Marietta Family Law Attorney Ponders: Can a Postnuptial Agreement Save Your Marriage?

Marietta Family Law Attorney Ponders: Can a Postnuptial Agreement Save Your Marriage?

Think “prenuptial agreement” and you think “I love you!”, right? Perhaps not! In my Marietta and Atlanta divorce and family law firm, I find that even though an important legal document like this can protect your bank account and other assets, many folks consider a prenup as a dealbreaker. According to Casey Bond, in an article published at GoBankingRates.com, asking for one can be construed as lack of trust by the party requesting it. Thus, it can be a challenge to persuade a potential spouse that having a prenup is a good idea when they have this attitude. This post summarizes Ms. Bond’s article on the radical concept of using postnuptial agreements to save a troubled marriage.

On the flip side, many engaged couples believe that signing a prenup is equal in importance to the marriage preparations as it is to reserve the church and register for gifts. But suppose you and your spouse chose not to enter into a pre-marital agreement concerning your finances and you now regret that choice? Your answer may be a postnup instead.

Prenup and Postnups : The Differences

Postnuptial agreements, often called post-marital contracts, are much less commonly used than prenups, but their popularity has been increasing in recent years. Essentially, these two contracts are created for the same purpose, but a postnuptial agreement is made after a couple has been married instead of doing it before the wedding.

The postnup’s purpose is to protect each spouse’s individual income and assets in case the marriage ends, whether as a result of divorce or death of one of the spouses. They are widely used in community property states where entitles one spouse is automatically to the other spouse’s assets when they become married. Remember, though, that every state’s laws and requirements surrounding postnuptial agreements are different.

Postnuptial Agreements: Who Needs Them?

Please understand that signing a postnup does not mean that you expect your marriage to end in divorce. These documents certainly are not for everyone, but a postnup can do a lot of good for many marriages under special circumstances:

Revising a Prenup: Many couples who choose to create a postnuptial agreement already have a prenuptial agreement in place. A postnup is often needed when one spouse has a significant shift in finances, like a promotion or inheritance, and the spouses find it necessary to modify the terms of the original prenuptial agreement. Indeed, there can be numerous changes to a postnup as the financial situation within a marriage changes over time.

Protect a Business: Many business owners will want postnups because a divorce could seriously threaten assets of the business or adversely affect outside partners and investors.

Fights About Finance: Any married person knows that finances and money are often a great source of strain on the relationship. This may be more true for some couples than for others. Occasionally couples who frequently argue over their finances and at risk of divorcing over the subject find that a postnuptial agreement can relieve that stress and once again strengthen the marriage.

Adultery: Postnups are also frequently used as resources for managing an unfaithful spouse. In marriages where a spouse has strayed and engaged in an adulterous relationship with another partner, the other may require in a postnuptial agreement that if it occurs again, the philanderer must pay a large amount of cash to their husband or wife. The question of whether or not this will actually improve the marriage is open to question.

Creating a Postnuptial Agreement

If you are already married and you believe the two of you need a postnuptial agreement, you should understand that the process is not as simple as writing up who-gets-what in case you get divorced and having a lawyer approve it. In Georgia, for a post-marital contract to be enforceable, both parties should have individual legal representation, they must provide full disclosure of each party’s financial situation (i.e., no secret bank accounts) and the contract should be reasonably fair to both parties.

In summary, if you find yourself in one of the categories listed above, You might can benefit greatly from having a postnuptial agreement and it could well be beneficial to create one. Whether it’s a business requirement, or whether it could actually save your marriage, if you believe a postnuptial agreement is a good idea, discuss it openly with your spouse. He or she may agree it is a good idea, too.

In our Marietta family law firm, we frequently prepare post-nuptial agreements and pre-nuptial agreements. Please contact us at 770-425-6060 to schedule a Georgia Family Law Strategy Session to discover more about these documents and whether they are appropriate for you and your spouse or spouse-to-be.

SOURCE FOR POST: Could a Postnuptial Agreement Save Your Marriage?, by Casey Bond in GoBankingRates.com

 

Collaborative Divorce Practice: A Summary in Bullet Points From a Marietta Collaborative Divorce Lawyer

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As a Marietta and Atlanta Georgia collaborative divorce lawyer, I often need to explain succinctly the features and benefits of collaborative divorce versus mediation or litigation. The following is a quick, bullet-point summary of those features and benefits:

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What is collaborative practice?
Collaborative Practice is a new option for divorcing couples to resolve disputes respectfully
and equitably without going to court.

The goal of collaborative practice is to help divorcing and separating couples to focus on
their most important goals, especially children, throughout the divorce process. The end
result is a more efficient, targeted and productive way to resolve disputes.

What distinguishes collaborative practice from other methods of divorce?
Collaborative Practice promotes respect and keeps spouses in control of the process, not
judges.

It addresses each couple’s unique concerns, as opposed to litigation which is driven by the
general rule of law meant to apply to all.

Because clients agree not to go to court, the process is more open and less adversarial. The
goal is to enhance communication throughout the process and lay the foundation for a
healthier relationship after the divorce.

What is the biggest difference between collaborative practice and litigation?*

Control
In collaborative, you and your spouse agree not to go to court. This gives you and your spouse
control of the process and outcome versus litigation, where a judge makes the final decision.

Collaboration
Instead of the win-lose court setting, the entire collaborative team ensures that both spouses
work with each other, not against each other, towards mutually beneficial solutions for
critical issues.

Communication
One barrier in litigation is a lack of effective communication between spouses. In the collaborative
process, spouses learn a framework for effectively communicating their concerns
and goals.

 

What is the biggest difference between collaborative practice and mediation?*

Personalized counsel
Both you and your spouse are represented by your attorney throughout the entire process.

Team approach
the entire collaborative law team is there to help facilitate communication between the
spouses, working towards the best possible solution for all and making sure all issues are
addressed.

How does it work?

• Utilizes specialists who leverage their areas of expertise to address children’s needs and
the emotional and financial aspects of divorce
• Creates a safe environment for both parties without the threat of court
• Provides a structure for communication that considers each person’s needs
• Shares information that allows good decisions to be made
• Focuses on a creative and respectful approach that helps clients reach a mutually agreeable
settlement.

Who is Collaborative Practice for?

• People going through a divorce who want a civilized, respectful resolution of the issues
and are willing to focus on solutions rather than on blame or revenge
• People who want to maintain a productive working relationship with their (ex) spouses
• People who will be co-parenting and want to keep children’s interests at the forefront,
i.e. protecting children from the negative impact associated with bitter litigation
• People who want to control decision-making over child-rearing and/or financial
arrangements rather that turning it over to a stranger (judge)
• People who place as much or more value on the relationship that will exist in the
restructured family as on obtaining maximum resources
• People who value privacy.

 

What are the benefits of Collaborative Practice?

Better for children
• Gives children a voice in the process, alleviating the potential of future trauma that
sometimes persists for generations

Private
• Keeps problems and assets private
Less stressful
• Improves communication between parties
• Keeps control of process with the spouses
• Promotes respect and healthier long-term communications

Focus on the future

Saves time
• The process is more efficient, productive and targeted because of the unique structure of
the collaborative team

Learning Effective Communication Skills
• Communication skills acquired during collaborative process may have positive applications
outside divorce.

SOURCE: International Association of Collaborative Professionals

 

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If you are considering divorce and especially if you have children together, I urge you to consider a different (and better) way to divorce. Call us at 770-425-6060 and learn how a team of skilled professionals can help manage the many aspects of divorce — the legal issues, the emotional turmoil, the concerns for the children, and the financial and property questions. It’s a process that encourages mutual respect, emphasizes the needs of the children, keeps the control of the process with the individuals, utilizes a problem-solving approach, and identifies and addresses the interests and concerns of all.

 

5 Tips for Getting out of an Impasse

Sometimes, no matter how hard you try, it seems like you reach a dead end with your spouse on an issue in a Collaborative Law case. It happened while you were together, and it shouldn’t be surprising that it still happens after you split up. You’ve thought about possible approaches and made plenty of suggestions, but no agreement seems forthcoming. While persistence can be a virtue in some situations, it can simply lead to frustration in others. If you keep trying the same tactics that haven’t worked on the same issues, you probably aren’t going to reach an agreement. What you need is a change. Here are five brief possibilities to help you get out of a negotiation rut and into an agreement.

1. Expand the pie. Review the situation and come up with some other possibilities. If you have gotten down to a choice between two options and neither party is willing to agree to the other side’s choice, then back up and come up with some other choices. For example, if the decision is about who will take care of the children after school, and each parent wants a different grandparent to be in charge, maybe you should come up with other possible caregivers. If you rule out the current choices and look for others, you may come up with another satisfactory choice you had overlooked. Avoid assumptions about how the issues should be decided. Open up your imagination to look for other solutions. Get out of the rut.

2. Expand your point of view. Oftentimes, we focus so much on our own thoughts and ideas that we begin to have trouble understanding how anyone could possibly think another way on an issue. When that happens in negotiations, that narrowing of focus can lead to impasse. One solution is to listen to the other party and then reflect back to him or her what is being said. If you can just put into your own words what the other side is saying or asking for, it can increase your understanding of their position and may open up your thoughts to new possibilities. In some Collaborative joint meetings, it has been helpful to ask each party to state the other party’s position on an issue and to explain why the party favors that position. It is also common, in preparation for Collabortive meetings or mediations or just plain negotiations at the courthouse, to have my client tell me what the other party would say about various issues. That helps me understand, but it also helps each client/party who works on that. Greater understanding of the issues and the other party can help lead to agreement.

3. Go back to your broad goals. It is very easy in negotiations to get drawn into discussions of small points. As you get into the smaller, lower-level goals, the options available are reduced and the potential for impasse increases. Sometimes you get off track and spend time on things that are irrelevant or just marginally useful. One way to get out of that trap is to stop the discussion and go back to your goals. For example, if you are stuck in a discussion about whether to take part of a retirement account or keep the house (and its equity), it can be helpful to review your major goals. If one of the goals was to maximize your retirement resources, then you probably need to take the retirement account. If a goal was to keep a stable home for the children, you might want to keep the house. If your goal was to obtain or have access to cash, and if you can realistically sell the house quickly, then you would probably want to get the house and sell it. Without constantly keeping the goals in mind, sometimes parties get into emotional arguments over assets because they "love" the house or because their hard work created the retirement account. The goals are more neutral and should always be the ideal in mind as the parties negotiate.

Another problem that frequently occurs is that you have gone from macro level goals to micro level goals. In other words, instead of trying to create ways to stay in daily contact with your child (macro goal), you get into an argument about whether your spouse must guarantee that s/he will be home at a certain hour (micro goal), rather than looking at it broadly and trying to find as many ways as possible to communicate with your child. Dealing with the issues at a broader level increases the number of opportunities to find solutions.

4. Get professional help. We usually work in the team model, using two attorneys, a neutral financial professional (FP) and a neutral mental health professional (MHP). We sometimes have a separate child specialist. The FP and MHP have been extremely helpful in cases where the parties get stuck. On financial issues, the financial professional can ask the right questions as well as suggest alternative solutions. The MHP can help the process generally by redirecting attention to constructive areas and also by maintaining a safe atmosphere for the parties to express themselves. Being perceived as neutrals gives the FP and MHP much more credibility and effectiveness than they would have if they were linked to just one party.

5. Start with areas of agreement. If you come to a standstill somewhere, you should consider switching topics and working on subjects where you expect to agree. Then you can build some momentum. For example, if you get stuck on how to divide up the bills, you might work on how to divide up the motor vehicles or clarify the holiday visitation schedule or clarify college plans for the kids. There are always some areas where the parties will easily agree, and even reaching easy agreements can result in good feelings and a willingness to cooperate. Of course, that doesn’t mean that both sides will agree on everything once they start agreeing, but the momentum can be a helpful force for you.

Conclusiont: It’s not unusual in a Collaborative Law case to get stuck more than once. Collaborative Law is not necessarily an easy process to work in, but the results are so much better than in litigation that it is worth the effort. When those times come and you start to realize that you are at an impasse point, try out one or more of the above techniques. They should be great tools to help you reach a successful conclusion for your clients.

SOURCE FOR POST: Texas Collaborative Law Blog by Dick Price

Program aims for peaceful divorces

The "collaborative law" process tries to get all parties to work together to reach agreement.

Few words in modern parlance carry uglier connotations than "divorce."

Yearslong court battles. Fights over division of property. Never-ending custody disputes that put children at the center of a tug of war.

A small group of Roanoke lawyers, all too familiar with the potential nastiness of divorce, are determined to spread the word that there’s a less destructive way to navigate this already painful process.

The "collaborative law" method involves hiring lawyers to act as counselors rather than courtroom gladiators. Collaborative law often involves a team approach, in which psychologists and financial planners work with husbands and wives and their attorneys to minimize the damage that divorce can do to families.

Cheryl Watson Smith, the lawyer who for four years has pushed the hardest to bring collaborative law to the Roanoke Valley, organized a training session that was held last week for lawyers, mental health professionals and financial planners. It was the first session of its kind in Roanoke.

"I think it’s a great approach," said Roanoke financial advisor Lee Brooks during a break in Thursday’s training session. "I think it’s respectful of the people involved."

Based on his first impression, he said collaborative divorce appeared to be less stressful, more cost effective and more likely to produce a fair settlement.

"This is the kind of practice that I went to law school for," said Diana Perkinson, one of eight Roanoke lawyers trained to practice collaborative law.

"I work a lot with families that are going through divorce," said Michael Chiglinsky, who serves as president of the Blue Ridge Academy of Clinical Psychologists. "Our current adversarial process is destructive in many situations to the very people it’s supposed to serve, especially the children."

He hopes that collaborative law will allow families to work out important issues reasonably. "I think that this is a step in the right direction," he said.

In this novel approach to divorce, a husband and wife each hire their own lawyer, but not to pit them against each other in court. Instead, the couple and their lawyers meet together privately to negotiate a settlement.

To ensure a fair agreement, collaborative law requires full disclosure of all assets by both sides. If negotiations break down and the case heads to court, the collaborative lawyers on both sides must withdraw completely from the case.

Similar rules apply to other members of the team. For example, a financial adviser hired as part of a collaborative team would work with information from both husband and wife and would sign an agreement to never work for either party individually in the future in order to avoid any conflict of interest.

Even the language is different. The lawyers refer to one another as "counterpart counsel" rather than "opposing counsel." Custody agreements become "parenting plans" and alimony, "income sharing."

While a collaborative divorce doesn’t come cheap — attorneys charge the same rates they do for litigation, and other professionals such as the financial planners also bill separately — its advocates argue that it takes less time and thus ultimately costs less than a contested court battle.

A handful of recent high-profile cases have brought some attention to the growing movement. Billionaire Roy Disney chose a collaborative divorce in 2006, and comedian Robin Williams has begun a collaborative divorce proceeding.

Yet collaborative law also has stirred some controversy. In February 2007, the ethics committee of the Colorado Bar Association issued an opinion that collaborative law is unethical, arguing that if someone decides not to go through with the process, it effectively gives that person the power to fire his or her spouse’s attorney.

However, six months later, the American Bar Association weighed in with an opinion that collaborative law is ethically sound.

The ruling soothed the worries many other states might have had, Richmond lawyer Kimberly Fauss said.

The movement has become widespread in states such as California, Texas, Minnesota, Ohio and New York.

"Then you’ve got places like Virginia that are just sort of trying it on," Fauss said.

Though she’s only had a handful of cases so far, Watson Smith remains confident that collaborative law will gradually take off in Roanoke as it has in Lynchburg, Charlottesville and Richmond.

Last week’s training, which brought local financial and mental health professionals into the collaborative law fold, should ease the process.

Fauss, who attended the Roanoke training session, said she now only handles collaborative law cases.

"It’s a big leap to do that because you’re not doing litigation," she said.

Fauss asserted that collaborative law improves the quality of life for both the families who use it and the lawyers who practice it.

"You are not out to destroy anybody. You have a higher quality of life," she said. "The leaders of this movement are people in the second halves of their careers who are saying, ‘I’m not doing it this way anymore.’ "

SOURCE: The Roanoke Times in an article written by Mike Allen

Benefits of Collaborative Family Law?

Why Collaborative Family Law?

  • Avoid Court – Everyone can focus on a settlement without the constant threat of “going to court.”
  • Cooperative Approach – You are each supported and represented by your own lawyer and, yet, you can cooperate confidently with your spouse and his or her lawyer in resolving your issues.
  • Client Participation – You are a vital part of the settlement team (consisting of both parties and both attorneys).
  • Clients in Charge – The process is empowering, informative, and less stressful than court. You control the proceedings. Your destiny and that of your family is not in the hands of a third party (court).
  • Collaborative Lawyers – Both parties have skilled family lawyers committed to the collaborative process of settling without the threat of “going to court.”
  • It Works – The collaborative law process works if problem solving is more important than fighting and you want solutions that are fair for both of you.

How Do Collaborative Lawyers Work?

  • Informal four-party conferences where the future well-being of you and your family is the number one goal.
  • Complete, honest exchange of information in an informal setting.
  • Using creative problem-solving techniques to assist you in producing an agreement tailored to the needs of you and your family.
  • Your spouse and his or her attorney are treated as part of a settlement team, not adversaries.
  • Both attorneys are concerned about the process, as well as the outcome.
  • Your collaborative lawyers are committed to finding constructive ways to achieve a settlement that will work best in your case. Their basic philosophy is to focus on a settlement without a trial.
  • The lawyers have a financial incentive to succeed. They must settle your case or withdraw.

What Happens If Settlement Cannot Be Reached?
In the event the parties are unable to reach a settlement through the collaborative process, the collaborative lawyers withdraw from the case and the parties are free to hire trial attorneys to pursue the matter in court.

How Does It Work?
With the collaborative approach, both parties and their attorneys enter into a commitment agreement to the process. The attorneys are involved early in the process to facilitate full disclosure by both parties and to use reasoning and analysis to generate fair and just options for a fair settlement. The goal is to minimize adversity in the process and reach an equitable solution without court.

What If It Does Not Work?
In order for collaborative family law to work, incentives and disincentives are built into the process. The incentives are to eliminate court, reduce time and save the emotional expense that comes with animosity between the parties and lengthy court battles. The disincentive occurs if the process breaks down. As part of the commitment agreement, the collaborative attorneys must withdraw from the case if the process breaks down or proves unsuccessful. Both attorneys will assist in locating trial lawyers for the clients and provide a quick, efficient transition.

What Issues Can Be Resolved with Collaborative Family Law?

  1. Separation and divorce
  2. Non-marital relationship breakup
  3. Custody arrangements and parenting issues
  4. Guardianship
  5. Spousal and child support
  6. Division of assets and debts
  7. Modification of existing orders

Key Benefits

  1. Avoid court battles
  2. Focus on the children
  3. Client is empowered by the process
  4. Can save time
  5. Cost-effective
  6. Cooperative approach
  7. Informal setting
  8. Creative problem solving
  9. It benefits everyone
  10. It works—the collaborative law process works if problem-solving is more important than fighting and both parties want to reach fair and just solutions.

Getting Started
If you’ve made your decision to proceed, here’s how to get started:

  1. Talk with your spouse or opposing party about Collaborative Family Law and share the information provided on this website.
  2. Both parties need to choose a collaborative lawyer from the list of trained professionals on this site.
  3. Meet individually with your own collaborative lawyer to discuss the details of the collaborative law process in your situation.
  4. Both parties and both lawyers sign a collaborative law agreement.
  5. Both parties and their lawyers attend the first collaborative law meeting.

About Mental Health Professionals

Mental Health Practitioners serve special functions in the collaborative process. They are trained and experienced in collaboration reducing conflict, finding bridges and generating solutions that work for ALL parties involved, each divorcing partner and child. An annual peer review and certification process ensures that each practitioner has met the following minimum expectations: is licensed and in good standing in his/her profession, has current malpractice insurance, has experience with family court, and has special training and experience in his/her area of specialty.

Mental Health Practitioners serve in several capacities to assist a process where all voices are heard.

As a COACH a practitioner works only during the divorce and will:

  • Identify with each divorcing partner issues both individually and within the marital relationship that may lead to barriers to the collaborative process
  • Provide support and for each divorcing partner to facilitate solid participation in the process with attorneys, financial consultants and each other
  • Provide support and information to other professional team members in the collaborative process around relevant mental health issues that may create barriers to that process
  • Identify strengths and weaknesses in communication styles among participating parties, and if needed, teach more effective skills

As a SPECIALIST, a practitioner works only during the divorce and provides specific input in areas of disability determination, chemical dependency evaluation, psychiatric evaluation, psychological assessment, evaluation of child(ren)s needs, etc. All specialists share the following role:

  • Help collaborative team mediate discrepancies in plans between parents
  • Identify issues that may be barring this process so that coach(es) can assist their clients working through them
  • Provide specific evaluations to help further the divorce process and recommend treatment as needed

In addition, a CHILD SPECIALIST is a practitioner who has special knowledge and expertise in working with children and will:

  • Assess the child(ren)s emotional adjustment and emotional needs
  • Provide parent education on the current and potential impact of divorce on their child(ren), including the need for connection with both parents
  • Help parents develop skills to co-parent to the degree possible
  • Identify initial aims of each parent around their ideas for living arrangements of their child(ren)
  • Provide education and feedback to parents about their approach to and expectations for their child(ren)s reactions to divorce given developmental levels, nature and history of parental conflict, existing relationships between each parent and child(ren)
  • Help parents develop appropriate and feasible structure for general living arrangements, vacations, right of first refusal, etc.

A practitioner in a SUPPORTING role is involved with one or both divorcing partners, child(ren), and/or the family in an on-going way, during and after the divorce. A practitioner may be involved by referral for on-going therapy for an individual or family to address specific therapeutic needs identified during the collaborative process.

SOURCE: Kentucky Collaborative Family Network