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Title: Divorcing parenting from child support: justice and care in the disco… More >>

Divorcing parenting from child support: justice and care in the discourse of the rights and responsibilities of shared custody.: An article from: Fathering

“Confusing are the ways of the world”. These were the exact words Janet used when I asked her if she was going in for a divorce or a separation. Like Janet, many people are not aware of the differences between separation and divorce and the pros and cons of each. Before we actually delve ourselves deeper into the subject, it is necessary that we understand the prime difference between the two. Knowing the difference will help us make an apt choice.

Types of Separation

Most of us will be clear on the idea that a divorce will mean putting a legal end to a marriage relationship by a court of law. On the other hand, a separation process can take various forms.

Trial separation: A trial separation is a period for which the couple decides to stay apart to further decide on whether or not to separate permanently. This type of approach is an internal arrangement between the individuals in a relationship and is usually not legally recognized.

Legal Separation: In this type of separation, the court intervenes and provides a judgment on the division of assets, child custody and visitation and alimony. This is a situation where a couple might not want to go in for a divorce, but would want all the conditions pertaining to divorce being executed here.

Benefits of Legal Separation

There are many advantages that a separation offers over divorce which have been highlighted as follows:

A couple, who have gone for a legal separation, can always reconcile the differences between them and continue their lives as husband and wife without the intervention of the court. However, a divorce will require the two to get married again.

This comes in very useful when spouses don’t want to stay married for religious reasons but want all the conditions of a divorce imposed.

At times, a couple may want to opt for legal separation to take advantage of income tax deductions owing to spousal support payments. The money that is offered for spousal and child maintenance during this period is called separate maintenance. However, to enforce an income tax deduction the couple must be legally separated.

A couple, who would want to preserve the status of the coverage of their insurance policies or the health care benefits offered to them, might opt for legal separation.

Further, spouses claim that a legal separation has a psychological separation which divorce cannot offer. They feel that one can experience what a post divorce life could offer, even while staying within marriage. This separation period helps each of the individuals to work and sort out the problems in their individual lives.

Any asset that is purchased or any debt that is incurred will be solely attributed to the individual associated with these. However, for any kind of joint expenditure such as child custody and support, both the spouses will be responsible.

Usually, in a divorce you tend to spend a huge amount towards your solicitor fees. This can be avoided totally or kept to a bare minimum when one opts for a separation.

Unlike divorce, a separation still preserves the family structure and is always a wise option when considering the interests of the children in the family.

Separation Agreement

Even in separation it is a good idea, that you draft a separation agreement. A separation agreement is a written agreement between you and your spouse on how you would want to settle affairs relating to the marriage. This will include issues but not limited to child custody, child support, sharing of marital home, division of assets, sharing of debts and name changes. A separation agreement becomes a valid document only if both the spouses sign it. However, you can never be forced to sign a separation document.
Separation – The Last Word

Opting for a separation is wise and advisable in all respects. Apart from costing you less, you can avoid all the trouble and tussle that are usually involved in a divorce proceeding.

And, for all that you know your decision to separate might be taken in haste. Any relationship that has split will need a cooling period, and separation just provides that. A separation always gives you a chance to reconcile your differences and unite again unlike divorce where you will be expected to marry again. Further, keeping the interests of your children in mind, a separation is always a better decision at any time. Think diligently and act wisely in the common interests of one and all. Let us preserve our families.

When a couple is divorcing, dealing with the issue of dividing up assets and property can be a difficult and stressful process. Property division can occur in one of two ways. Often, a couple that is divorcing will decide how to divide their property and assets themselves (perhaps with the help of a mediator). If the individuals are unable to reach an agreement, the matter will go to trial. A judge will consider all of the evidence presented and will use state law to divide the property.

There are two legal theories that govern how marital property is divided: community property and equitable distribution. In a few states, all property of a married person is classified as either community property (owned equally by both spouses) or the separate property of one spouse. In the event of a divorce, community property is generally divided equally between the spouses, while each spouse keeps his or her separate property. However, a majority of states use the law of equitable distribution, under which all assets and earnings acquired during marriage are equitably divided. In equitable distribution states, the court determines a fair and reasonable distribution that may be more than or less than 50% of any asset to either party.

Tip #1: Take this process very seriously, as most property division agreements are final. It can be very difficult to get out of or change a property division arrangement to which both parties have agreed or a court has ordered. In most states, there is an established period of time after a court enters its decision on property division during which one of the parties can request that the court reconsider its decision, but these requests are often denied. In general, a judge will reevaluate a property division arrangement only if one spouse engaged in fraud, hid assets, or some substantial mistake was made.  If your case involves neither fraud nor a mistake but you still want to challenge the court’s division of property, your only option is to file an appeal, which can be very costly.

Tip #2: Beware of hidden assets. There are a number of ways in which a spouse may hide, undervalue, or disguise assets. Some of the most common ways that assets are hidden include income that is unreported on tax returns and financial statements, custodial accounts set up in the name of a child, cash in the form of travelers’ checks, retirement accounts, and collusion with an employer to delay bonuses, stock options, or raises until after the property division has been finalized. It can be very difficult to find these items and get the proof needed to show the court that they exist. Litigation may provide helpful formal discovery procedures, such as depositions.  Hiring a forensic accountant or a private investigator are additional steps that can be taken to uncover hidden assets.

Tip #3: Be forthright and honest when it comes to your own assets, and make sure you list them all on your case information statement. “It’s important to list all your assets. Just because you think your spouse may not be entitled to an asset is not a reason not to list it because when you sign the case information statement, you certify that everything is true. If there is a trial, it can be used in cross examination… To deliberately leave something out is probably one of the biggest mistakes that you can make,” explains New Jersey divorce lawyer Bonny Reiss. “If you think your spouse isn’t entitled to share in an asset, there’s a place to say why, at least in a word or two, but make sure you list the asset,” Reiss adds.

Divorce cases involve many different types of issues, including preparing for your divorce, child custody and visitation, child support, and alimony all of which have been addressed in this series.

For more divorce advice, refer back to Parts 1, 2, and 3 of this series:
Part 1: Divorce Advice: Preparing for Your Divorce
Part 2: Divorce Advice: Child Custody and Child Visitation
Part 3: Divorce Advice: Child Support and Alimony

You’ve decided to get a divorce, so what’s next?

You’ve decided to get a divorce, but where do you go after that initial decision? We all know the rituals and procedures of getting married, but the divorce timeline is a mystery to most people. Let’s face it; divorce has a certain hush-hush nature. Most people don’t broadcast to friends and family the visits to their divorce attorney, or meetings to hash out financial and child support agreements, and although we have all heard the term “filing for divorce”, most people would be at a loss to know where to file, or what the term really means. As a result, many people who decide to divorce have no idea where to start.

So here’s a beginning. The first step you probably should take is deciding whether to use a divorce attorney or proceed alone in ending your marriage. But how do you decide which path is best for you? Here are some suggestions to guide you.

You probably need a divorce attorney if:

You have dependent children. You have finances you wish to retain. You own property or have assets of significance to you. You feel overwhelmed by the divorce process and/or the prospect of going to court.

You may not need a divorce attorney if:

You expect an uncontested divorce; have no children and no assets or finances to divide.

If you do decide to use a divorce attorney many of the following steps in the divorce timeline will be handled by your lawyer, however make a point to know these steps, as it is always a good idea to be aware of what your attorney will be doing on your behalf.

After deciding on an attorney (or deciding to file independently), you or your attorney will need to complete an Original Petition for Divorce from your county clerk’s office and file one copy with the clerk. You will also send a copy to your spouse and keep one copy for your records.

In Texas, once this is done, you must wait 60 days to take your final Divorce Decree to court and have your divorce finalized by a judge. These 60 days not only give you time to rethink your decision to divorce, but also to come to an agreement with your spouse on the terms of your divorce.

At this point it will be time to sit down with your spouse and divorce attorney and work out the details relevant to your divorce.  These may include division of your assets and debts, child support and custody arrangements and spousal maintenance (known in other states as alimony).  No two marriages are the same, and divorce is no different. The process of your divorce is not going to mimic that of your neighbor. During your 60 day waiting period you will want to prepare, in writing, all of the following applicable to your divorce. You need to be aware that if you can’t agree on these items, the court will decide these things for you

If children are involved;

The submission of a joint parenting plan with your soon to be ex-spouse. Completion of parenting classes. Deciding upon joint or sole custody. If sole custody is decided on, a visitation schedule. Child support & child care arrangements.

Money and Property issues:

Division of property and assets. A decision regarding ongoing financial “maintenance” (alimony). Division of debts.

Some research says that 95% of divorces are uncontested and spouses come to most of these agreements amicably and quickly, so hopefully a lot of these steps will be moved through fairly rapidly as you prepare to finalize your divorce.

Once the 60 day wait has passed after filing your Original Petition, and you and your divorce attorney feel confident that you are ready to proceed, it is time to head to court. Both you and your spouse file a final Divorce Decree with all the detailed agreements and arrangements attached, and the judge will then sign off on the divorce.

This is the basic timeline to expect for an uncontested divorce. A contested divorce follows much the same schedule, although it can take a much longer period to be settled, up to a couple of years. The majority of this time is not spent in the preparation for court, but is time spent in court after the final Divorce Decree has been filed. If you believe this is likely in your situation, do seriously consider using a divorce attorney.

Whether you do retain a family law attorney or file for divorce without legal advice, we at Nichols Law want you to know that being aware of the timeline and process of divorce in Texas will help you move through the steps of your divorce with a clear path, vision and focus. We know that being aware of the legal process will be a valuable tool in leading you to an outcome that suits you, and leaves you with a sense of relief during a period that for many can be incredibly stressful.

To find out more about divorce and family law related matters, visit our website at www.NicholsLaw.com

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Sacramento region edition by family law attorneys, includes examples of all forms needed…. More >>

Child Custody. a Practical Guide for Parents