Originally published at Huffington Post
Divorce attorneys share advice for approaching a subject guaranteed to cause tension.
In a recent survey of American Academy of Matrimonial Lawyers, 62 percent of the lawyers polled said they saw an increase in the number of clients seeking prenups during the previous three years. And more than half of the attorneys said they’d seen an uptick in the number of millennials requesting prenuptial agreements.
The prevalence of prenups doesn’t make asking your partner to sign one any easier, though. To make the conversation less thorny, we asked divorce attorneys to share their advice for best ways to ask for a fair, equitable prenup.
1. Have the conversation as early as possible.
This is a delicate, uncomfortable conversation, but if it’s something that genuinely matters to you, you owe it to your partner to bring it up as soon as possible, said Lisa Helfend Meyer, a family law attorney in Los Angeles.
“In fact, bring up the subject when you are still dating,” Meyer said. “That way, you can gauge your partner’s reaction to one. If the reaction is to move to the other room, then you know you will need to handle with extra sensitivity.”
2. Know that it’s going to be a weird, heavy conversation.
There’s no way around it: Broaching the subject is going to cause some tension in your relationship, said Atlanta-based divorce attorney Randall Kessler. In his 30 years in family law, he’s rarely heard of a prenup conversation that’s been hiccup-free.
“I’ve heard all kinds of approaches. What usually seems to work best is the truth,” Kessler said. “Say something along the lines of, ‘My family and I have always discussed and agreed that if I or my brother ever got married, we would sign a prenup,’ or, ’My best friend went through a horrible divorce and all he can remember from it is his lawyer saying, ‘If only you had signed a prenuptial agreement.’”
If you communicate your wishes in an open and honest way, and your S.O. respects that, you’re very likely on the road to a solid relationship, Kessler added.
3. Emphasize how much of a headache you’ll be saving yourselves later.
Ultimately, a prenup has the power to uncomplicate a messy, knotty personal situation, said Carla Schiff Donnelly, an attorney in Pittsburgh.
“Emphasize the fact that a prenup will simplify a divorce and make it quicker, less expensive and less emotionally taxing,” Donnelly told HuffPost. “That will benefit both your fiancée and any future children.”
4. Remind your partner that all relationships end one way or another. You’re just trying to make the inevitable easier.
One way to introduce the idea of a prenup is to talk about how you’d each want to be treated at the end of your marriage, said Katherine Eisold Miller, a divorce attorney in New Rochelle, New York.
“All marriages end, one way or another. Instead of saying, ‘I can’t marry you until we have a prenup,’ try framing it this way: ‘At the end of our marriage, whether it ends in death, as we anticipate, or divorce, what would be important to you and how would you like to be treated?’”
Then, pivot and ask your partner if they’d be open to hearing what would matter most to you in either case.
“A prenup should do something for both people and give them some certainty in difficult times,” Eisold Miller said. “A conversation like this allows for both voices to be heard.”
5. Point out that a good prenup benefits the lower-earning spouse, too.
If you’re worried about coming across as greedy or penny-pinching by bringing this up, remember that a carefully written, thoughtful prenup protects both parties, Kessler said.
“Sometimes, the prenuptial agreement is even more valuable to the less-wealthy spouse because it gives him or her some security about finances in the event of a divorce,” he said.
6. Suggest that you co-create the agreement.
Don’t make this a weird power play: Both partners should be active participants in drafting the prenup to ensure that it’s equitable, said Dennis A. Cohen, a family law attorney and mediator in Marina del Rey, California.
“The trick is to make this a co-created agreement that deals with both of your concerns, not just the partner who has substantially more income or assets than the other,” Cohen said. “It may be helpful to have a neutral mediator help you reach an agreement that addresses both of your needs and desires.”
Regardless of how you go about it, end the conversation with a promise to be fair and reasonable throughout the process, and actively listen to your partner’s concerns.
“This is, after all, a person you love and want to marry,” Cohen said. “Keeping that uppermost in your mind, words and deeds will result in you coming up with an agreement that works for both of you.”
3 CLE hours, including 1 Professionalism hour & 1 Trial Practice hour
The Insider’s Guide Seminar is designed to give those who represent clients in Family Law cases in Fulton County a better understanding of the operation of the Family Division. Judges, Judicial Officers, and Staff Attorneys from the Family Division will discuss, in facilitated panels, their insights and suggestions regarding practice before the Division. Topics will include all facets of family law practice, with special emphasis on difficult cases. Each session will provide the opportunity for attendees to ask questions of the panelists.
Atlanta Bar Member: $75
8:15 AM: Welcome and Opening Remarks
Judge Christopher S. Brasher, Chief Judge
Fulton County Superior Court Family Division
8:30 AM: Temporary Hearings, Discovery Disputes, and Trials, OH MY!
Panel Discussions with Family Division Staff Attorneys
Moderator: Kyla Lines, Richardson, Bloom & Lines, LLC
Heidi G. Neal, Staff Attorney to Honorable Ural D. Glanville
Jessica Cummings, Staff Attorney to Honorable Jane C. Barwick
Crystal Conway-Johnson, Staff Attorney to Honorable Belinda E. Edwards
Frances Mulderig, Staff Attorney to Honorable Christopher S. Brasher
9:30 AM: Break
9:45 AM: 30 and 60 Day Conferences and Beyond: Making the Most of Your Judicial Officer Time
Panel Discussion with Family Division Judicial Officers
Moderator: Gary Alembik, Alembik & Alembik
Honorable Margaret M. Dorsey, Judicial Officer
Honorable Fatima Harris Felton, Judicial Officer
Honorable Divida Gude, Judicial Officer
Honorable Alison K. Arce, Judicial Officer
Honorable Roslyn G. Holcomb, Judicial Officer
Honorable Tamika Hrombowski-Houston, Judicial Officer
Honorable Carole Powell, Judicial Officer
10:45 AM: Break
11:00 AM: Trials, Problems and Solutions in High Conflict Family Cases
Panel Discussion with Family Division Superior Court Judges
Moderator: Randall M. Kessler, Kessler & Solomiany LLC
Honorable Jane C. Barwick
Honorable Belinda E. Edwards
Honorable Ural D. Glanville
Honorable Christopher S. Brasher
12:00 PM: Concluding Remarks (Judge Brasher)
The Worst Divorce Settlements in History—and How to Avoid One of Your Own
The person who first said, “A good compromise is one from which neither party walks away happy”? was probably a divorce lawyer.
By Lauren Cahn
First, let’s face it: It’s never a win-win
Compromise is crucial to any good relationship, and generally speaking, the ideal result is both parties feel they’ve won, according to the American Management Association. But when you’re unwinding a relationship—as in a divorce—it’s pretty rare for anyone to walk away feeling victorious. “Apart from the emotional toll a divorce exacts upon the once-hopeful couple, there’s simply no way to split things up in a way that doesn’t engender at least some level of regret and resentment,” explains matrimonial attorney Rebecca Zung.
Sometimes it seems fine, until it’s not
“I know of divorce settlements where one spouse ended up with all of the investment funds, and the other ended up with all other assets (real property, bank accounts, etc.), and everything seemed fine… right until Bernie Madoff got arrested,” Georgia matrimonial attorney, Randall Kessler tells Reader’s Digest. “We all know how that ended up.” The more the investment-minded spouse had trusted Madoff, the worse the settlement became for that spouse.
“No trash talking” clause
Before uber-celebrity Jennifer Lopez could marry singer Marc Anthony, Anthony had to divorce his then-wife Dayonara Torres, and it appears that JLo took a serious interest in how that divorce settlement went down, according to Legal Zoom, which reports that the settlement included a clause forbidding Torres from speaking ill of JLo (at the risk of lawsuit and the payment of damages).
She lost her head
The most celebrated divorce in history, according to Smithsonian.org, is that of King Henry VIII versus…Pope Clement VII? It’s the Pope who Henry had to fight when he wanted to end his first marriage so that he could marry the younger, prettier Anne Boleyn. And it’s a fight that ended poorly for everyone. To marry Anne, Henry quit the church. Quitting the church quickly caused England’s way of life to unravel, for which the English blamed Anne. Within three years, Henry had grown disenchanted with Anne and had her beheaded.
William O. Douglas sat on the U.S. Supreme Court for more than 35 years (1939 to 1975), so you’d think he’d know better, but in 1954, his divorce settlement with his first wife included a clause whereby the more money Douglas made from writing books and giving lectures, the more he had to pay his ex in alimony. As Legal Zoom puts it, Justice Douglas was essentially on a “financial treadmill” for the rest of his ex-wife’s life (she never remarried).
Snopes had to step in regarding apocryphal stories that singer Marvin Gaye agreed to pay his ex, Anna, all royalties from his next album (Here, My Dear), including: Anna got screwed because Marvin didn’t give the album his best effort. Marvin got screwed because the album was a hit.
Neither is true. Marvin owed Anna a specific amount regardless of the album’s success. Although Marvin initially considered torpedoing the album, he ended up creating a record critics loved.
It could happen to you
All you need to win the lottery is a dollar and a dream, they say. And all you need to lose your winnings is to try to hide them from your spouse. That’s what The LA Times reports happened after Denise Rossi won $1.3 million in the California Lottery but decided she wanted it all for herself. Days later, she filed for divorce from her husband but didn’t mention the lottery winnings. When the truth caught up with her, the court ruled very penny of her winnings would go to Thomas.
Some people are just asking for trouble
Attorney Zung tells Reader’s Digest that the worst settlements she’s seen are the ones where people have been married a short time, there’s a great disparity between their incomes or net worth, and there’s no prenuptial agreement. “For example, a wealthy guy married a cashier. They were married only a year when he placed her name on the deed to their multi-million dollar home. When she left him, the court ruled that the home had been ‘gifted’ to her.”
Sometimes the law just fails to provide a reasonable result
In Nelson v. Nelson, attorney Zung fought hard for her client, a wealthy, older man who’d married his young massage therapist. Over their five-year marriage, the husband was generous, and the wife cooperated in her husband’s estate planning, including forming a trust in her name to own one of his real estate holdings. In the divorce, however, the court applied trusts and estates laws to find that the real estate was no longer “marital property.”
When smart people make stupid choices
Nobel laureates may be among the smartest people on the planet. But even they make questionable settlement choices. In 1988, Robert Lucas agreed to give his ex-wife half of the funds from any Nobel prize he might win in the future…with an expiration date of 1995. Turned out, that was the year Lucas picked up the prize. At least he’s in good company: All of Albert Einstein’s prize money from his 1921 Nobel win went to his ex-wife, Mileva Maric.
Maybe it’s wasn’t worth the aggravation
When Prince Charles and Princess Diana divorced in 1996, there was lots of stuff to divvy up and a financial settlement that placed $22.5 million in Diana’s hands. But what no one could ever really get their head around was why Diana was willing to forgo her right to be called “Her Royal Highness.” She lost a variety of honorary military titles as well. Royal experts called the scenario unprecedented.
Worst case scenarios
“The worst divorce settlements are where the children are used as pawns,” April Masini, relationship expert and advisor on Relationship Advice Forum, tells Reader’s Digest. Other worst case scenarios include: (1) One spouse is in school, and the marriage ends soon after graduation: The spouses are equally on the hook for any student loans, but arguably, the graduating spouse has no duty to share future earnings. (2) When the marriage ends after unsuccessful fertility treatments: Viable embryos are “fertile ground,” as Masini puts it, for a custody battle.
Tips to protect yourself from a bad divorce settlement
Legal and financial analyst Jeff White of FitSmallBusiness.com had this advice for protecting yourself from reaching a regrettable divorce settlement:
- Document everything: Make sure you document your financial resources, and those of your spouse, from before your marriage.
- Tax consequences: Not all assets are created equal, even if their technical values are. Some assets will be taxed more heavily than others if you decide to sell, which means you’re actually getting less in your pocket.
- Everything is negotiable: Don’t overlook any asset. Even if you don’t want it, you can use it as a bargaining chip for something else.
This article originally appeared on Reader’s Digest.
As a divorce lawyer, I find that holiday time is always a mixed blessing. Personally, I enjoy the fact that most courts take time off (so there are few trials) and most clients try to get along or at least to get through December with minimal confrontation.
The flip side is that the cases that erupt, especially during the holidays, are often the most contentious of the year. And that makes sense. If two people have so much anger or divisiveness this time of year, you know the issues are deep and difficult.
So what can we all do? Not just the lawyers, but our staff and our clients’ families, friends and support systems? Be patient and listen.
Perhaps it sounds naive, but I am of the opinion that most people going through a divorce or another family law hardship have a strong need to be heard and understood. Their pain may be deep and may never have been disclosed until now, and they need it to be heard. That is part of the catharsis.
So when our friends, our family members, our patients, our clients need to vent, let them. Then let’s all take a breath.
Sometimes there is no answer. There are deep-seated frustrations that may just need to be aired to someone, sometimes to anyone who will listen.
And if you don’t have the answers, that’s OK. If you want resources, they are everywhere. There are lawyers willing to consult, Internet sites, books, etc.
But sometimes “I don’t know” is an acceptable reply. It may even make the person feel better that someone he or she trusts, like you, doesn’t have all the answers. Divorce and family law matters are difficult. But having someone to share them with can make all the difference.
So if someone you know is going through such a situation, maybe just listen and help that person learn to simply take a breath.