How Assets are Divided
In the absence of a prenuptial agreement, questions regarding what is considered marital property and what is eligible for division will be on the table in divorce proceedings. In a nutshell, marital property includes any assets you and your spouse earned or acquired during the marriage and anything purchased with joint assets. Nonmarital property may be separate property awarded to one spouse or anything received as a gift or at inheritance. If acquired prior to your marriage, assets such as homes, cars, furniture, artwork and jewelry typically result in your receiving the item. However, if purchased for you by your spouse during your marriage, it will be considered marital property, which exposes it to equal division. Settlement funds , retirement accounts and vehicles that were not paid off before the marriage or purchased and paid for after the wedding are considered marital assets. Bank and brokerage accounts that were shared by you and your spouse are jointly considered marital property. It does not matter who deposited the funds or stocks and bonds. If you were a stay-at-home parent while your spouse was establishing a career, he or she likely acquired assets such as stocks and pension funds. If he or she passed away, those would not be inherited by your children, and you would be entitled to a fair share of those assets. In some states, your spouse would owe you a certain amount; in others, you would receive a percentage out of the marital estate. It may be difficult to separate marital and nonmarital assets especially if they are commingled, but there are vintage items and heirlooms that were given to you by family members that warrant fighting for in a divorce settlement.
Alimony (or Spousal Support)
Spousal support or alimony is a payment made from one ex-spouse to the other for support. This can be in full or as a reimbursement. One party receives this support because they have become accustomed to a certain standard of living during their marriage. When that level of sustenance has ended due to divorce, support is ordered as a way to maintain that level until a former spouse can become self-sufficient.
The factors determining whether alimony is sought and awarded are largely the same as if a prenuptial agreement existed. Supporting factors will always include length of the marriage, the physical and emotional health of both spouses, income disparity and standard of living that was enjoyed during the relationship.
While parties are not legally obligated to pay spousal support during the course of divorce, assistance is usually offered for the sake of financial stability until the final decree is reached. Payments are often made in this way, even when no formal agreement was in place to ensure it.
As long as one ex-spouse can afford to provide it, payments do not always result in unfair advantage or partiality. The same rules are applied for either party, if he or she has more income, it is expected that he or she will "pick up the slack."
Child Custody and Support Information
Child custody and support are two important issues to be addressed in the absence of a prenuptial agreement. A judge must look at the best interest of the child when determining primary custody, joint custody or visitation. Primary custody can be given to one parent or split between parents on a calendar basis or on a day per day basis. Delaware law prefers joint legal custody if possible, meaning that both parents have equal powers of decision-making on all major issues pertaining to the child. On the other hand, it is important to be realistic about custody. When parents work different shifts, snap schedules don’t usually work out well. When one parent is unable to care for the child due to issues such as alcohol abuse or a desire to party with friends, his or her bond with the child may be compromised, and possibly even unsafe, leaving primary legal and physical custody with the other parent fairly quickly.
Child support in Delaware is determined using a preset formula. The formula uses gross income, overnight visits, alimony and union dues among other pieces of information. With a prenuptial agreement, you can set up a formula or "divorce schedule" for your own unique situation. You are not bound to use the Delaware child support formula. You can set a fixed amount as child support instead of a formula, for example. You can also set a daily dollar amount in lieu of other forms of support for childcare, commuting to work, health insurance, extracurricular activities, tuition, etc.
Legal Maneuvering without a Prenuptial Agreement
Many, if not most married couples, will not sign a prenuptial agreement. That is unfortunate, as prenuptial agreements in New Jersey, in most cases, accomplish the same results as a post-nuptial agreement; and, in many cases, they can do so with less expense and contention. Still, many people of all walks of life and economic status choose not to enter into an agreement before marriage. For many people, a divorce without such an agreement is unexpected; for many, it is a shock. Yet, even without a prenuptial agreement, there are still legal strategies that can be employed before and during a divorce to protect you. As I said, most people will not want to or be able to enter into a prenuptial agreement before marriage. This is unfortunate, but it is the case. That said, there are still things to be done before and during a divorce to protect your assets and prevent a financial calamity.
First of all, if you marry with assets and/or debt, as well as children from prior marriages, there is a critical need to keep dated records of all of these assets. Married couples tend to commingle assets, either by transfer or by payment of debts, which can and quite often do alter the character of assets. On the flip side, debt can be pre-marital, and if it is not properly segregated, you could wind up being jointly responsible for your spouse’s pre-marital debt. If you are married with assets and/or debt, and especially if you have children from a prior relationship, you should keep data and evidence surrounding the characterization of your assets and your collection of your income and expenses. You should make sure that, if you are going to contribute assets to the marriage and/or pay the expenses of the marriage, that this is well documented including the date thereof. Finally, if you have children, you need to keep careful records regarding payments (maintenance, school tuition , etc.) made on behalf of the children.
Many (probably most) couples do not keep careful records of assets and debts before and after their marriage. This is an unfortunate mistake, as these records, both before and during the marriage, would go a long way in protecting each party if a divorce should occur. The filing of a divorce complaint begins the divorce process. After a complaint has been filed, and upon receipt of a notice of case management conference from the court, you will meet with your lawyer to discuss whether a motion for interim relief is appropriate, such as the payment of alimony or child support pending the outcome of the case. It is important that you move quickly on this point, and, for this reason, during the first meeting above, you should review your budget. In addition, during this same meeting, you should decide whether you intend to ask for counsel fees from your spouse if you are the economically dependent party in the divorce.
During the pendency of a divorce without a prenuptial agreement, it is very important to keep careful records of what you earn and what you spend. You should be separate from your spouse in terms of your own debit and credit accounts. If you have children, you should keep a careful ledger of payments made and money spent on behalf of the children. This will become very important in the event of a divorce. While you cannot recoup all of the expenses incurred during the marriage, proof of such expenses in connection with a dollar amount will assist you in the calculation of alimony and child support. In addition, the Court will look favorably upon the spouse that expended separate funds on behalf the children. Sometimes, people will spend more than their allocated amount during the course of the ongoing divorce litigation. If this is the case, careful records of these expenses will assist your lawyer in requesting reimbursement for these payments at the conclusion of your divorce.
Typical Problems Encountered
Divorcing couples who did not have a prenuptial agreement often face the additional strain of complex divides of high-conflict resolutions. These increase their chances of horrendously protracted court battles and require the constant assistance of divorce attorneys. These divorces take years, and sometimes decades, to financially and emotionally resolve. Due to a lack of solidified separate property agreements, these divorces place the onus of burden on judges, and in these cases, the vested interests of spouses. This means that these divorces require highly nuanced skills from your divorce attorney and other advisors. It depends on their ability to identify the legal issues involved and have the experience to know how best to resolve them. There are also many red flags to look out for. These range from hidden assets to anticipatory distributions. Contested proceedings rely heavily on arbitrary factors to help separate out risks and determine the amount of statutory spousal support a spouse may receive. They often attempt to value lifestyles as well as historical expenditures. However, there is no ultimate resolution to this process and the case can remain stuck for years. It is often best for these couples to pursue alternative dispute resolution methods like mediation.
Getting Legal Counsel
However, as discussed below, such advice really needs to be solidified with the assistance of a qualified and experienced divorce attorney. A divorce attorney should be more than just an advisor – he or she must become a partner to the process, committed to protecting interests and fighting for rights if necessary .
A competent divorce attorney is well worth his or her weight in gold because the stakes really are that high if you do not take your divorce seriously and do what you can to protect your interests.
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