There are instances wherein a prenuptial agreement is useful to begin a marriage. The actual reasons may vary, but regardless, if one wants to have a prenuptial agreement, the underlying thought of the other party that must be overcome will usually be that their soon-to-be spouse does not trust them with property, assets or income that has already been earned and does not want to share.
Sadly, the majority of people in today’s society assume that the only reason for a prenuptial agreement is to protect the assets of one party from the other party. If this belief persists and is not overcome, a prenuptial agreement would unfortunately create conflict between the parties before the marriage even begins.
It is often overlooked that there are other justifications for entering into a prenuptial agreement that have nothing to do with trust between spouses. In fact, the issues of trust and sharing being put aside, a prenuptial agreement often can be beneficial to the party who brings into the marriage the lesser amount of property and/or assets than the other.
Other concerns that can also be addressed and remedied by a well written prenuptial agreement, besides keeping assets separate, have to do with keeping financial obligations separate also. As an example, a prenup can shield one spouse from being responsible for the other’s debts incurred after the marriage. They can also be beneficial when one enters the marriage already with significant liabilities like student loans or credit card debt. What may see clear in the beginning can become “clouded” when there is comingling of marital funds for years after marriage. This is crucial in states where debts of the marriage would de facto be considered as joint obligations unless and until proven otherwise.
This factor is crucial when the owner of a premarital business incurs a financial obligation, whether unexpected or intentional. In most states, debts incurred during marriage are generally presumed to be community debts, meaning both spouses may be liable, even if only one spouse owns the business.
However, if the debt is tied solely to the premarital business and no marital, or community, assets are involved, a prenuptial agreement can explicitly state that business debts remain the responsibility of the spouse who owns the business, protecting the other spouse’s assets. It can also designate the business and its liabilities as separate property, preventing creditors from pursuing the non-owning spouse’s assets or income.
A prenuptial agreement, in order to be successful, must have complete financial disclosure of both parties. It can delineate and separate business and personal income from community income by establishing joint and separate accounts, demonstrating the intention of the parties to have community income to pay daily expenses, the balance of the income of the parties remaining separate, thereby reducing the risk of incurring responsibility of the other spouse’s debts.
Many of the same advantages are available upon entering into a postnuptial agreement. Key factors of enforceability would include full financial disclosure, how soon after the marriage the agreement was signed, whether each party had independent counsel and whether or not the agreement was unconscionable.
Though couples do not like discussing divorce while preparing for marriage, couples can find some peace in knowing that if their marriage “goes south”, the major issues of property and debt division, and spousal maintenance can be agreed to beforehand, thereby avoiding the possibility of an expensive “legal battle” upon termination of the marriage. Though looked down upon by some couples, it could save an enormous amount of emotional stress should divorce become inevitable.
If a pre or postnuptial agreement is contested upon entering the divorce arena, the court will review at a minimum the voluntariness of the agreement, possible unconscionability, full financial disclosure and whether each spouse had independent counsel upon entering into the agreement.
No need to wonder. Depending on the complexity of the assets, or other special issues, the cost of most pre or postnuptial agreements will usually be in the range of $800 to $1,400.
In today’s mobile world and the ever changing technological advancements, there may be instances when it is necessary, in order to maintain an income and provide for their family, for a married couple to separate. Maybe one of the individuals needs to move to another location in order to continue their education, thereby temporarily separating the family.
This problem can usually be handled somewhat easily when there are no children. However, when there are children involved, this scenario can get quite complicated. If the marriage is on firm ground and both parties are willing to make the sacrifice, it is not a problem.
However, it can become more complicated if the marriage is already on “thin ice.” Maybe the parties are even looking for an excuse to separate from each other. Whatever the reasons, when the parties are going to separate under less than friendly circumstances, whether or not a divorce is initiated, it may be beneficial to both husband and wife to agree to a relocation agreement to help waylay worries that the children are taken care of in the best manner possible with both parents maintaining a role in the upbringing of their children.
In a common scenario, the wife may be concerned how much financial assistance she will receive to take care of the children in her husband’s absence. Husband, on the other hand, may want some assurances as to how often, and under what circumstances he would be able to be with the children.
This type of agreement many times may be desired by the parties at a time when emotions are already running high and it is almost impossible for a couple to agree between themselves without outside assistance.
In situations such as this, meeting with a neutral third party to help them flesh out a relocation agreement may save them an enormous amount of emotional distress. Besides agreeing to how the children will be taken care of, and by whom, the parties can also agree to whatever financial agreement works out for both of them.
When both parties agree to making such an accord, the possibility of compliance is rather high. This may help the couple decides on how to manage their futures, either together or apart. The relocation agreement may be temporary, several months or year or more.
The parties can then reunite and continue as before, most likely more trusting with each other than before because their agreement survived. If the agreement was not abided by both parties, that may be the ”last straw” before beginning a divorce.
Another advantage of the relocation agreement is that the parties can agree which state would maintain jurisdiction over any future court matters, including a divorce, if it came to that. Such an agreement could alleviate what could otherwise become a major issue should one party be moving to another state. A hazardous state of affairs occurs when one party decides to begin a divorce after having established a residency in another state, thereby creating a much more difficult multi state jurisdictional issue.
All of these issues can be discussed in detail with an experienced attorney-mediator to help them accomplish one of several possible outcomes; (1) reach agreements that will build trust and bring more peace to their marriage despite the separation; (2) help one or both of the parties realize with the separation that divorce is actually necessary or the better option; (3) each party will gain new information how much they can trust the other party. Should the ultimate outcome be number 2, a relocation agreement could play an integral part in a divorce as critical issues would already be agreed to, thereby saving the parties an enormous amount of money and emotional turmoil.
Your divorce with your former spouse is done…maybe several months, or years ago. Maybe it was decided by a judge after a “court fight”, or maybe an agreement was reached by the two of you without going to court.
Regardless of the manner in which the divorce was finalized, many erroneously think, “good, it’s finally over.” However, that is not always true. Sadly, in many cases, the litigation after the divorce far exceeds the litigation before the divorce. A few attorneys have nearly made their living off 2 or 3 clients who seemed to return year after year to litigate a new disagreement.
Can this be avoided? It can be circumvented in the same manner that “going to court” to get your divorce is avoided by submitting to mediation. The advantages are obvious. They are the same advantages that one has upon reaching an agreement to finalize their divorce through mediation.
If the matter is taken to court, the court will have to make a finding that there is a “substantial and continuing change in circumstances” for modifications involving child custody (legal decision-making and parenting time), child support, or spousal maintenance (alimony). These are the most common disagreements.
A great deal of time and money can be spent on simply proving, or disproving, this allegation, before even getting to the real issue of what needs to be modified. Mediating in almost all instances would be much simpler…..and cheaper.
Even when one party believes a modification would be “ridiculous”, if there has been an alleged “substantial and continuing change of circumstances” that is evidenced by a loss of job or job relocation, a serious, ongoing illness, one party moving (necessary or unnecessary?), thereby increasing the distance between parents, an increase in the child’s needs, or some other unseen change of circumstance, the litigation cost of taking that issue to court will be expensive.
The alternative is to put your personal thoughts or objections (or biases) in your back pocket and agree to mediate. When mediation is agreed to in lieu of going to court, the advantages are enormous. Besides the financial benefit, which can easily reach many thousands of dollars, the non-confrontational procedure used in mediation can be an emotional lifesaver. Also, an agreement can be reached much quicker than the often tedious scheduling with the court.
You still maintain a level of control in mediation. You may not like what you are asked to agree to in mediation, but you know that you will only voluntarily agree to “what you can live with”. In other words, not perfect, but doable.
However, in court the judge decides and you accept…period! You may think, upon becoming aware of the judge’s decision, “that’s impossible….that’s not right!” But you lost your element of control when you would not agree while in mediation, thereby giving charge to the judge to control part of your future. You are now on the hook, and you paid a lot more money to get there.
Don’t be the one who says after it is all over, I wish I had agreed to mediation.
“A prenuptial agreement is not about a lack of trust; it’s about setting clear expectations and protecting both parties’ interests for a harmonious future together.”
