Thursday, July 31, 2008

8 Reasons Why You Should Get A Prenuptial Agreement

Thanks to Michael Sherman's Alabama Family Law Blog, I saw a great post that originated in the Prenuptial Agreements blog. That blog is obviously very specialized and seems to cover the subject from many different angles. I recommend that anyone thinking about a prenuptial agreement read through the various posts on different aspects of prenuptial agreements. The following is the post that originally appeared in the Prenuptial Agreements blog.

"A prenuptial agreement is an agreement between two people that deals with the financial consequences of their marriage ending.
All marrying couples have a 'prenuptial agreement' - it is known as 'divorce law.' However, a lot of people are unhappy with the way divorce law works, and prefer to take control of their lives, rather than leave it in the hands of the government. In these cases, it makes a lot of sense to get a customized prenup.

Getting a prenuptial agreement is particularly important in these 8 cases:

1. You are much wealthier than your partner. A prenuptial agreement can ensure that your partner is marrying you for who you are, and not for your money.

2. You earn much more than your partner. A prenuptial agreement can be used in many states to limit the amount of alimony that is payable.

3. You are remarrying. When you remarry, your legal and financial concerns are often very different than in your first marriage. You may have children from a previous marriage, support obligations, and own a home or other significant assets. A prenuptial agreement can ensure that when you pass away, your assets are distributed according to your wishes, and that neither your first family, nor your new family are cut off.

4. Your partner has a high debt load. If you are marrying someone with a significant debt load, and don't want to be responsible for these debts if your marriage ends, then a prenuptial agreement can help ensure that this does not happen.

5. You own part of a business. Without a prenuptial agreement, when your marriage ends, your spouse could end up owning a share of your business. Your business partners may not want this to happen. A prenup can ensure that your spouse does not become an unwanted partner in your business.

6. To prevent your spouse from overturning your estate plan. A prenuptial agreement can ensure that you estate plan works, and, for instance, ensure that a specific heirloom remains in your family.

7. You are much poorer than your partner. Just as a prenuptial agreement can be used to protect a spouse who is well off, a prenup can also be used to ensure that the partner who is weaker financially is protected.

8. If you plan to quit your job to raise children. Quitting your job will negatively impact your income and your wealth. A prenuptial agreement can ensure that the financial burden of raising the children is shared fairly by both partners."

If any of these situations apply, you should contact an attorney right away to discuss whether a prenuptial agreement is advantageous in your situation. There are many considerations to make in deciding whether to pursue or oppose an agreement, but the presence of one of these conditions should make you stop and think about the possibility of negotiating an agreement. Even discussing the issue with your fiance can lead to hurt feelings and stress at a sometimes very difficult time in your life, so proceed cautiously. But do consider taking action for the reasons listed above. If you don't act in time, you can always consider a post-nuptial agreement, but that might be harder to get your new spouse to agree to. The best course is to act before you get married.

Friday, July 25, 2008

Engagements Should be Taken Seriously!

A Florida court has recently accepted a jury verdict awarding a woman $150,000.00 against her former fiance who had ended their engagement. Here is a link to the story. Apparently, the woman had given up a high paying job and made other sacrifices to move the the city in Florida where her fiance lived. The verdict was somewhat unusual because engagements are broken off all the time and there's rarely any litigation over it. The promise to marry is not usually the basis for a good law suit. The ex-fiance plans to appeal, so we'll have to wait a while for the final word.

Sunday, July 20, 2008

Why Parents Fight Over Custody -- 20 Quick Reasons

Custody fights occur probably more frequently than they need to during divorces. Many factors and forces come into play and result in litigation over child custody. Here are some of the common reasons why parents may engage in a custody fight. Anyone going through a divorce and contemplating a custody fight should take some time to realistically assess their motivation and the probability of success in a custody fight. If you are thinking about beginning a custody fight, take a minute and look at the following list. Mark the reason or reasons for your consideration of a custody fight. Dig below the surface and be honest! Think about which reasons are really good and appropriate reasons for contesting custody.

1. The parent has a sincere belief that he/she is the better parent.

2. A wife may want to avoid the embarrassment of being a mother who doesn't have custody of her child.

3. The parent may be really mad at the other parent, often on an issue not at all related to kids. It's a way to really demonstrate anger and get a response.

4. One parent may use the fight to punish the other parent. It's an opportunity to say some really bad and hurtful things about the other spouse. It may seem like an easy way to get revenge.

5. It can be an easy way to control the other parent. Getting started in a custody fight usually involves a great deal of court or agency oversight. Just making some allegations will produce a "lock-down" approach where severe restrictions can be imposed on the other party.

6. A custody fight, or even the threat of one, can help a parent gain a strategic concession on some other issue, i.e. property division. The reward for giving up a custody fight (even one that was surely a loser) may be some substantial assets given up by the other parent.

7. Amazingly, some parents will try to win custody primarily to avoid paying child support. Those parents obviously have not been very involved in raising kids.

8. Sometimes, there's a fight because a parent doesn't like the proposed visitation scheme. That's a "nothing to lose" approach. If the visitation schedule won't work, maybe having custody will.

9. The parent can't imagine being away from the child.

10. Family pressure may provoke a custody fight where a parent might not have tried it if the parent had been left alone.

11. Religious reasons, i.e. how the child is to be raised, may be the motivation of a deeply committed parent if the other parent does not share the beliefs or depth of beliefs of the first parent.

12. Mental or emotional issues of the parent wanting custody may lead to the action. Sometimes, a parent does not view the world in the same way that most of society does. A person with a maladjusted point of view may feel compelled to seek custody when objective and well-grounded parents would not.

13. A desire to maintain an active parenting role could be the motivation. Of course, there are many different ways to be an active, involved parent.

14. When there's a strong disagreement about the care-taking plans for the child, a custody fight can easily develop.

15. A parent may seek custody if there is a belief that the parent has superior resources for taking care of the child, i.e. the parent has more money and can afford to provide a better home, better schools and better opportunities for the child.

16. A mom may believe that the mother should always have custody.

17. A parent may believe that the child is more bonded to one of the parents.

18. The custody fight may just be an effort to financially ruin the other spouse.

19. Trying to win custody may be an effort to avoid having the child around the other spouse's family.

20. Sometimes, one parent may just enjoy fighting with the other parent.

Which of these is your motivation? Which ones do you think are good reasons for a custody fight? I think 1, 8, 11, 13, 14, 15 and 17 are appropriate reasons in some circumstances. What do you think? In addition to the costs involved, think about what your true, underlying reasons are for seeking custody. There may be some much better long-term alternatives available which you and your attorney can come up with.

Tuesday, July 15, 2008

Untraditional Custody Plans

A small article in the July 6, 2008 Parade magazine had some interesting comments about fathers' roles with their children after a divorce. The story mentioned the obvious, that many fathers lose contact with their children after a divorce and that most fathers are given the right to see their children two weekends a month and a few hours during the week. The Texas standard possession schedule is actually more generous than what Parade mentioned, but it still constitutes a huge change for those fathers who are used to seeing and interacting with their children every day.

There were two alternatives mentioned in the article that were interesting. One, which is becoming more common, is to have equal time. It used to be that judges would never consider that. Now, however, there seems to be more openness to such an approach. "Equal time" is easy to discuss in the abstract, but can be complicated when day care, homework, school activities and extra-curricular activities are factored in. Sometimes, religious activities also complicate matters. It's probably too early to say that there is a consensus that such a time sharing is good or bad for the kids or that both parents like the arrangement. Trying such an approach would require a lot of cooperation and maturity with the parents. Living close together would also be helpful. If parents really think they want to try to share time equally, they would be well advised to bring in a child specialist who could help them work through the practical details and adjustments that would be required for success.

Another possibility is to set a proportionate schedule where each parent has the children about the same amount of time that they were with the children when the couple was together. Of course, there are some potential difficulties with that approach. The parties would need to live near each other, preferably in the same school district, so there wouldn't be much travel time. Another complication is when one or both parents change jobs, or start working, which could affect the time availability for the parents. Also, a parent may not have been able to spend much time with the children for a period just before the separation, but now is able and wanting to spend more time with the children.

A complication under both approaches is how to handle child support. Sometimes, with equal time, neither party pays child support; many such parents refuse to pay child support because the other parent does not have "primary possession" of the children. In other cases, child support is figured for each parent and then the higher-income parent pays the difference (or half the difference) in the two amounts to the other parent.

Other issues to be resolved include the right to the tax exemptions for the children and the right to make certain essential decisions, such as medical care and education, for the children.

How to be a successful custody innovator:

1. Don't limit yourself to preconceived ideas or standard approaches.

2. At the same time, even though a particular plan may have worked for someone you know, don't assume that it will automatically work for you.

3. The parents must communicate well with each other for a major time-sharing arrangement to work.

4. Parents must be willing to live near each other and have a lot of contact after the divorce.

5. Counseling or co-parenting classes can help foster the right parental attitudes.

6. Parents probably need to consult with a child specialist to work out the details, especially if they try something really exotic. Keep in mind the children's ages and emotional development.

7. Always check with your attorney to find out if your judge is likely to accept what you are proposing.

Hopefully, you will come up with an appropriate, effective, comfortable plan for sharing time with your children in a less stressful and more supportive atmosphere for them.

Wednesday, July 9, 2008

Learn the Different Styles of Divorce Lawyers

Thanks to the mention by Stephen Worrell of the Georgia Family Law Blog, I saw Michael Sherman's post on the different styles of attorneys that are involved in family law cases. I have previously written on how some people do themselves a disservice by searching for "the meanest" lawyer in town, instead of looking for the most knowledgeable, experienced or effective lawyer for the particular type of case. Anyway, the following is Michael's original post, with an introduction by Stephen. As you will see, Michael has done a great job discussing the merits of each style of lawyering. It is interesting, and not surprising, that some people react the same way to family stress, whether they live in Atlanta, Mobile or Fort Worth.

"Michael Sherman of the Alabama Family Law Blog has posted a truly insightful article about the different styles of divorce attorneys. Like Michael, I am frequently asked by prospective divorce clients if I will be aggressive... or a pit bull... or a shark. They phrase it differently. But, many folks facing divorce think that what they need is the most aggressive divorce lawyer in Marietta, or Atlanta or in Georgia (or whatever jurisdiction they happen to be in).
Here is Michael's article:"

"In my years of divorce practice I have seen lots of lawyers handle divorce cases. There are as many different styles as there are different lawyers. But, I have also noticed three recurring styles of lawyer in particular. I call them the lamb, the pit bull and the fox.
"The lamb is the lawyer that just sort of goes with the flow. They are reactive, not proactive. They want to avoid confrontation at all costs and that means they also want to avoid going to court at all costs, even if it means convincing their clients to settle for significantly worse terms than they should. The lamb may even be afraid to try the divorce case. He will rarely, if ever, tell his client that he should not sign a settlement offer that is being extended from the other side even if that offer is clearly inequitable. Thankfully, there are not a lot of lambs that last very long as divorce lawyers.

"Much more prevalent is the pit bull, who is exactly the opposite. They hate to settle cases. In fact, some of them won’t do anything proactive to try to settle their divorce cases. It is almost as if they take some type of perverse joy in seeing the “blood running in the streets.” The truth is that often they do this simply to develop and maintain a reputation as “Bad Leroy Brown…baddest man in the whole damn town.” When a spouse is angry and in the emotional stage of wanting to exact revenge, they want to be the name on everyone’s lips when that aggrieved spouse asks their neighbor who is the meanest SOB in town. And, so they work hard to maintain that reputation because it makes them a lot of money.

"The sad part is that acting like a pit bull is rarely, if ever, in their own client’s best interests. Of course, the pit bull’s main concern is not their client. If you know anything about pit bulls, you will know that they are very aggressive and vicious. But, they are not thinking animals. They act only on instinct. When they fight, they not only destroy the dog they are fighting, but by their own actions hurt themselves and anything else around them (which often includes their own client’s and their client’s children).

"The pit bull is aggressive for the sake of being aggressive, not for any long-term benefit it brings their client. Often people going through divorce will think they need an aggressive lawyer to represent them in their divorce. They are wrong. What they need is a lawyer who is assertive. There is a difference. It is the difference between the pit bull and the fox.
"The fox is wise and cunning. He sees the big picture. The fox is assertive when he needs to be, compromising when it benefits his clients’ long-term best interests, and always aware of the many different consequences his actions have on his clients. He stands on principle. Yet, he is a strong advocate for his client when it promotes his client’s long-term best interests. He recognizes that reaching a fair settlement is always preferable to trying the case and leaving it up to the judge. Yet, he also knows that if a fair settlement is not forthcoming, then he must be willing and able to prepare to effectively litigate the case in court.

"When choosing a divorce lawyer, you should avoid the lamb and the pit bull at all costs. Instead, find yourself a fox."

Wednesday, July 2, 2008

Keeping in Touch with Your Lawyer

In almost every attorney-client relationship, the two parties need to have an understanding about how they will communicate with each other. Most attorneys have preferred means of communication, such as email, voice mail, scheduled phone conferences, etc. Clients usually have some systems that they prefer or may be more comfortable with. It's a good idea to have a discussion at the beginning of the attorney-client relationship as to how the parties will exchange information. Here are some approaches to consider and discuss. This is intended to be like a checklist, rather than some cutting-edge new information. The point is that the attorney and client need to start off with a clear idea about how much communication is needed or wanted and which method or methods would work best for the parties in this case. Here are some possibilities.
  • Email. It's fast, cheap and it can be saved. Most people are comfortable with it, but some are not. It's a great way to send documents as well.
  • Land Line Telephone. These seem to be disappearing, but for people who still have them, they are a convenient and dependable way to talk or leave a message (assuming there's an answer machine or voice mail).
  • Cell Phone. It seems like almost everyone has one, but some people don't, or can't, have them turned on all the time. There are also sometimes problems with reception or dropped calls. I will not answer my cell phone (and often don't have it turned on) when I am at a meeting, when I'm at court, when I am with another client or if I am on the phone with someone else. (I also don't interrupt meals for phone calls.) Cell phones can be very convenient and for many people, they are the primary means of contact.
  • Texting. While not everyone texts, more and more are doing it and it can be a quick and efficient means of communicating. It doesn't take a lot of expensive training, either. If the adults don't know how to text, almost any kid can teach them how to.
  • Voice Mail at an Office. Almost any attorney's office will have a voice mail system that works well. Sometimes it is much easier to leave a long message on the voice mail than it is to write or use other methods. The key is to leave a detailed message and not just say, "I returned your call" or "Call me". Ask a question or leave information.
  • Rely on Office Staff. There are many times when an attorney is tied up in court, is in a meeting or is just behind closed doors giving full attention to working on a project and can't be interrupted. Sometimes a client has a message which doesn't require talking directly to the attorney. In those situations, having the client talk directly with the staff in the office is the most efficient and effective means of communication. There are many questions that an experienced staff member can answer quickly for the client. Having a good relationship between the staff and a client makes communication easier for everyone.
  • Snail Mail. Most attorneys still rely on regular U.S. Mail to send notices and copies of documents. More and more, attorneys use email, but almost everyone uses regular mail for some things. Make sure your attorney has a good postal address for you. Bonus Tip: If you get a letter, please be sure you open it and deal with whatever it discusses.
  • Third Parties for Messages. I like to get the the name, address and phone number of a (preferably local) person who can always get a message to you. It's a low-tech backup system for me in case I'm not aware when your address, phone number, email, etc. have changed. (It happens.)

The list here is intended to help you think about the best way to keep in touch with your attorney. If your fee arrangement involves hourly charges by the attorney, you can probably save money by talking with the staff, instead of the attorney, or by using some of the other processes. However, there are times when the attorney and client just need to talk, so use whatever method works to set that up. One way to do that is to make a telephone appointment to speak at a specific date and time. If you have trouble getting in touch with the attorney, work with the staff to arrange the call. With as many options as there are, you should be able to find an approach that is workable for you and your attorney.