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Before "I Do" Part III: Important Discussions to Have Before the Wedding About Unexpected Events7/20/2023
Today’s post is the final installment in a three-part series about conversations to have with your future spouse before you get married. Today’s blog post focuses on discussing the unexpected with your future spouse. While these unexpected events are unlikely to occur, it is good to have a discussion with your spouse to express your wishes and desires if an unfortunate and unexpected event occurred.
Today’s post is the second in a three-party series about important discussions to have before you get married. The conversation topics and questions for today are all about kids. Children will change your life and it is wise to discuss the child-related topics below before you get married. These conversations will lead to a stronger relationship and marriage with your future spouse.
The answers to these conversation starters may lead you to decide you would like to have a Prenuptial Agreement in place or complete your estate planning. A Prenuptial Agreement can solidify your financial agreements regarding which funds and accounts remain separate property of each spouse after marriage and which will become marital property held jointly by the spouses. You may also want to consider executing a Will, Healthcare Power of Attorney, or Durable Power of Attorney to provide for your spouse or children from previous relationship, and to prepare for the worst-case scenario (just in case). Please reach out to our office so we can assist you. We are here to guide you on the legal aspects of your journey to marriage and beyond so you can focus on enjoying your new life. Wedding bells are ringing, you’re counting down the days until you get to marry the love of your life, and finalizing all the fun details of your upcoming nuptials. While you’re enjoying the emotional high of your engagement, don’t forget to have the important conversations about life after the wedding to make sure you’re both on the same page—conversations about your marriage and future. The wedding is only one day of your life. Your marriage is “until death do us part” (hopefully)! Today’s post is the first in a three-part series about important discussions to have before your wedding day.
As family law attorneys, we often see marriages break down due to poor communication and differences in finances and childrearing. Allow the conversation starters listed below to be an opportunity to draw closer as a couple and solidify your relationship’s foundation—and ensure you won’t have any unexpected surprises regarding financial and legal plans after the wedding day. Consider each question carefully and discuss with your partner how you want to handle each issue. Even better, reach out to a marriage counselor or therapist to facilitate these conversations during a few premarital counseling sessions.
The answers to these conversation starters may lead you to decide you would like to have a Prenuptial Agreement in place or complete your estate planning. A Prenuptial Agreement can solidify your financial agreements regarding which funds and accounts remain separate property of each spouse after marriage and which will become marital property held jointly by the spouses. You may also want to consider executing a Will, Healthcare Power of Attorney, or Durable Power of Attorney to provide for your spouse or children from previous relationship, and to prepare for the worst-case scenario (just in case). Please reach out to our office so we can assist you. We are here to guide you on the legal aspects of your journey to marriage and beyond so you can focus on enjoying your new life. Dividing Marital Assets (Equitable Distribution or Apportionment)
Today's post is part two in a three-part series addressing what a stay-at-home parent can expect legally and financially upon separation and divorce. Head back to review our first post before you continue on! Just because the supporting spouse “earned” the income or acquired the marital assets with his or her income does not mean that a stay-at-home parent forfeited any right to half of the value of the acquired assets. Stay-at-home parents are entitled to an equitable distribution of the net marital estate upon divorce. Equitable distribution (or equitable apportionment in South Carolina) means that all marital debts and marital assets will be equally divided (50%/50%) between the spouses. To learn more about equitable distribution in North Carolina and equitable apportionment in South Carolina, click this link to take you directly to our firm’s blog post devoted to explaining the basics. Stay-at-home parents do not lose their rights to half of their spouse’s retirement account(s), bank accounts, the marital home, or marital cars when they choose to stay home and support their supporting spouse by caring for the children, house, and other household management tasks. As long as the assets were acquired during the marriage, the assets are considered “marital” and the stay-at-home parent would generally be entitled to 50% of the value of the asset. The same rule applies for any debts or liabilities incurred during the marriage, generally speaking. Please reach out to our firm to schedule a consultation if you are a stay-at-home parent and need guidance on dividing your marital estate. We are very familiar with supporting stay-at-home parents through this transition and can help you, too. Today’s post is the first in a three-part series explaining what a stay-at-home parent can expect legally and financially upon separation and divorce. During a marriage, a couple may choose for one parent to stay at home with their children rather than pay the exorbitant cost of childcare or have their children cared for by a caretaker outside of the family. But when a marriage turns sour, unhappy, or unfulfilling, a stay-at-home parent may feel trapped in the marriage because they feel financially dependent on the working parent. If you are a stay-at-home parent feeling stuck in your unhappy marriage, do not fear! You don’t have to stay in an unhappy marriage and there are several paths to lead you towards a happier future. If you are a stay-at-home parent thinking of separating from your spouse, please reach out to our firm to schedule a consultation so we can help you understand to what you are financially entitled if you choose to separate.
Re-Entering the Workforce Depending on your age, health condition, work experience, and education among other factors, when you and your spouse separate there may be an expectation that you will re-enter the workforce in some form or fashion, to supplement your own income and provide for yourself and your children. The income that your working spouse earned while you shared a household may be stretched very thin when there are two households to financially support upon separation. The best way to ensure financial security for you and your children is to find a way to supplement or increase your income. As a stay-at-home parent, you will likely have some options and entitlement to financial support from your spouse after separation, as outlined below, but you will likely not be able to solely rely on your supporting spouse financially for the rest of your life and will need to reenter the workforce at some point. Alimony or Post-Separation Support As a stay-at-home parent, for alimony purposes you are a “dependent” spouse while your spouse is a “supporting” spouse. Alimony is financial support that a supporting spouse pays to a dependent spouse during separation or following divorce. Alimony is not automatically awarded in North or South Carolina, and you must need alimony to maintain the standard of living to which you became accustomed during the course of your marriage in order for you to receive alimony. Additionally, the supporting spouse must have the ability to pay alimony to you. There is no formula to determine alimony amount and duration in North Carolina and there are sixteen factors to weigh, including: the length of the marriage, the reasonable needs of the spouses, the incomes and earning capacities of the spouses, the reasonable expenses of the spouses, any marital misconduct by either spouse, the ages and health of the spouses, one spouse’s contributions to the education, training, or increased earning power of the other spouse, the extent to which the earning power, expenses, or financial obligations of a spouse will be affected by serving as the custodian of a minor child, the relative education of the spouses and the time necessary to acquire sufficient education or training to enable the dependent spouse to find employment to meet his or her reasonable economic needs, the contribution of a spouse as a “homemaker,” and several more. There is no formula for the calculation of alimony amount or duration in South Carolina, either. There are four types of alimony in South Carolina: permanent periodic (typical monthly payments), rehabilitative, reimbursement, or lump sum. As a stay-at-home parent, you may be entitled to permanent periodic alimony, rehabilitative alimony, or lump sum alimony, depending upon your situation, what you and your spouse agree to outside of court, or what the court orders. If you were a stay-at-home parent to young children prior to separation, take note of rehabilitative alimony. This type of alimony is meant to “rehabilitate” a spouse in acquiring higher income earning power, training, or education in order for that spouse to become financially self-sufficient. Rehabilitative alimony might be paid to a stay-at-home parent for a limited time until young children enter school, or until that parent can complete additional education to reenter the workforce. Alimony can be awarded within a separation agreement by you and your spouse agreeing that your spouse will pay you alimony, or it can be ordered by a court. At Dasher Law, we assist clients in obtaining their best outcomes outside of court and can assist you in obtaining alimony, or understanding if you are entitled to alimony, if you were a stay-at-home parent prior to separation. Please reach out to our firm to schedule a consultation if you are a stay-at-home parent and need guidance. We are very familiar with supporting stay-at-home parents through this transition and can help you, too. Come back next week to learn about the division of marital assets and how that might occur as a stay-at-home parent. What is common law marriage?
Common law marriage is a marriage recognized by the state that does not require the spouses to obtain a marriage license or hold a formal marriage ceremony. A state that recognizes common law marriages usually require the spouses hold themselves out to be married in public life, cohabitate together, and agree that they desire the state to legally recognize their union. The legal bar to establish a recognized common law marriage is typically quite high. Why does common law marriage exist? Common law marriage harkens back to days before easy and quick transportation when it was more difficult to locate a minister to conduct a marriage ceremony or the physical distance to obtain a marriage license from a courthouse was too great. Common law marriages provided protection of a couple’s reputations by allowing couples to avoid “living in sin” by cohabiting prior to legal marriage and avoid having their children shunned in society by being born out of wedlock. Does my state have common law marriage? South Carolina In South Carolina, effective July 24, 2019 as a result of the South Carolina Supreme Court Case Stone v. Thompson, South Carolina no longer recognizes new common law marriages. If you were already in a common law marriage established prior to July 24, 2019, South Carolina will continue to recognize your existing common law marriage. North Carolina North Carolina does not recognize common law marriage for its residents. North Carolina requires all couples who wish to be legally married to go through the legal process of statutory marriage, which includes obtaining a marriage license, participating in a marriage ceremony, having two witnesses to the marriage, and submitting the license to the county register of deeds to receive a marriage certificate. Will my common law marriage be recognized in South Carolina/North Carolina if I move from another state? Generally, the United States Constitution’s Full Faith and Credit Clause requires states to recognize and give full faith and credit to the laws of other states. This constitutional clause applies to common law marriages being recognized from one state to another. South Carolina Yes, in South Carolina your common law marriage will be recognized if you moved from another state that recognized your common law marriage and you are now domiciled in South Carolina. North Carolina Yes, it is likely that North Carolina will recognize your common law marriage, but there are a few factors that must be met in order for your marriage to be recognized. (1) You have to have been engaged in cohabitation in a state that recognizes common law marriage; (2) the out-of-state common law marriage was recognized by the state you were cohabitating in; and (3) the court in North Carolina can establish a date that your common law marriage began. What are the requirements of common law marriage? You might have heard that people who have lived together for seven (7) years or more and hold themselves out as spouses are “common law married,” but that was not the requirement in South Carolina prior to 2019 and is just a widespread myth. In South Carolina, for your relationship to have been considered a common law marriage prior to 2019, you had to be over sixteen (16) years old, not married to someone else, not be related to your partner by blood, cohabitate, and hold yourself out to be married both publicly and privately – which is more difficult to prove than you might imagine. Common law marriage provides the same economic and legal benefits as marriage, like tax breaks and inheritance rights. Do I have to go through divorce if my marriage was common law? There is no “common law divorce,” but if your relationship was legally recognized as a common law marriage in South Carolina prior to 2019 or another state that recognizes common law marriage, you will have to obtain a legal divorce to address any property and alimony/spousal support that exist. You also must obtain a divorce in a common law marriage to avoid potential bigamy issues that might arise if you remarried without obtaining a divorce from your common law spouse. Additional proof of the validity and existence of the common law marriage may have to be presented in a divorce from a common law marriage. It can be tricky to prove that you were married by common law and entitled to property division or spousal support, as it is often one spouse’s word against the other. If you have any questions or concerns about common law marriage in North or South Carolina, please reach out to schedule a consultation. What is a Prenuptial Agreement?
A prenuptial agreement is a contract between two prospective spouses made in contemplation of marriage and which becomes effective upon marriage, which dictates the rights and obligations of the spouses during the marriage and in the event of divorce or death of one of the spouses. Prenuptial agreements must be reduced to writing and signed by both parties. There must be a full financial disclosure between the prospective spouses prior to entering the agreement. A prenuptial agreement can be modified after marriage, so long as the modification is in writing and signed by both spouses under oath. When should you consider a prenuptial agreement? A prenuptial agreement can be beneficial to all prospective spouses to avoid the expense and conflict that may arise if a marriage ends. A prenuptial agreement circumvents subjecting much of your marital estate to division by the court by defining what the other spouse will receive upon divorce or death. By discussing a prenuptial agreement prior to marriage, prospective spouses open the lines of communication about difficult subjects that many people avoid like finances, assets, debt, death, divorce, and life insurance. By promoting honesty and transparency in marriage, a prenuptial agreement can help individuals avoid the problems which often lead to divorce and promote marital harmony knowing that each spouse is fully aware of the financial implications of the marriage union. Prenuptial agreements can be especially helpful in the following situations:
What can be included in a prenuptial agreement? Typically, prenuptial agreements are used to define the property rights, legal rights, and obligations of prospective spouses if they get divorced. In a typical prenuptial agreement, the spouses agreed upon the following:
What cannot be included in a prenuptial agreement? In North Carolina and South Carolina, premarital agreements cannot waive child support or pre-determine an amount for child support obligation, and premarital agreements cannot pre-determine child custody. If your prenuptial agreement leaves your spouse without any means of support, and upon divorce, he or she must apply for public assistance, the waiver of support provisions of your prenuptial agreement would likely be deemed unconscionable and therefore unenforceable. What is important in order for the prenuptial agreement to be upheld in the future? The terms must be fair and reasonable. Full financial disclosure: In both South Carolina and North Carolina, each spouse must make a full financial disclosure of their individual assets, debts, and incomes prior to entering into the prenuptial agreement. Valuation of assets: Assets like a business might need to be valued by an independent business valuator before including the asset in the prenuptial agreement to ensure the business is valued properly for the full financial disclosure. Independent legal counsel: The best way to ensure your prenuptial agreement will be upheld by a court is for each prospective spouse to have independent counsel and receive independent legal advice regarding the prenuptial agreement prior to signing the agreement. Time between the execution of the agreement and the upcoming wedding: You and your prospective spouse want to have time to discuss all the financial implications of marriage and all of the details of a prenuptial agreement prior to entering into it. If you ever find that you must enforce your prenuptial agreement, this will also help prevent the other party from arguing that the agreement was signed under duress or coercion because it was executed the day before the wedding when the deposits for the wedding venue and caterer were non-refundable. It is best to have an ample amount of time to review the Prenuptial Agreement draft, ask your attorney questions, and not be rushed to execute the agreement prior to your wedding date. Please contact our office if you are considering a prenuptial agreement. We would be happy to assist you. |
AuthorLindsey Dasher is the Managing Partner at Dasher Law PLLC Archives
May 2024
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