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Charlotte takes on Bunny in a prenup negotiation

Just as the concept of premarital agreements was coming in vogue and more in the mainstream about a decade ago, the character Charlotte on TV’s Sex and the City found herself surprisingly faced with one after her new fiancé presented it to her in the leadup to their wedding. Shocked by her value stated on paper, she carefully navigated her way through her “asking price” or value if the unthinkable happened and she divorced from her soon-to-be and very tough cookie mother in law “Bunnie.”

Most of us find Charlotte’s blue blood TV existence a world away from ours, but how do we broach the subject of premarital agreements … and should we?

New York divorce and child custody laws can be very complicated. One big difference from most states: you can’t cite irreconcilable differences as grounds for a divorce. That provides impetus to  consider a prenup that can clarify finances and potential hurdles in the marriage up front. That and New York is a fault state where you have to prove your spouse’s fault from a list of such faults as adultery, abandonment and so on.

What is a premarital agreement?

A premarital agreement is an agreement between two individuals who are contemplating marriage and who are wanting to decide certain issues related to their property, income and earnings. The agreement must be in writing and signed by both parties. The premarital agreement become enforceable at the time of marriage and determines the distribution or the property, assets and earnings if the marriage ends in divorce.

You can also decide how much spousal support will be paid. Two things that cannot be negotiated in the prenup are the grounds for the divorce and the amount of child support that will be paid.

Is it for me?

The prenup is no longer just for the Charlottes of the world and their country club set. It’s stretched to the world of the middle class where it’s used to protect such things as property, retirement, pension, savings and even the protection of children. You really have to look at the pros and cons of a premarital agreement when deciding if it’s for you. As unpleasant as it sounds, an agreement can offer a pragmatic exercise between two people before they wed as to how they would like their finances or affairs handled in the case of death or divorce. It can also clarify each person’s rights early in the relationship.

Some questions to consider that may call for drawing up a prenuptial agreement with your partner:

-       Do I have a home, pension or retirement funds?

-       Am I taking care of children or elderly parents?

-       Is there a disparity between my income and my spouse’s income?

-       Do I have the potential for a big spike in my income?

Discussing the responses to these questions openly and honestly with your partner before marriage can help you both save time and money in the long run if the unexpected happens.  An agreement can also help protect you from the state or a third party deciding who gets your assets. Drafting an equitable division that you both agree upon can also help you financially in the long run save legal fees and emotionally as you have a framework from which to start should you both meet that unexpected turn in the road.

Related links

New York divorce law

About prenups and real reader questions about divorce

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Will my disability payment change if I get divorced?

If you are considering divorce you might be wondering, “Will my disability payments change or stop if I get divorced?” The answer to this question will depend on your benefits.There are two disability programs offered by the Social Security Administration: Social Security Disability Insurance (SSDI) and Supplemental Security Income (SSI).

What is Supplemental Security Income?

Supplemental Security Income (SSI) payments are available for the disabled, blind or aged (65 years or older) who have very limited income and resources and who are unable to perform substantial gainful activity for at least twelve continuous months.

Deeming the Income from your Spouse for SSI

If you are married and your spouse is working and you are receiving Supplemental Security Income benefits the Social Security Administration “deems” part of their income to you (the assumption is they are using some of their income to provide support to you).

Deeming is a very complicated calculation and you need to contact the Social Security Administration directly for specific information about how your spouse’s income could affect your SSI benefits.

So if you are receiving Supplemental Security Income and your payments have been reduced because your spouse makes too much money, if you divorce your spouse it is possible that your SSI payment may increase. There is, however, a maximum amount which is paid for SSI benefits ($698 in 2012) so your total SSI payment will not increase higher than this amount, which is called the federal benefit rate (exceptions exist in states which add their own supplemental payments onto the federal benefit rate).

Can I qualify for Supplemental Security Income now if I was denied due to my spouse’s income?

If you applied for Supplemental Security Income (SSI) and you were denied benefits because your spouse’s income was too high, if you divorce you may now qualify for SSI benefits, assuming that you meet all of the other requirements outlined by the Social Security Administration.

What is Social Security Disability Insurance (SSDI)?

Social Security Disability Insurance is paid to claimants who have become disabled with a severe disabling health condition which does not allow them to work for 12 continuous months and they have worked, earned enough and paid enough in payroll taxes to be considered insured by the Social Security Administration.

If you qualify for Social Security Disability Insurance (SSDI) your benefit payments are based exclusively on your own work record and the amount you receive is not lowered or eliminated if your spouse makes too much money.

So are SSDI benefits affected by marriage or divorce? No, it will not matter if you marry or get divorced or whether your spouse makes a substantial amount of money, your Social Security Disability Insurance benefit will not change.

Hiring a Divorce Lawyer

If you are considering filing for divorce there are many considerations. If you are receiving either Supplemental Security Income or Social Security Disability Insurance you will need to contact the Social Security Administration at 1-800-772-1213.

The Social Security Administration requests that claimants notify them if they go through a life event such as divorce, separation, marriage, birth of a child or spousal death. Failing to contact the SSA for certain life events could result in over payments or under payments.

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Along with the emotional impact and family upheaval that divorce brings comes another potentially devastating aspect of ending a marriage – money matters.

The financial burden of a divorce can be enormous, and it’s easy to tally up high divorce attorney’s fees in what’s referred to as billable hours if the stress and emotion of the event clouds your view. People seeking to make their divorce affordable certainly have the cards stacked against them. So what are some steps to take to ease the expense? Getting good advice from trusted family law attorney is key. Residents of Florida, Texas and Massachusetts can find a directory of family law attorneys at this link on our website Divorce Attorney Home.com.

Family law attorney Mark Baer told the Los Angeles Times that emotions brought on by a divorce – the second most traumatic life event after a loved one’s death, he said, very often cause the spouses to make irrational decisions. ”Couples let their emotions take control and they spend it all on attorneys,” Baer said. “They’re now worse off financially than if they’d never been married — just because they refused to act like mature adults.” Baer said the desire for vengeance is a blueprint for ruin. ”The cost of litigating the heck out of a case doesn’t benefit either person. It destroys the family financially, and that doesn’t even consider the emotional toll,” Baer told the Times. “By the time you pay the legal fees, you’re going to spend more than the amount you were fighting over.”

Although your divorce attorney or family law advocate is working for you, you can lessen their legal fees by doing some of the legwork yourself, therefore saving costs in the attorney’s billable hours. Your divorce attorney has to charge you for their time, so the more you can do on your own, the lower the cost will be in the end. It’s crucial to be organized. It’s also crucial – before you sign a contract to work with a divorce attorney – to get a clear definition of what billable hours means to them. Are they charging you for that “quick call” to ask a question? A reputable divorce attorney will give you estimates of what each phase of your divorce will cost, and will often even suggest ways to keep costs in check. It’s good business for them to do so.

Property, assets and income are divided between the spouses in a divorce, so in order to ensure things are split evenly, it’s crucial to have a comprehensive list of everything – what you own and what you owe and this information should be shared with your family law attorney.

You can save thousands of dollars in billable hours by compiling this data yourself and sharing with your family law attorney, instead of relying on your divorce attorney to order subpoenas and build a mountain of paperwork to obtain this information. Tax records, bank statements, credit card statements, loan information, the value of your retirement plan or 401(k), and appraisals of your house and property are details you can get without a divorce attorney’s help (and expense). Most divorces are going to result in something close to a 50-50 split  of assets, so agreements and compromises that can be reached beforehand can save time, and more importantly, money. This is where divorce mediation comes in. Think of it this way: Mediation lessens litigation.

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Pros and Cons of Prenuptial Agreements

From time to time, we hear of a celebrity couple getting divorced and they never entered in to a prenuptial agreement before marriage. For example, Larry King and his wife Shawn King filed for divorce in 2010. Larry King’s estimated net worth was 144 million dollars. With no agreement, Shawn King stood to take half of the estate due to California family law. Luckily, the two reconciled and did not have to undertake an epic legal battle.

What is a prenuptial agreement?

A prenuptial agreement is a contract between two people who enter into a marriage. In this contract, the two parties lay out in specific terms how they want their property divided should they divorce. You can also decide how much spousal support will be paid. Two things that cannot be negotiated in the prenup are the grounds for the divorce and the amount of child support that will be paid.

Who should have a prenuptial agreement?

In the past, prenuptial agreements were seen to be an instrument used by the wealthy. Recently, more and more middle-class people have used them in their marriage if they have something they want to protect. Things like property, retirement accounts and/or pension benefits and even children can be sheltered.

If you earn more or possess more assets than the other party, you are definitely a good candidate for a prenup. Also, if you know that your earnings will increase significantly as you move along in your career, you should probably have a prenup.

Pros of getting a prenuptial agreement

Deciding to sign a prenuptial agreement before your marriage is an individual decision. Each case is different, here are some benefits to consider:

* each spouse’s individual property is defined and protected
* define what is marital and community property
* allocate debts (credit cards, loans, tax bills, mortgages) to the proper spouse so one spouse does not get saddled with the debt that the other brought into the marriage
* reduces disagreements and extensive court proceedings (and attorneys’ fees) during a divorce

Cons of a prenuptial agreement

Here are some of the negative aspects:

* It is not a romantic thing to think about as you plan your wedding
* bad timing…remember, you can always draft a postnup after your wedding (you will need to consult with an attorney because these do vary from prenups)
* a court can set aside any part of a prenup that it deems to be unjust (such as alimony agreements)

Is a prenuptial agreement right for me?

Here are some questions to consider when assessing whether or not a prenup is right for you:

* Do you own property (land or houses)?
* Do you make over $100,000 per year?
* Do you own a business?
* Do you have a large pension?
* Do you have large assets?
* Do you or your spouse plan to support the other while he/she studies for an advanced degree?
* Does your estate name beneficiaries other than your spouse (most likely your children)?

If you answered ‘yes’ to one or more of these questions, a prenuptial agreement could be the right move for you. If you are unsure, you should talk with an attorney in your area who can help lay out all the options for you and your specific situation. Whether or not you ever get a divorce, sometimes a prenuptial agreement is a good idea.

The decision to pursue a divorce is  a difficult one. The divorce process is extensive and exhausting for everyone involved. One of the early choices you will have to make is if you want to pursue a traditional divorce by hiring an attorney and going to court, try to work things through on your own, or use the services of a trained mediator.

What is mediation?

Divorce mediation is a process of resolving differences between two parties involved in a divorce with the assistance of a trained mediator. The ultimate goal of mediation is to give both parties the best workable resolution for less time and money than a traditional divorce.

A mediator is a neutral third party individual who is trained in conflict resolution and helps to assist in good communication between both parties but doesn’t make any choices for them. A mediator does not make any judgments about who is right and wrong, but he helps each spouse agree to a result that is beneficial to both. He does this while remaining objective and impartial.

The benefits of mediation over traditional divorce

An amicable agreement is usually hoped for by both spouses when they are going through a divorce. Here are some ways that mediation can help you achieve this:

* Mediation is less tense and traumatic than traditional divorce

* Mediation costs much less than hiring a divorce attorney

* Mediation is much less time-consuming because neither side has to present a full case, including witnesses and motions, in a court of law

* Mediation is private…finances and other intimate personal matters are kept confidential

* The results from mediation are more likely to last because both sides put aside their bitterness and came to an agreement together

* Nobody understands a child’s needs like his parents. With mediation, the couple has direct control over child-care arrangements. This helps the couple work together in the best interest of their children. This also helps to ensure that there will be less arguments in the years to come involving time with their children.

Disadvantages of mediation

Here are a few deficiencies of the mediation process:

* Mediation necessitates a lot of rigorous interaction with a spouse. If one spouse is forceful or abusive then mediation will not work.

* A successful mediation depends on complete transparency. If one spouse is trying to hide information concerning finances, then cooperation cannot happen since the mediator cannot force one spouse to fully disclose their financial situation.

* The mediator has no authority as a Judge to made demands of either spouse. A successful mediation is totally dependent on both sides working together.

If you are considering divorce mediation, you should contact a qualified family law attorney in your area. Your attorney can look at your situation and go over the pros and cons of mediation and help you determine the best course of action for you and your family.

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Finding the right mediator for your divorce

You and your spouse have made the decision to file for divorce and you want to use mediation to work through the divorce process. Finding a mediator can be a tricky process. You have probably not hired a mediator in the past and you are not sure of what questions you should ask. Here are some tips on what to look for in a qualified divorce mediator and the proper questions you can ask each one you are considering.

First steps in the divorce process with a mediator

You can start by making a list of 5 or so mediators in your area. You can look in the phone book, ask a friend, check online, call state mediation agencies, ask a local attorney or a counselor/therapist.

Make a list of the questions you are going to ask each one and call them. After you have talked to each one, pare your list down to 2 and schedule appointments to meet face to face to discuss mediation.

Questions to Ask the divorce mediator

In most states, there are no requirements or guidelines for divorce mediators. Anyone can put up a sign saying they are a mediator and offer their services to any paying customer. Here are some questions you should ask so you can ensure that you will end up hiring a qualified mediator:

* What is your education/training for mediation? Your mediator should have a degree in counseling, social work, or psychology. It is even better, but not necessary, if your mediator has a law degree. Also, ask how many hours of mediation training he has undergone. The basic divorce mediation training is 40 hours, but he could have many more.

* Are you an attorney? Some attorneys decide to become a divorce mediator for additional income. While this may help when he files the final document with the court or in his familiarity with divorce law, he may be inexperienced with handling the required mediations. He may also not be skilled in conflict resolution.

* How long have you been practicing divorce mediation? You may prefer a mediator with a lot of experience or you seem to feel most comfortable with someone who is just getting started. If you do, know that they will be less experienced.

* Do you have any references? While the mediator will probably not provide you with names of past clients due to confidentiality, you could ask him for names of attorneys or therapists who could give you assurance of his skill and qualifications.

What is your approach to mediation? Each mediator has his own style. Some are more directive and others view themselves as facilitators. You need to determine how much control you and your spouse want to have in the negotiation. A facilitator will help each person make decisions through questions and dialogue. A more directive approach supplies specific proposals for resolving disputes with less discussion. Usually, a mediator will fall somewhere between these two examples. You need to decide which style you are most comfortable with.

* What do you charge? Fees charged by divorce mediators can vary widely from state to state. Some require payment up front while others charge for each session. In addition to the session fee, they will also charge for the Memorandum of Understanding and the final document that will be filed with the court. They may also charge you travel fees. Know their total fee schedule and compare.

Divorce is never a fun experience. Choosing a mediator that works for you can help you get through the process and move on with your life.

A DivorceAttorneyHome.com reader recently posed an important question about the outcome of their divorce, and how custody of the children would be decided. The reader asked about full custody, or as it is known in divorce court, sole physical custody . They wanted to know, “What are the deciding factors I will get full custody of our kids?

Many state courts are in favor of joint child custody, but some divorce courts may choose to award sole physical and legal custody to one parent and child visitation to the other parent. Another child custody option scenario is when one parent is awarded sole physical custody but shares joint legal custody. Both parents have the right to make decisions about the children’s upbringing, but the custodial parent is responsible for making the day-to-day decisions in the child’s life. Under either scenario, the court is going to decide what is in the best interest of the child.

There are basically two types of full or sole child custody in a divorce: physical child custody and legal child custody.

Under physical child custody, the children live with exclusively with one parent, and the other may be given visitation rights, a schedule determined by the court to determine access by the noncustodial parent..  Under legal child custody,  one parent has the exclusive right – granted by the court – to make decisions about the child’s education, medical treatment, and religious teachings.

Now we know the definition of full custody, how does one get it in a divorce?

The answer to this question could potentially have 50 variations, as divorce laws and statutes can differ from state to state. The best way is to enlist the assistance of a qualified and experienced divorce law attorney. Here at DivorceAttorneyHome.com, we can provide you with the resources you’ll need to find a divorce attorney in your area. It all comes down to what is determined to be in the best interest of the child. These are the most common factors considered in determining “best interest”:

• The child’s age and health
• The health of the parents
• The stability of the parents and their lifestyle
• How well the children have adjusted to their community and their school (Would it be detrimental to move them away?)
• The parents’ ability to provide for the child’s needs, both financial and emotional
• The quality of relationship the child has with each parent
• Whether the child or the parents have disabilities
• The children’s preference of which parent to live with, providing the court rules the children are old enough or mature enough to make such a decision, and if they agree the children’s decision is in their best interests.

Getting a divorce is a life-changing event. Each spouse has needs and legal rights to be settled, but what about the children? When parents have arrived at the decision that divorce is the only option, important considerations and plans must be made to protect the welfare of their kids. There are many child custody issues to consider, but let’s look at the top three:

1. The children’s emotional needs

Facing the breakup of mom and dad’s marriage is a traumatic experience for children, and child custody is a worrisome part of that.  Naturally, they are going to wonder whether it’s their fault, or if there’s something they could have done to prevent it. Also, it’s very likely that the divorced parents will live in different parts of a city or even another city or state or country altogether. Facing a move and the prospect of having to settle into a new school and make new friends while struggling to understand why mom and dad aren’t going to live together can compound their stress. Divorcing parents must assure their children that – although they won’t be married anymore, they will always be there for the kids. Telling the children early on in the process is essential, child psychologists recommend, to allow them ample time to process this life-changing event, and prevent a more traumatic experience for them.

2. Legal and Financial Details

Divorce planning comes with many legal and financial details to be ironed out. What child custody will look like is an essential question. Will there be joint custody? Will one parent have primary custody? How will visitation be arranged? Which parent will have to pay child support? Which parent will be responsible for the children’s health care and insurance?  These are just scratching the surface. These types of decisions will be fraught with emotion. This is why it is essential to hire an experienced divorce attorney to help you see through the emotion and make sound decisions about child custody. Coming to an amicable agreement with your ex-spouse is essential to the children’s well being. It will also help maintain a civil relationship with the ex, which will benefit you all.

3. Parents, Once and For All

Another very important aspect of the child custody question is the fact that, although living apart, you are still parents to the children. No matter the outcome of the divorce, there will always be a connection between spouses in this way, so both spouses must be committed to the welfare of the children. Divorced parents are no longer married, but they will be parents the rest of their lives. Emotion is inevitable in a divorce. Having a dispassionate third party like a good divorce attorney is essential to help you look beyond your own needs and do what’s best for the children.

Need answers? Seeking advice? We can help. Log on to our website, DivorceAttorneyHome.com, for the resources you’ll need to guide you through this difficult time.

A premarital agreement is an agreement between two individuals who are contemplating marriage and who are wanting to decide certain issues related to their property, income and earnings. The agreement must be in writing and signed by both parties. The premarital agreement become enforceable at the time of marriage and determines the distribution or the property, assets and earnings if the marriage ends in divorce.

What does the Texas premarital agreement do?

• Outlines the rights and obligations of each spouse with regards to their property and assets if the couple eventually files for divorce.
• It determines who has the right to buy, sell, use, transfer, exchange, abandon, lease, consume, expend, assign, create a security interest in, mortgage, encumber, dispose of, or otherwise manage and control property.
• It outlines what happens to the property if the couple separates, the couple files for divorce or one of the spouses dies.
• It may also outline how spousal support may be changed or terminated.
• It may determine how a will or trust may be allocated
• It may determine how life insurance may be allocated
• According to Texas state law, child support obligations may not be adversely affected by the premarital agreement.

Texas state laws allows for the premarital agreement to be modified, in writing, but both parties must agree and sign a written agreement for modification.

Is my Texas premarital agreement enforceable?

If you live in Texas, the Texas family code is very specific about when the Texas prenuptial agreement is not enforceable. According to Texas law, “A premarital agreement is not enforceable if the party against whom enforcement is requested proves the following:
1. the party did not sign the agreement voluntarily; or
2. the agreement was unconscionable when it was signed and, before signing the agreement, that party:

• was not provided a fair and reasonable disclosure of the property or financial obligations of the other party;
• did not voluntarily and expressly waive, in writing, any right to disclosure of the property or financial obligations of the other party beyond the disclosure provided; and
• did not have, or reasonably could not have had, adequate knowledge of the property or financial obligations of the other party.

An issue of unconscionability of a premarital agreement shall be decided by the court as a matter of law. The remedies and defenses in this section are the exclusive remedies or defenses, including common law remedies or defenses.”

So if you are going through a divorce in Texas and you signed a prenuptial agreement you have two ways to prove that the agreement is not legitimate: the agreement was made without the voluntary consent of one of the parties or the agreement can be proven to be unconscionable.

In the first example you must prove that you did not “voluntarily” agree to the agreement. This would be difficult to prove unless your fiancé coerced you in some manner (force, threats, intimidation, bullying, duress).

If you cannot prove involuntary consent you must prove “unconscionability” (grossly unfair according to society’s social conscious) and that before you signed the agreement you were not given “a fair and reasonable disclosure of the property or financial obligations of the other party.” Additionally, you did not waive your right to the information and you did not have knowledge of the financial obligations of your spouse.

The court is responsible for deciding the issue unconscionability according to law.

Couples who are considering divorce should consult with a divorce lawyer. Divorce attorneys understand Texas divorce law and can ensure that your rights are protected.