have been clean for a period of time. That may include a letter from a rehabilitation center and drug tests showing you do not have alcohol in your system.

How to Stop Supervised Visitation

You will need to file a motion with the court to modify your custody/visitation order. Although these forms are generally available online or from a court clerk, you will need to know exactly what type of information to present to the court to prove that your supervised visitation order should be overturned. This is best done by an attorney.

A hearing will be scheduled after you submit all necessary paperwork. During that hearing, you will present your own testimony and the court will review evidence that you are now a fit parent. If the court determines that you are no longer a danger to your child, then your supervised visitation order will be overturned.

It’s important to note that the custodial parent can object to changes in the supervised visitation order. However, they will have to present counterproof that you are not a fit parent. When submitting proof that your supervised visitation order should be overturned, you should anticipate any submissions by the custodial parent and address those early.

Contact a Fresno Child Visitation Attorney to Learn More

For more information about how to stop supervised visitation, contact a Fresno child visitation attorney at the Law Offices of Rick D. Banks.

Reasons a Judge Will Change Custody

Reasons a Judge Will Change Custody Fresno Child Custody LawyerWhat are reasons a judge will change custody? The judge’s primary concern is doing what is in the child’s best interests. However, the needs and interests of a child, as well as each parent’s ability to meet them, may change over time. Thus, a change in custody may be necessary at some point.

If you are considering asking a judge to modify custody of your child, an experienced family law attorney to walk you through the process. Below, we discuss some factors the court will consider in child custody modification cases.

Emotional and Physical Stability

A parent’s ability to provide a child with stability is a critical factor in custody proceedings. Children do best when they know what to expect and can count on their parents. If a parent’s life is constantly chaotic, the court may see this as a reason to change custody. Examples of this include:

  • Frequent moving
  • Emotional instability
  • Drug or alcohol abuse
  • Frequent new relationships or marriages
  • Frequent job changes or unpredictable work hours
  • Failure to make the child available for visitation with the other parent

You must be able to prove that something has materially changed since the original custody order in order to get a judge to modify custody. One material change may be a substantial change in the custodial parent’s living environment.

Child’s Academic, Emotional, and Physical Needs

Included in reasons a judge will change custody are significant changes to a child’s school performance or emotional or physical health. If a child is receiving failing grades in school, then the court may think the other parent is a better fit. That parent may live in a school district with better access to resources that can help support the student’s academic struggles.

Similarly, if a child is frequently hospitalized for untreated illness, a noncustodial parent may be awarded physical custody, especially if they have better access to health care. One poor grade or recurrent ear infections likely aren’t enough to warrant a custody change, but the court will consider the ability of each parent to meet the child’s academic, emotional, and physical needs.

Relocation of a Parent

A noncustodial parent may also use the relocation of a custodial parent as an argument to change custody. Such a move may drastically reduce the noncustodial parent’s time with the child or their relationship with siblings. However, the court will still consider what is in the child’s best interests.

Preferences of the Child

If a child is emotionally mature, then the court will likely consider their preferences in where they would like to live. A child will not likely testify in a custody case, but their wishes may be indicated from an appointed person, such as a guardian ad litem.

Abusive and Violent Situations

If a child is in an abusive or violent situation with a custodial parent, the court will remove them immediately. A parent can file an emergency motion to modify custody and address the situation right away.

Call a Fresno Child Custody Lawyer Today

To learn more about reasons a judge will change custody, call the Law Offices of Rick D. Banks.

How to Protect Yourself in a Divorce

How to Protect Yourself in a Divorce Divorce Attorney in FresnoWhile it’s possible to have an amicable divorce, the truth is that it doesn’t take much for things to become adversarial. So it’s important to know how to protect yourself in a divorce, as well as take steps to safeguard you and your children.

Consider Staying in the Family Home If You Have Kids

If you move out of the family home, it could impact child custody later. Although staying in the family home may cause additional tension between you and your spouse, you should try to minimize friction. Avoid fighting in front of your children and do not resort to domestic violence or abuse.

Don’t Allow Your Spouse to Leave With the Children

You have just as much of a right to custody of the children as your spouse does. Let your spouse know that they are free to leave, but the children should stay in the family home. You may also consider a “time sharing” situation in the family home until custody and other divorce issues are determined.

Make Copies of Important Documents and Safeguard Personal Papers

During a divorce, you will need to produce an array of legal and financial documents. You will also need many personal documents to manage life after divorce. Gather all of your personal and financial records in one place so that they are safe. You should make two copies of everything and give one to your spouse.

Those documents may include:

  • Your birth certificate
  • Diplomas
  • Bank statements
  • Real estate records
  • Titles
  • Deeds
  • Tax returns
  • W2 statements

Cancel Jointly-Owned Credit Cards

Let your spouse know that you’re cancelling jointly-owned credit cards. If your spouse goes on a shopping spree and you are not yet separated or divorced, you could be jointly responsible for the credit card debt they rack up.

Take Precautions With Joint Bank Accounts

It’s common for an angry spouse to wipe out a joint bank account. Before that happens, take half of your joint balance and open a new individual account in your own name. Notify your spouse that you’ve taken your portion and make arrangements to pay shared bills.

Make a Record of Marital Property

The court will want a list of all marital property that is to be divided between you and your spouse. You should inventory your entire home and its contents. This can be done via video. Make sure you give a copy to your spouse and store the recording in a safe location. This allows it to be referenced in case things “go missing” from the family home.

Don’t Sign Anything

You should never sign anything without the presence of your lawyer when a divorce is pending. Some people will seek preliminary agreements, which are later referenced in property fights or child custody battles. These should be avoided until the court can make official orders.

Call the Police If Domestic Violence Occurs

Some divorces become volatile. If your spouse threatens or commits domestic violence against you or your children, call the police. You need to have an official record of the situation for later use in court.

Hire a Fresno Divorce Attorney Early

When it comes to knowing how to protect yourself in a divorce, probably the most important thing to remember is how crucial it is to hire an attorney early in the process. Your attorney can guide you through a difficult divorce as well as help you navigate any roadblocks. Call the Law Offices of Rick D. Banks to learn more.

Contested vs. Uncontested Divorce: What’s the Difference?

Contested vs. Uncontested Divorce Fresno Divorce LawyerEvery divorce deals with difficult issues, and has some level of disagreement. But what is the difference between contested vs. uncontested divorce?

What Is an Uncontested Divorce?

An uncontested divorce is one where both spouses generally agree on issues related to the separation and don’t have to go to court. It is typically the easiest and most cost effective type of divorce.

Relationships that work well for uncontested divorces include those:

  • With few assets and no children.
  • Where couples agree on division of assets, child custody, and support issues.

While an uncontested divorce may seem pretty straightforward, it’s still important to have the help of an experienced divorce attorney who can help you review and file all of the paperwork involved. Your attorney will also make sure that your rights are protected in the process.

Relationships that do not work well for uncontested divorces include those:

  • Involved physical or emotional abuse
  • Where child abuse is or was present
  • Where a spouse is suspected of hiding assets or income
  • When one or both spouses are attempting to alienate affections of the children

When these types of issues are present in a marriage, one spouse may try to manipulate the other. A fair agreement is unlikely to come from such a situation.

What Is a Contested Divorce?

A contested divorce is one where spouses do not agree on one or more issues in the separation. Heavily contested divorces are the most difficult and can be both time-consuming and costly.

Your attorney can negotiate with your spouse’s attorney to seek a fair outcome for everyone involved. But you’re having a difficult time agreeing on the details, you may need outside intervention to resolve things. You will need an experienced divorce lawyer to present your case before the court.

Although some people choose to go through a divorce without an attorney, this is not recommended for contested divorces. You may opt to use an attorney who offers limited scope representation, where they will help with specific areas instead of an entire divorce proceeding.

What to Issues Are at Stake in Divorce?

Regardless of whether you are moving forward with a contested vs. uncontested divorce, you will have to consider the following issues:

  • Child Custody: California courts favor joint physical and legal custody. Although you may be able to make an agreement with your spouse regarding child custody, if the court handles the situation, it will be split evenly if that is in the best interests of the child.
  • Child Support: The court will determine how much child support will be paid by which parent. Generally, child support payments are based on amount of time spent with a child, earnings, number of children, tax filings, health insurance expenses, day care costs, and special needs of children.
  • Asset Division: California is a community property state, so all assets earned during the marriage are divided equally.
  • Debt Division: Debts are considered community property. Thus, they are also divided equally.

Call a Fresno CA Divorce Lawyer Today

If you have questions about your divorce or how to navigate a contested vs. uncontested divorce, call the Law Offices of Rick D. Banks. We can help you minimize the stress involved in the process.

How to Establish Paternity in California

How to Establish Paternity in California Fresno Paternity LawyerPaternity must be legally established in order to determine who should be providing financial child support or who should have child custody and visitation rights. Read below to find out more about how to establish paternity in California.

Why Is Establishing Paternity Important?

Advantages to establishing paternity include:

  • Identification of both parents through legal documentation
  • Putting the name of both parents on the birth certificate
  • Providing access to family medical records and history
  • Health and life insurance coverage from both parents
  • Inheritance rights from either parent
  • Rights to social security or veteran’s benefits
  • Ability of the father to sign releases and permission forms for the child

When a Couple Is Married

The court will assume that the husband of the mother is the father of a child unless parentage is contested within the first two years of a child’s life. If another man impregnates a married woman, he has rights to establish paternity within those first two years. In some cases, a court may favor a stable marriage over a father’s biological ties to the child. A man who has a child with a married woman risks not being part of the child’s life. The husband of a woman who has given birth can also ask for a paternity test regardless of the child’s age.

When a Couple Is Not Married

If a man has been living with a child in a family-like situation, and has shown commitment to that child, he may be assumed to be the father. If there is no family-type relationship established, a paternity test is necessary for the court to issue child support, custody, and visitation orders.

When the Man and Woman Agree on Parentage

If both parties agree on parentage, they can establish paternity by signing a Voluntary Declaration of Paternity (VDP) form. To be valid, it must be signed by both parents. It may be signed at the hospital or at a later date. If a birth certificate has already been issued, a new one may be created with the father’s name on it. Once the VDP is signed, a father has visitation, legal and physical custody rights, and financial responsibilities.

Establishing Paternity Through the Court

Parentage may be established through the court at the request of either parent. However, this process can be more complex and time-consuming than a voluntary acceptance of paternity. In California, the following people have legal standing to obtain a paternity order:

  • Child’s mother (or the mother of an unborn child)
  • Man who believes he is the father
  • Adoption agency
  • Child support agency
  • Child who is 12 or older

If a man refuses to cooperate with a paternity process, the court may assume his non-cooperation is evidence of paternity.

The court process will involve the submission of a petition, which legally establishes the facts for the paternity action. A pre-trial hearing will evaluate the situation and determine if a trial is necessary. Genetic testing may be done in order to determine if the man is biologically linked to the child. In the end, a trial may be held so that both sides can present whether or not they feel a man should be considered the father of a child. A court will issue an order regarding paternity as well as the rights and obligations of the father.

Contact a Fresno Paternity Lawyer Today

If you have questions about how to establish paternity in California, contact the Law Offices of Rick D. Banks.

What Are Child Visitation Rights for Fathers?

Child Visitation Rights for Fathers Fresno CA Visitation LawyerWhen children are involved in a divorce, understanding your rights as a parent can be difficult and confusing. This is especially true if you are a father, and primary custody has been given to the mother of your children. What are child visitation rights for fathers in California, and what can you expect when it comes to seeing your kids?

What You Are Entitled to as a Father

Child visitation rights are usually outlined in a divorce decree or other parenting plan. As a father, you are entitled to:

  • See your children during specified hours and days
  • Develop activities during the visitation time that is established
  • Have the police intervene if your visitation rights are violated (the police report can later be used as evidence)
  • Obtain an injunction if the mother tries to take the children out of state
  • Prevent the mother from threatening to deprive you of visitation time
  • Modify the divorce decree or parenting plan establishing the details of visitation

If the mother tries to keep you from seeing your children, tries to move out of state with the children, or otherwise violates your divorce decree or parenting plan, you can seek court intervention. You can also seek a modification of those orders to obtain a better child visitation plan or custody situation for your children.

Don’t Forget Your Obligations

As important as it is to understand your rights, it’s equally important that you are aware of your obligations. Even if the mother of your children is not complying with court orders and violating your visitation rights, you cannot:

  • Stop paying child support
  • Verbally or otherwise abuse the children’s mother

Be careful that you don’t retaliate if your ex is trying to control the situation and manipulate the kids. Your actions will be scrutinized, and you want to remain on good legal terms with the court.

Child Visitation Rights for Fathers Is Not Automatic

You will not obtain child visitation rights automatically as a child’s biological father. First, you will have to establish paternity, or parentage. That means, you must prove that you are the child’s parent. In some situations, the law will assume the identity of the child’s father. For example:

  • If a child is born into a marriage, then the mother’s husband is assumed to be the father.
  • If a child is born and a male has been living with the mother in a family-like manner, he demonstrates commitment to the child, then he is considered the child’s father even if there is no biological connection.

A man may also sign a voluntary declaration of paternity (VDP), which is common for women who are unmarried. When a VDP is signed at a hospital, the man’s name is typically added to the birth certificate.

What Are the Best Interests of the Child?

The court will consider what is in the best interests of the child when determining visitation. They may consider your relationship with the child up to this point, your background, and your mental and physical well-being.

Domestic violence can affect the outcome of a visitation decision. Your visitation rights may be restricted or denied altogether for a conviction. You may also be put under supervised visitation, where someone must observe you during visitation with your children. If you have a significant criminal record, your visitation may also be restricted.

Learn More About Enforcing Child Visitation Rights for Fathers

If you you need help enforcing or modifying a visitation order, contact the Law Offices of Rick D. Banks today.

Does It Matter Who Files for Divorce First?

Does It Matter Who Files for Divorce First Fresno CA Divorce AttorneyEnding a marriage is never pleasant. But if you and your spouse have tried and failed to salvage your marriage, divorce may be your only option. But does it matter who files for divorce first?

While there is no right or wrong when it comes to filing first, there are some pros and cons to keep in mind.

Advantages of Filing for Divorce First

One advantage to filing first is that you can control the subsequent proceedings. Depending on whether the situation is volatile or amicable, filing first gives you the element of surprise. This can be a great tactic for fraught relationships where you know your spouse will retaliate, since you’re essentially catching them off guard.

In addition, filing for divorce first can bring the following benefits:

  • Having a say in the divorce proceedings. The spouse who files first usually gets to decide on the court dates and the jurisdiction in which the divorce will take place.
  • Getting prepared for the divorce. Since you’re the one initiating the divorce, you more than likely have more time to prepare than your ex. This will give you a chance to obtain all the necessary papers and documents before your spouse has a chance to hide money or assets.
  • Telling your side of the story first. In many instances, the court will first examine the papers that were filed first. This means that you can effectively tell your side of the story before your spouse. In addition, you’ll also have the chance to present your case first during the trial and hearings.
  • Obtaining separate property sooner. California law mandates that property and assets gained during a marriage are community property and must be divided equally. By initiating the process of divorce, you can essentially ensure that you’ll obtain separate property much sooner.
  • Obtaining immediate relief. If your spouse moves out and fails to help pay for bills or keeps your children away from you, starting the divorce process can offer immediate relief.

Disadvantages of Filing for Divorce First

With advantages comes disadvantages. You should also be aware of the negative aspects of filing for divorce first. For the most part, these negative aspects deal with money and strategy. They are as follows:

  • Alerting your spouse to your demands. When filing for divorce, you typically must list out your desires and demands. When your petition is served, your spouse gets the chance to see all your wants, which can essentially allow them develop counterattacks.
  • Paying more fees (sometimes). An individual petitioning for divorce will need to pay a filing fee. In addition, if your attorney is busy obtaining information, then you my need to pay more attorney fees.
  • Setting forth the end of the marriage. Initiating the divorce process means you’re the first to make it a reality. Since you’ve made the first move to end the marriage, there is often little chance of reconciling afterwards.

Speak to an Experienced Fresno Divorce Attorney to Learn More

Does it matter who files for divorce first? Yes, it can. But it’s important to weigh the pros and cons of doing so. An experienced divorce attorney can help you make educated decisions to protect your interests. Contact the Law Offices of Rick D. Banks to learn more.

What Is a No Fault Divorce?

What Is a No Fault Divorce Divorce Lawyer Fresno CAWhen researching your different options for divorce in California, you more than likely have seen the term “no fault” divorce. What is a no fault divorce, and how does it apply to your current situation?

What Does No Fault Mean in California?

When you file for divorce, you can base your divorce on various “grounds”. For instance, most states allow you to base your divorce on issues of wrongdoing, such as adultery, abandonment and abuse.

On the other hand, California offers a “no fault” divorce option. Simply put, this type of divorce means that you do not need to find an excuse or problem to base the separation on. If you and your spouse no longer want to be married, you can end the marriage citing “irreconcilable differences” as grounds for the divorce.

Historically, couples needed to find an excuse to file for divorce. This often meant that spouses would either make false accusations against the other or intentionally self-destruct the marriage. Both of these tactics would only lead to more heartache and pain on top of an already failed marriage. With no fault divorce, people can end an marriage without resorting to harmful schemes.

How Does No Fault Grounds Affect Divorce Cases?

Since no fault divorces do not require accusations, you do not need to prove your case in order to get divorced. By comparison, in fault based divorces, accusations of abuse or adultery require effective proof and evidence; otherwise your case can be denied.

Going even further, the grounds for a fault based divorce can also be used in other aspects of the case, such as in deciding alimony or custody. So, in states that allow fault based divorces, spouses may use the other spouse’s fault as a calculated tactic. In California, since the no fault rule can apply to all divorces, a spouse’s fault is not considered when deciding alimony or other aspects.

Because of this, the court will look at other factors pertaining to those issues, such as both party’s ability to support themselves and their mental and physical health.

However, keep in mind that when deciding child custody, a spouse’s fault can still be used against them if their fault posed a threat to the child’s health or safety. For instance, if your spouse is abusive or addicted to drugs or alcohol, the court will consider those facts when deciding custody.

Contact an Experienced Divorce Attorney to Learn More

What is a no fault divorce? The answer is simple — in California all divorces are considered no fault. If you are considering divorce, speak to a Fresno divorce lawyer who can answer your questions and provide valuable legal guidance. Contact the Law Offices of Rick D. Banks today.