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Till Divorce Do Us Part: The Basics

Marriage is a beautiful thing. Ideally, it is a union that lasts forever, but, as we know, that’s not always the case. Every couple has a different experience of divorce. For some, divorce can be an upsetting ordeal that comes unexpectedly and gets ugly. For others, it is simply a necessary legal step that must be taken so both parties can move on with life.

Here are some of the basics to keep in mind if you’re dealing with divorce.

Monthly Obligations

There are two aspects of finances when it comes to divorce. The first is monthly payments, which can come in the form of child support, and/or maintenance, also known as “alimony” or “spousal support.” Child support is not the same as maintenance; maintenance is designed to allow a former spouse to maintain a comparable lifestyle to the one he/she had during the marriage. Child support is meant to support the child.

In the legal system, there are statutory formulas to establish what payments should be made and to whom. Child support is based on each parent’s respective income or imputed income, the number of overnights each parent has with the child(ren), and some of the children’s expenses like daycare and the children’s portion of health insurance. There is a maintenance formula, although it is not binding on the Court. Pursuant to the formula, maintenance is determined by each party’s income or imputed income. The length of the marriage will substantially affect the period of time that a parent will receive maintenance.

Division of Assets and Debts

The second and potentially more complicated aspect of finances is the division of assets and debts. This is where things can get more complex. For example, it is often complicated to determine what constitutes the marital estate, or the assets and liabilities that are going to be divided.

Let’s say a client has $20,000 in savings when he/she gets married. If those funds are not commingled with marital assets, it remains that party’s separate property, not subject to division in the divorce. If the client commingles those funds, such as using that money to remodel the kitchen in a jointly owned property, those savings are now marital property, subject to division in the divorce.

Additionally, if the client maintains his savings account, but it accrues $1,000 in interest during the marriage, the savings would remain the client’s separate property; however, the $1,000 interest would be marital property subject to division in the divorce.

Put the Kids First

Nobody benefits from a nasty custody battle. Whatever the reason for the divorce, the children should never be played against one parent or the other. If both parties agree wholeheartedly to do what’s best for the children, the other pieces will fall into place more easily.

Divorce can be emotional because the parent often has difficulty separating his or her feelings from the best interests of the children. Also, it is far more difficult to reach a compromise over child-related issues. The most amicable divorces occur when two parents are able to remove emotion from the equation and do what’s best for the children.

Successful divorcees ask questions like, ‘who has a more stable living environment? Does one person live in a better school district? Is one parent better able to meet the children’s needs?’ When you make clear choices based on the answers to these questions, everyone can benefit.

When it comes to divorce, we tell our clients to hope for the best and plan for the worst. Reality will be somewhere in between. Divorce is never fun, but when you have a clear path forward, it can be a much cleaner experience for all parties involved.

You don’t have to work through these issues alone. If your marriage is ending, please call our office at (720) 999-9506 to set up free a consultation.

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Be Prepared: What You Need to Know about Marital Agreements (Pre-Nups)

A marital agreement (“pre-nup”), is a contract entered into by people intending to marry. Pre-nups can vary widely, but often include provisions for division of assets and spousal support in the event of divorce.

If you’re engaged or thinking of getting married, here are some of the basic concepts you should understand about premarital agreements.

Better Safe than Sorry

Asking for a prenuptial agreement shouldn’t be seen as a negative thing. When you are getting married, you’re essentially planning the rest of your life; a pre-nup is simply an element of that plan.

The future is uncertain, and you may never need it, but the reality is that about one (1) in every two (2) marriages will end in divorce. It’s much better to be prepared. Better to decide a fair way to divide assets now when things are amiable than to wait until the marriage is being terminated and emotions are strong, frequently including animosity.

When Should You Get a Pre-nup?

While technically you can enter into a marital agreement at any time, (even after you’re married; this is called a post-nup) it’s most commonly contemplated before the marriage. To ensure the document is fully enforceable, make sure there is plenty of time to review it before it is signed, get quality legal advice and make changes if needed. We usually recommend parties start working on a pre-nup about 30-45 days before the wedding.

Don’t Believe Hollywood

It makes for a dramatic scene in a movie, but the court won’t enforce a pre-nup if one party was forced to sign it against his or her will. To be enforceable, a party must sign the pre-nup free of coercion, threats or duress. Both sides must come together and voluntarily sign the agreement.