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Divorce Custody and Prenups

Divorce Custody and Prenups

There are some things to consider in the overall scheme or divorce, child custody and prenups. Think about the impact of your divorce on your finances — Getting your freedom was great, but it probably came at a cost. For many grey divorcées, that means less in the retirement fund and long-term alimony payments. A prenuptial agreement can secure your remaining wealth against the possibility of another divorce.

Your desire to leave a legacy for your children — Who gets your wealth if you pass away unexpectedly? Unless you’ve planned explicitly — with a will, a living trust or a prenuptial agreement — your new spouse might inherit much of the wealth you’d rather pass to your children. Then when your spouse dies, your children could be totally shut out.

None of us is getting any younger — With age comes infirmity, and sudden disabling injuries or illnesses are more likely. A prenup can spell out how you are going to deal with long-term care issues.

Of course, many seniors will decide that once through the divorce mill is enough. So, rather than getting married, they’ll simply cohabitate. But it still helps to put forth a clear, explicit statement of the relationship in a cohabitation agreement.

What About Child Custody Between Unmarried Parents?

Negotiating child custody arrangements between parents can be one of the most contentious areas after a divorce. Likewise, unmarried parents often have to confront the same set of complicated issues about the care and welfare of their children when they separate, including determining living arrangements, obtaining child support and setting up a visitation schedule.

Because unmarried legal parents of a child — whether they are biological or adoptive — do not divorce when they split up, they are sometimes able to create their own plans regarding the care of the child without the involvement of the courts. For many, this can work well as long they remain flexible and sustain open communication.

One essential element is to ensure that both parents can be present in their children’s lives and that they both remain responsible for their upbringing, including sharing the financial burden. Alternatively, in many states, separating couples propose their own arrangements to a judge who either approves them or requires modifications in terms of sharing custody and providing support.

Although arrangements may often be made without the intervention of a family court, this does not hold true if the physical or financial needs of the child are in jeopardy — or if a once-amicable agreement has deteriorated. In this case, involved parties will often need to consult a lawyer to resolve key shared parenting issues, and if they are unable to create a satisfactory agreement, they may have to attend mediation sessions. Courts may also order subsequent modifications or additional support, and are never bound by agreements they deem inadequate.

What About Retirement Accounts?

Whenever couples get divorced, they go through the process of dividing their marital assets. These assets include any retirement accounts that were created during the time the couple was married. In some cases, retirement accounts could potentially be among the most valuable components of the overall estate, which means they can become a focus of divorce disputes.

Retirement accounts could include a savings accounts that were established during the course of the marriage; or pension benefits that were earned during a marriage; or even any other retirement assets like IRAs, 401(k)s, thrift savings plans, stock options, annuities and other benefit and contribution plans.

However, not all retirement accounts are automatically counted as being marital property. Any accounts acquired before the marriage or received by gift or inheritance do not count as marital property, nor do accounts excluded by prenuptial agreements or payments made toward 401(k)s before the marriage began.

In determining who gets what accounts or benefits after a divorce, whether the account was marital property or not is the largest factor. In most cases, the benefits will be subject to an “equitable split” between the two depending on the same kinds of factors that are used to determine any kind of marital property division, including income and overall need. But those accounts and benefits that were not marital property will stay solely in possession of the owner, the person who initially opened those accounts.

Family Law Attorney Free Consultation

If you have a question about divorce, custody or prenups in Utah, please call Ascent Law at (801) 676-5506. We will help you.

Michael R. Anderson, JD

Ascent Law LLC
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States
Telephone: (801) 676-5506