Will a Prenuptial Agreement Determine Entirely All the Asset Division in a Divorce?
Interviewer: If there’s a prenuptial agreement set into place and the divorce does occur, does prenuptial agreement, does that supersede all family law in that case? Is it what they’re going to be going by?
It Is Very Important That the Prenuptial Agreement has Been Properly Drafted or It May Be Set Aside in a Divorce
Paul Tafelski: If the prenuptial agreement is properly drafted, then it will be valid and the court will follow what’s in that agreement. But there are some things that are very important to make sure that they are done correctly. This is because the agreement can be challenged and could possibly be set aside in which case all your plans are out the window.
How Are Assets and Property Divided When There Is No Prenuptial Agreement?
Interviewer: Let’s go to the opposite side of the spectrum here and there is no prenuptial and asset division. What are some things that you would tell a client? How to prepare them for what is to follow?
Paul Tafelski: In general, what you try to do is you look at the assets and the liabilities that were accumulated during the marriage. The starting point for your general case is to say, “We’re going to divide those assets and we’re going to divide those liabilities.”
In Addition to Asset Division, the Courts Will Also Decide Child Custody
That includes retirement assets, pensions, equity in the home, savings, and credit card debt. The court, basically, is just going to look to divide those items. If you have children involved, you have to look at what the custody arrangement is going to be, what amount of parenting time each parent will have and the income of each parent.
There Is a Child Support Formula Used in Michigan
There is a computer program called the Michigan Child Support Formula that you enter data into and it tells you how much the child support will be. The only other issue is usually whether or not alimony or spouse’s support is appropriate in that case.
If it is, then you look at those factors that we discussed before, you also look at the income of the parties, the needs of the parties and the ability of the parties to make money. Computing that information, you try to come up with a fair amount for a fair amount of time.
Basically, in a nutshell, a divorce is dividing all your property, the good, the bad, and the ugly including your children and your assets and trying to figure out what’s a fair division. What’s fair for one person might not be fair for the next but there are some basic principles that the courts will usually apply.