Tag Archives: marital property agreement

Tips for a Smooth Divorce

tips-for-a-smooth-divorce

Everyone enters into a marriage expecting it to succeed, but according to the government more than 20 percent of marriages end in divorce within the first five years, and 48 percent end within 20 years. Although these statistics are a bit alarming, it is possible to have a healthy breakup when the marriage ends.

Here are five tips to make your divorce go as smoothly as possible.

Take Responsibility.  No one person is ever completely to blame for a divorce, so take responsibility for your mistakes in the marriage. Examine your marriage and the part that both parties played in its failure. It’s important to realize your mistakes, take responsibility for your actions, and approach the divorce with honesty. This will make necessary divorce proceedings and negotiations with your spouse easier, calmer and faster. Taking responsibility for your part in the divorce will help you heal faster and prevent you from making the same mistakes in a future relationship.

Be Respectful.  It’s important to remember that you did once love the person you’re divorcing, even if your feelings are different now. Divorce is an emotional process that can result in a lot of emotions including anger, anxiety, grief and fear, and sometimes those feelings show up when you least expect them. Although you may be tempted to fight with your spouse through the divorce proceedings, take the high road instead. Be respectful towards your spouse and the divorce process, and try to preserve some of the good feelings you once had towards your partner. You may not remain best friends, but you can remain amicable.

Stay Positive.  Lifestyle changes brought on by divorce can be frightening and overwhelming, but it’s important to keep a positive outlook for your future. Find a support system through family members, friends and networking groups who can keep you from feeling isolated and alone. Formal support groups can help you cope with the lifestyle changes of a divorce by connecting you with people in similar situations. Get involved in enjoyable activities or new hobbies to take your mind off of your emotions. Meet new people, take a class, join a gym, and reclaim activities that you had to give up during your marriage.

Understand Your Finances.  One of the greatest challenges of a divorce is often your financial future after a divorce. Understand your finances and assets, so you can determine how to divide them. When you’re dividing assets, prioritize your wants and needs. For example, you may agree to give your spouse more cash in exchange for the house. If you can’t afford to keep the house on one salary, plan for the sale of the house as part of the divorce settlement. Be realistic and practical in your demands to facilitate a fair settlement and a quicker divorce.

Talk to the Kids.  Divorce can be a traumatic experience for children, especially if there’s a lot of conflict in the divorce. Keep conflicts away from the kids and between the adults to avoid potential risks of social and psychological problems for the kids. Come up with a plan and discuss the changes that the family is experiencing together with the kids. They will benefit from honest conversations and open communications. Although divorce is difficult for most kids, studies show that kids handle divorce better when they maintain close contact with both parents. Maintaining a loving relationship with your kids through the divorce process will create a more positive outlook for their future.

Pension Rights After Divorce

For many divorce may seem like a difficult journey particularly if you are in retirement or headed towards it. You may be in the situation where your spouse has been working all these years, and you have stayed at home to raise the children, and the divorce would put you in severe hardship if not poverty. Many cases suggest that middle-aged persons fear that divorce because the financial strain will leave them in hardship. Today, we will explore the options of pensions can play a critical role in the divorce, and how it can play in your favor, so you don’t have to go through unnecessary hardship. Let’s get started!

Pensions and Marital Property

Example 1: Both Spouses are Working

Pensions of both husband and wife earned through the course of a marriage are subject to distribution in the filing of the divorce. Suppose James married Mary five years after he began his employment at XYZ Co., and now 20 years after they married, James and Mary divorce. Those benefits James earned as a single man before his marriage to Mary are James separate property. Those 20 years that James had been married to Mary are marital and subject to division and distribution. The same situation applies to any pensions that Mary had earned at her employer with ABC Co. In the event of an employee contribution plan as part of that spouse’s pension plan this is still considered marital property.

Example 2: One Spouse in Working

From our example above let’s say that Mary decide to take on the role of a homemaker and child rearing, the stay at home mother so to speak. Mary only has a sketchy understanding that her husband James pension may be their most valuable asset besides the house they share. In this type of situation, this is known as a coverture fraction.

In cases such as these courts use a coverture fraction, also known as the time rule. The time rule is a mathematical formula that is used to calculate the percentage of the pension distributed to the non-worker spouse.

So as an example, James and Mary had been married 20 years even though James had been employed 25 years. So you take 20 years and divide it by 25 years which comes out to be .80 or 80%.

This means that 80 percent of the present value of James pension would be attributed to the marriage. So if James had accumulated $100,000, then 80% or $80,000 would be added to the value of the marital portion.

Contact a Divorce Lawyer for All Your Options

As you can see if you are seeking a divorce and want to know, more about your options are when it comes to your spouse’s pension you should call a qualified divorce lawyer in your area. There is more that an attorney can tell you about pensions that include contributions, benefits plans, qualifying for your spouse’s social security benefits and how valuations are calculated.

What are Post-Judgment Child Custody Modifications?

what-are-post-judgment-child-custody-modifications

Child custody is both an involved legal issue and one of tremendous importance to people all around the world. Although understanding these intricacies is something which requires expertise, it is also something that must be comprehensible – at least in broad terms – to the layperson who is actually involved in legal custody matters. Something that can be of particular importance to these people is a post-judgment custody modification.

As the name implies, these rulings are changes which are made to an judgment which has already been rendered by the courts. Whilst occasionally this method is used almost as an appeal, where the changes in circumstances are trivial or non-existence, it is generally the case that a post-judgment modification would be pursued when a change in a parent or guardian’s circumstances justifies such an adjustment.

Relevant changes in circumstances can be varied, and matters which might be considered pertinent under the original judgment are almost always valid reasons to pursue such a modification. Nonetheless certain reasons which are particularly common motivations for seeking custody modifications are;

  • A significant change in financial circumstances, e.g. a new job, a substantial raise, losing a job, etc.
  • Moving home, or the other parent moving home
  • The expressed wish of the child to have different custody arrangements
  • The other parent failing or mistreating the child. Examples may include falling school grades, a decline in behavioral standards, substance abuse, etc. In these cases it is especially important to ensure the safety of all involved, and the California Courts website can direct you to several resources on the topic.

It is also possible to seek smaller custody modifications, for example if your work schedule changes or you wish to take a child on a holiday lasting a day or two longer than you would otherwise be permitted to. These are typically, but not always, easier to acquire as they are much less consequential when weighed against the overarching considerations the courts are obliged to take into account.

These considerations are the point on which all child custody judgments are made, and they apply to modifications just as they do to the original rulings. Furthermore, as well as weighing up the positive and negative aspects of a proposed change in itself, courts will also keep in mind any potential negatives stemming from the process of making the changes itself, as distinct from negatives that may stem from the changes in and of themselves. Therefore it is possible that a change could be denied by the courts due to the effects that adjusting to the changes might have, rather than the merits of the changes itself. It would be rare for this to be the sole or primary consideration, but it may tip the scales in certain cases.

Whilst many such modifications are pursued due to changes in circumstances, modifications to judgments can also be sought as a child ages, on the understanding that their needs and requirements will differ as they grow older. Exactly when to pursue such modifications is not always easy to figure out, and the child’s own opinions and sentiments will often come closer to the forefront the older they get.

Ideally, all child custody matters could be resolved amicably and justly without the need for direct legal involvement. However, in reality, legal judgments are often necessary to ensure that both parents as well as the children involved are given fair treatment that serves the best interests and legal rights of everyone as well as possible. If you have questions about child custody laws or wish to pursue custody modifications, please contact us for more information.

What to Expect When Hiring a Divorce Lawyer

what to expect when hiring a divorce lawyer

For many people, setting out to hire a divorce attorney is a daunting and frustrating task, especially when the stakes can be very high if child custody and support, or alimony and property issues are in dispute. What can you expect when hiring a divorce attorney?

Expect to do your research

A divorce attorney, like any other professional, has a resume and reputation both of which can help you to narrow down your choices. Consult with family and friends, colleagues at work, or other people you trust for their recommendations. This list can be your starting point.

Research thoroughly the lawyers’ backgrounds on your list. With most lawyers using websites, you can get a fairly good idea about how they practice law, the office philosophy and mission, and other information that will help you to focus the search. Check the credentials, your lawyer should be trained in divorce or family law, and the level of experience is really up to you. Once you have narrowed your list, contact the local bar association to ensure that those lawyers have engage in an ethical law practice.

Expect to interview more than one attorney

Given what can be at stake in a divorce, you don’t hire your lawyer sight unseen. Interview your potential divorce lawyers. Many offer a free consultation, or a reduced rate for an interview. Prepare your questions ahead of time, and if you like, ask for client references or testimonials. You have to be certain that this is a person that you want working on your behalf and shares your values, and values your opinion.

Expect to be comfortable with your attorney

Divorce lawyers are not trained marriage counselors, or financial experts, but your lawyer will have to understand more than just the legal aspects of your case. When you are looking for your lawyer, you have to be comfortable with their approach to your case. For example, some lawyers oppose joint custody, so if that is what you want, you should have a lawyer who is comfortable with your ideas. In other words, you and your lawyer should be in agreement about the larger principals at play of your divorce case.

You should not be looking for a “yes lawyer;” you need a lawyer who will tell you the truth. So find a lawyer who will work hard for you but also one that will tell you the truth about possible outcomes. And if you want to be closely involved, you need to find a lawyer who will be comfortable discussing strategy with you, and is someone who you find easy to communicate with.

Expect to know the costs

A good divorce lawyer will be upfront about the fees that you will have to pay, including a formal contract and a retainer agreement that clearly spells out what you will be charged for and at what rates. Specifically, you should know what hourly rate will be applied once the retainer fees are used.

What is a Marital Property Agreement?

marital property agreement

Most married couples decide to jointly share their property and other assets. This makes intuitive sense since in most cases one spouse wants to leave all property and monetary assets to the other spouse. There’s little need to worry about which assets belong to whom: All of the property simply transfers to the other spouse in most circumstances. Marital Property Agreements are for couples who wish to denote how property is shared in the case of divorce.

Separate and Marital Property

There are some more complicated ways to divide property, though, among more than one beneficiary. For instance, marital property acts in many states allow for giving away shared marital property to a third-party recipient.

More broadly, the nuances of how property gets passed on depend on whether property is marital property or separate property as well as specific common law practices in particular states.

Marital property would be any property, earnings or assets that a spouse brought in during a marriage. Everything from a home or family vehicle to the earnings that one spouse brought to the marriage and put in a joint savings account could all be considered marital property.

Separate property, on the other hand, belongs solely to one spouse. Inherited money or inherited property are usually the two most common forms of separate property. Both of these predated the actual marriage – i.e., one spouse had property rights or an inheritance prior to the wedding day.

Post-nuptial agreements and marital property agreements are ways in which one spouse can claim assets or property following a separation, divorce or death. Both post-nuptial agreements and marital property agreements can dictate how marital property and separate property get handed down once one spouse is out of the picture.

Marital Property Agreements

The basis of marital property agreements and marital property acts in the common law system is the realization that each spouse contributes something unique to a marriage.

Marital property acts dictate that property and assets acquired during a marriage are shared equally as marital property among both spouses. This often translates to an underemployed spouse having easier access to credit and the ability for one spouse to make decisions about how monetary and property assets should be divided later on.

So, where exactly do marital property agreements enter the picture? Marital property agreements offer spouses the opportunity to render part or all of marital property shared among both spouses separate property held by only one spouse.

It can work the other way around as well, however: one spouse can turn previously separate property (e.g., an inherited estate) into marital property through a marital property agreement.

Put another way, in states that allow marital property agreements as a common law practice, one spouse can turn individual, separate property into shared marital property or vice versa. Marital property agreements give spouses more control over how their assets get divided during the marriage or after the marriage has ended.

Logistics of Marital Property Agreements

One spouse opting to turn marital property into separate property can make sense under certain circumstances.

There are tax incentives, inheritance laws and estate planning procedures that can make an intelligently executed marital property agreement a win-win for both spouses.

In California and other states that allow marital property agreements, there are some rules that each spouse must follow in order for a marital property agreement to be legally enforceable.

The marital property agreement should be in writing and signed by both spouses. Both spouses must also have full knowledge of each other’s financial circumstances going into the agreement.

Each couple’s legal needs and financial circumstances differ such that one couple might decide to share a lawyer whereas another might hire separate lawyers.