Separation vs. Legal Separation: What is the Difference?

 

It is not uncommon for couples to avoid the divorce process. For obvious reasons, it is not an experience most would opt for. The result is that some couples decide to separate for the time being. When they decide their marriage is over they simply separate physically, not legally, and leave the marriage in tact. What some people don’t realize is that even if spouses are living apart, they are still considered married in the State of Nevada and there can be long-term consequences.

  • You will not be legally allowed to marry someone else.
  • If one spouse does not have a will, the other spouse automatically inherits.
  • You may be responsible for a portion of debts incurred.

You may file a joint income tax return and be on a family health plan.

Legal separation (sometimes referred to as “judicial separation” or “separate maintenance”) is a legal process by which a married couple may formalize a separation while remaining legally married. A legal separation is granted in the form of a court order.

A recent study concluded that a majority of married couples that separate will eventually divorce within three years; approximately 15 percent of couples remain separated even past the 10-year mark.

Spouses who separate for a significant amount of time before completing a legal separation or a divorce may be unknowingly forfeiting rights and in some cases, can make their eventual divorces more complicated and by extension, more expensive. Defining the relationship legally makes certain assets and support can be determined at the time of separation and that debts and assets do not continue to be considered community property under Nevada law.

Unfortunately, in many cases any new debts incurred by one of the spouses after a couple has decided to separate are considered to be the responsibility of both spouses. This is true in both community property states and common law states, but courts may make a different determination, depending on the circumstances of the debt.

For example, take a husband and wife who have been living apart for five years and never filed a legal separation. Let’s say they decided the wife could keep all of the couple’s property, the children are living with her and they visit the husband every second weekend. The husband meets someone and decides he wants to remarry. Now to remarry, he has to get a divorce first so he contacts a lawyer to find out what to do. The husband’s lawyer explains his rights to him. At this point he realizes he didn’t get his fair share of the couple’s property and is paying too much child support. While decisions may have been made cordially between spouses, things can change throughout separations and the situation can quickly change. Had the couple sought legal advice, most likely, they would have had a more equitable split and these issue would not be coming up years later.

Now that five years have passed, here are just a few of the questions that will need to be addressed:

  • Does the wife have to pay the husband compensation because she kept all the property?
  • What if some of the property was destroyed or sold, does this mean the equity needs to be split or reimbursed?
  • How much is the property worth today?
  • How much was it worth five years ago?
  • Should the husband pay less child support going forward?
  • Can the husband ask the wife to refund him for paying too much child support?
  • Do the parties have to share the credit card debt incurred by each of them
  • Wife has saved money and now Husband wants half her savings, and he has no savings and significant credit card debt

 

Although not always easy to face, it is always in the best interest of both parties to seek legal advice when these situations occur.

For more information, contact Petroni Law Group at 420-4221.

 

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Reno Attorney Uses BEAM Robotic Technology for Videoconferencing

During Thanksgiving a couple years ago, Gloria Petroni’s family was having a get-together at Lake Tahoe.

Two individuals were unable to attend the gathering, but with the help of the BEAM robot, commandeered by the absent party through his or her computer, both individuals were able to be seen by everyone at the gathering, and they could not only see everyone at the gathering, but they were able to roll around through the kitchen and dining room and be at the dining room table.

Read more about how Gloria was inspired to incorporate this technology in her business: http://www.nnbw.com/news/attorney-uses-beam-robotic-technology/

Cohabitation Agreements

Whether a couple is heterosexual or homosexual, living together in a romantic relationship and/or sexually intimate relationship without formally registering their relation as a marriage it is called cohabitation.   As many boomers are finding out, they may want to cohabitate with a person for the purpose of sharing expenses without a romantic relationship involved.  There are many reasons parties may want to commit to live with another person for an extended period of time.

Whenever parties are living together and anticipate doing so for a several year period,  we recommend a cohabitation agreement which is a form of a legal agreement for couples who want to live together in order to protect themselves from unnecessary cost and litigation should their relationship dissolve.   A cohabitation agreement allows a couple to regulate their property rights and what arrangements might be made for dealing with expenses, caring for each of the parties’ children, funding college for children, paying off debt by one party.  Parties are not allowed to agree to custody arrangements in their cohabitation agreement as that arrangement may not be in the best interests of the child.

This agreement also describes each person’s financial obligations and details which party is responsible for outside expenses like maintenance and repairs regarding the home.  Cohabitation agreements should set forth the division of chores including when each party will do his laundry, clean the dog run, and expectations such as alcohol consumption, exercise, etc.

Many couples face issues when the home needs a major repair, and this issue was not addressed.  A major roof repair could easily cost over $15,000 and if this was not anticipated, a financial issue may arise. If the other party is a joint owner of the home, and cannot afford the repair then a promissory note must be executed by the party without funds with specified monthly payments to the other party.

If the parties do not own the home together, the party who does not own the home acknowledges he or she will receive no interest in the home upon breakup, but will share certain expenses and repairs on the home up to a certain amount.

If one of the parties is buying into the home of the other the terms of purchase will be set forth, and if the parties break up, how that party is compensated for his or her equity in the home at the time of the break up.

Since unmarried couples who live together may one day split up, it makes sense to plan ahead in order to avoid future conflict. A cohabitation agreement is very similar to a prenuptial agreement leading up to a marriage. A couple who may be planning on getting married can and should consider also signing a cohabitation agreement to protect the time leading up to a marriage especially if there are purchases of personal property and real property so that these assets and the rights and obligations in each of them may be address.

In today’s society it is not uncommon for people to simply live together whether they have been dating for a couple months or a couple of years. Most couples revert back to Common Law, which doesn’t always help in every situation when a relationship ends. It may not apply or may not provide the provisions needed.

Estate planning and a will are other documents that should be put in place in a non-marital situation to help mitigate conflicts within the family should the worst occur.  One does not wish to find himself with new partners who are members of your former partner’s family.

For more information on Cohabitation Agreements, call Petroni Law Group at 420-4221.

Sources:

http://family.findlaw.com/living-together/nonmarital-agreement-living-together-contracts.html

http://real-estate.lawyers.com/residential-real-estate/buying-property-together.html

Social Media and Divorce

We live in a fast pace technological age. The internet, in all of its glory, has become  an extension of ourselves. If you don’t think your social media posts will impact your divorce proceedings, think again.

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In fact, according to Lawyers.com over 81% of American Academy of Matrimonial Lawyers members have used or encountered evidence taken from social media websites (e.g. Facebook, LinkedIn, Twitter, and so on).

Do’s and Dont’s of Social Media

Do:

  • Ignore posts your spouse makes about you- do not respond.
  • Copy what your spouse posts, print it, then block him/her.
  • Unfriend people you have in common on Facebook so that they don’t pass along your post to your Spouse and their friends.
  • Ask yourself “What would the Judge think of this?” before you post anything online.
  • Report your spouse’s harassing posts to Facebook (or other platforms) or ask your attorney to file a cease and desist order if necessary.
  • Be aware of what your kids are posting about you, your behavior, and their activities with you.

Don’t:

  • Use social media to harass, vilify or blackmail your spouse.
  • Add friends you don’t know.
  • Let your friends tag you in pictures that could be defamatory.
  •  “Stalk” your soon to-be-ex on social media to see what they are doing or whom they’re moving on to.
  • Post when youre in an emotional state, either before or after you go to Court.
  • Change your status to “single” or to “seeking” anyone until your divorce is final.
  • Post lewd or crude images or otherwise that will make you appear valueless and irresponsible- especially if you want custody.

Excerpt from “The Nevada Divorce Guide: 21 Actions You Must Take Now to Protect Yourself, Your Interests, and Your Assets During Divorce”.  

Available at Sundance Bookstore in Reno, NV or via request at info@petronilaw.com

Responses are for general information purposes only. A consultation with an attorney experienced in the area of law(s) is highly recommended. Information and advice given here should not be relied upon for any final action or decision, as the information is limited by its nature