Archive for January, 2017

How Retirement Assets Are Divided In Divorce?

Tuesday, January 31st, 2017

Financial decisions are an essential component of the divorce process on both sides. These include how any assets, estates, bank accounts/funds that may have been attained during the marriage, or any other financial possessions that one or both parties have a legal interest in will be divided.

Retirement savings tend to be one of the larger and more valuable assets that people own. Because of this, it also happens to be one of the most important matters in divorce proceedings. Not only is it an important issue, but it also has the tendency to become very complicated, as there are tax implications involved and has to be handled in the right manner by the attorneys and the court.

Some retirement plans, such as the common 401(k), otherwise known as a pension plan, are sponsored by one’s employer. If your spouse has this type of retirement plan, you are legally entitled to a part of that balance, unless there is a pre-existing prenuptial agreement that explicitly states that this would not be the case in the event of a separation. This stands true regardless of who the primary earner is.

How to Protect Your Retirement Fund from Divorce?

To protect the non-breadwinner’s share of the retirement fund, there is a Qualified Domestic Relations Order or QDRO in place. A QDRO is used to protect the non-breadwinner spouse’s interests. It is a court order or decree that encompasses many other issues that come up in divorces, like child support, alimony and property rights. This is one court judgment the spouse would have to follow, and it includes a plan for how the couple will split the plan benefits.

Moreover, a QDRO differs from most marital settlement agreements because it allows the funds in the retirement plan to be divided and withdrawn without the penalties, and can be transferred into the non-breadwinners retirement account, which is generally an IRA.

Please note that QDRO’s only apply to retirement plans that are IRS tax-qualified and covered by the Employee Retirement Income Security Act (ERISA).  QDRO’s are also not necessary to divide IRA or SEP assets.

How A Divorce Attorney Can Help You

Wednesday, January 25th, 2017

Planning and going through a divorce is extremely difficult, on both emotional and financial level; and with all the legal components of getting a divorce, a qualified attorney is retained 99.9% of the time.

Not only is it important to have an attorney to represent you in court, it is also important to find an attorney that can help you understand the different rules and nuances that can go on during the divorce process – things like property and asset division, state rules that apply to divorce, and other facets involved in a divorce settlement.

A divorce attorney can also help you construct reasonable and achievable requests and agreements. For example, an attorney can help you comprise a custody agreement that would be much better as opposed to if you had done it on your own, as they will know what makes the most sense for the family. In addition, your attorney can demand for discovery, leading to the collection of supporting documents that can help your case.

Filing divorce papers are tedious, and if you don’t really know what you are doing, can end up being a detriment to your case. Lawyers know just how to prepare these documents and where they should be filed, which needs to be done in an exact, particular order. All of this stress can be avoided through the retainment of an experienced divorce lawyer.

Finally, if the divorce process will proceed in family court, and it is evident that the spouses cannot agree to split custody or assets, it is then up to the opinion of a judge to divide the assets and rule over the proceedings. At this point, it is absolutely necessary to get a lawyer, so that they may make your case to judge, fighting for what is in your best interests, and making sure that your needs are not only heard in the appropriate court manner, but in a way that persuades the judge in your favor.

The Pros And Cons Of Joint Child Custody

Thursday, January 19th, 2017

Are you weighing the pros and cons of joint child custody? Dealing with your ex-spouse about child custody is not easy as a parent. Here is an introduction to some of the positives and negatives that parents need to consider.

A big part of a couple getting divorced is the splitting of assets and their possessions, and it is rare that this is settled easily, even with lawyers being brought in to help both sides come to an agreement – or so a judge can rule in their favor if reaching an agreement proves to be impossible. What seems to be the hardest thing for parents getting divorced is to come to an agreement regarding the custody of the children.

It is hard enough to decide who gets what assets, but determining who the child lives with is a long process, and often a very emotional one. Most judges will hold off on granting one parent the sole custody of their child, as there is a consensus among judges and lawyers that it is usually in the best interest of the children to grow up with both parents present to whatever capacity. This article will examine the pros and cons of joint child custody.

Pros of Joint Custody

The biggest benefit of joint custody is that the child can grow up with two parents to influence their growth and upbringing. Joint legal and physical custody mean that both parents can make legal decisions for the child, and both have the legal right to live with the child. Also, with both children involved in decision making, it requires the parents to co-exist and work together, which, if the parents can find a good middle ground, only has a better impact on the children’s life. It is also less stressful for either parent since none of them have to deal with everything on their own.

Cons of Joint Custody

But joint child custody isn’t without its problems and can be stressful for both parents. For example, joint physical custody requires the child to regularly go back and forth from parents, sometimes on a weekly basis. With no real sense of home, children can have a hard time getting used to this constant back and forth, with limited time with either parent. Also, not every couple can manage joint custody, depending on how they get along, or if they don’t at all. Devising a parenting schedule, for example, can be complicated and require a lot of negotiation.

When this is the case, the child’s needs can fall to the wayside as fighting trumps their responsibilities as parents. A skilled lawyer can help you understand all of the options at your disposal and find a creative solution for your family that also benefits your children.

So, although it is often best for the child to have two parental figures in their life, it is recognized that joint custody isn’t always best and that sometimes it can be best for everyone if sole custody is awarded.

What Takes Place During An Initial Consultation With A Divorce Attorney

Thursday, January 12th, 2017

Stepping into the office of your divorce lawyer for the first time can be overwhelming since you are taking the first step in filing for a divorce. Depending on where you currently stand in the divorce process, you might need to have your attorney file the divorce papers with the court to start the process.

In general, the initial consultation involves the client asking a few general questions about the upcoming divorce. After answering, the attorney will ask a lot of questions regarding income, life at home, if there are kids involved, and yours and your spouse relationship and past. The goal here is for the attorney to get an understanding of the psychological and financial state the client is in and in order to make any referrals to a therapist, divorce coach, or accountant/financial planner if necessary.

Then, the relevant divorce-related issues will be discussed, as your attorney will want to take a pre-emptive approach to the major issues that may come up. Some examples of issues to consider are who wants the custody of children, if child support will be necessary, as well as an outline of the division of property and debts. The information will be reviewed by your attorney, and assist them in calculating what the proper amount of alimony would be (if needed), and how long it should be paid.

By the time the meeting is over, the client will be tasked with learning as much as they can about the couple’s finances, e.g. assets and ongoing expenses, regardless if one spouse was the designated person to look over the finances. The consultation is completely confidential, and your soon-to-be-ex-spouse will not find out through the attorney that you met with them.

Your lawyer is your ally, and you should completely and totally confide in them with everything regarding your divorce. They are the professionals that understand what is needed to be done to achieve a favorable settlement, and moreover, are not emotionally engaged in the divorce, giving them the ability to really think more clearly, instead of reacting via the emotional response.

What Is The Difference Between Joint Custody And Sole Custody Of The Child?

Thursday, January 5th, 2017

In a previous blog, I discussed the difference between physical and legal custody, which differentiated between having the child live with you and having the right to make decisions for the child. In this article, we will be discussing the difference between sole custody and joint custody, both of which encompass the physical and legal custody of the child, or children, as well.

Sole Custody: One parent can have either sole physical custody, or can have sole legal custody of the children. This is not a popular outcome in most divorce cases, as it often alienates one parent from the child and prevents them from playing any role in the child’s life. Unfortunately, there are some cases where a parent will be awarded sole custody if the court deems the other parent unfit to take care of the child to any extent. Be it a drug or alcohol problem, or a history or tendency of being abusive or neglectful toward the child, there are some situations when a child needs to be kept away from one of their parents. But, as I said earlier, it isn’t as common for courts to award sole custody anymore. In fact, even if one parent is given sole physical custody, meaning the child mainly lives with them, both parents will often share joint legal custody, and moreover, the parent who isn’t given custody is allowed liberal visitation time.

In this scenario, the parents have an equal say in the decisions regarding the child, or children’s, life, but again, one parent is deemed to be the primary parental guardian that the child lives with.

There is no doubt that children do better with two parental figures in their life than one, so unless there is a real need to keep your ex-spouse away from the child, it’s best not to seek sole custody.

Joint Custody: When spouses who live together but share both the physical and executive custody of the child, it is known as joint custody. Joint custody doesn’t have to come after the parents get divorced; you can file for joint custody if you and your spouse are getting separated, or simply aren’t living together anymore. This is a much more common option that courts will exercise when deciding the living situation of the child. There is usually a schedule that is set up, along with housing accommodations that suit the child’s needs. Common arrangements are alternating months, six-month stays, sometimes even a year with one parent, it depends on what the parents decide.

And if the parents can’t come to an agreement, the court will decide for them. However, like everything in life, there are cons to joint custody. The child is moving around constantly, and there is a lack of a sense of a true “home,” and it can be expensive to have for both parents to maintain and own a home. The role of the parent here is to make the most of an unfortunate situation that the child never asked for in the first place.