blank
Written by Canterbury Law Group

Establishing Paternity And Father’s Rights

When a child is born to a married couple, a legal presumption arises that the husband is the child’s father. This isn’t the case with unmarried couples. Establishing paternity is important for unmarried couples in the event they break up and one parent seeks custody or child support for inheritance purposes or a variety of other circumstances. If the parents get married after the mother becomes pregnant but before birth, the husband’s paternity is established in the same manner as if the parents were married at the time of conception.

But sometimes paternity is established after birth, especially when the presumptive father has denied paternity. Read on for a detailed look at the chronology of establishing paternity.

Establishing Paternity After Birth

If the parents marry after the child is born, they can sign a legitimation form (or a Declaration of Paternity), which grants the same rights as if the parents were married at the time of birth.

Even if parents never marry, paternity can be established voluntarily when the parents are certain of the father’s identity. In such cases they may sign a legal form called a voluntary acknowledgment of paternity, or something similar, and then file the form with the court or appropriate state agency. Executing this voluntary acknowledgment can be done right in the hospital following the child’s birth, or any time thereafter. The father’s name is then included on the child’s birth certificate.

Even if a voluntary acknowledgment isn’t signed, the parties may later enter into an agreement with the help and advice of their attorneys that establishes the father’s identity and resolves custody and support issues.

Filing a Paternity Lawsuit

If neither of these voluntary procedures occurs, legal action may be necessary. A mother may file a paternity action to establish that the man she believes to be her child’s father in fact is, or, if the mother is receiving public assistance, the state may initiate the action in order for the child to begin receiving support from the father. The putative, or probable, father’s presence in court will be demanded, and he may be required to submit to DNA testing if he contests his paternity. Genetic blood test results are usually available within a few weeks, and they can establish (or negate) paternity with about 99 percent accuracy.

If paternity is established in this manner, the court will enter an order regarding the father’s paternity. The father then becomes legally obligated to pay child support according to the state’s guidelines, which are generally based on both parents’ incomes and the needs of the children.

Settling Before the Verdict

At any time in this process prior to entry of the court’s order, the parties may still enter into a settlement agreement that resolves the custody and financial issues relating to the child. In most instances, it will be the father that is legally required to provide financial support to his children. One alternative option that is sometimes pursued, however, is to offer the mother a lump-sum child support payment in exchange for her agreement to not pursue additional child support in the future. While this would give the mother the advantage of having a lump sum with which a major purchase, such as a home, could be accomplished, it has many potential disadvantages as well. It is also exceedingly rare for the courts to rule this way.

Once paternity has been established, the child obtains many legal rights beyond child support. The child can inherit from their father, is eligible for health insurance coverage under the father’s group policy, and  is entitled to Social Security benefits if the father dies or becomes disabled. They also may be entitled to wrongful death benefits if the father dies as a result of someone else’s negligence, can obtain medical history information, and may reap the emotional benefits of establishing paternity.

Adoption and the Father

In all states, the birth mother and the birth father hold the primary right of consent to adoption of their child. However, for a father to hold this right, he must first establish paternity. A father may also have this right terminated for reasons including abandonment, failure to support the child, mental incompetence, or a finding of parental unfitness due to abuse or neglect.

 

Adoption proceedings can differ depending on the state in which you reside. States have different rules with respect to waiting periods, and in the case of older children, may have rules regarding the child’s consent and potential counseling. An attorney can work with you through the adoption process or in challenging an adoption.

 

This can be a complex area of the law that requires knowledge and experience to navigate. Your attorney will understand your state’s adoption statutes and what is required of you, whether first establishing paternity in order to challenge the adoption, or in providing legal consent.

 

Terminating Your Parental Rights

Generally, parents have the right to determine their child’s care and custody and to educate their child. In general, parental rights are terminated on an individual basis and in a voluntary or involuntary manner. The procedure for termination of parental rights can be very challenging and can vary from state to state. A fathers’ rights attorney will know what is required for termination in your state and help you through the process.

An involuntary termination occurs when one parent seeks to legally sever the rights of the other parent. Involuntary termination can also occur without either parent’s consent when a state agency initiates legal proceedings to terminate the rights of both parents for adoption. In seeking involuntary termination the parent or agency generally considers abandonment of the child, failure to support the child, child abuse, whether the parent is in jail, and other factors weighing in favor of termination.

If you’re subject to an involuntary termination, your attorney will help you gather the proper documents and paperwork proving your fitness to retain your rights. Being a party to an involuntary termination is a very difficult situation and your attorney will advocate on your behalf so that your rights aren’t wrongly terminated.

Child Support, Visitation, and Custody for the Father

Once paternity is established, a father may be required to pay child support and can pursue child visitation or other custody rights. An attorney understands what’s required in these situations and can work with you through the processes.

Orders of child support are issued by the family court and are based on state child support guidelines. The court can deviate from these guidelines if there are valid reasons for doing so. If you move to a different state while subject to a child support order, you may fall under the Revised Uniform Reciprocal Enforcement of Support Act, by which states recognize and ensure payment of child support orders from another state. Your attorney can work for you to obtain the best possible result in the entry of a child support order.

An attorney can also help you negotiate and draft a parenting agreement that considers primary custody, visitation, education, health care, and changes to the parenting arrangement. Your lawyer can help you to reach an agreement that is equitable and that will be approved in court. If an agreement can’t be reached, a contested hearing may be requested. In this case, your attorney will advocate on your behalf to obtain a result that’s respectful of your rights as a parent and in the best interests of your child.

Get Legal Assistance With Your Paternity Matter

Establishing paternity is an important part of the court system as it’s one way to protect children and enforce the legal responsibilities of parents. The process for establishing paternity can differ among the various states.

In order to understand the laws of your state and how they may apply to your situation, you should consider speaking with an experienced family law attorney today.

Source: https://www.findlaw.com/family/paternity/chronology-establishing-paternity.html

Source

https://www.findlaw.com/family/paternity/do-i-need-a-fathers-rights-attorney.html

Speak With Our Father’s Rights Attorneys In Scottsdale

[/vc_column_text]

Our Father’s Rights, child custody, and guardianship attorneys in Phoenix and Scottsdale address your case with concern and personal attention, and always have you and your children’s best interest in mind when offering legal solutions.

We are experienced family law attorneys and will work with you to obtain the best possible outcome in your situation. You can trust us to represent you fully, so you can get on with your life. Call today for an initial consultation! 480-744-7711.

*This information is not intended to be legal advice. Please contact Canterbury Law Group today to learn more about your personal legal needs.

[/vc_column][/vc_row]

blank
Written by Canterbury Law Group

Married Debt

Whether you are liable for your spouse’s debts depends on whether you live in a community property or equitable distribution state.

Whether you and your spouse are responsible for paying each other’s debts will depend primarily on where you live. If your state follows “common law” property rules, spouses are only liable for their own debts, with a few exceptions. For instance, both spouses must pay debts for family necessities like food, shelter, or tuition for the kids, although how states treat joint and separate debts varies slightly, so you’ll want to check your state laws.

However, if you live in one of a few states with “community property” rules, both you and your spouse will owe most debts incurred by either one of you during the marriage.

Keep reading to learn more about:

  • when you owe your spouse’s debts, and
  • how community property laws will affect you and your spouse in bankruptcy.

If you plan to file for bankruptcy in California or another community property state, you’ll want to know about the “limited community property discharge” that arises when only one spouse files for bankruptcy. Although all community property will be safe from creditor collection, the nonfiling spouse’s separate property will remain at risk.

Community Property States

The states that follow community property rules are Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington, and Wisconsin. (In Alaska, spouses can sign an agreement making their assets community property, but few people choose to do this.)

When Are You Responsible for Your Spouse’s Debt?

In community property states, most debts incurred by either spouse during the marriage are owed by the “community” (the couple), even if only one spouse signed the paperwork for a debt. The key here is during the marriage. So if you incur a debt, such as a credit card balance, while you’re single and then get married, it won’t automatically become a joint debt. However, an exception can occur when a spouse signs on to an account as a joint account holder after getting married. Some states, like Texas, have a more nuanced way of analyzing who owes what debts by evaluating who incurred the debt, for what purpose, and when.

After a legal separation or divorce, only the spouse who incurred the debt owes it unless the debt was incurred for family necessities, to maintain jointly owned assets (for example, to fix a leaking roof), or if the spouses keep a joint account.

If you’re considering wiping out debt in bankruptcy with a debt discharge, start by learning how bankruptcy works and what to avoid before filing for bankruptcy.

How Are Income and Property Shared Between Spouses?

In community property states, couples share income, as well. All income earned by either spouse during marriage and property bought with that income is community property, owned equally by husband and wife. Gifts and inheritances received by one spouse and separate property owned before marriage that remains separate are the respective property of one spouse alone. Comingling a gift or inheritance, such as by adding it to a joint bank account, could erase the protection. All income or property acquired after a divorce or permanent separation is also separate.

What Property Can Be Taken to Pay Debts?

In a community property state, creditors of one spouse can go after the assets and income of the married couple to make good on joint debts, and remember, most debts incurred during marriage are joint debts.

You’ll find out more about when you’re responsible for your spouse’s business debt here.

Creditors can go after joint assets in a community property state no matter whose name is on the asset’s title document. For example, a business owner’s name might not be on the title to her spouse’s boat. Still, in most community property states, that won’t stop a creditor from suing in court to take the boat to pay off the business owner’s debts assuming the boat was purchased with community funds and not separate funds.

Community property collection rules also apply to a spouse’s separate debt, such as one spouse’s child support obligation from a prior relationship, or a debt in one spouse’s name only where the spouse hid the marriage. In that case, a creditor can go after only that spouse’s half of the community property to repay the debt.

Do You Owe Your Spouse’s Student Loans?

With one exception (see below), the community property rules apply to student loan debt the same way they apply to other debts acquired during the marriage. Both spouses are responsible 100% for a student loan taken out during the marriage even though only one spouse signed for it. When the parties divorce, each spouse will be awarded 50% of the debt in the property settlement.

California presents an exception to the rules applied in other community property states. According to California law, student loans aren’t community debts, and a judge doesn’t have to split this kind of debt 50/50.

Recognizing that a student loan can benefit both spouses, California takes a more equitable approach than other states. In assigning each spouse a percentage of the outstanding student loan, a judge will consider factors like:

  •  the effect of the course of study on the community
  •  whether the other spouse also went to school, and
  •  the course of study’s effect on the spouse’s ability to support the community.

How to Remove a Spouse’s Liability

Couples in community property states can sign an agreement with each other to have their debts and income treated separately. Signing a pre- or postnuptial agreement like this can make sense for a couple before one spouse goes into business. But if you’re already in business, signing an agreement now won’t protect your spouse from liability for business debts that you already owe, only from liability for future business debts.

Keep in mind that this agreement will be between you and your spouse. It likely won’t affect whether a creditor can pursue you for debt, only your ability to pursue your spouse’s personal assets for payment. Check with your family law lawyer or bankruptcy lawyer for clarification.

You can also sign an agreement with a particular store, lender, or supplier, stating that the creditor will look solely to your separate property for repayment of any debt, essentially removing your spouse’s liability for any obligation or debt from the contract—if you can get the other party to agree.

How Does Bankruptcy Work in Marriage?

If only one spouse files for Chapter 7 bankruptcy in a community property state, creditors can collect community debts against the nonfiling spouse. However, the creditor can’t forcibly take community assets to pay community debt discharged in the filing spouse’s bankruptcy. The creditor can only collect against the nonfiling spouse’s separate property.

This protection is known as a “limited community property discharge.” (11 USC § 524(a)(3).) Also, if you’re considering divorce, talk with your lawyer about the effect the divorce will have on your limited community discharge. You could likely lose its protection. Learn more about filing for bankruptcy without your spouse.

Source

https://www.nolo.com/legal-encyclopedia/debt-marriage-owe-spouse-debts-29572.html

blank
Written by Canterbury Law Group

Establishing Paternity and FAQ

When a child is born to a married couple, a legal presumption arises that the husband is the child’s father. This isn’t the case with unmarried couples. Establishing paternity is important for unmarried couples in the event they break up and one parent seeks custody or child support for inheritance purposes or a variety of other circumstances. If the parents get married after the mother becomes pregnant but before birth, the husband’s paternity is established in the same manner as if the parents were married at the time of conception.

But sometimes paternity is established after birth, especially when the presumptive father has denied paternity. Read on for a detailed look at the chronology of establishing paternity.

Establishing Paternity After Birth

If the parents marry after the child is born, they can sign a legitimation form (or a Declaration of Paternity), which grants the same rights as if the parents were married at the time of birth.

Even if parents never marry, paternity can be established voluntarily when the parents are certain of the father’s identity. In such cases they may sign a legal form called a voluntary acknowledgment of paternity, or something similar, and then file the form with the court or appropriate state agency. Executing this voluntary acknowledgment can be done right in the hospital following the child’s birth, or any time thereafter. The father’s name is then included on the child’s birth certificate.

Even if a voluntary acknowledgment isn’t signed, the parties may later enter into an agreement with the help and advice of their attorneys that establishes the father’s identity and resolves custody and support issues.

Filing a Paternity Lawsuit

If neither of these voluntary procedures occurs, legal action may be necessary. A mother may file a paternity action to establish that the man she believes to be her child’s father in fact is, or, if the mother is receiving public assistance, the state may initiate the action in order for the child to begin receiving support from the father. The putative, or probable, father’s presence in court will be demanded, and he may be required to submit to DNA testing if he contests his paternity. Genetic blood test results are usually available within a few weeks, and they can establish (or negate) paternity with about 99 percent accuracy.

If paternity is established in this manner, the court will enter an order regarding the father’s paternity. The father then becomes legally obligated to pay child support according to the state’s guidelines, which are generally based on both parents’ incomes and the needs of the children.

Settling Before the Verdict

At any time in this process prior to entry of the court’s order, the parties may still enter into a settlement agreement that resolves the custody and financial issues relating to the child. In most instances, it will be the father that is legally required to provide financial support to his children. One alternative option that is sometimes pursued, however, is to offer the mother a lump-sum child support payment in exchange for her agreement to not pursue additional child support in the future. While this would give the mother the advantage of having a lump sum with which a major purchase, such as a home, could be accomplished, it has many potential disadvantages as well. It is also exceedingly rare for the courts to rule this way.

Once paternity has been established, the child obtains many legal rights beyond child support. The child can inherit from their father, is eligible for health insurance coverage under the father’s group policy, and  is entitled to Social Security benefits if the father dies or becomes disabled. They also may be entitled to wrongful death benefits if the father dies as a result of someone else’s negligence, can obtain medical history information, and may reap the emotional benefits of establishing paternity.

Q: How does the system legally determine the father of a child?

A: Assuming there’s no agreement between the parents, either the mother, alleged father, or even in some cases the child or a state agency can bring a paternity suit to identify a child’s genetic father. Most paternity actions are filed to establish financial or moral responsibility, gain visitation rights, or settle other controversial issues between the parents.

 

If the circumstances warrant, a judge will order a blood test from which DNA testing can conclusively determine whether the alleged father is the child’s biological father. After science determines a genetic link, the judge can make a ruling on the issues outlined above or the parties can come to a private agreement.

 

Q: Can courts recognize the biological father as the only legal father?

A: The short answer is no. The system could designate a man other than the biological father as the father of the child. Determining legal paternity can be a complicated problem which attempts to find clarity in circumstances which range from straightforward to downright complex. Making this determination in a lawsuit often involves heated arguments on both sides.

 

The legal standard for paternity varies from state to state. While we’ll cover the basics below, you should investigate your state’s laws in order to make an informed determination about your family situation.

 

There are several legal classifications of fathers. Once established, paternity is difficult to change, and unless there is a private agreement between the father and mother to the contrary, fathers must legally pay child support.

 

Acknowledged Father

An acknowledged father is the biological father of a child born to unmarried parents. These parents admit that he’s the father. In some jurisdictions, an acknowledged father and the birth mother can sign a declaration of paternity to establish paternity. The man then becomes a declarant father. Acknowledged and declarant fathers are obligated to pay child support.

 

Presumed Father

Generally, “presumed father” is the most contested categorization of fathers. There are four circumstances in which a man is presumed to be the father of the child:

 

  1. He was married to the mother when the child was either born or conceived;
  2. He attempted to marry the mother in apparent compliance with the law when the child was either born or conceived, but technical reasons invalidate the marriage;
  3. He married the mother after the birth of the child and agreed to have his name put on the birth certificate or agreed to support the child; or
  4. He welcomed the child into his home after birth and openly holds the child out as his own.

Equitable Father

A father who’s not the biological or adoptive father, but who has a close relationship with the child, or where the relationship is encouraged by the biological parents, is an equitable father. Non-biological fathers during divorce proceedings generally make this legal claim.

 

The doctrine of the equitable parent derives from the understanding that a child and a non-biological parent may have such a close parent/child relationship that the court will grant the equitable parent custody rights. It seeks to take into account the love and support of a man serving as the true, day-to-day father of a minor child.

 

These three requirements let someone be recognized as an equitable father:

 

  1. The father and child mutually acknowledge a relationship as father and child;
  2. The father desires to have the rights afforded to a parent; and
  3. The husband is willing to take on the responsibility of paying child support.

Not all states recognize equitable fathers, so be sure to investigate your state’s laws and/or contact an attorney in your state.

 

Unwed Father

Historically, unwed fathers have enjoyed fewer rights with respect to their children. If an unwed father wishes to retain rights with a minimum of court intervention, he should acknowledge his paternity and, if possible, come to an agreement with the mother confirming his status. If another man becomes the presumed father, retaining full rights for the unwed father becomes difficult.

 

Assuming that there isn’t another man who seeks to be named the child’s father, the unwed father can retain visitation rights and seek custody of the child.

 

Q: If I legally establish that a man is my child’s father, is he responsible for child support? How do I get it from him?

A: If paternity is established by one of the methods above, the father is required to provide child support. The father also gets visitation rights and can seek custody of the child.

 

Once paternity is established, if the father refuses to pay child support, or does not provide enough, he’ll be subject to enforcement measures. All states have child support or child welfare agencies which can track down “deadbeat dads” through a variety of methods, including Social Security numbers, employment records, DMV searches, etc. Courts can place liens on property, garnish wages and even imprison fathers who don’t pay child support.

 

Q: If I helped raise a child and later discovered they weren’t mine, can I sue the mother?

If a father raised a child who the mother led him to believe was his own and later discovered the child was not his biologically, he may be able to sue the mother. However, winning such a lawsuit would be difficult at best.

 

The case would most likely rely on relevant state laws and whether the mother knew the child was not his and knowingly misled him. Regardless, the advice and assistance of a legal professional who specializes in family law would be extremely valuable for a father in this kind of sensitive situation.

 

Q: What if I can’t afford to file a lawsuit for paternity?

A: Fees required to bring a paternity suit can be costly. There is the cost of legal representation. Depending on where you live and its paternity test processes, you might be required to pay for the testing. Some states have mechanisms which allow paternity suits to be filed by the state at no cost to the mother seeking to establish paternity.

 

State child support agencies will file the paternity suit on your behalf. Many of these agencies are funded by the federal Temporary Aid to Needy Families (TANF) program. Find out more about TANF and the state agencies which administer the program at the Federal Office of Family Assistance. This is not an exhaustive list, so be sure to explore your city, county and state child support agencies to find out more.

Get Legal Assistance With Your Paternity Matter

Establishing paternity is an important part of the court system as it’s one way to protect children and enforce the legal responsibilities of parents. The process for establishing paternity can differ among the various states.

In order to understand the laws of your state and how they may apply to your situation, you should consider speaking with an experienced family law attorney today.

Source: https://www.findlaw.com/family/paternity/chronology-establishing-paternity.html

Speak With Our Father’s Rights Attorneys In Scottsdale

[/vc_column_text]

Our Father’s Rights, child custody, and guardianship attorneys in Phoenix and Scottsdale address your case with concern and personal attention, and always have you and your children’s best interest in mind when offering legal solutions.

We are experienced family law attorneys and will work with you to obtain the best possible outcome in your situation. You can trust us to represent you fully, so you can get on with your life. Call today for an initial consultation! 480-744-7711.

*This information is not intended to be legal advice. Please contact Canterbury Law Group today to learn more about your personal legal needs.

[/vc_column][/vc_row]

blank
Written by Canterbury Law Group

Paternity Blood Tests and DNA

When a child is born to a married couple, a legal presumption arises that the husband is the child’s father. This isn’t the case with unmarried couples. Establishing paternity is important for unmarried couples in the event they break up and one parent seeks custody or child support for inheritance purposes or a variety of other circumstances. If the parents get married after the mother becomes pregnant but before birth, the husband’s paternity is established in the same manner as if the parents were married at the time of conception.

But sometimes paternity is established after birth, especially when the presumptive father has denied paternity. Read on for a detailed look at the chronology of establishing paternity.

Establishing Paternity After Birth

If the parents marry after the child is born, they can sign a legitimation form (or a Declaration of Paternity), which grants the same rights as if the parents were married at the time of birth.

Even if parents never marry, paternity can be established voluntarily when the parents are certain of the father’s identity. In such cases they may sign a legal form called a voluntary acknowledgment of paternity, or something similar, and then file the form with the court or appropriate state agency. Executing this voluntary acknowledgment can be done right in the hospital following the child’s birth, or any time thereafter. The father’s name is then included on the child’s birth certificate.

Even if a voluntary acknowledgment isn’t signed, the parties may later enter into an agreement with the help and advice of their attorneys that establishes the father’s identity and resolves custody and support issues.

Filing a Paternity Lawsuit

If neither of these voluntary procedures occurs, legal action may be necessary. A mother may file a paternity action to establish that the man she believes to be her child’s father in fact is, or, if the mother is receiving public assistance, the state may initiate the action in order for the child to begin receiving support from the father. The putative, or probable, father’s presence in court will be demanded, and he may be required to submit to DNA testing if he contests his paternity. Genetic blood test results are usually available within a few weeks, and they can establish (or negate) paternity with about 99 percent accuracy.

If paternity is established in this manner, the court will enter an order regarding the father’s paternity. The father then becomes legally obligated to pay child support according to the state’s guidelines, which are generally based on both parents’ incomes and the needs of the children.

Settling Before the Verdict

At any time in this process prior to entry of the court’s order, the parties may still enter into a settlement agreement that resolves the custody and financial issues relating to the child. In most instances, it will be the father that is legally required to provide financial support to his children. One alternative option that is sometimes pursued, however, is to offer the mother a lump-sum child support payment in exchange for her agreement to not pursue additional child support in the future. While this would give the mother the advantage of having a lump sum with which a major purchase, such as a home, could be accomplished, it has many potential disadvantages as well. It is also exceedingly rare for the courts to rule this way.

Once paternity has been established, the child obtains many legal rights beyond child support. The child can inherit from their father, is eligible for health insurance coverage under the father’s group policy, and  is entitled to Social Security benefits if the father dies or becomes disabled. They also may be entitled to wrongful death benefits if the father dies as a result of someone else’s negligence, can obtain medical history information, and may reap the emotional benefits of establishing paternity.

Paternity can be determined by highly accurate tests conducted on blood or tissue samples of the father (or alleged father), mother, and child. These tests have an accuracy range of between 90 and 99 percent. They can exclude a man who is not the biological father, and can also show the likelihood of paternity if he’s not excluded. These tests have a significant legal impact when it comes to establishing child custody and support.

In a contested paternity case, a party must submit to genetic tests at the request of any other party. If the father could be one of several men, each may be required to take a genetic test to determine paternity. There are several different ways to establish whether an alleged father is the natural and legal father of the minor child, such as the use of paternity blood tests and DNA paternity tests.

Paternity Blood Tests

Paternity blood tests were first performed in the middle half of the twentieth century, by comparing blood types of tested parties. This involved isolation of blood sera from antigen-challenged individuals that did not possess certain red blood cell antigens. These antigens are protein molecules that may be combined with sugar molecules, and reside in the red blood cell membrane. These sera cause coagulation of red blood cells in individuals that possess that particular red blood cell antigen.

In the ABO blood typing system, humans can possess the A antigen (A blood type), the B antigen (B blood type), both the A and B antigen (AB blood type), or neither of these antigens (O blood type). Red blood cell antigen systems of this sort can be used for paternity blood testing because there are genes that code for the antigens and these are inherited genes.

A mother who has Type B blood and a father who has Type O blood could not have a child who has type AB blood. The true father of the child must have the gene for the A antigen. Using RBC antigen systems for paternity blood testing did not provide for a very powerful test because the frequencies of the genes that coded for the antigens are not very low.

In the 1970s a more powerful test was developed using white blood cell antigens or Human Leukocyte Antigens (HLA), resulting in a test that was able to exclude about 95 percent of falsely accused fathers. Several milliliters of blood are required to perform the test.

Blood types alone cannot be used to determine who the father is, but they can be used to determine the biological possibility of fatherhood.

DNA Paternity Tests

DNA (deoxyribonucleic acid) is the genetic material present in every cell of the human body. Except in the case of identical multiple births, each individual’s DNA is unique. A child receives half of his or her genetic material (DNA) from the biological mother, and half from the biological father. During DNA testing, the genetic characteristics of the child are compared to those of the mother. Characteristics that cannot be found in the mother must have been inherited from the father.

DNA paternity testing is the most accurate form of paternity testing possible. If DNA patterns between the child and the alleged father do not match on two or more DNA probes, then the alleged father can be totally ruled out. If the DNA patterns between mother, child, and the alleged father match on every DNA probe, the likelihood of paternity is 99.9 percent.

A DNA test can be performed by testing the blood or a cheek swab. A blood test uses Restriction Fragment Length Polymorphism (RFLP) to compare the father’s DNA with the DNA of the child. A cheek swab uses a buccal smear to collect cells inside the cheek to test for DNA.

These tests provide a DNA sample for testing. Children can be tested at any age. Paternity DNA testing can even be done on an umbilical cord blood specimen at birth. Since DNA is the same in every cell of the human body, the accuracy of testing performed on cheek cells utilizing the Buccal Swab is the same as an actual blood sample.

Need Help Establishing Paternity? Get in Touch with an Attorney

From paternity blood tests to DNA paternity tests, the science behind determining a child’s father has advanced quite significantly over time. However, certain legal procedures are required in order to compel someone to submit to a paternity test. If you’re interested in learning more about how to establish paternity, you should consult with a family law attorney in your area.

Source

https://www.findlaw.com/family/paternity/paternity-tests-blood-tests-and-dna.html

Source: https://www.findlaw.com/family/paternity/chronology-establishing-paternity.html

Speak With Our Father’s Rights Attorneys In Scottsdale

[/vc_column_text]

Our Father’s Rights, child custody, and guardianship attorneys in Phoenix and Scottsdale address your case with concern and personal attention, and always have you and your children’s best interest in mind when offering legal solutions.

We are experienced family law attorneys and will work with you to obtain the best possible outcome in your situation. You can trust us to represent you fully, so you can get on with your life. Call today for an initial consultation! 480-744-7711.

*This information is not intended to be legal advice. Please contact Canterbury Law Group today to learn more about your personal legal needs.

[/vc_column][/vc_row]

blank
Written by Canterbury Law Group

Establishing Paternity

When a child is born to a married couple, a legal presumption arises that the husband is the child’s father. This isn’t the case with unmarried couples. Establishing paternity is important for unmarried couples in the event they break up and one parent seeks custody or child support for inheritance purposes or a variety of other circumstances. If the parents get married after the mother becomes pregnant but before birth, the husband’s paternity is established in the same manner as if the parents were married at the time of conception.

But sometimes paternity is established after birth, especially when the presumptive father has denied paternity. Read on for a detailed look at the chronology of establishing paternity.

Establishing Paternity After Birth

If the parents marry after the child is born, they can sign a legitimation form (or a Declaration of Paternity), which grants the same rights as if the parents were married at the time of birth.

Even if parents never marry, paternity can be established voluntarily when the parents are certain of the father’s identity. In such cases they may sign a legal form called a voluntary acknowledgment of paternity, or something similar, and then file the form with the court or appropriate state agency. Executing this voluntary acknowledgment can be done right in the hospital following the child’s birth, or any time thereafter. The father’s name is then included on the child’s birth certificate.

Even if a voluntary acknowledgment isn’t signed, the parties may later enter into an agreement with the help and advice of their attorneys that establishes the father’s identity and resolves custody and support issues.

Filing a Paternity Lawsuit

If neither of these voluntary procedures occurs, legal action may be necessary. A mother may file a paternity action to establish that the man she believes to be her child’s father in fact is, or, if the mother is receiving public assistance, the state may initiate the action in order for the child to begin receiving support from the father. The putative, or probable, father’s presence in court will be demanded, and he may be required to submit to DNA testing if he contests his paternity. Genetic blood test results are usually available within a few weeks, and they can establish (or negate) paternity with about 99 percent accuracy.

If paternity is established in this manner, the court will enter an order regarding the father’s paternity. The father then becomes legally obligated to pay child support according to the state’s guidelines, which are generally based on both parents’ incomes and the needs of the children.

Settling Before the Verdict

At any time in this process prior to entry of the court’s order, the parties may still enter into a settlement agreement that resolves the custody and financial issues relating to the child. In most instances, it will be the father that is legally required to provide financial support to his children. One alternative option that is sometimes pursued, however, is to offer the mother a lump-sum child support payment in exchange for her agreement to not pursue additional child support in the future. While this would give the mother the advantage of having a lump sum with which a major purchase, such as a home, could be accomplished, it has many potential disadvantages as well. It is also exceedingly rare for the courts to rule this way.

Once paternity has been established, the child obtains many legal rights beyond child support. The child can inherit from their father, is eligible for health insurance coverage under the father’s group policy, and  is entitled to Social Security benefits if the father dies or becomes disabled. They also may be entitled to wrongful death benefits if the father dies as a result of someone else’s negligence, can obtain medical history information, and may reap the emotional benefits of establishing paternity.

Get Legal Assistance With Your Paternity Matter

Establishing paternity is an important part of the court system as it’s one way to protect children and enforce the legal responsibilities of parents. The process for establishing paternity can differ among the various states.

In order to understand the laws of your state and how they may apply to your situation, you should consider speaking with an experienced family law attorney today.

Source: https://www.findlaw.com/family/paternity/chronology-establishing-paternity.html

Speak With Our Father’s Rights Attorneys In Scottsdale

[/vc_column_text]

Our Father’s Rights, child custody, and guardianship attorneys in Phoenix and Scottsdale address your case with concern and personal attention, and always have you and your children’s best interest in mind when offering legal solutions.

We are experienced family law attorneys and will work with you to obtain the best possible outcome in your situation. You can trust us to represent you fully, so you can get on with your life. Call today for an initial consultation! 480-744-7711.

*This information is not intended to be legal advice. Please contact Canterbury Law Group today to learn more about your personal legal needs.

[/vc_column][/vc_row]

blank
Written by Canterbury Law Group

Managing Marital Property: Do’s and Don’ts

Property division can become challenging for divorcing couples. However, this need not be a challenge.  And If you and the soon-to-be-ex cannot come to good terms on your own, a court will have to do it for you. Under Arizona’s community property law, debts and assets accumulated during a marriage belong to both parties 50/50 in the absence of a prenuptial or postnuptial agreement that says otherwise.  Arizonian family courts emphasize fairness when dividing up a property. Unlike in some states, the property may not be divided equally 50/50, but equitably in the eyes of the judge assigned to your case.  This can sometimes mean 55/45 or 60/40 or 40/60—every case is unique.

No matter what the facts, you will have to hire a talented divorce attorney in Scottsdale, Phoenix or your local area in the state. Absent years of litigation experience, you likely won’t be able to capably represent your interests in court without a deep knowledge of divorce and property laws in the state. If you are undergoing a process of dividing property in a divorce, here are some important items you should be aware of:

Determine if the Property Belongs to the Community or the Separate Category

There is a very clear distinction between community and separate property under Arizona law. Separate property is assets a spouse owned before marriage, inherited solely during the marriage, was gifted solely during the marriage, or purchased alone during the marriage with sole and separate finances. A prenuptial or postnuptial contract may also designate that certain items are to be treated as separate property.  Absent these facts, the law presumes all property and all debt, acquired or originated during the marriage, is community property.

Courts in Arizona only have jurisdiction over community property, not either spouse’s sole and separate property. Each party will have to provide evidence for separate property claims in the form of financial documents. It is possible that property that was originally separate later becomes community property during the marriage. For example, a house purchased by one spouse before marriage may become community property following the marriage if both spouses names are later placed on the recorded deed.

The reason that each is different is that the distinction between community and separate property during the marriage can be blurry. Some spouses may have unknowingly turned separate assets into community property by the “commingling” process, where two assets are combined. A bank account owned by one spouse before marriage becomes marital property if the other spouse makes deposits to it later with community income. Sometimes assets are partially community and partially separate, such as houses and retirement accounts. A business that one spouse operated but later received contributions from the other spouse after marriage can fall into this category.   A seasoned lawyer can walk you through these issues, and advance them in a court of law.

Set Values for Property

Regardless of whether community or separate property, all assets and debts must be assigned a monetary value before equitable division. The two spouses can do this themselves, or a court can do it in case the parties cannot agree on values. Typically appraisals are used to set values of real assets, like houses, antiques, or vehicles. The toughest asset to value can sometimes be retirement accounts.  You may have to hire a financial professional like an actuary to ascertain the value of a retirement account and the growth in value of such retirement assets since the original marriage date.

The Process of Dividing Property

You can see the first section above that determining whether a property is community or separate can be complicated. Ideally, both parties come to an agreement out of court. But this rarely happens when multiple assets are in question and the stakes involve hundreds of thousands of dollars or more.

Courts may divide up property in multiple ways. In the case of property that is partially separate, the court may offer a spouse the option of buying out the remaining portion from the other. In some cases, it may be recommended to mutually sell the assets and divide the proceeds. Some property, like family homes, can be co-owned even following a divorce if children are living there or visiting each year.

Arizona courts typically divide property approximately equally among the divorcing partners. There are only a handful of exceptions to the rule. For example, if one spouse is known to have squandered money through irresponsible activities like gambling or drug use, the court may rule in favor of the other. In the case of property under massive debt, the court may rule against the spouse responsible for the debt.  At the end of the day, you will need the guidance and stewardship of experienced legal counsel to navigate these issues for you.

The following information will assist you in comprehending who owns what in terms of marital property.

Common Law Property and Marital Property States

The majority of states adhere to common law property. Consequently, what does it mean to reside in a common law property state, and who owns what following a divorce? The term “common law” is simply a term used to determine marital property ownership (property acquired during marriage). Under the common law system, property acquired by one member of a married couple is solely owned by that individual.

Obviously, if the title or deed to a piece of property is placed in the names of both spouses, then the property belongs to both partners. If the names of both spouses appear on the title, each spouse owns a one-half interest.

Distribution of property upon death or divorce: When one spouse dies, their separate property is distributed according to their will or through probate (in the absence of a will). The distribution of marital property depends on how ownership is shared between the spouses. If they hold property in “joint tenancy with the right of survivorship” or “tenancy by the entirety,” the surviving spouse inherits the property. This right is independent of the provisions of the spouse’s will.

However, if the property was owned as “tenancy in common,” then the deceased spouse’s will may direct the property to someone other than the surviving spouse. Some property does not have a title or deed. In this instance, the owner is typically the person who paid for or received the property as a gift.

In the event of a divorce or legal separation, the court will decide how the couple’s property will be divided. Obviously, the couple can enter into a premarital agreement detailing the division of marital assets upon divorce.

States with Marital and Community Property

Louisiana, Arizona, California, Texas, Washington, Idaho, Nevada, New Mexico, and Wisconsin are the states with community property. In states with community property, all assets acquired during the marriage are regarded as “community property.”

In states with community property, both spouses own the marital property equally (50/50). This marital property consists of earnings, all property acquired with those earnings, and all marital debts. Community property commences at the time of marriage and terminates when a couple physically separates with the intent to no longer be married. Therefore, any earnings or debts accruing after this date will be considered separate property.

Any assets acquired prior to the marriage are regarded as separate property and belong solely to their original owner. A spouse may transfer the title of any separate property to the other spouse (gift) or to the community property (community property) (making a spouse an account holder on bank account). Couples can also commingle their separate property with their community property, for instance by adding funds from before the marriage to the funds that constitute the community property.

Spouses may not transfer, modify, or eliminate a whole piece of community property without the consent of the other spouse, but they may manage their own portion. However, the entire piece includes the interest of the other spouse. In other words, that spouse’s share of the property cannot be alienated.

Separate property consists of

  • prior to the marriage, only one spouse owned the marital home.
  • Gifts made to only one spouse prior to or during the marriage
  • inherited property by only one spouse
  • Community property consists of
  • Earnings of either spouse during the marriage
  • Items purchased with money earned by either spouse during the marriage
  • Unidentifiable separate property that has become entangled with common property.

Distribution of property upon death or divorce:

When one spouse dies, his or her half of the community property is transferred to the surviving spouse. Their separate property may be bequeathed to whomever they choose in accordance with their will or through probate in the absence of a will. Numerous states with community property provide an interest known as “community property with the right of survivorship.”

Under this doctrine, if a couple holds title or deed to a piece of property, typically a home, then upon the death of one spouse, the title automatically transfers to the surviving spouse without the need for court proceedings.

In the event of a divorce or legal separation, all community property is divided equally (50/50). The separate property of each spouse is distributed to the spouse who owns it, rather than being divided equally.

Sometimes, economic circumstances necessitate awarding certain assets entirely to one spouse, but each spouse still receives 50 percent of the total economic value of all community property. This is most prevalent in married households. Due to the impracticality of dividing a home in half, courts frequently award one spouse the home and the other spouse other assets with a value equal to half the value of the home.

Before the marriage, the couple may enter into an agreement outlining the division of marital property upon divorce.

Exceptions to the rule of equal division:

  • Prior to or during a pending divorce, one spouse misappropriates the community property.
  • One partner carries educational debts. This is the same as debt incurred separately. The spouse retains their GSL loans upon divorce.
  • One spouse incurred tort liability NOT as a result of activity performed for the benefit of the community of marriage.
  • Personal injury awards are considered community property during the marriage, but are awarded to the injured spouse upon divorce.
  • “Negative community” refers to a situation in which the community’s liabilities and debts exceed the assets available to cover them. Here, the relative ability of the spouses to pay the debt is taken into account. The objective here is to safeguard creditors.

Managing Marital Property: What You Should Do

Do consider entering into a prenuptial or premarital agreement prior to marriage. Such agreements make clear what will happen to your property upon your death or divorce. With one, you can prevent undesirable arrangements in how your property is divided in a divorce.

Do maintain accurate and complete books and records to establish the separate nature of property you wish to keep independent from the marital estate. Property you may want to keep separate can include things you had before marriage. It can also include gifts or inheritance you receive during the marriage.

Do continue to keep all separate property separate throughout the marriage, if you’re concerned about keeping it in your family upon your death or divorce. You should also do this with other things that you would also like to keep as a personal asset. Generally, this means you shouldn’t “commingle” property you owned prior to marriage with property you and your spouse acquired during the marriage. In cases of “commingling,” it may become difficult or even impossible to legally determine if it’s separate or marital property.

Do be aware that the increase in value of nonmarital property may be considered marital, so that each spouse is entitled to a share of the increased value of a possession upon divorce or the owner’s death. This is especially true if the increase in value is considered “active” rather than “passive.” (Such increases in value are officially referred to as “appreciation.”) Passive appreciation is, for example, the increase in value of a bank account as a result of interest earned. Passive appreciation also occurs with an increase in property value that results from standard inflation. Active appreciation, on the other hand, occurs as a result of some form of effort, such as repainting rental property, home improvement projects, or actively managing a stock portfolio.

Do use only your non-marital property to purchase other property that you want to be considered separate property. In other words, a boat that you pay for with money you had before marriage and kept in a separate account during marriage may be considered separate or non-marital property. But if your spouse pays for part of it, or even helps maintain it, the boat could lose the status of non-marital property.

Do keep proceeds acquired from any personal injury case during marriage separate, if you want to prevent them from becoming you and your spouse’s marital property. The money you get from a personal injury lawsuit is yours alone, except for any portion that reimburses you for your lost income or compensates your spouse for the loss of your services or companionship.

Managing Marital Property: What You Should Not Do

Don’t use separate funds to pay off a marital debt, or those funds could lose their non-marital character.

Don’t make deposits of income earned during the marriage into non-marital accounts. Income earned during marriage is usually considered marital property. Depositing that income into non-marital accounts can result in “commingling.” When that happens, the non-marital account is no longer considered separate property.

Don’t open a joint bank account with non-marital funds, even if you intend to keep track of which portion is separate. It’s much more prudent to maintain separate accounts if you wish to keep non-marital assets separate.

Don’t assume that just because you owned property prior to marriage, no portion of it will be deemed marital property. For example, if the home you owned before marriage increases in value during the marriage because of you and your spouse’s efforts to maintain and improve it, your spouse may be entitled to a portion of that increase in value.

Don’t assume that a business you owned prior to marriage remains entirely a non-marital asset after marriage. If your business or professional practice increases in value throughout the marriage due in part to your spouse’s contributions, your spouse may be entitled to a share of the increase in value upon divorce or your death. Such contributions can be obvious, such as in bookkeeping or entertaining clients. But they can also be more subtle, such as in taking care of the home and children so that you can focus on running the business.

What is Whose? Obtain Assistance with Your Marital Property Issues

Dividing marital property upon divorce or the demise of a spouse is never an easy subject to broach. Despite the fact that the specifics of property division depend on the state in which you reside, it can be quite confusing. However, you are not required to figure out the law on your own. Consider contacting an experienced divorce attorney in your area to discuss your options.

blank
Written by Canterbury Law Group

Judgment of Divorce

Married couples always start off with the best intentions and try to make things work during a marriage. Unfortunately, not all marriages are meant to be. When it comes to divorce, it’s also great if a couple can resolve any issues they have informally. But if you and your soon-to-be ex can’t come to an agreement on your own, you might have to go to court to determine who gets what, from the kids to the coffee table.

Here is a quick overview of what you can expect in family court and the final judgment of divorce.

What is a Final Judgment in Divorce Proceedings?

The final judgment in a divorce proceeding is the final ruling that ends the marriage between a married couple. These judgments are rendered by the judge or jury. Once the court reaches this decision, the divorce is granted and finalized. In order to get a final judgment in a divorce, a married couple must go through the family court process.

Family Court and Final Judgment: The Basics

The vast majority of divorce cases reach some sort of settlement, whether through informal negotiation between the spouses (and their attorneys) or through more structured proceedings such as mediation or collaborative law.

But, in some divorce cases, no full settlement can be reached. This is usually because the spouses are too far apart in some or all of their respective wishes. They may not agree on a equitable solution for issues such as child custody, child support, and property division.

In these situations, the divorce will be handled in civil or “family” court, at the county/district branch of state court where the divorce petition was filed. A single judge usually presides over the case and issues a final judgment of divorce, although one or both spouses may have the right to request a jury trial.

The Court Process: Evidence and Arguments

In family court, attorneys for each spouse present evidence and arguments related to the divorce on issues like child custody and visitation, child and spousal support, and property division. Evidence in a divorce trial can come in the form of:

  • Testimony from the spouses;
  • Witness testimony — including a guardian ad litem, a neutral third party who advocates for and represents the child(ren) in court, and expert witnesses (financial analysts, property valuation experts, etc.); and
  • Documents — including records related to marital property and finances.

As each side presents its own evidence and arguments, the other side has an opportunity to question witnesses and challenge evidence through “cross-examination” — challenging the witness’s story, testing their credibility, disputing documents, and otherwise attempting to discredit or discount witnesses and evidence.

The Court Process: Final Judgment of Divorce

After hearing and examining all evidence, the judge (or jury) will issue a final ruling resolving the divorce and all surrounding issues. Once the judge reaches a decision, they grant the divorce and enter a judgment finalizing the divorce and all related issues.

This judgment dictates a number of things about the now-divorced couple’s rights and obligations, including:

  • Division of the couple’s marital property, debts, and resolution of other financial matters;
  • Child custody, living arrangements, and a visitation schedule; and
  • Child support and spousal support (alimony): who pays, who receives, how much, when, etc.

Once a judgment is entered, either or both spouses can appeal a trial court judge’s decision to a higher (“appellate” or “appeals”) court, although it is unusual for an appeals court to overturn a judge or jury’s decision in a divorce case.

blank
Written by Canterbury Law Group

What Is Equitable Distribution And Separate Property In Divorce

Family courts divide property in one of two ways: equitable distribution or community property. Most states divide marital property according to what’s fair, or equitable, for both parties during a divorce. This isn’t the same as equal distribution, however, as the goal of equitable distribution is to consider the needs of each party and the facts of the case.

The equitable distribution of marital assets is determined on a case-by-case basis. It is subject to negotiation between the two parties and the discretion of the judge. If you’re getting divorced in a common law property state (where equitable distribution is recognized), you’ll want to understand how property division will be determined.

This article addresses the two ways in which assets are divided between a couple during their divorce.

Community Property vs. Equitable Distribution: The Basics

In the nine community property states, which include California and Texas, marital property (generally, all property acquired between the date of the marriage and the date of separation) is generally divided fairly equally. This is done regardless of who contributed more to the marriage (whether in regard to money, housekeeping, etc.), who has more separate property, or whether one of the spouses is largely to blame for the divorce.

 

Generally, anything purchased with money earned by either spouse during the marriage is considered community property. Community property is subject to a roughly 50/50 split in a divorce. However, separate property may be established through a written contract. Examples of such contracts are prenuptial agreements or postnuptial agreements, sometimes called antenuptial agreements.

In equitable division property states, courts take a much more delicate approach to property division. Instead of automatically dividing marital property down the middle, these states take a step back and consider what would be the fairest to both parties. This includes consideration of separate property as well as marital property, and the needs and means of each spouse.

For example, consider if one spouse gave up their career in order to stay home and raise children. They now have a difficult time earning a living after the divorce. In this instance, the court may award that party a larger cut of the marital property. Conversely, if one spouse was abusive or otherwise at fault for the failure of the marriage (even in a “no-fault” divorce), the court may award them a smaller percentage of the marital property.

Determining What’s Equitable: Factors Considered

Like community property states, in equitable distribution states, the divorcing couple has an opportunity to reach an agreement on their own (subject to court approval) before the courts intervene. This may take place in a collaborative environment or through the parties’ attorneys. If the parties are unable to reach an agreement about the division of marital property, the courts will use their discretion (within the parameters of state marital property law) in order to reach a resolution.

When courts are tasked with determining the division of assets, they’ll generally consider the following factors under equitable distribution laws:

  • Duration of the marriage;
  • Which spouse has primary custody of minor children;
  • The financial needs and liabilities of each spouse, present and future (for instance, one party may need to invest in a college degree in order to earn a decent wage);
  • The financial well-being and earning power of each spouse, present and future;
  • Amount contributed by each spouse to the combined marital property;
  • Pensions earned by either spouse;
  • Non-monetary contributions to the family (such as child-rearing, unpaid work on the home, etc.);
  • Marital debt accumulated during the duration of the marriage (such as credit card debt);
  • Age, health, and special needs of each spouse;
  • Child support (and/or spousal support) obligations of either spouse for previous relationships;
  • Total fair market value of separate property (again, this isn’t subject to division, but does factor into the overall determination); and
  • Marital misconduct by each spouse (such as gambling debts, extramarital affairs, or instances of domestic violence).

Note that premarital property is not included in equitable distribution. This is because personal property acquired before the marriage is not considered part of the marital estate. Only assets acquired during the marriage are considered part of the marital estate and are subject to equitable distribution.

Individuals often decide to get married after falling in love and realizing they have similar values and life goals. But, romantic ideals aside, marriage is at its core a merger of two entities into a single unit, with shared assets and liabilities. And just as a business merger results in the commingling of assets, so too does marriage (to a degree).

But the question of who owns what typically is addressed only when a married couple decides to call it quits and go their separate ways. Marital property is that which is subject to division upon divorce, but what is separate property in a divorce?

Marital Property vs. Separate Property: The Basics

In order to define separate property in the context of a marriage, we also need to cover the meaning of marital property. Most assets (and debts) acquired during the marriage are considered marital property and thus subject to division in divorce. The way in which marital property is divided depends upon the laws of your state, with a handful of states using the “community property” approach (generally, a 50/50 split).

 

All other property is considered separate property, which means it belongs to just one of the parties in a marriage. When a couple gets divorced, separate property is not subject to division.

 

Assets Considered Separate Property

Unlike marital property, separate property (sometimes called “individual property”) belongs to just one individual before, during, and after the marriage. This mainly consists of that which was acquired before the couple gets married, with a few notable exceptions. Debt also follows these rules; someone who enters a marriage with a heavy debt load typically will be responsible for that debt after the marriage ends.

State laws determine what’s considered separate property, but they’re fairly consistent with one another. Generally, the following is considered separate property:

  • Property owned by one spouse prior to the marriage;
  • Gifts or inheritances received by one spouse prior to or during the marriage;
  • Property acquired by one spouse (in that individual’s name only) during the marriage and not used by the other spouse or for the benefit of the marriage (unless it’s a community property state);
  • Property/debts designated as separate in a legally enforceable contract, such as a prenuptial agreement;
  • Personal injury awards, minus any compensation for lost wages (unless it’s a community property state); and
  • Any property obtained by one party using their separate property assets (such as inheritance funds) with the clear intention of maintaining the acquired property as separate.

Separate property that’s been so commingled with marital property that it’s virtually impossible to identify will be considered marital property (and subject to division) in a divorce. For instance, if marital property (shared income) is used to pay off a car originally purchased by one spouse before the marriage, the car (or a portion of its value) will be considered marital property.

Separate Property: Community Property vs. Common Law States

It’s important to understand how community property states and common law property states differ in how separate property is distinguished. Common law property states, for the most part, automatically define that which is registered in one spouse’s name only as separate property. This isn’t the case in community property states (such as California), where an express, written agreement is required for such a determination.

Additionally, common law property states will take into consideration each spouse’s separate property when determining how to equitably distribute marital property during a divorce. Since community property states split marital property in half, they don’t consider each party’s separate property.

blank
Written by Canterbury Law Group

What Is Equitable Distribution?

Family courts divide property in one of two ways: equitable distribution or community property. Most states divide marital property according to what’s fair, or equitable, for both parties during a divorce. This isn’t the same as equal distribution, however, as the goal of equitable distribution is to consider the needs of each party and the facts of the case.

 

The equitable distribution of marital assets is determined on a case-by-case basis. It is subject to negotiation between the two parties and the discretion of the judge. If you’re getting divorced in a common law property state (where equitable distribution is recognized), you’ll want to understand how property division will be determined.

 

This article addresses the two ways in which assets are divided between a couple during their divorce.

 

Community Property vs. Equitable Distribution: The Basics

In the nine community property states, which include California and Texas, marital property (generally, all property acquired between the date of the marriage and the date of separation) is generally divided fairly equally. This is done regardless of who contributed more to the marriage (whether in regard to money, housekeeping, etc.), who has more separate property, or whether one of the spouses is largely to blame for the divorce.

 

Generally, anything purchased with money earned by either spouse during the marriage is considered community property. Community property is subject to a roughly 50/50 split in a divorce. However, separate property may be established through a written contract. Examples of such contracts are prenuptial agreements or postnuptial agreements, sometimes called antenuptial agreements.

 

In equitable division property states, courts take a much more delicate approach to property division. Instead of automatically dividing marital property down the middle, these states take a step back and consider what would be the fairest to both parties. This includes consideration of separate property as well as marital property, and the needs and means of each spouse.

 

For example, consider if one spouse gave up their career in order to stay home and raise children. They now have a difficult time earning a living after the divorce. In this instance, the court may award that party a larger cut of the marital property. Conversely, if one spouse was abusive or otherwise at fault for the failure of the marriage (even in a “no-fault” divorce), the court may award them a smaller percentage of the marital property.

 

Determining What’s Equitable: Factors Considered

Like community property states, in equitable distribution states, the divorcing couple has an opportunity to reach an agreement on their own (subject to court approval) before the courts intervene. This may take place in a collaborative environment or through the parties’ attorneys. If the parties are unable to reach an agreement about the division of marital property, the courts will use their discretion (within the parameters of state marital property law) in order to reach a resolution.

When courts are tasked with determining the division of assets, they’ll generally consider the following factors under equitable distribution laws:

 

  • Duration of the marriage;
  • Which spouse has primary custody of minor children;
  • The financial needs and liabilities of each spouse, present and future (for instance, one party may need to invest in a college degree in order to earn a decent wage);
  • The financial well-being and earning power of each spouse, present and future;
  • Amount contributed by each spouse to the combined marital property;
  • Pensions earned by either spouse;
  • Non-monetary contributions to the family (such as child-rearing, unpaid work on the home, etc.);
  • Marital debt accumulated during the duration of the marriage (such as credit card debt);
  • Age, health, and special needs of each spouse;
  • Child support (and/or spousal support) obligations of either spouse for previous relationships;
  • Total fair market value of separate property (again, this isn’t subject to division, but does factor into the overall determination); and
  • Marital misconduct by each spouse (such as gambling debts, extramarital affairs, or instances of domestic violence).

Note that premarital property is not included in equitable distribution. This is because personal property acquired before the marriage is not considered part of the marital estate. Only assets acquired during the marriage are considered part of the marital estate and are subject to equitable distribution.

blank
Written by Canterbury Law Group

Does Divorce Impact Social Security Benefits?

Credit and Divorce

You’ll want to pay attention to how divorce and remarriage affect your Social Security, just as you would with marriage. For example, a name change must be recorded to the Social Security Administration (SSA) in order for your earnings to be accurately reported, and remarriage affects survivor benefits.

Essentially, if you have been married for at least 10 years, you will likely continue to get Social Security benefits. If your marriage lasted fewer than ten years, you would not be eligible for your ex-benefits. spouse’s Remarriage and other variables can affect your benefits.

During a divorce, it is not overly complicated, but you must understand your rights and take care of these matters immediately.

How long must a couple be married before receiving benefits?

To be eligible for spousal benefits, you must have been married for at least 10 years.

How much Social Security does a divorced spouse receive?

This is crucial information for your divorce financial planning. To comprehend your spouse’s or ex-retirement spouse’s funds, you must obtain their Social Security benefits statement. This is particularly significant if you lack your own earnings or employment history.

When you reach the full retirement age, you will get full or unreduced benefits as well as fifty percent of your retirement savings account. Typically, if you have your own benefits, you will receive them first. If your spouse receives a bigger benefit than you do, you will also receive funds from their record.

The current full retirement age is 66, but it will shortly increase to 67. You can apply for Social Security payments at the age of 62, but the amount you get will be decreased. You may be eligible for delayed retirement credits if you or your spouse prolong your retirement age. These raise your monthly benefit amount.

Can You Continue Receiving Social Security Benefits After Divorce?

You can only get Social Security benefits after a divorce if:

  • You were wed for a decade.
  • You have not married again*
  • Your ex-spouse is qualified for Social Security and disability benefits.
  • Your personal retirement benefits are lower than those of your ex-spouse.
  • You are age 66 or older
  • You have been divorced for a minimum of two years.
  • Generally, remarriage will nullify your former spouse’s benefits.

How Are Social Security Benefits Divided Upon Divorce?

Social Security can be split in a variety of ways. Still, it is common for each spouse to get fifty percent of the retirement account. You may be subject to Social Security regulations, or you may be eligible for a greater payment or additional benefits. Divorcees must consult with an attorney to guarantee that each party receives what is due.

A delayed retirement can affect the timing and amount of benefits received. Overall, delaying retirement is preferable to retiring early, so your benefits will not be lowered.

Can You Collect Social Security If Your Ex-Spouse Has Died?

Yes, you will receive the full amount of their retirement benefit if your ex-spouse dies. At age 62 or beyond, you will begin receiving Social Security. Delaying your Social Security payments until age 65 or 67 ensures you receive the entire amount (retiring before age 67 can result in a reduction of 0 to 15% in benefits till age 67).

How Divorce Affects Benefits for Survivors

If your divorced spouse dies, you are eligible for widow/widower payments if your marriage lasted at least 10 years. However, you will not be required to meet the length-of-marriage criteria if you are caring for your deceased ex-minor spouse’s or disabled child. Benefits paid to a 60-year-old or older surviving divorced spouse do not influence the benefit rates of other survivors receiving benefits.

Keep in mind that the SSA will not notify your ex-relatives spouse’s if you apply for survivor benefits. In addition, there is no limit on the number of individuals who may claim for benefits from a single Social Security account.

How Remarriage Affects Benefits for Survivors

In general, if you remarry before the age of 60, you are ineligible for survivors payments until the second marriage ends by death, divorce, or annulment. You can continue to claim benefits on your former spouse’s record if you remarry after age 60 (50 if disabled).

At age 66 or older, you are eligible to receive retirement benefits based on your new or current spouse’s record if it is greater. Your remarriage would not affect the amount of child support given to your children.

Name Modification on Your Social Security Card

If you change your name, you must inform both the Social Security Administration and your employer. This will ensure that your earnings are reported and documented accurately by your company.

You can obtain a new Social Security card bearing your new name. You must produce a copy of your birth certificate, adoption decree, or other appropriate documentation to confirm your date of birth. To establish your identity, you’ll need a valid U.S. driver’s license, state identification card, or passport.

Are You Afraid of Divorce, Remarriage, and Social Security? Consult a Lawyer

Social Security-related information is available at SSA.gov. A divorce can effect many aspects of one’s life, even after death. It is essential to comprehend the legal ramifications of a divorce, from retirement benefits to name changes on Social Security cards.

Put your mind at ease by allowing an expert divorce attorney in your state to assist you in making the right decisions regarding divorce, remarriage, and Social Security.

1 2 3 5