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Family Law

First love, then marriage, then postnuptial contract

Not extremely common, but certainly a part of my practice is drafting postnuptial agreements. Like a prenuptial agreement, it is essentially a contract that outlines each spouses respective property and support rights. Because so many marriages are dissolved because of finnancial issues, a postnuptial agreement can help keep the couple together by clearly defining what each's responsibilities are.

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First love, then marriage, then postnuptial contract
By Stephanie Hoops, shoops@VenturaCountyStar.com
February 14, 2007

Happy Valentine's Day! Let's sign on the dotted line.

Postnuptial agreements — after-the-wedding contracts between couples — are becoming more popular, according to a recent survey of the American Academy of Matrimonial Lawyers, which found that 49 percent of its members saw a rise in postnuptial agreements in the past five years.

Some couples are using them as Cupid's antidote for keeping financially unstable marriages together, said Ventura lawyer Gregory Herring, who has had wealthy clients choose postnuptial agreements over divorce.

"More and more start divorce proceedings because of financial issues and then find a way to come to terms," he said of his clients. "Oftentimes, parties have a power struggle that really arises from insecurities."

Postnuptial agreements are the same as prenuptials, only the timing is different. The prenuptial is agreed to before marriage, the postnuptial is agreed to after. Both concern how assets will be divided if the marriage ends.

Terms of the agreement can cover a number of issues, including disputes over potential finances, assets, children, even household chores.

It's the older couples, typically in second or third marriages, that want them, lawyers say. They may have children from their first marriage whose interests they wish to protect, or a bigger pot of assets that they're not willing to risk losing. The bottom line, they say, is financial security.

"If it helps keep a marriage together — great," Herring said. "So if that's love, so be it. I still like the chocolates and roses idea, too."

Not all lawyers are fans of such agreements.

Ventura family law lawyer David Praver advises people wanting postnuptial agreements not to get them, and if they insist, he tells them to go elsewhere.

To begin with, Praver said, he thinks that they're a bad idea for the lawyers drafting them. Creating a postnuptial agreement that a court will enforce is not easy, he said, because governing California law is sketchy, and scholars have said the Legislature needs to clarify it.

Because they are tricky to draft, they expose lawyers to greater liability, Praver said. In his opinion, the risk outweighs the reward for drafters like him.

"If it's done wrong, it can result in tremendous liability to the law firm doing them," he said.

Beyond the drafting complications, Praver said, he does not think that it's healthy for a couple to put themselves in an adverse business relationship.

"I think that most of these come about from other couples' war stories," he said of the agreements. "A spouse hears about another couple and what happened to them in a divorce. That's what creates the need. Fear."

Beyond the legalities, for many people, marital agreements are unappealing because they would put conditions on that which is supposed to be unconditional: love.

For many people, mixing the cold world of economics with the warm world of relationships just feels like an ugly proposition, according to Princeton sociology professor Viviana A. Zelizer, who has written a book on that subject, "The Purchase of Intimacy."

"If you mix them," she said, "the idea is bad things will happen."

Zelizer has found that's not always the case, however, and it's hard for people to avoid in relationships in general.

Households do budgets, she said, kids get paid allowances, and friends loan friends money.

"We want to make sure that the economic activity or transaction we have with an intimate is the right kind," she said

To that end, each agreement must be considered subjectively. Marital agreements that command absurd behavior, such as how much weight a spouse may gain, are not healthy, Zelizer said, whereas simply trying to find a reasonable way to divide money is fine.

"If it fits this relationship of intimacy and is not gross — asking for things that should not be asked for, then I don't see a serious problem," she said.

From San Francisco Family Law Blog posted 2007-02-14.

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