Prenuptial Escape Clauses In some jurisdictions, the parties to a marriage contract have an opportunity to enter into a pre-nuptial agreement in order to agree to spousal support provisions should the marriage be dissolved in the future. While pre-nuptial agreements are still used in some states, there have been concerns about such agreements in the past. Questions arose about the effectiveness of such agreements, because agreements sometimes appeared to have been entered into for tactical reasons (e.g., to “bind” the ex-spouse financially in the event of a later divorce). Other concerns have focused on the fact that pre-nuptial agreements are typically prepared by spouses who are seeking divorce. Many courts have determined that under these circumstances, an agreement should not be enforced, particularly if the result of the agreement could potentially limit the amount of financial support available to the spouse who was left without spousal support in the future. The concern is that if an ex-spouse has little or no ability to earn income, the ability of the other spouse to pay support (through court enforcement of the contract) could significantly limit the amount of spousal support available to the non-earning spouse. This was the case in a 1998 case, in which the family court judge had previously imposed a support obligation on the paying spouse. The spousal support that the paying spouse had to pay was based on income, as well as assets and support obligations. The paying spouse entered into a pre-nuptial agreement and agreed to continue paying the fixed amount of spousal support for a fixed amount of time. A few years later, the paying spouse had no ability to pay and the paying spouse lost her job. The court ruled that the original spousal support obligation must be modified to reflect the fact that there was no longer any income available to support that obligation. Spousal Maintenance Similar concerns have arisen regarding spousal maintenance. It has been very difficult for the courts to determine what would be an appropriate amount of spousal maintenance. In some cases, the court is attempting to determine what a reasonable amount would be to maintain the standard of living that the parties had during the marriage. The question that arises is whether an award of spousal maintenance at a certain percentage of the paying spouse’s income can be considered a reasonable and affordable form of support for the receiving spouse if the paying spouse can no longer earn the income at the same percentage level. Because of this potential problem, courts have refused to enforce pre-nuptial or other spousal maintenance agreements that purportedly bound the paying spouse to support at a certain level. The courts have considered this to be a modification of the support order, which is not permitted under the Maintenance and Support Act. If you are considering entering into a pre-nuptial agreement or spousal maintenance agreement, it may be advisable to have your attorney draft an agreement that may include a waiver of spousal maintenance (in addition to spousal support), as well as support modification provisions that will provide for a reduction of support obligations upon a change of circumstances. Marriage Counseling In some jurisdictions, a couple that has separated may be required to attend marriage counseling sessions before their dissolution proceeding can be finalized. Although some divorces proceed fairly quickly, with few issues, many divorces involve complex situations. Marriage counseling can assist spouses to negotiate issues and provide information and insight to assist in reaching agreements and making the necessary decisions. Most courts have an expectation that, regardless of the decision that the couple makes regarding the future, they will attend counseling before the dissolution proceeding takes place. If you are currently in counseling or considering marriage counseling, it is important that you have your own attorney present to assist you in your negotiation, mediation, or settlement. Separation vs. Divorce Certain circumstances may permit spouses to obtain a divorce without their divorce proceeding being called a “legal separation.” This situation is generally found in jurisdictions that do not permit unilateral divorce. A “legal separation” permits spouses to separate and move out of the family home, while retaining the option of returning to each other within a specified time frame and without a decree of divorce. Most states have “legal separations” that permit spouses to simply leave the family home and live separately, but cannot remarry during that period. When a separation ends, the spouses can obtain a divorce, or simply return to living together without obtaining a divorce. If this is the right approach for you, it may be important to get legal advice before taking this approach. You should be aware that there are many other consequences that go along with obtaining a divorce, even if you never obtain a decree of dissolution from the court. This may include future maintenance obligations, child support and visitation obligations, property divisions, and the effect that these decisions have upon future tax implications, etc. Child Support The payment of child support payments by a parent to a non-custodial parent is typically governed by a Child Support Guidelines Statement. In certain cases, such as in certain high-income cases, the court is required to calculate child support payments on the basis of income potential and support guidelines. The court has to make this determination regardless of whether there is an agreement for support, and the court may have to consider factors other than what the parties negotiated, such as child care costs, schooling costs, costs associated with the needs of a disabled child, costs associated with maintaining a family residence, and expenses related to transportation for visitation with the non-custodial parent. In addition to determining support payments, the court must address issues of alimony and maintenance payments. Alimony can be paid in a lump sum or as regular support payments. The courts typically apply a percentage formula in determining an appropriate amount of support to be paid to the receiving spouse. It should be noted that there are exceptions to the general rule of support at the time of separation, with respect to the right of the court to order payment of alimony. Child Custody and Visitation It is common for disputes to arise regarding the custody and visitation of children once they are separated. Once a party files for divorce or dissolution, the parties may be required to resolve questions about custody and visitation rights. This can be a difficult time for parties involved. A good understanding of the family law system and access to a strong attorney will be important in assisting you in reaching an agreement and reaching a fair and reasonable decision. Custody and visitation is a complicated process that may require additional assistance, such as the assistance of a custody evaluator or therapist. The outcome of a custody dispute can affect how a child feels about his or her parents as they grow older, and whether the parents decide to remarry. A child custody evaluation will attempt to reach an agreement that is in the best interests of the child. One consideration in custody matters is the stability of the parents’ homes. Sometimes, if a child is afraid to go home with a parent, a custody evaluation will address safety concerns and whether there are other reasonable options for the child, such as visitation, exchange of personal contact information, telephone contact, and/or other means of communication. Child Support and Maintenance Child support and maintenance can be very complicated. These types of payments must be regularly updated, which is one reason why it may be wise to hire a lawyer in the early stages of the divorce. Failure to properly update the maintenance or child support amount could result in a significant penalty that may have to be paid by either spouse. As with the other aspects of a divorce, child support and maintenance payments are usually determined by the income of the parties. It is essential that each spouse knows what that amount will be. This can be a complicated process, which involves reviewing financial records, making projections regarding future earnings, reviewing the tax returns of each spouse, and projecting child care expenses and medical expenses. As in a marriage, it is important to keep an eye on your budget, and regularly and consistently discuss family finances. The amount of child support and maintenance payments can be renegotiated upon a change of circumstances, including remarriage or a change of residence. Child Support and Maintenance Calculation Forms The amount of child support and maintenance that will be paid each month is usually determined through a child support and maintenance calculation form. These forms must be filed with the Family Court. These forms can take a very long time to complete and a very large amount of legal fees can be incurred if documents have to be drawn and modified many times before the outcome is known. In order to make this process more efficient, many courts have opted for software programs which are more efficient. The court can make the required decisions based on an easily understandable printout generated from the computer. Alimony, Child Support, and Maintenance If you or your spouse or both parties are having problems in a separation agreement, the process of resolving the issue of separation or child custody often makes things worse for the parties. Attorneys with experience in this area can work with your spouse and provide you with expert and objective counsel. When you consider the process of a separation agreement, an attorney will be able to help you to resolve the problems and concerns that you may have. This publication was prepared by Weiser, Millheiser & Abramson, P.L.C., whose offices are located at 3325 N. Meridian Street, Suite 200, Indianapolis, IN 46205. Contact Attorney Bruce L. Abramson, 317-773-8181 for a consultation.