Articles Posted in Marriage

The prenup was hell, but in the end it was almost as if that document became a repository for our anxieties, holding on to them so we didn’t have to.

~Abby Mims

The above quote comes from an article in The New York Times titled “Prenup Is a Four-Letter Word.” In the article, the author Abby Mims writes about her experience being asked to sign a prenuptial agreement. She and her fiancé had been together for a number of years and already had a child when they decided to marry — but the fiancé wanted a prenup.

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As we get older we’re supposed to get wiser. In fact, I would rank increased wisdom at the very top of the benefits of aging. So why do so many people enter their second or even third marriages ignoring what they know? The statistics prove these marriages are more likely to end in divorce than first marriages.

If you’ve been divorced before, you know what you don’t want from a future divorce: You don’t want the process to take forever and be expensive. You don’t want to have little control over the process. You don’t want to end up hating your ex-spouse. A thoughtfully negotiated prenuptial agreement can help you avoid all of this by making it clear what financial expectations each spouse has during the marriage and what the outcome will be if the marriage ends.

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It’s wedding season, and in addition to checking the typical wedding-related tasks off the to-do list, many soon-to-be newlyweds are reaching out to lawyers like me to draft prenuptial agreements. And one of the most common things they tell me is: “We just need a simple prenup.”

For the people who truly want a “simple” prenup, I have good news: You may not actually need one. A simple prenup may simply mean that you will be signing up to do exactly what the law dictates for divorcing spouses. So what does the law mandate?

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The primary function of a consulting attorney is to provide advice and counsel during the mediation process and provide the support you need to advocate for yourself. This is different from a “review attorney” whose primary job is to review the agreement that has been drafted after the mediation process is over. These are 2 very different roles. If you took my previous advice and are interviewing consulting attorneys, these are 3 important questions to ask.

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One of the weaknesses of litigated divorce is that it encourages rigid thinking that stands in the way of compromise.

Choosing your battles wisely is an important strategy in all areas of life, including if you are in the process of divorce. Unfortunately, traditional divorce attorneys often neglect to give their clients this advice, encouraging them to fight for everything they say they want, regardless of how impractical, impossible or destructive it may be.  And when the other spouse inevitably takes opposite positions on those same issues, there’s nowhere to go but to the courthouse where both parties will be subjected to the slow-moving and very public litigation process.

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People going through divorce often feel angry, confused, and alone.

They turn to their friends and family when they are contemplating divorce, in the middle of a divorce and all throughout the process.  In fact, I often get calls from family members or friends inquiring about the legal services that I can provide to their loved one.

Supportive friends or family members instinctively seek to protect a person they  love by saying negative things about his or her spouse.

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A high-net-worth couple going through a divorce can benefit greatly by staying out of court.

Couples with considerable assets (which I will define here as more than $5 million) are often lead to believe that their divorce will be a “no holds barred,” brutal, lengthy process with astronomical legal bills and complicated offers and counter-offers. Because of this belief, many high-net-worth couples assume that mediation or the collaborative law process will not work for them.

They couldn’t be more mistaken. In my experience, the opposite is true; high-net-worth families have more to gain by keeping things civil and private. Unfortunately, many attorneys who practice litigation harbor a killer instinct that grows along with their clients’ assets, and they see a litigated divorce as the only way to satisfy that instinct.

Even when spouses are trying to have a non-adversarial divorce, the emotions that arise can hijack innocent intentions and get in the way of achieving the bigger goals such as the children’s well being, future financial security for one another and children, and an outcome that feels fair. Resentment, regret, anger and sadness about the past are just a few of the difficult emotions that divorcing clients need to deal with while simultaneously trying to make very difficult financial and parenting decisions that will have long term consequences in the future.

If you’re finding it hard to bring your best self to the negotiating table and keep the focus on the future, try a little compassion: for yourself as well as your soon-to-be-ex. When you’re criticizing yourself or others all you can think about is punishment. Will punishment really help you reach your long term goals? On the other hand, when you’re being compassionate, you’re looking at ways to improve and make things better. I’ve come to realize that compassion is perhaps one of the most important ingredients to an amicable divorce, and, sadly, it is often missing.

Nelson Mandela once said “Resentment is like drinking poison and then hoping it will kill your enemies.”

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I recently read an article on The New York Times wellness blog by Tara Parker-Pope called ‘The Decisive Marriage.’ In it, Parker-Pope explores the research gathered through The National Marriage Project and asks how does being decisive – or not – affect a marriage? Though it is not mentioned in the article, I thought some of the points would be especially helpful for people considering a prenuptial agreement. Parker-Pope writes:

Couples should make active decisions about their relationships and major life events. Showing intent in some form — from planning the first date, to living together, to the wedding and beyond — can help improve the quality of a marriage over all.

Prenuptial agreements are, by definition, a written agreement reflecting the intentions of the parties regarding their marital rights and obligations. By looking together toward the future, prenuptial agreements can help the couple to purposefully plan for this important, next stage of their relationship. Questions can be discussed and answered such as:

  • How will property be divided upon death or divorce?
  • Will spousal support be paid? If so, under what conditions?
  • How will household expenses be paid during the marriage?
  • Will having children result in different financial terms?

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Working outside of the court system allows divorcing parents of the boomerang generation to consider, discuss and plan for when their adult children return home.

In the New York Times Magazine, there was recently an article about the boomerang generation. Kids are coming out of college and moving back home with their parents, perhaps after unsuccessfully trying to live on their own.

Regardless of whether this is a savvy way for kids to save money without sacrificing a certain lifestyle, or a sign that they are just not able to take care of themselves in this economy, the fact is that these boomerang kids aren’t a temporary phenomenon. They appear to represent a new life stage. The article states: