Even individuals of modest means can benefit from a properly drawn pre-nuptial agreement. If you come into the marriage with separate assets – as might well be the case if this is not your first marriage – then having a formal agreement that identifies those assets and makes known your intent that they remain your sole and separate property is really a good idea.

The problem with pre-nups is that they are often contested. Indeed, many lawyers believe that it is malpractice not to contest a pre-nuptial agreement that unfairly prejudices the client. The best way to avoid a contest is to ensure that the agreement provides for a fair exchange. If one side gets nothing, you can almost guarantee that there will be litigation.

Your pre-nuptial agreement will only be enforceable if it was entered into voluntarily. At a minimum, that means that your betrothed must have at least seven days to consider the agreement , two or three months is better, that she/he must be represented by independent counsel, and that you must make full disclosures of your income, assets and liabilities.

While pre-nuptial agreements are “generally enforceable”, waivers or limitations on spousal support is a big unknown. If the agreement you made is unconscionable at the time you seek to enforce it – regardless of whether it was reasonable when made – your agreement will likely not be enforced. If your agreement waives spousal support, you would be well advised to include as an alternative a limitation on spousal support in the event the waiver is deemed unenforceable, i.e., a dollar range for monthly support for a specified, but limited, period of time.

While unconscionable provisions can be severed, a court may find it difficult to sever a spousal support waiver while enforcing a property split. Thus, it might be helpful to explain in the recital portion of the agreement that you want the property split enforced even if the spousal support waiver is not.

Your agreement should also consider the unforeseen. For example, your agreement could state that the parties agree to enforce the spousal support waiver even if the supported spouse becomes disabled, or even if the marriage lasts 20 years, or even if the couple has six children. Recitals of this nature could convince a court to enforce a provision that it would otherwise reject.

So, what does all of this cost? Pre-nuptial agreements are tricky documents, and it helps to have experienced counsel draft them. Because too many result in litigation, attorneys preparing pre-nups must consider potential long-term liability, they must be prepared to be deposed and involved in court appearances without compensation many years later, and they must save their records forever. As a result, this potential expense must be included in the up-front cost of preparing the pre-nuptial agreement. While there are likely some firms that will prepare a simple agreement for $2,500, most would charge between $5,000 and $10,000, with costs going up from there as the complexity of the agreement and/or the value of the estate at risk increases.

[Every case is different. Nothing in this post or on this site is, nor is it intended to be, legal advice. Please contact me to obtain legal advice regarding your particular situation. Past achievements are not a predictor of future results, and do not constitute a guarantee, warranty, or prediction regarding the outcome that you can expect. No attorney-client relationship can be or will be established until attorney and client have met, discussed the client’s specific needs and expectations and the attorney’s current fee structure, and attorney and client have both signed a written fee agreement.]

{ Comments on this entry are closed }

While it doesn’t happen very often in celebrity divorces, reaching an immediate settlement with your spouse is sometimes in your best interest. If it worked for Tom Cruise and Katie Holmes, maybe it can work for you too!

If you are in the public eye, and don’t want the intimate details of your life disclosed in the media, an immediate and amicable settlement with your spouse may be in your best interest. The ability to settle quickly presupposes that both you and your spouse feel the same compelling need for privacy, that you both have access to the financial records evidencing the assets and liabilities created during the marriage, and that you both have excellent counsel similarly focused on helping you to resolve the issues presented by divorce on an expedited basis. Beyond that, you have to be willing to cooperate and compromise on issues like child custody, visitation and the division of property. In other words, the stars have to be aligned as they were for Tom Cruise and Katie Holmes.

While a desire to maintain your privacy is an important reason to settle quickly, it is not the only reason. If your marriage was short, and you don’t have much to divide, you may be able to work out the details of your dissolution before either of you ever meet with an attorney. If you are in agreement on how to divide what you have, and how to handle custody and visitation, then your counsel should be able to focus on getting your agreement before the court, and not spend your money creating needless litigation.

Even if your marriage was long term and you have a lot of assets, you may want to work out your property division and custody issues with your spouse before seeing a lawyer so as to minimize the legal fees that you will both incur if these issues became confrontational and have to be resolved through litigation.

Indeed, any reason for settling early is a good enough reason, as long as the settlement is an informed one, and you are receiving your fair and equitable share of the fruits of the marriage. If not, then you may need to employ counsel to advocate on your behalf to ensure that your ultimate settlement is fair and just.

[Every case is different. Nothing in this post or on this site is, nor is it intended to be, legal advice. Please contact me to obtain legal advice regarding your particular situation. Past achievements are not a predictor of future results, and do not constitute a guarantee, warranty, or prediction regarding the outcome that you can expect. No attorney-client relationship can be or will be established until attorney and client have met, discussed the client’s specific needs and expectations and the attorney’s current fee structure, and attorney and client have both signed a written fee agreement.]

{ Comments on this entry are closed }

Filing for divorce? Obey the “Golden Rule”.

September 28, 2012

Going through a divorce is an emotionally difficult time. All too often pain and anger take over, and kindness and common sense are nowhere to be found. Then, more than at any other time, you need to obey the “Golden Rule” – and play nice. When you do unto your spouse as you would have […]

Read the full article →

How do I dissolve my corporation?

September 26, 2012

Dissolving and winding up a corporation is not difficult, but the steps must be followed very carefully. While it is possible to complete the process on your own, you would be well advised to retain the services of an attorney versed in the process to ensure that everything that must be filed is filed… correctly […]

Read the full article →

Can I do my divorce pro per?

September 25, 2012

Absolutely, anyone can handle his/her divorce without the assistance of legal counsel. The question is not whether you can, but whether you should. Family courts have departments dedicated to helping individuals fill out the right forms, file them in the proper places with the correct amount of filing fees, et cetera. If you were not […]

Read the full article →