Should I get a prenup?

You know, I’ve never heard any party going through a divorce complain that they had a prenup, or wish that they had never entered into the prenup.  In fact, it’s the opposite.  The majority of clients who had properties or businesses before marriage often want to kick themselves for not getting a prenup before they tied the knot.

Those who don’t get a prenup often complain that it’s an awkward thing to bring up and have a conversation about.  Another common complaint is that prenups are done with the assumption that the marriage won’t make the long haul and who wants to start a marriage with that mentality?

The reality is that no one enters a marriage thinking that they’ll do the marriage thing for awhile and then get a divorce (or maybe some people think this, but the sane majority of people do not).  The hard facts are that a lot of marriages, some estimates say that 50% of marriages, will end in divorce.  There is a strong likelihood that several of your relatives and friends have already expierenced a divorce.  If any of them had assets before marriage or a business before marriage, ask them if they think a prenup would have made their divorce easier.  I bet they would all say, “yes.”

A prenuptial agreement can be used to shape the financial consequences of marriage in a number of different ways.  To name a few:

  1. If you have a business, California community property laws say that your spouse may develop an ownership interest in your business if your business grows. If no prenup is in place before marriage, your spouse could acquire some of your business in the divorce.
  2. Prenups can be used to limit the amount of spousal support that is payable when parties are divorced.
  3. Prenups can ensure that when you die, your assets are distributed according to your wishes. For example, assets can go to directly to your children instead of your spouse.  This is very helpful if you have children from a previous marriage that you want to make sure to provide for in the event of your death.
  4. Prenups can even be used to ensure that the spouse who is the financially weaker spouse is protected by offering a minimum amount of spousal support or assets should a divorce take place.
  5. While basically anything relating to finances can be addressed in a prenup, it does have its limitations. Anything relating to child custody and visitation or child support cannot be placed in a prenuptial agreement.

A prenup is a great way to prevent arguments during the divorce.  If parties discuss what the assets are and how they are going to be divided before marriage, there will be little surprise or hurt feelings once the parties want the assets divided according to the prenup.

A prenup is a great investment.  For a one time fee, you can have the assurance that your assets are protected.  You will have the added assurance that you will spend a great deal less on attorney’s fees in the event of a divorce.  The peace of mind knowing your property before marriage will remain your separate property, or the business you had prior to marriage will not be awarded in part to your spouse in a divorce is priceless.

If you would like to discuss prenups in more detail, call Lovette T. Mioni at Mioni Family Law at (424) 259-1770 to set up a consultation. 

Child Support add-ons: getting more than guideline

Child support is governed by the formula in the Statewide Uniform Guidelines for Child Support.  However, it is possible to get more than guideline child support in some instances.  There are two mandatory add-ons for child support and a couple add-ons that are discretionary.

The algebraic formula used to calculate child support is set forth in Family Code Section 4055 and is “presumptively correct in all cases”.  Nevertheless, there is a way to get additional support on top of the guideline support awarded.  Family Code Section 4062 specifies two types of additional child support: mandatory (“the court shall order”) and discretionary (“the court may order”).

Mandatory additional child support is awarded for child care costs related to employment or necessary education.  For instance, if both you and the child’s other parent are working or in school and child care is necessary for you and the other parent to attend work or school, this is cause for a mandatory add on.  Another mandatory add on is reasonable uninsured health care costs.  These additional supports are on top of whatever guideline child support parent is already paying.

Discretionary additional child support may be awarded for educational or other special needs. If you have a child that would be better educated in a private school or a child who needs tutoring or special aid, the court has to power to award extra support above guideline for these needs.  The court can also award additional child support for travel expenses related to visitation.

If there is a need for the additional expenses listed in Family Code Section 4062, the expense shall be divided equally one half to each parent, unless either parent requests a different apportionment pursuant to subdivision (b) and presents documentation demonstrating that a different apportionment would be more appropriate.

If you need assistance determining if you are entitled to child support add-ons in addition to guideline child support, contact Lovette T. Mioni at Mioni Family Law today at (424) 259-1770 to set up a consultation.

Divorce vs. Legal Separation vs. Annulment

There are a few ways to end your marriage, or the obligations of marriage.  The first and most common is a divorce, “Dissolution of Marriage”.  The other alternatives include Legal Separation and Annulment.  Most of us know what a divorce is- parties are no longer married, assets and debts are divided.  It gets a little more confusing when people ask for an annulment or legal separation.

For one reason or another a party will prefer to end their marriage by nullity proceedings.  However, despite the appearance of various celebrities’ ability to be granted an annulment, annulment isn’t something you can just ask for and receive.  It is much more complicated than that.

A petition for nullity of marriage should only be considered when the validity of the marriage is questionable.  Nullity of marriage is a determination that no valid marriage ever occurred.  A marriage can be found invalid if the proper procedures or law was not followed in establishing the marriage.  For example, you can’t go to Vegas and have just any Elvis marry you.  Elvis would have to be properly licensed in the state of Nevada to make your marriage official and legal.  Another way a marriage can be found void is if there are other legal barriers that prevented a lawful marriage.  Being a minor, bigamy, being of unsound mind, or fraud are some other reasons a marriage may be found to be invalid.  If you were extremely drunk or on drugs when you made tied the knot, you could argue that you were of unsound mind, and were not capable of understanding the obligations assumed by marriage.  The quicker you act on getting the annulment, the easier it is to have your marriage annulled.

A legal separation is usually an avenue chosen by people who do not want to terminate their marital status for religious or personal reasons.  Common filings for legal separation occur when people have certain religious beliefs and divorce is not acceptable to them.  The loss of health insurance is also a motivating factor for couples seeking a legal separation instead of a traditional divorce.

Legal separation is very similar to a divorce.  Obtaining a legal separation will allow you to divide your assets and debts.  It will even allow parties to obtain child custody orders and receive child and spousal support.  The significant difference between divorce and legal separation is that technically the parties are still married and neither party can remarry.  If you were to remarry, it would be a bigamous marriage and would not be valid.  The marital status must be terminated before either party can remarry.

If you have any questions about legal separation, annulment, or divorce, call Lovette T. Mioni at Mioni Family Law today at (424) 259-1770 to set up a consultation.

 

 

DissoMaster: Calculating Child Support and Spousal Support

The “DissoMaster” is a program used by Los Angeles Superior Court, and many other courts, as well as the majority of family law attorneys to calculate child and spousal support.  The DissoMaster computes child and/or spousal support based on the income of the parties, the timeshare with the children, and a variety of expenses and tax implications.

The DissoMaster calculation of child and spousal support can differ from a few hundred dollars to thousands of dollars if not done correctly.  You should make sure that the person running the DissoMaster report understands how to use it and what tax deductions are appropriate. The information imputed in the DissoMaster can increase the support you are paying or being paid by thousands of dollars.  If not done correctly, and depending on what information is omitted, you could be shorting yourself a substantial amount of money.

There are items that are always included in the DissoMaster calculations.  There are other items that attorneys, or parties representing themselves, often detrimentally forget, or do not know, to include.  Basic items that are should always be included in any DissoMaster report are: the income of both parties, the number of children, and the percentage of time each party spends with the children.

It can get a little more complicated when you start adding tax deductions into the DissoMaster.  While there are many things that could potentially be included in the calculations, below is a list of things that you should include into the DissoMaster as they could impact the amount of support paid:

Other Taxable Income: Other taxable income include (but are not limited to) capital gains, dividends, social security, unemployment compensation, rental income.  Income from these sources should be included in the DissoMaster.  If the amounts are substantial, the impact it makes on the DissoMaster is also substantial.

Retirement Plan Contributions:  To get an accurate number for the cash flow you have available for support, your retirement plan contributions should be included in the DissoMaster.

Health Insurance: The amount you and the other party pay for health insurance should be included on your respective sides of the calculations.  This includes the health insurance premiums you pay for yourself and the children and the other party if you are currently paying a premium on their behalf as well.  If you are paying support and are also paying health insurance for the family, make sure to include health insurance as it will reduce the amount of support you will be paying.

Union Dues: If you pay union dues, this should be included on your side of the calculations.

Mandatory Retirement: This usually only applies to government employees who are required to contribute to their retirement plans.  Government employees usually are required to contribute large amounts monthly so it is important to make sure this is added to the calculations if you are the one with the mandatory retirement contribution.

Property Tax and Deductible Interest Expense: In my experience, these are the deductions that get left off the most often but could potentially have the largest impact in changing support obligations.  If the other party pays property tax and has a deductible interest expense, you want to include it in the DissoMaster calculations.  These numbers can be found on a tax return and as such are very easy to prove.  Once you have the numbers from the tax return, that number needs to be divided by twelve (12) and added as an itemized deduction.  Having a large tax deduction for property taxes and deductible interest expense means that you’ll have more money in your pocket for the payment of support (or more money in your pocket so you’ll need less support).

 

I should note, if the other party forgot to add one of these deductions, sometimes it is in your best interest not to point this out to the other party.  If the other party did forget to add a deduction it might be helpful to talk to an attorney familiar with DissoMaster to run the numbers before and after the deduction was added to see if it is in your best interest to bring it to the attention of the other party.  Call Mioni Family Law at (424) 259-1770 to set up a consultation to go over how much you should be paying or receiving in support.