Everyone had heard about prenuptial agreements, but usually because people are in the middle of a divorce and fighting over it. However, a prenuptial can be an wonderful way to start your life together. (Reminder: I am an Ohio lawyer giving you general information. You should seek the advice of an attorney for your particular situation.)
The first problem is how to start the dialogue for a prenuptial agreement with your future spouse. No one wants to talk about what we will do if we get divorced, because getting divorced is the last thing you are thinking about while picking out wedding cake and wedding favors. (However, if the stress of this makes you think of running, that is understandable.) However, a prenuptial agreement is a way to make sure that you will be fair to the person you love even if the marriage thing doesn't work. One suggestion for bringing it up is to initially bring up the idea of prenuptial agreements (I heard that so-and-so got a prenuptial agreement; what do you think of that?) Maybe your fiance is also thinking about a prenuptial agreement and hasn't had the nerve to bring it up.
It is important to remember that a prenuptial agreement is a two way street: it is designed to protect your assets and your fiance's assets. You could probably identify some items of your fiance's that should be protected as well, such as a savings account or retirement account. A prenuptial agreement is a mutual agreement so that you enter the marriage with a firm understanding about where you are and maybe even where you want to be.
The dialogue for a prenuptial should include identifying each others assets and even talking about what the plans are for them. If, for example, your fiance is planning to sell a premarital asset such as a house, you can talk about whether that is going to be maintained as separate property or if you plan to consolidate assets to acquire a new house together. That might even lead to conversations about expectations regarding children, how to raise the children, financial plans (especially your philosophies about saving and spending money). If you are planning to get married, you should be able to discuss these intimate things with each other openly, honestly and lovingly. While many of these items are not typically identified in a prenuptial agreement (although I have seen some where they are), it is still great to have this discussion.
Once you have had the discussion, it is important that you retain counsel. You each should get different counsel, but the two of you should have a pretty good idea of how you want the prenuptial set up. This will save you time and money. One lawyer can prepare the prenuptial for you and the other can just review it for your fiance. You can even agree to split the costs if you want. Considering the time that can be involved in arguing over separate property if there is a divorce, and considering that you should be sharing this financial information with each other prior to getting married anyway, the cost of doing a prenuptial agreement is really minimal.
When you go to the lawyer, have an outline of the agreement ready to show the lawyer. Sometimes the lawyer may raise issues you haven't thought of. A lawyer can also explain how to deal with things that are ongoing, such as the 401(k) that you have been investing in and plan to continue to invest in. As always, come to the lawyer with a list of questions that the two of you have. Have your fiance go to a different lawyer to establish a relationship, but decide between the two of you which lawyer will actually write the agreement and which will review it for you.
For more information, or if you have any questions, please feel free to contact me at 614-564-6500 or pamela.makowski@gmail.com. Also feel free to check out my website: http://www.makowskilaw.com/.
Monday, March 30, 2009
Friday, March 27, 2009
Practical tips if contemplating divorce/dissolution
Many people who show up in my office don't know where to start when contemplating a divorce. As a lawyer, I see a divorce as divided into three primary categories, maybe just two: children's issues, property division, ongoing spousal support. These categories are considered to be independent of each other, but in real life they all play into each other. For example, if there is not enough money (property division or support) then how can I afford to send my child to college?
The easiest issue is usually the property division. Anything that is marital property is usually divided. (This is Ohio law, and you need to seek specific legal advice for your situation, but this general information is provided to help guide you.) There can be issues of financial misconduct (hiding assets, spending money on a paramour, voluntarily reducing income and assets in contemplation of the divorce so the other spouse doesn't get them) and there can be issues about separate property. Usually inheritances, gifts given to one party in particular (e.g. birthday gift) and similar things are separate. The biggest issue is identifying all of the assets. Before coming to a lawyer, it is best to get together copies of all statements of any accounts or investments, along with copies of the titles to any vehicles, boats, trailers and the like. Make a master list of everything you own. Usually you can just say household goods for most of the things, but if you own an unusually expensive item you might want to list that separately. Sometimes, just the making of the list can help you figure out how to divide things. And don't worry about dividing that pension which you don't think you can touch. If you need to divide it, the court can issue what is called a QDRO (Qualified Domestic Relations Order), which will minimize the tax consequences of dividing the account. You probably need a lawyer to do the QDRO.
If there are no children, determining spousal support can be the most difficult issue. Generally, during the course of a marriage, under Ohio law, the income that is derived, regardless of who earned it, is considered marital. This can be a very emotional issue, especially when one spouse feels that the other spouse did nothing and deserves nothing. However, for those who are willing to compromise and work toward a resolution, you need to understand that when there is a disparity in income and there has been a long term marriage, it is likely that there will be an award of spousal support. While Ohio law does not currently have a formula for determining spousal support, most good family law attorneys can help you with the analysis to determine what would be a fair amount and length of time for spousal support. You will need to bring in proof of income both for you and your spouse. Prior tax returns are good, but recent pay stubs should also be included. For people in business for themselves, it gets trickier, so bank account statements showing deposits for the past year can be helpful.
Children's issues can either be very easy because the parents have figured out who gets the kids when, child support is determined by a formula, and the parents are working together for the benefit of the children. Look at my earlier blog on children's issues for resources to help in this area. However, if the parties don't agree, this could be the most difficult part of the case, and in some cases I have seen people spend all of the property down to fight over custody. There are guardians ad litem, forensic custody evaluators, mediators and a variety of other experts, that might be used in a custody case. There can be ongoing disputes about visitation and custody, or even the amount of support, who is paying for school, who gets Christmas Eve, how the summer is divided, and the list goes on and on. I have seen some couples fight until the children are adults. Sometimes the fighting is just necessary for the sake of the children, but understand that the Court, which looks at evidence, will ultimately rule. That is why you should gather together anything that helps show the Court why you should have custody. School reports, photographs, police reports (if applicable), names, addresses and phone numbers of people who could be witnesses for you. All of these things should be gathered and copied before even filing the divorce, so that you are prepared.
Finally, make a list of you important questions. How will I live while the divorce is pending? (There are temporary orders and your attorney can explain that to you.) What do I do with my old car that needs major repairs right now and my spouse has told me I am not allowed to spend the money on it? (The attorney can guide you so that you are not exposing yourself to financial misconduct by getting the repairs or buying a new car.)
Armed with your property list, you tax returns and pay stubs, the school reports and list of questions, you are now ready to have a very productive meeting with your counsel.
And most of us foolishly don't charge for that initial half hour (me included!) For more information, just call me at 614-564-6500 or email me at pamela.makowski@gmail.com. Also, if you didn't get there from here, check out my website at www.MakowskiLaw.com.
Good luck!
The easiest issue is usually the property division. Anything that is marital property is usually divided. (This is Ohio law, and you need to seek specific legal advice for your situation, but this general information is provided to help guide you.) There can be issues of financial misconduct (hiding assets, spending money on a paramour, voluntarily reducing income and assets in contemplation of the divorce so the other spouse doesn't get them) and there can be issues about separate property. Usually inheritances, gifts given to one party in particular (e.g. birthday gift) and similar things are separate. The biggest issue is identifying all of the assets. Before coming to a lawyer, it is best to get together copies of all statements of any accounts or investments, along with copies of the titles to any vehicles, boats, trailers and the like. Make a master list of everything you own. Usually you can just say household goods for most of the things, but if you own an unusually expensive item you might want to list that separately. Sometimes, just the making of the list can help you figure out how to divide things. And don't worry about dividing that pension which you don't think you can touch. If you need to divide it, the court can issue what is called a QDRO (Qualified Domestic Relations Order), which will minimize the tax consequences of dividing the account. You probably need a lawyer to do the QDRO.
If there are no children, determining spousal support can be the most difficult issue. Generally, during the course of a marriage, under Ohio law, the income that is derived, regardless of who earned it, is considered marital. This can be a very emotional issue, especially when one spouse feels that the other spouse did nothing and deserves nothing. However, for those who are willing to compromise and work toward a resolution, you need to understand that when there is a disparity in income and there has been a long term marriage, it is likely that there will be an award of spousal support. While Ohio law does not currently have a formula for determining spousal support, most good family law attorneys can help you with the analysis to determine what would be a fair amount and length of time for spousal support. You will need to bring in proof of income both for you and your spouse. Prior tax returns are good, but recent pay stubs should also be included. For people in business for themselves, it gets trickier, so bank account statements showing deposits for the past year can be helpful.
Children's issues can either be very easy because the parents have figured out who gets the kids when, child support is determined by a formula, and the parents are working together for the benefit of the children. Look at my earlier blog on children's issues for resources to help in this area. However, if the parties don't agree, this could be the most difficult part of the case, and in some cases I have seen people spend all of the property down to fight over custody. There are guardians ad litem, forensic custody evaluators, mediators and a variety of other experts, that might be used in a custody case. There can be ongoing disputes about visitation and custody, or even the amount of support, who is paying for school, who gets Christmas Eve, how the summer is divided, and the list goes on and on. I have seen some couples fight until the children are adults. Sometimes the fighting is just necessary for the sake of the children, but understand that the Court, which looks at evidence, will ultimately rule. That is why you should gather together anything that helps show the Court why you should have custody. School reports, photographs, police reports (if applicable), names, addresses and phone numbers of people who could be witnesses for you. All of these things should be gathered and copied before even filing the divorce, so that you are prepared.
Finally, make a list of you important questions. How will I live while the divorce is pending? (There are temporary orders and your attorney can explain that to you.) What do I do with my old car that needs major repairs right now and my spouse has told me I am not allowed to spend the money on it? (The attorney can guide you so that you are not exposing yourself to financial misconduct by getting the repairs or buying a new car.)
Armed with your property list, you tax returns and pay stubs, the school reports and list of questions, you are now ready to have a very productive meeting with your counsel.
And most of us foolishly don't charge for that initial half hour (me included!) For more information, just call me at 614-564-6500 or email me at pamela.makowski@gmail.com. Also, if you didn't get there from here, check out my website at www.MakowskiLaw.com.
Good luck!
Wednesday, March 25, 2009
High Tech comes to Solo Practice
I have been keeping really busy with work, and trying to balance it with all of the new technology stuff I've added. I am twittering, facebooking, myspacing, linkedin-ing, updating my webpage and of course blogging.
On Twitter a lawyer complained that it is yet one more thing we need to do. I actually think it is a new way of doing an old thing. I just spoke to a potential client this morning who told me that she does everything on the internet. By the way, that is where she found me and, even though she couldn't remember which ones, she found me on many different sites. That is the point. People are not walking through the yellow pages anymore. This new technology is working really well.
Of course, I have had to fill everything with a disclaimer, but that is only because the technology approach tends to be a little more interactive, and that is actually really good for lawyers. I am really embracing this technology, and would love to hear from others about what they are doing.
On Twitter a lawyer complained that it is yet one more thing we need to do. I actually think it is a new way of doing an old thing. I just spoke to a potential client this morning who told me that she does everything on the internet. By the way, that is where she found me and, even though she couldn't remember which ones, she found me on many different sites. That is the point. People are not walking through the yellow pages anymore. This new technology is working really well.
Of course, I have had to fill everything with a disclaimer, but that is only because the technology approach tends to be a little more interactive, and that is actually really good for lawyers. I am really embracing this technology, and would love to hear from others about what they are doing.
Tuesday, March 10, 2009
Family Law dynamics
Family law - and why blog? A family law case is often a very emotional and frustrating situation. Obviously, things are not going well, which is why you have consulted with a lawyer. Furthermore, the legal rules and the way families function often don't mesh well. But it is the best system we currently have to resolve familial disputes, and it is an area of law that is constantly evolving to improve the ability to resolve them amicably rather than in a courtroom. However, it takes more than a little hand holding to get through some of these cases. With that in mind, my thinking is that I should blog so that I can pass on resources or ideas that might help. As usual, this is not legal advice and you should seek the direct advice of an attorney for a particular situation.
Since issues with children seem to be the most difficult, I wanted to mention that I recommend Vicki Lansky's book:DIVORCE BOOK FOR PARENTS:Helping Your Children Cope with Divorce and its Aftermath. More info can be found at her web site, which is: http://www.practicalparenting.com/divorce.html. If anyone else has a book that they have enjoyed or which they think can be helpful, let me know at pamela.makowski@gmail.com. Books are always good, because they don't involve any technical stuff, can be put down at a moment's notice, can be highlighted and dog-eared, and can be covered so no one knows what you are up to!
Since issues with children seem to be the most difficult, I wanted to mention that I recommend Vicki Lansky's book:DIVORCE BOOK FOR PARENTS:Helping Your Children Cope with Divorce and its Aftermath. More info can be found at her web site, which is: http://www.practicalparenting.com/divorce.html. If anyone else has a book that they have enjoyed or which they think can be helpful, let me know at pamela.makowski@gmail.com. Books are always good, because they don't involve any technical stuff, can be put down at a moment's notice, can be highlighted and dog-eared, and can be covered so no one knows what you are up to!
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