Wednesday, November 21, 2007

What if We Both Don't Want to Get a Divorce? (But There are Problems if We Stay Together)

This is another question in my occasional series of questions commonly asked by clients. For a variety of reasons, some people want to stay married but "split the sheets" or take some other actions. Some want to stay officially married because of insurance, inheritance, religious reasons or children or for other purposes. Fortunately, there are several actions couples can take without getting divorced.

1. Some couples find protection and assurance by creating and signing a partition or post-nuptial agreement. That agreement can divide assets and liabilities, provide for support and can insulate the assets of a party from the liabilities of the other party. It can also be a tool for estate planning and may help save taxes.

2. If there are minor children, support and visitation issues can addressed in several ways. A partition agreement can provide for contractual child support. Either party can ask the Attorney General to help collect child support. The parties can sign a voluntary agreement for child support or visitation, or either party can file a petition seeking a court order for child support or visitation.

3. Couples can always work with a counselor to try to improve their relationship. Communication problems are common and can be overcome by hard work and commitment.

4. Couples can just continue to live together and informally start creating separate lives and interests. That is not unusual. It often leads to divorce, but some people are tolerant enough to live that way. If there are significant problems, they won't just go away. They usually get worse over time.

5. Annulment is a very limited option and will be discussed more fully in a later post. It usually is not available because of the limited circumstances under which it is allowed by the Family Code.


Anonymous said...

Can a couple have the same attorney for a postnuptial agreement or do they have to have separate attorneys?

Dick Price said...

Each party should have their own attorney. One attorney cannot advise both parties because there is a conflict of interest. One party could just not hire an attorney, but that is really not advisable for either party. The party without an attorney might make decisions without proper information. With only one party represented, the other party later might challenge the validity of the agreement -- it doesn't guarantee the agreement would be set aside, but it would give the challenging party something to argue. If both parties are acting in good faith to help each other, they should each have their own attorneys to help understand the situation and make appropriate decisions in their best interests. Attorneys are expensive, but there is normally a lot a stake when a post-nuptial agreement is contemplated. Part of making good financial decisions is getting good advice.