Category: Agreements
Questions/Answers
Who would need a Prenuptial or Cohabitation Agreement?
You may want to consider a Prenuptial or Cohabitation Agreement if you or your partner has: substantial assets, a business, children from a previous marriage, or Inheritances. After marriage it is very easy to have separate property become commingled and be classified as marital property. When any asset of substantial value is at risk or the financial future of children, and that risk is desired to be decreased, an agreement of such is highly recommended.
Why should we use a separation agreement? Do we have to?
No, technically, you don’t have to, but if you don’t, the judge will have to hold a hearing relative to your issues (property, debt, alimony, child support. child custody, visitation, insurance, tax and etc.). This can be long, involved, and time-consuming. Judges actually prefer that couples enter a valid separation agreement. If you do not have a separation agreement, it will make the judge do more work that he or she may feel is your responsibility rather than the court’s. If you do have a separation agreement, it will also show the court that you are prepared and are knowledgeable about the issues at hand. A judge may think…”If you do not have a separation agreement or have not attempted to negotiate...how much do you really want the separation?”
What does a separation agreement address?
A separation agreement attempts to put in writing what you and your spouse have agreed upon in your negotiations leading up to your separation or divorce. It can cover, but is not limited to the following; property, debt, pensions, alimony, child custody, visitation, insurance, tax filing, and child support issues.
Is a separation agreement the same as a prenuptial agreement?
People who are not lawyers often use the term “separation agreement” to cover any agreement between a couple, such as a prenuptial or antenuptial agreement, but this is incorrect. A prenuptial agreement is created before (“pre”) the wedding (“nuptial”) and is a contract that will govern the couple during and after the marriage. It essentially redefines and highlights the rights and duties of the spouses that are expressed or implied by law. The prenuptial agreement is signed before a marriage. This type of agreement is often entered into when one spouse has a lot of money and/or assets and does not want to risk losing that money due to a divorce.
What is a separation agreement?
A separation agreement is a contract between a husband and a wife, signed when a legal separation has been granted or when they have agreed to live apart in contemplation of a divorce. The agreement is designed to settle any property, debt, alimony, child custody, visitation, insurance, tax, and child support issues that may lie between them. The above mentioned issues are the more significant and are often at the forefront of most agreements, but each agreement is unique and can address other issues like, who will care for the family pet, or what religion the child(ren) will practice. Most divorce lawyers will be able to provide a list of issues typically addressed in a separation agreement. During the negotiating process it is essential to keep an open mind in order to reach the actual settlement.
Is a separation agreement the same thing as a settlement agreement?
Strictly speaking, no. A separation agreement is created when a legal separation is in place. A settlement agreement is signed when the final decree of divorce has been ordered by court. However, since separation agreements are often incorporated into divorce decrees when the couple’s divorce is finalized, and since a separation agreement is often signed when a couple is separated and living apart in contemplation of divorce, many people refer to divorce agreements as separation agreements. Be aware that they are slightly different, but to many people, lawyers included, such terms are used interchangeably.
What does a settlement agreement address?
A separation agreement attempts to put in writing what you and your spouse have agreed upon in your negotiations leading up to your separation or divorce. It can cover, but is not limited to the following; property, debt, pensions, alimony, child custody, visitation, insurance, tax filing, and child support issues.
Do you need a court hearing to have a settlement agreement?
Typically the settlement agreement is presented to the court at the hearing. In order to further understand your situation, the court will proceed with a formal process by asking questions of you and/or your spouse. The judge will take your testimony and evidence (if any) into consideration and grant you the wishes or a portion of the wishes stated in the settlement agreement. If your divorce is amicable, and you and your spouse have both signed the settlement agreement, more than likely the judge will grant your request and make it part of your divorce order.
Why are “merged” and “incorporated” different?
If you don’t comply with a merged contract, you can expect a suit for breach of contract. This will force compliance. This might not worry you initially, but if you don’t comply with a court order, you can end up in jail. Failure to comply with a court order is contempt of court.
Helpful Tips and Facts
Without prejudice
If you make any agreement that will be reduced to a court order, the court will not be limited to review this agreement in the future and possibly modify it, if you specify that you are entering into the agreement without prejudice. By doing this, you can reserve your rights to ask the court to review this agreement in the future.
Once You Pop the Question, How Do You Spring the Prenup?
Asking your fiance to sign a prenup doesn’t have to spoil the joy of your engagement. First, be sure to give your betrothed plenty of time to think about it. No one likes to be rushed. Next, put it in context. It might help to present the prenup along with wills, powers of attorney, insurance policies and other estate planning documents. Finally, encourage your fiance to hire independent legal counsel. Planning for a lifetime together can bring you closer.
The Issues a Cohabitation Agreement May Address
A cohabitation agreement can be quite complex and unique for each and every relationship, but primarily it will address the following: how property is owned, the sharing of chores and expenses, the division of assets in the event of a breakup, an agreement for a joint project (for example: "timeoff" for one person to go to school). Putting these issues in writing will help eliminate future confusion and the potential for any unnecessary conflict.
Contents of the Marital Settlement Agreement
The marital settlement agreement spells out the terms and conditions by which a marriage ends. Usually it deals with housing, support, parenting, personal belongings, automobiles, bank accounts and other assets, liabilities and other debts, pensions and retirement benefits, tax issues, life, disability and health insurance, legal names and dispute resolutions.
Blending the Family, Not the Dollars
One advantage of a prenuptial agreement is that it blends the families, not their dollars. Everyone -- the new partner and the adult children from an earlier marriage -- knows where he or she stands from the get-go. This may make acceptance of the new arrangements easier for everyone.
Prenuptial Agreements and Second Marriages
Second marriages are more difficult than the first ones. National statistics show that an even higher percentage of second marriage fail than first marriages. Hope springs eternal, of course, but baggage from a first marriage -- its unresolved conflicts, emotional injuries and financial burdens -- often weighs heavy on second marriages.
Having Parenting Plan or Agreement
A good parenting plan gives children a measure of routine and predictability. A written plan, spelling out explicit visitation protocols, can go miles toward making life easier for everyone involved.
Reaching an Agreement Makes the Best Out of an Unhappy Situation
When a marriages must end, the couple who can negotiate their own marital settlement agreement and file an uncontested divorce make the best of a sad situation. In the long run, this routine -- negotiated settlement and uncontested divorce -- is the one most likely to do least damage to the spouses. And it goes without saying, undamaged parents make better parents.
Making Divorce Lawyers Rich
Some years ago, a couple negotiated -- or almost negotiated -- a settlement for a very large marital estate. They achieved agreement about everything -- except for one item, a rare Kansas City mint silver dollar they had acquired during happier times. Back and forth the two of them went, fighting over this coin that had become in the mind of each a symbol of the marriage. Each paid his or her lawyer far more than the value of this collectible coin in this ritualized battle for vindication. Finally, one of the lawyers realized that the coin had become a metaphor of righteousness in the mind of each. He bought the coin at numismatic value -- and took it off the table. The battling spouses spent a lot of money, and they could have very easily removed the coin from contention the same way at much less cost.
Records Needed to Divide a Marital Estate
A marital settlement divides the marital estate. Here in an incomplete list of records needed to divide the estate. On the asset side, checking and savings accounts, mutual funds and money market accounts; real estate records; retirement plans, including pensions and profit sharing; accrued vacation time, medical savings accounts, cars and other vehicles; valuable personal property, life insurance and season tickets. On the debt side, records of credit cards, vehicle loans, mortgages and home equity loans, promissory notes, student loans and other debt.
Staying Out Of Divorce Court
No-fault divorce is a way of ending a marriage; fault divorce can be a way of trying to get even. Some legal observers believe that the enduring appeal of fault divorce is that of public vindication for real or imagined wrongs done by one spouse to another in a marriage. One way or another, fault divorce means a legal action headed, if not heading, toward a trial.
Get it in Writing
Yes, a spouse can easily go against his or her word by breaching a signed contract, but at least if you have it in writing, you have some ammunition for the courtroom if needed.
Attaching a Marital Settlement Agreement to a Final Decree or Judgement
This is very common and preferred by most courts, but by attaching the agreement it will be either incorporated and/or merged into the final decree or judgment. The acts of incorporating and merging have two unique legal meanings which should be understood before making this request to the court. As a rule of thumb, most agreements are incorporated and not merged into the final decree or judgment.
The Validity of an Antenuptial Agreement
The governing state laws an antenuptial agreement is drafted under is a critical. The validity and application of the agreement is a big question mark until it is put to the test. Many people have these types of agreements only to find they are not fully recognized or upheld by the court upon divorce.
When You and Your Spouse Both Have Money
The concept of an Antenuptial Agreement is much easier to introduce to a spouse-to-be if both spouses have a significant amount of money. Typically the primary goal of anyone is to remain financially self-supportive (if needed to be) and if an Antenuptial Agreement defeats this, it is normally not favorably by that spouse and the court.
Prenuptial Agreements
Prenuptial agreements are much more popular in all-property states due to separate property being eligible for distribution upon divorce.
Verbal Agreements... a No No
An oral or verbal agreement is not recognized by the court, so make sure you get everything in writing in an agreement which is signed by both parties in front of a notary. It is also recommended to have a witness sign to help verify the parties signatures. Too often, spouses rely on a verbal agreement and it comes back to haunt them later when the other spouse does not live up to what was agreed to.
Settling Out of Court
Most judges and lawyers prefer to settle out of court in an uncontested fashion. If you and your spouse can not reach an agreement on your own, typically your lawyers will help you reach one eventually.