alimony

Do you need a prenuptial agreement?

While prenuptial agreements aren’t for everyone, they are an absolute necessity for some people.  I cannot tell you how often I have someone sitting in my office surmising “I wish we had signed a prenup.”

As you may or may not know, prenuptial or antenuptial agreements, colloquially referred to as prenups, are generally contracts entered by parties prior to their marriage (or civil union in some states).  The substance of prenuptial agreements can vary, but typically they address the divorce issues of property division, property rights, liabilities, debts, and alimony.  A properly drafted prenuptial agreement should address the commingling of separate and joint property.  (Note, prenuptial agreements cannot address custody and child support, because the best interests of the children controls at the time of divorce.)

But how do you know if you need a prenup?  While I encourage you to discuss this question in confidence with a lawyer trained in this intricate area of family law, I think the following checklist of questions will help guide you in determining if you should have that discussion with an attorney.  If you or your future spouse answers “yes” to any of the following, a prenup might be appropriate for you:

– Do either of you consider yourself high net worth individuals?
– Do either of you have significant stock holdings, stock options, profit sharing, bonds, other investments, or cash?
-Do either of you own any real estate (including investment / rental property)?
-Are either of you a business owner?
-Do either of you currently earn more than $100,000.00 per year?
-Is there a disparate difference between your income / assets and those of your future spouse?
-Do you want your estate (or a part of it) to go to your children (and/or children of a former marriage) instead of your spouse?
-Do either of you have professional licenses or degrees?
-Do either of you have significant family wealth or expected future inheritance?

While this checklist is not intended as an all-inclusive list, it is one that should at least start the conversation with yourself (and perhaps your future spouse), about whether a prenup is appropriate.  Again, I encourage you to speak with an attorney who specializes in this area of law if it is something that you are considering or are on the fence as to whether or not a prenup is right for you.


Eva v. Tony, “upping the prenup”?

Just like the rumors in the Tiger Woods divorce, there are rumors that the first time Eva Longoria caught Tony Parker cheating, she asked (or told?) him that the amounts she was to receive in their prenuptial agreement, in the event of divorce, must be increased. And if true, he likely complied because he loves his wife, wanted to stay married and felt guilty.

Relationships are very interesting and are what makes the human world go around. Money as punishment? Is that right? Well it happens all the time. Personal injury awards grant a victim of a car crash money, but does money replace a loved one, or a fractured bone? Slander claims often result in money damages, but does that undo the damage to reputation? I would submit that this example of “upping the prenup” is a way to artificially incentivize people to be monogamous or faithful. Is it right? Who knows, it is not for me to judge. But just thinking about the concept is interesting, at least to me. We use money to incentivize, to punish and to reward. Shouldn’t we be able to accomplish what we want without that? If the cheated on spouse still loves the other and wants to stay together, why ask for more money? If the cheater is truly regretful, why not just give the other whatever he/she asks for? In the end it seems we are all individuals. Maybe I am jaded as a divorce lawyer, but even I believe there are many, many people who instead of discussing money would simply discuss the relationship. If they both want it to continue, it will, if not, then it’s over. But of course it’s never that easy, is it?


Divorce Insurance? Why not a prenup?

I was recently asked to comment for CNN (click here to see the video clip of my appearance on “Newsroom” with Don Lemon) about a new fad: Divorce Insurance. My first reaction, as I told Anchor Don Lemon, is that the best insurance against divorce is not getting married. Of course that was said “tongue in cheek”, but really, if you plan to get married and want to pay, monthly, for divorce insurance, it seems very strange if not counterproductive to the goal of a long-lasting marriage. Let’s explain it this way. If a couple, or even just one spouse is considering a divorce, AND they know the expenses of a divorce are already paid for by insurance, isn’t that just one more thing that facilitates them moving forward with divorce? It is almost like saying “hey, we paid the insurance, let’s collect on it”.

Prenuptial and postnuptial agreements can predetermine division of assets and alimony. Once those things are decided, only issues related to children remain. And how can you predict the cost of issues relating to children. There are so many variations on parenting time, decision making, travel expenses, etc. How can we insure against all such costs?

Yes, divorce insurance sounds like a nice, safe bet. Why not limit your exposure? But when you start to think about the concept, it unravels. For instance, if I want to be sure I have the best divorce lawyer, is there any guarantee that the best lawyer will accept my insurance company (since insurance companies typically pay reduced rates to lawyers)? And what about a wealthy spouse who can afford a good lawyer and then, when the other spouse says “well, I need a good lawyer too”, the court’s reply may be “You have insurance so use that”?

I am all about prevention, but smart, effective prevention. To me, that is a prenuptial agreement. A prenuptial, or post nuptial agreement forces a party to think about all of the possibilities specifically. It is unclear to me how divorce insurance can address evrything, but if it makes someone more comfortable getting married, then perhaps it is not that bad. But for the best protection, I would suggest a consultation regarding a prenuptial agreement (which of course must be prepared and reviewed by an attorney in the proper jurisdiction, and I am certainly offering advice since prebuptial agreement laws vary from state to state). And besides, isn’t it nice flying without a safety net sometimes? Yes, I am a divorce lawyer saying that. Perhaps the thrill of a good marriage is that each spouse is voluntarily continuing to commit without fear of consequence. But if that thrill has been spoiled once by a bad divorce, then perhaps a prenup is right for round two.


Why is the McCourt’s divorce unique?

Why is the McCourt’s divorce unique? Because lately the high profile cases in the news have been resolved out of court (Think Tiger Woods, Sandra Bullock and A-Rod). In fact, most high profile matters our firm is involved in are settled without any press and with very little expense. Actually going to trial with so many dollars at stake (and so much public reputation to lose) is becoming rarer and rarer. But the McCourts are there (click here for link to UPI story). No doubt the lawyers tried their best to guide the parties to resolution. Lawyers of that caliber always do. But when one party (or both) think their position is blatantly reasonable, or is an obvious “winner” in court (there is no such thing), it can be hard to settle a case. Some cases are just easier to try.

Unfortunately for the McCourts, it appears the court will decide their divorce which is guaranteed to make one, if not both parties displeased with the outcome.

On ocassion we encounter a stubborn opponent (opposing party or opposing lawyer). Even then, steps are taken to try to reach resolution. Mediation, settlement conferences and even pre-trial conferences with the judge are usually attempted to promote settlement. We also sometimes utilize a process known as Late (or Early) Case Evaluation. This process entails hiring a family law attorney who is respected by both sides to give everyone a “reality check”. Sometimes that does the trick. But when someone is truly unreasonable, the only way to resolve a case is trial. But even then, the good lawyers can only ease their conscience if they have truly attempted settlement first. But once settlement efforts are exhausted, trial becomes inevitable. Perhaps the one benefit of the McCourts actually going to trial is that others will realize how risky and costly trial can be, and thus become more determined to resolve their own cases privately. Let’s hope the message is sent, and heard, loudly and clearly.


Alimony: Factors or Guidelines Approach?

On January 1, 2007, Georgia’s most recent child support guidelines and related calculators went into effect.  While there are child support guidelines in Georgia, there are no alimony guidelines, but rather factors that the finder of fact shall consider.

According to O.C.G.A. 19-6-5, the finder of fact shall consider the following factors when determining the amount of alimony, if any, to be awarded:

(1) The standard of living established during the marriage;

(2) The duration of the marriage;

(3) The age and the physical and emotional condition of both parties;

(4) The financial resources of each party;

(5) Where applicable, the time necessary for either party to acquire sufficient education or training to enable him to find appropriate employment;

(6) The contribution of each party to the marriage, including, but not limited to, services rendered in homemaking, child care, education, and career building of the other party;

(7) The condition of the parties, including the separate estate, earning capacity, and fixed liabilities of the parties; and

(8) Such other relevant factors as the court deems equitable and proper.

Given these factors, and especially in light of the last factor, the dilemma may arise as to the predictability of how much alimony, if any, shall be paid and for how long.  Different courts in separate counties may result in very disparate alimony awards.  Attorneys experienced in family law can often predict what the likely result will be, but the lack of consistency between courts may give some parties the perception of an unfair result.  Of course, when a case involves unrepresented parties or attorneys unfamiliar with family law or lacking experience in front of the assigned judge, the lack of familiarity and/or experience may result in very different views on alimony, which in turn can become a roadblock to settlement.

So should Georgia adopt alimony guidelines and formulas similar to other states?  Would such an approach give more predictability, consistency, and a sense of fairness to alimony awards?

Or would such guidelines and formulas unnecessarily restrict judges and limit their abilities to judge each unique case on its own specific merits?   Would formulas have the unintended consequence of making judges akin to a computer that just displays a number?

There are pros and cons to both approaches.  Nevertheless, it is prudent for a party to at least consult with an attorney who is experienced in family law so that the party can ascertain his or her rights and potential obligations as they relate to alimony, whether or not the law provides for a “factors” or “guidelines” approach.