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Understanding QDROs and the Division of High Value Retirement Accounts

In many divorces, the division of assets is the most complex and time-consuming part of the entire process. It’s especially hard in long marriages where both partners have built up assets and completely intermingled their financial futures. Retirement accounts can be particularly challenging to divide, due to their significant value and their propensity for growth. The use of Qualified Domestic Relations Orders can streamline the division process and ensure that the divorcing couple doesn’t incur any unexpected penalties or taxes.

If you’re preparing for divorce in Charleston, working with an experienced divorce attorney can save you time, money, and stress. Set up a consultation with Pence Law Firm now by calling us at 304-407-7852.

What is a QDRO?

A Qualified Domestic Relations Order is a legal order that specifies the way in which pensions and retirement plans are divided during a divorce. This is due to the fact that you often cannot simply withdraw from your retirement account and give your ex-spouse the amount they’re entitled to under your divorce agreement. 

Early withdrawals from retirement accounts can result in heavy penalties and taxes. In this situation, you aren’t taking from your retirement account to use it prior to retirement—you are just giving your ex-spouse what they are entitled to. For that reason, you want to protect the value of your accounts and avoid mishaps by using a QDRO. Furthermore, both state and federal laws have specific rules about how retirement funds can and cannot be accessed. A QDRO ensures that your division of these accounts is compliant with all relevant laws.

When a QDRO Is and Isn’t Required

While a QDRO is a useful tool in a divorce, it isn’t always necessary. It’s crucial to work with a knowledgeable divorce attorney who can use the right tools and legal orders to streamline your division of assets. In general, accounts that are governed by the ERISA (Employee Retirement Income Security Act) do require a QDRO. Per ERISA, retirement interests can be split up only if there is a judgment, decree, or order that can be considered a Qualified Domestic Relations Order. If your retirement account is from an employer-provided retirement plan, there’s a good chance you’ll need a QDRO to split it up without legal or financial issues.

However, there are retirement accounts that do not require a QDRO. In these situations, you can split up your retirement account as long as it is specified in your divorce agreement. Retirement accounts not requiring a QDRO include IRAs, some government retirement plans, and some specific types of pensions and annuities. However, there are rarely hard and fast rules when it comes to money and divorce, so it’s best to discuss your specific accounts with an attorney.

Note that whether or not your accounts require a QDRO, the money transferred between spouses will likely need to be handled in a very specific way to avoid financial penalties. For example, an IRA must be divided up in the divorce decree. The funds that are transferred must then be transferred into the receiving spouse’s own IRA. If the receiving spouse simply takes their share in cash and holds onto it, they will likely owe federal income taxes on it and pay a 10% penalty.

Determining Each Party’s Share

A big part of this is determining what each spouse is entitled to during divorce. Much depends on when the account was created and when money was added to it. If one spouse came into the marriage with money in their retirement account, that amount may be considered a separate asset. However, the rest may then be subject to division. If the entirety of the account was earned while the couple was married, the whole account will likely be subject to division.

Plan for Your Divorce with Pence Law Firm

Divorce can be complicated, and you’re bound to have lots of questions. When you choose Pence Law Firm, you’ll have quick access to experienced attorneys who are ready to help you with your West Virginia divorce. Get started now by calling us at 304-407-7852 or reaching out to us on our website. We’ll get your free consultation scheduled and start planning.

Divorce and Your Children’s College Funding

Figuring out your divorce is one of the hardest things you’ll ever go through. Not only do you have to consider your and your children’s immediate needs, but you also have to plan for needs that are still years away. For example, college funding—the cost of college has risen far more quickly than pay levels in recent decades, forcing parents to save an ever-larger portion of their income to pay for their children’s education if they don’t want them to rely on student loans. Figuring out who’s responsible for what is especially hard during a divorce.

Wondering how to protect your children’s best interests as you negotiate your divorce? Choose the team at Pence Law Firm for your divorce case. Give us a call at 304-345-7250 to set up a consultation with our team of Charleston divorce attorneys.

Negotiations During Divorce

A big part of your divorce is negotiating. You’ll negotiate everything from the family home and your retirement accounts to child custody and child support.

You may wonder how paying for college plays into that. Some states do require parents to fund their children’s post-secondary education as part of their divorce agreement. However, West Virginia is not one of those states. You cannot demand extra money in child support to cover college expenses, nor is either party required to contribute to their children’s college expenses.

However, this doesn’t mean you don’t have any options. Almost anything can be negotiated in divorce, and if your children’s college plans are a top priority for you, you can advocate for them. Be aware that you may have to give up other assets or make other sacrifices if you want your ex-partner to contribute to your children’s college fund. For example, you may agree to a smaller share of the marital assets or take less money in alimony to ensure that your children’s educational needs are met.

Saving for College for Your Children

There are several different ways you can contribute to your children’s college accounts. One popular option is 529 plans. These types of college savings accounts have tax benefits, and they can only be accessed for approved educational expenses. This protects both parties from unauthorized withdrawals and ensures that the child can only access the money for their college needs. In many cases, both parents make contributions throughout their little one’s childhood to get the account to where it needs to be by graduation. But if one partner outlearns the other by a significant amount, it may make sense for one parent to pay for college in its entirety.

Legal Concerns

Divorce is rarely easy, but with a little bit of planning and patience from both parties, you can navigate these issues with minimal stress. First, do your best to keep the lines of communication open. You both want what is best for your children, it’s just a matter of coming to an agreement about what that means.

It’s best to protect yourself from every possible negative outcome in scenarios like this. For example, some divorcing couples opt to create a joint savings account to which they both contribute money for their children’s college. This may make sense to you if you believe you can trust your ex-spouse not to touch it. That doesn’t change the fact that legally, both parties can withdraw from the account at any time. Right now, you trust your ex-spouse not to misuse your child’s money—but you never want to find yourself in the position of checking on your child’s college account and finding it empty. Contributing to a fund that can only be accessed by the child for educational purposes is the best way to protect everyone involved.

You should also be aware that college savings agreements require additional communication with your ex-spouse. If you’re in a high-conflict divorce and you want to limit communication as much as possible, a college savings account may just be another way for your ex to contact you.

Protect Your and Your Children’s Future with Pence Law Firm

When you’re ready to move forward with your divorce, make sure you have an attorney you can trust. The team at Pence Law Firm is committed to helping you plan for the next chapter of your life. Call us at 304-345-7250 or reach out online to set up a consultation now.

Dealing With the Holidays After a Divorce

The aftermath of a divorce is incredibly painful, and it’s even harder during the holidays. If this is your first holiday season since getting divorced, you may be wondering how you can navigate this time with minimal stress and sadness. Although this will likely still be a hard time of year, with a little bit of preparation you can make the most of this year.

If you’re still in the midst of figuring out your divorce, don’t tackle it alone. Let the team at Pence Law Firm support you. Call us at 304-345-7250 to set up a consultation with our Charleston divorce team right away.

Preparing Yourself Emotionally

First, it’s important to prepare yourself emotionally for the roller coaster you’re likely to experience this holiday season. It’s completely normal to feel nostalgic about holiday memories with your ex-spouse, the traditions you shared as a family, and the decorations you purchased together. It’s also normal for that to swing to grief and depression as you realize that holidays won’t look like that anymore. 

What’s important is that you give yourself space to feel all of these emotions and let them pass through you naturally. Trying to force the negative emotions down or only allowing the positive emotions to come to light is a sure way to make the holidays even more painful.

Basically, the goal is to have realistic expectations for what this holiday season will look like. Recognize that it will probably not be your favorite year, but that happier years do lie ahead. All you have to do is get through this one, make it as memorable as you can for your children, and give yourself grace.

Reviewing Your Court Documents

Before you get too deep into your holiday plans, make sure you know exactly what your legal rights and obligations are this year. It’s common for ex-spouses to rotate holidays with their children, so ensure that you know whether you have odd-numbered or even-numbered years. If you have a different arrangement, go over it carefully. It can be challenging when the holidays fall on a weekend because weekend visitation can be a sore subject for newly divorced parents. However, holiday schedules generally override the standard weekend schedule. Looking this over now will prevent misunderstandings later.

Appropriate Communication with Your Ex-Partner

Try to limit communication with your ex-spouse. Even if you have an amicable relationship, you don’t want to get bogged down talking about old holiday memories that will leave you sad long after the conversation has ended. Set a standard of friendly, open communication that relates to your children. You should communicate about which gifts the children want and who will get them, as this avoids repeats. 

You can also talk about your holiday plans and ensure that the children get to participate in the events that mean the most to them. If your relationship allows for flexibility, be open to schedule changes that don’t limit your time with your children but do give them the opportunity to attend important events with their other parents.

Establishing New Traditions for Your New Life

This may not feel like a fresh start, but it truly is. This is likely the hardest holiday you’ll have for a very long time, so just do what you must to get through it. Spend some time dreaming about the holiday seasons to come, the memories you hope to make with your children, and the new opportunities that will come your way. This is an excellent time to start thinking about new family traditions you’d like to make part of your holidays moving forward. 

Perhaps a new special meal, community event, or shopping day will become the highlight of your holiday season. There’s room for your children to enjoy their previous holiday traditions, turn them into new ones, and explore fun new things to do with their parents.

Preparing for Divorce? Contact Pence Law Firm

When you choose the team at Pence Law Firm for your divorce, you can feel confident that we’ll advocate for you every step of the way. Explore your legal options now—call our team at 304-345-7250 or reach out online to set up a consultation at our Charleston office.

Can an IRA Be Cashed Out During a Divorce?

You’ll have to make a long list of difficult decisions as you navigate your divorce. A big part of this discussion centers on the division of assets. Retirement assets are often among the most challenging to split, thanks to the immense value they have. Retirement funds have years or even decades left to grow, so you should anticipate some negotiations when it comes to these assets. 

If you have an IRA to split or you’re considering using your IRA to pay for your divorce, here are some things to keep in mind. When you’re ready for more personalized advice regarding your divorce, call Pence Law Firm at 304-345-7250 to set up a consultation.

Using Your IRA to Pay for Divorce

Some people ask this question because they’re looking for a way to pay for their divorce attorney and other fees. It can be tough when you don’t have much in the way of liquid assets—going from one household to two at the same time you’re going from two incomes to one is a huge financial change. However, you may want to explore other options before tapping into your retirement accounts. 

If you are not at least 59 1/2 years old at the time you withdraw from your IRA, it will be considered an early withdrawal. That means you’ll need to pay taxes on the withdrawn amount and a 10% penalty.

That’s a huge loss for your IRA, especially if your IRA isn’t large to begin with—those fees and taxes could wipe out years of gains. On top of that, withdrawing from your IRA to pay for your divorce could complicate the division of assets. There’s a good chance that your IRA will be considered a marital asset and need to be divided accordingly. You may then need to give your ex a greater share of what remains of your IRA to make up for the amount you already withdrew.

Of course, there are cases where you truly have no other option. Even if it means losing some of the value of your IRA, it may be worth cashing out part of it if you have an emergency or have no other funds available.

Dividing Your IRA as Part of Divorce

Like many other states, West Virginia is an equitable distribution state. The assets accrued during the marriage are to be divided in a way that is fair and equitable, which doesn’t necessarily mean splitting things up 50/50. If the division of assets involves transferring part or all of your IRA to your ex-spouse, there are ways to do it that save you from the penalties described above. You don’t want to cash out what you owe and just hand it over. You’ll incur the same taxes and fees we talked about earlier.

The right way to handle the transfer of assets is with a Qualified Domestic Relations Order. This allows you to transfer retirement funds and certain other assets without taxes or penalties. The person receiving the funds must either transfer them into their own IRA or another qualified retirement fund or risk paying taxes and penalties on what they withdrew. To transfer assets using a QDRO, the details of your division of assets must be outlined in your divorce decree. These aren’t agreements or arrangements you want to make under the table—everything must be done legally and via legally binding agreements.

Factors to Consider

If you will be transferring part or all of your IRA as part of your divorce agreement, there are some factors to consider. First, think about meeting with a financial professional to account for the amount you’re losing. You may need to change your saving or investing strategy to get back on track with your retirement goals. Second, consider alternatives—you may be able to give your spouse another asset of equal value in exchange for keeping your IRA. It all depends on how flexible you are with your retirement accounts.

Discuss Your Legal Options with Pence Law Firm

When you’re facing divorce in Charleston, it’s important to have a strong legal team on your side. Pence Law Firm is here to support you every step of the way. Schedule your free consultation now by calling us at 304-345-7250 or reaching out online.

Adopted Children Might Need Extra Support During Divorce

If you’re facing divorce and trying to figure out what’s best for your children, it’s important to think about the specific needs of each child. When you and your spouse share an adopted child, it’s likely that your child will struggle quite a bit throughout this process. The loss that comes with adoption can often be awakened through the loss of the divorce, and both you and your ex should be prepared to support your child through this time.

There are many factors that may influence how your child responds to your divorce. As you navigate this difficult time, make sure you have the legal support and guidance you need. Call Pence Law Firm at 304-345-7250.

Unique Challenges for Adopted Children

There are several challenges that divorce often brings up for adopted children:

  • Loss and abandonment: Adopted children often have a fear of abandonment and loss, due to the loss of their biological family early in life. Unfortunately, the upheaval of divorce can bring these feelings back to the surface.
  • Instability: Children, and adopted children, in particular, thrive in a stable environment. Divorce is the epitome of an unstable environment. You know that it’s temporary, but to a child, it can feel like their entire world is over. You may see your child act out, regress, or even withdraw from you as they try to process what’s happening.
  • Difficulty with attachment and trust: If the adoption is relatively recent and your child is still figuring out their place in your family, they may experience serious issues with attachment and trust during a divorce. A child who was previously securely attached may suddenly show an anxious attachment style or an avoidant attachment style, making it harder for both parents to bond with them. The child may also stop trusting their parents, making it harder for them to provide support during the divorce.
  • Confusion over loyalty: Children may feel like they have to declare loyalty to one parent during a divorce. This is often seen among adopted children, who may naturally be closer to one parent than the other. It’s crucial to avoid any hint of parental alienation, as the child must be encouraged to maintain a strong relationship with both parents.

Emotionally Supporting Your Adopted Child

Understanding the issues your child may face during this time can put you in a better position to support them as they grieve and heal. Emphasize the need for open communication and allow your child to open up to you—even if what they have to say may be painful or hurtful to hear. Remember that they have no say over what is happening, and it’s natural to feel angry or betrayed.

Protect your child’s routine as much as you can. Even if you’re in a different home, you can allow them to keep their same extracurricular activities, take them to spend time with friends and uphold the traditions you have always shared. Any consistency you can give them during this time can give them a sense of security.

Do your best to reassure your child of your love for them and your ex’s love for them. It may be difficult to talk about your ex in positive terms, but supporting their relationship with your child is truly putting your child’s best interests first. Don’t be surprised if your little one needs more reassurance, cuddles, or affection than usual.

Using Your Resources

You may want to have a therapist lined up before you even tell your child about the divorce. They will undoubtedly have things to work through in the months to come and providing them with support right away will benefit everyone. You may want to look for a therapist with specialized training in working with adopted children and navigating divorce trauma.

Keep learning throughout this time. Learn more about adoption-related trauma, the unique ways divorce can affect adopted children, and the best ways to support your adopted child’s growth and healing.

Facing Divorce? Contact Pence Law Firm Now

With the team at Pence Law Firm, you can work through divorce while giving your children the guidance and help they need. Let us handle the legal aspects of your divorce while you support your family. Set up a consultation with our team of Charleston divorce attorneys by calling us at 304-345-7250 or sending us a message online.

Taking Control of Your Finances After a Divorce

Divorce is a major life event that can derail every aspect of your life while you get it sorted out. Your finances will likely take a significant hit while you work through your split, but that’s temporary. By planning ahead and being honest about your finances, you can take control of your financial situation and plan for life after divorce.

If you’re still reeling from the decision to divorce and you’re not sure what your next step is, it’s time to talk to an attorney who can advocate for you along the way. Call Pence Law Firm at 304-345-7250 to set up a time to talk with one of our experienced attorneys.

Get a Full Picture of Your Financial Situation

This part may be painful, but it is unavoidable if you want to get your money under control. You need an unbiased view of what’s going out, what’s coming in, and what you have left over at the end of each month.

You can start by calculating your sources of income for each month. This obviously includes any income from employment, but may also include child support, alimony, or side gig work. This is where it’s important to be honest—if your ex-spouse is ordered to pay $1,000 in child support but has only made two payments in the last six months, it’s wise not to count on that money coming in each month.

You can also keep track of fixed and flexible expenses. Fixed expenses include rent, mortgage, student loans, and other payments that are the same every month. Flexible expenses may include groceries, gas, utilities, and fun money.

In addition to looking at the monthly payments you have to make, create a list of your debts, how much is owed on each account, and your current estimated payoff date. This will be important if you want to pay off your debts more quickly.

Develop a Realistic Budget

You already have the framework for a budget with your list of income sources and expenses. Now you can tweak it to fit your life a little better. Perhaps you have three streaming services on your expenses list and you know for a fact you only watch one. You can cut the other two and trim them from your budget. 

Maybe looking at the numbers made you realize that you’ve been dipping into savings every month and you need to cut back on discretionary spending. Your budget should account for monthly expenses, as well as those that pop up occasionally or annually—for example, vehicle registration, vehicle repairs, home repairs, and vet visits. Ensure that you are making contributions to savings, so you have an emergency fund.

Leverage Assets and Account for Liabilities

If you were granted a share of marital assets in the divorce, you may have what you need to improve your financial situation. If you took ownership of an investment property, consider finding ways to make more money from it—perhaps your ex-spouse hadn’t increased rent in five years, and the current rent is far below market value. Maybe making a few small updates would drastically increase what you bring in each month.

This is also a good time to look into insurance policies. Your needs as a divorced person may not be quite the same as the needs of a married person. You might be able to trim back some of your policies and add the money you save to your monthly budget.

Take some time to plan for the debts you were left with after the divorce. While you can make minimum payments until everything is paid off, you may want to come up with a more aggressive repayment plan.

Think About Future Plans

Whether your goals are preparing for retirement, funding your children’s college accounts, or starting a new business, don’t put those plans off for “someday.” If you’re already in the middle of financial planning, make space for those goals in your current plans.

Navigate Your Divorce with the Help of Pence Law Firm

Divorce is never easy, but having a compassionate and experienced attorney by your side can help you minimize the stress you face. Schedule a consultation with our team now by contacting us online or calling us at 304-345-7250.

Navigating the Transfer of Real Estate During a High Asset Divorce

Real estate transfers are a crucial component in many divorces, and they often play an even bigger role in high-asset divorces. High-asset couples often own multiple pieces of property, with some serving as family or vacation homes and others serving as income streams. For this reason, it’s common for the division of assets to be a time-consuming and intense part of the divorce process.

Learn more about what to expect during real estate transfers and how to get what you need out of your split. For more personalized advice as you work through divorce, call Pence Law Firm at 304-345-7250.

Proper Valuation and Assessment of the Property

Proper valuation of every piece of real estate is crucial when you’re going through a divorce. This is especially true in today’s market, which seems to change dramatically on a near-weekly basis. The market has driven home prices upward, which may influence both parties’ decisions regarding selling or keeping the property. 

Investing in a qualified real estate appraiser is crucial, particularly in high-asset divorces that may involve valuable real estate. If both parties cannot agree on an appraiser, you may want to ask your attorney for recommendations or consider getting insight from two appraisers.

This step also involves considering the debts tied to each piece of property. Unless you own each piece of real estate outright, it’s important to consider the amount of debt tied to each property and how much equity is in each property. Again, the current market makes this even more important. If you bought one or more homes when interest rates were low, requiring one party to refinance into their name alone could lead to an unpleasant surprise.

Understanding Equitable Distribution Laws

Once you know what you’re working with in terms of debt, equity, and home value, you’ll have to talk to your attorney about how West Virginia’s equitable distribution laws may affect how the homes are split. West Virginia, like many other states, is an equitable distribution state. This means that assets should be split in a way that is fair, not necessarily in a way that is equal. Rather than both sides getting 50%, the courts consider a range of factors while deciding how each asset should be split up.

It’s important to identify which pieces of real estate are separate property and which are marital property. Even if a property is considered separate, it could still affect how assets are divided. If one party owns five homes on their own and the other spouse owns nothing on their own, the court would likely find it unfair to give each spouse half of the marital home.

One of the most important factors used in equitable distribution is both parties’ financial and non-financial contributions to the marriage and property. This is especially important in marriages involving one high-earner and one spouse who works as a homemaker or stay-at-home parent. It’s common to think about the working spouse’s financial contributions, but the non-financial contributions are also crucial and carry significant weight.

Negotiating the Division

Before you and your attorney begin negotiating with your ex, you should fully understand what is at stake and which outcomes are possible. If you don’t care about the real estate, you can use that to gain some leverage and fight for a greater share of other assets in exchange for giving up your share of the real estate. If you want the family home but are uninterested in the investment properties, that may also guide your negotiations. Perhaps you want to keep one investment property as a passive stream of income but do not want the baggage associated with the marital home. It all depends on your priorities.

Tax Implications

The good news is that property transfers between spouses during divorce are usually non-taxable. However, owning property does come with some tax benefits, so keep that in mind if you plan on signing away your rights to the family real estate. Additionally, if you get one or more pieces of real estate in the divorce and sell them later on, you could be hit with a capital gains tax.

Facing Divorce? Choose Pence Law Firm for Your Legal Needs

We know that divorce leaves you with more questions than answers, and that’s why we’re here to support you every step of the way. Let us help you navigate your divorce and prepare for a new chapter in life. Schedule a consultation now by calling us at 304-345-7250 or contacting us online.

The Effects of Social Media on Divorce Proceedings

Social media has become integral to almost every aspect of modern life, including school, work, family, and even divorce. If you are contemplating a divorce or going through one, you may be experiencing high levels of overwhelming emotions and stress.

A study conducted by the Pontifical Catholic University of Chile and Boston University found a negative correlation between the quality of relationships between spouses and their use of social media.

While social media may not necessarily be the sole deciding factor in ending your marriage, your digital life and social media engagement may play an important role in divorce proceedings. Be prepared to consult with experienced divorce attorneys to learn more about the impact of your digital and social media presence on your divorce.

Avoid Social Media Use During Your WV Divorce

Social media can be a great outlet for communicating digitally and expressing creativity. But it has the potential to wreak havoc on a marriage and cause potential harm during divorce proceedings. There are several things you need to avoid when contemplating a divorce – and limiting your social media activity is one of them.

With emotions and tensions running high, you may get tempted to rant about or snub your partner online. You should avoid doing this at all costs. Your profiles (even the private ones) can be used against you as evidence in a family court.

Remove questionable friends and any connections that you are unsure about. Always be mindful that a private post on social media can be easily retrieved and used against you.

Effect of Digital Activity During and After a Divorce

You should take added precautions when online. Make sure the people you call friends are truly looking out for your best interests. An experienced divorce attorney will strongly encourage you not to post anything about your divorce on social media. This includes talking about your children and spouse or drafting an agreement.

Once the divorce is finalized, you should typically be free to post anything you want on your social media accounts. Besides that, if you have children, you may want to limit your online activity and avoid posting anything about your ex-spouse. Always remain cordial during your interactions with the ex-spouse – on digital platforms too.

Social Media Can Be Used as Evidence During a Divorce Proceeding in West Virginia

You and your digital activity will be perused closely by your spouse and their attorney. All aspects of your online presence will be investigated, and they can use anything they find against you. You can save yourself from pursuing difficult defenses by reviewing your past and censoring any current activity on social media.

For instance, liking inappropriate posts or comments, or posting a photo with a new date drinking at the bar could potentially be used against you. You should also consider the state of privacy of all your online accounts. You and your spouse may share mutual friends or the same network. It only takes one friend with less than sincere motives to divulge damaging information.

Further, the other side may request copies of your social media presence, including posts and accounts during the discovery process.

Impact of Social Media on Divorce Settlements and Child Custody

While you may not overtly post your latest salary check or income, there are more subtle ways of flaunting wealth on social media, which may make things difficult for you in a divorce settlement. It will reflect poorly on you if you claim not to be able to afford spousal maintenance or child support yet post photos of a lavish ski resort vacation, for example.

The same holds true if you claim to be out of work yet post photos of your office and coworkers. The news is full of people that believed they could hide income and assets in a divorce but slipped up on social media. The fact is that social media can give people a high level of information about your life.

Social media can also have an impact on child custody matters. It’s all too common for judges to negatively react to posts where a parent can be seen binge drinking when they should have been at home watching the child. The same holds true if you post pictures of your child on dangerous excursions or doing dangerous things.

Telling the mom that you are visiting the zoo, but taking the kids paragliding may not sit well with the child’s mother, and vice versa. Honesty matters.

Get a Skilled and Compassionate Family Law Attorney on Your Side

If you are contemplating a divorce or are already going through one, the experienced family law attorneys at Pence Law Firm, PLLC can lend insight into the various issues that may impact your future and the best course of action to take. Our lawyers will work with a singular goal of achieving what matters to you the most – a successful divorce resolution to your best satisfaction.

Schedule your free and confidential consultation with us today. Call (304) 345-7250 or write to us online.

Is My Spouse Entitled to Half of My Business in The Divorce Settlement?

You may have built a great business during your marriage with lots of hard work, risk-taking, and professional enterprise. But things can quickly get complicated for the survival of your business if you are going through a divorce. You need to take steps to protect your business assets during this process.

A seasoned family law attorney can help you understand the effects of a divorce on the ownership of your business and the steps to take to protect your company.

Impact of Divorce on Business Ownership in West Virginia

Divorce can place you in a difficult situation if you own a thriving business or where the business has significant assets. You probably don’t want to be in a business partnership with your ex-spouse after the divorce, so this can cause a big dilemma.

Even though West Virginia is not a community property state, you may end up losing part of your business during the division of marital assets. This makes it important to work with an experienced divorce attorney who understands property division laws and can use that knowledge and experience to protect your interests.

Depending on the circumstances, you may be asked to give up half of your business in the form of assets or through liquidation. Liquidation is usually not the first choice of courts, especially if the business is a profit-making enterprise with promising future growth. But if you and your spouse are unable to come to an agreement, this may be the only solution left – unless you can buy out your ex’s share in the business assets.

There are also instances when the spouse who is less interested in the business knowingly does things to sabotage it. You need to put effective plans in place to prevent these things from happening.

The Future of Your Business is at Stake in Your Divorce

Your divorce may not necessarily have an impact on the business if it was started by one spouse and the other has no involvement in it. This is especially true if it was started before the couple was married. But that said, many businesses lose their separate property status during the marriage.

For example, the increase in the value of a business can be considered marital property, and that portion of it may need to be divided between the two spouses. The business may also be considered marital property subject to distribution if the spouse contributed to it either financially or by working in it. A business formed during the course of the marriage can also be considered marital property and subject to distribution.

If it is determined that part or all of your business is marital property, there are other ways of compensating your spouse for their share of it.

Ways to Protect Your Business Ahead of a Divorce

There are ways of protecting your assets so that your business can survive the divorce. These include:

Prenuptial agreement

Prenups are not guaranteed to save your business, but they can be very helpful toward that end. The agreement should be in writing and signed in front of a notary or witnesses. You should understand that you cannot coerce your fiancé to sign the document. This needs to be voluntary or else a court may declare the prenuptial agreement null and void.

Of course, you can only enter into a prenup prior to getting married. If you already missed that window, then you may want to look at the next option.

Postnuptial agreement

Postnuptial agreements are a lot like prenuptial agreements. The only difference is that these are entered into after the marriage. These agreements can cover the same general issues, including those pertaining to your business. The challenge is getting your spouse to sign such an agreement after you are already married. At this point, the business-owning spouse has far less leverage.

Buy-sell agreement

This is another way of protecting your business. Buy-sell agreements are useful in protecting interests when a business is sold or a partner dies. But they can also be useful in the event of a divorce. You can have a good business attorney draft this type of agreement.

Other solutions

You could lose your business after divorce if your spouse was involved, whether as an employee, consultant, advisor, or something else. You may want to start drawing a salary instead of reinvesting all profits back into the business. Your ex may end up getting a healthy chunk of that income if you continue to invest the surplus back into the business.

You should also keep your business and personal expenses separate so that the business remains a separate property. It may also be a good idea to place the business in a trust to reduce your ex’s controlling rights over it in the event of a divorce.

Get a Skilled Family Law Attorney on Your Side

The divorce attorneys at Pence Law Firm, PLLC will employ the right legal strategies to prevent your assets, including your business from getting unfairly divided. Our attorneys have substantial experience helping individuals protect their business interests during a divorce. To set up your free consultation, call us at (304) 345-7250 or reach us online.

 

Divorce And Special Needs Children in West Virginia

Going through a divorce is never easy, but it can be particularly difficult if you have a child with special needs. Having a special needs child can impact every aspect of your divorce – from marital property division to child custody, spousal support, and child support.

If you are the parent of a special needs child who is planning to file for divorce, you need a divorce lawyer who can provide you with the personalized legal representation you need. At Pence Law Firm PLLC, we have handled several divorce cases involving special needs children over the years and have a deep understanding of the issues that are unique to these types of divorces.

Contact us today to discuss your case with one of our experienced West Virginia divorce lawyers.

Divorce and Special Needs Children – Key Issues to be Considered

Child Custody and Visitation

Caring for a child with special needs is completely different from caring for a normal child. Depending on whether your child has a physical, cognitive, behavioral, developmental, or sensory-related impairment, they might have unique needs that other children might not have. This is something you and your spouse need to keep in mind during child custody and visitation negotiations.

Moreover, as your child grows, their needs might change drastically. You – or your spouse – need to decide whether you have the means (financial and otherwise) to care for your child and make sure their needs are met.

It’s crucial to consult with doctors and mental health professionals to get a clear idea of your child’s current and future needs so that you can come up with an effective parenting plan that does not disrupt your child’s life too much.

It should also be noted that as your child grows, you might have to adjust your parenting plan to accommodate their changing needs. If the child custody and visitation order does not give you the leeway to adjust parental duties and visitation schedules, you have to request the court to modify the order.

Spousal Support

Most special needs children require special medical care, mental health care, medications, and supplements. As a result, the custodial parent might have to spend a substantial amount of money (depending on whether these expenses are covered under the child’s health insurance plan) on a monthly basis. The court might take this factor into consideration while ordering spousal support.

Child Support

Child support payments are meant to be paid only until the child in question turns 18. Once the child reaches the age of 18, the payments stop. This is not the case with special needs children. Depending on the severity of your child’s condition, the court might order you to pay child support even after your child turns 18.

Another important issue to be considered is that your child might qualify for public benefits like social security disability insurance and Medicaid. If you pay child support directly to your child, it might be considered an income and your child might lose their benefits as a result.

You need to consult with a skilled West Virginia divorce and special needs lawyer to figure out a way to support your child without affecting their right to receive state and federal benefits.

Guardianship 

Depending on the nature and severity of your child’s condition, they might need the support of an adult all through their life. Keeping this in mind, you and your spouse should discuss between yourselves and decide who will become the legal guardian of the child once they turn 18.

If you fail to do so, the court will designate a guardian for your child once they turn 18. It could be someone who might not have been your choice for the role of guardian. It is why naming a guardian for your special needs child is so important.

You should also designate a successor guardian so that if you (or your spouse, depending on who the guardian is) become incapacitated or die, the successor you named can become your child’s guardian without requiring the court’s intervention.

Remember – the legal guardian has the right to make medical and financial decisions on behalf of the child. So, make sure you choose someone you can trust to be your successor guardian.

Special Needs Trust

Setting up a special needs trust is one of the best ways to provide for your child’s needs in the future. A special needs trust is relatively easy to manage and can be a source of reliable long-term income for your child.

Two of the most common types of special needs trust that can be set up for the benefit of special needs children and adults are first-party special needs trust and third-party special needs trust.

As mentioned above, any financial assistance provided directly to your child will be considered an income and affect their eligibility for public benefits. So, you should set up the trust in such a way that the funds in it will not be considered an income while determining your child’s eligibility to receive public benefits.

Importance of a Cordial Relationship between the Parents

Special needs children need parental love. The more involved the parents are in their child’s life, the happier the child will be. It’s why you and your ex-spouse should try to maintain a cordial relationship even after divorce.

You should consult with each other while making important decisions on your child’s behalf and find a way to be actively involved in your child’s life – regardless of the differences and disagreements you might have with each other.

Legal Help is Here from Compassionate West Virginia Family Law Attorneys

At Pence Law Firm PLLC, we know that navigating a divorce when you have a special needs child can be extremely stressful. Our legal team has over 100 years of combined experience in handling divorce, child custody, alimony, child support, and guardianship-related cases.

We can handle your case with compassion and sensitivity, negotiate with your spouse’s attorney on your behalf, and go the extra mile to achieve an outcome that is in keeping with your child’s best interests.

Call us today at 304-345-7250 or use our online contact form to schedule a consultation with a West Virginia family law attorney from our firm.