Charlottesville Divorce Lawyer Rob Hagy

Rights of Long-term Unmarried Couples When They Break Up.

Rights of long-term unmarried couples when they break up. In 2018, Brynn Cameron, the longtime girlfriend of NBA star Blake Griffin, sued Griffin for “palimony” after he left her and their children for reality TV star Kendall Jenner. “Palimony” is money one partner pays to a cohabiting partner after a breakup so that the recipient partner can maintain the lifestyle he or she has become accustomed to. Griffin’s relationship with Jenner did not work out, but he wound up agreeing to pay Cameron $32,000 per month for palimony, child support and breach of an oral agreement he allegedly made to support her when she abandoned her career to be with him. Most people aren’t wealthy pro athletes who end up seeing their relationship woes in tabloid headlines. Still, the Griffin saga underscores that if you have a long term relationship with someone and live as though you’re married, you and your former partner may still have certain rights if the relationship doesn’t work out. Take, for example, the possibility of palimony. Unlike “alimony,” palimony is not a legal term and it’s not usually something awarded in family court. Instead, it’s a remedy that civil courts will award in about half the states if one member of an unmarried couple can show there was an agreement in place that the other member of the couple would provide support if the relationship didn’t last.

Factors that courts will consider in awarding palimony include whether or not the couple lived together, how long the relationship lasted, promises that can be proven, sacrifices made by one partner, such as putting the other partner through school or giving up a career to take care of children, or the ability of each partner to support themselves. Some states may be fairly lenient in recognizing the rights of unmarried partners.

Take, for example, a recent New Jersey case. An unmarried couple bought a home together in 2012. The home and mortgage were exclusively in one partner’s name, but the other partner kicked in much of the down payment and was the one who was most involved in the transaction. The couple never legally married. When they broke up, despite having no written cohabitation or palimony agreement, the court ordered “partition” of the home. In other words, it ordered that the home be sold and the proceeds divided and it did so as an “equitable” remedy out of fairness to the partner who may not have held title to the home but did a lot of work to secure it, maintain it and enhance its value.

A majority of states don’t recognize palimony at all. But they still will generally enforce a written cohabitation agreement drawn up between unmarried partners laying out exactly what each partner is entitled to in the event of a breakup. In addition to financial support, such an agreement can address who keeps the house, the car or even the pets and can allow partners to appoint one another to make important medical, legal or financial decisions on the other partner’s behalf should one of them lose the ability to make such decisions. Agreements like this are a good idea in any long term domestic partnership to provide both partners with a sense of stability and security. If you are considering such an agreement, it’s important to consult with a family law attorney to ensure it covers all issues worth considering and that it’s written in a way that a court will enforce. Ideally, each partner will have their own attorney when negotiating and drafting such an agreement. That way a court is more likely to be satisfied that it was negotiated fairly, with each partner enjoying comparable bargaining power and having their interests fairly represented.

 

 

Trial Court’s Award of Attorney Fees to Wife was Reasonable!

In the case of Arastoo Yazdani v. Soraya Sazegar, a published decision from the Virginia Court of Appeals, the judgement of the trial court was affirmed where husband did not clearly and unambiguously waive his right to appeal the issue of attorney fees in the separation agreement the parties entered into.  And, further, the trial court's decision in awarding the wife attorneys fees was also affirmed.

Wife was visiting the United States on a tourist visa when she met husband on an online.  After a brief courtship, the parties married. A year and a half later wife discovered husband was still receiving messages from the same dating service that husband used to meet wife. Wife confronted the husband who left the residence. Wife then filed for divorce on grounds of desertion in July 2020. Husband answered with a counterclaim, alleging in part that wife’s “cruelty and emotional abuse” justified his departure from the marital home.

Four months after these initial filings, wife could no longer afford legal counsel, so her attorney had to withdraw from representing her any further on the divorce. About eight months later, however, wife borrowed $18,000 from her daughter so she could again retain her prior lawyer to assist with preparations for trial set for November 2021. Upon being re-hired, wife’s counsel issued discovery requests including interrogatories and requests for production in August 2021. Husband responded to wife’s counsel on the day discovery
was due, writing “I understand that the date to respond to your Discovery Request is today” and “I will consult my attorney . . . to provide a response.” Wife, through counsel, provided husband another six days to comply with the discovery requests, but husband again failed to comply. Three days following the extended deadline, husband continued to claim that his attorney would contact
wife’s counsel soon. Wife’s counsel never heard from any attorney. Wife’s counsel then filed a motion for sanctions in September 2021, and husband—now represented by counsel—filed a flurry of motions in response seeking leave to amend his counterclaim, to continue the trial, and for an extension of time to respond to wife’s discovery requests. In particular, husband sought leave to amend his existing counterclaim to add an allegation that wife only sought to marry him to obtain a green card, calling the marriage a “green card sham.” He also suggested wife could be subject to criminal penalties for violating immigration law.

After a hearing on the pending motions, the court denied husband’s request for a continuance, granted the motion for leave to amend his counterclaim, issued an order to compel discovery responses from husband, and awarded wife $1,500 in attorney fees.  The new allegations in the counterclaim led to depositions in October 2021, one month before trial. On the first day of trial (about a year and a half after the parties’ separation), wife presented her case-in-chief. Husband did not pursue cross-examination to bolster his allegations of “cruelty and emotional abuse” or his claims that wife entered the marriage for fraudulent purposes. At the close of day one, the court encouraged the parties to settle the matter. They reached consensus that night and formally signed the Agreement the next morning, presenting it to the court before the second day of trial was set to begin. The parties agreed to a no-fault divorce and settled all issues but attorney fees. The Agreement stated that “[t]he parties agree that they shall reserve the issue of Wife’s request for . . . attorney[] fees . . . for arguments to be heard by the Alexandria City Circuit Court.” Moreover, the parties “agree[d] to follow the ruling of the Court upon the Court making its determination regarding” attorney fees. The court asked the parties whether they wanted to proceed with the matter of attorney fees that day, or whether they needed more time. Wife’s counsel said she was ready to proceed. Husband’s counsel did not respond or make any objection. Wife then argued that husband had unnecessarily delayed settlement of the divorce, forcing
her to borrow money from her family to pay for legal fees. She also argued that husband had refused to respond to discovery requests, requiring the court to issue an order to compel, and still provided incomplete documentation of his finances even after that order.

Finally, she argued that husband’s annulment claim based on alleged “green card fraud”—added late in the proceedings and
ultimately retracted by husband—had been “deeply insulting” to wife. Husband responded that he lacked counsel when he was receiving discovery requests, claimed that he had requested mediation with wife, and argued that he had provided all financial
information to which he had reasonable access. He also argued that negotiation was a normal part of the litigation process and that he was not responsible for wife’s legal expenses because the court could not have granted a divorce until one year following separation anyway. After considering the parties’ arguments, the court awarded $33,948.64 in attorney fees to wife, finding that husband unnecessarily delayed settlement and resisted discovery. The court also noted that wife “can’t be faulted for not being willing to sit down and have a four-way conference or mediation” when husband had failed to produce necessary discovery such that she was not “in possession of documents pertaining to debt and assets to facilitate a successful meeting.” In sum, the judge stated that “efforts were made over and over again . . . to try and resolve this matter,” but husband “was so resistant [to settling] that . . . it required a motion to compel and sanctions to get him to finally produce some, but not all,” of the discovery wife had a right to receive.
Finally, the court deducted from the total fee award the fees expended before wife’s motion for pendente lite relief (filed at the same time as her original complaint) as well as its prior fee award from the hearing on the motion for sanctions.

Husband appealed the trial court's decision to award wife attorneys fees and the wife countered by arguing that husband
expressly waived any appeal of the attorney fee award in the Agreement. 

Husband did not clearly and unambiguously waive his right to appeal. A party may waive by contract any right conferred by law or contract. Agreements between divorcing spouses are no exception. Waiver is the voluntary and intentional abandonment of a known legal right, advantage, or privilege.  It flows naturally from the requirement that a waiver of a right be knowing, intelligent, and voluntary and that an agreement to waive a right must be clear and unambiguous. Here, the parties’ agreement contains no language expressly waiving a right to appeal the circuit court’s attorney fee award. Rather than stating, for example, that the circuit court’s determination would be non-appealable, the parties instead agreed to “reserve” the issue of attorney fees for argument before the circuit court and to “follow the ruling” of that court.

As for the issue of attorneys fees, circuit courts have broad statutory authority to award attorney fees in a domestic relations matter.  And in this case, the parties expressly agreed to submit the issue of attorney fees to the trial court. Marital property settlements entered into by competent parties upon valid consideration . . . are favored in the law and such will be enforced unless their illegality is clear and certain.

In deciding whether to award attorney fees in a divorce matter, a trial court may consider the unique equities of each case and may consider factors including “ability to pay a fee, the party’s degree of fault in bringing about the dissolution of the marriage, and whether the party unnecessarily increased litigation costs through unjustified conduct.  The award must be reasonable “under all of the circumstances revealed by the record. The trial court has wide latitude in this context, and we reverse only for abuse of discretion.

Here, the trial court awarded fees because of the delay in litigation husband caused by resisting discovery, forcing wife to move to compel, and then providing only some of the required documents in response to the court’s order to compel. The court noted that wife made repeated efforts to resolve the matter through counsel, then after she could no longer afford an attorney, by acting pro se. And the record shows that husband’s decision late in the litigation to seek annulment alleging that the marriage was fraudulent—a claim he eventually dropped—required additional costly depositions. When a party unnecessarily prolongs litigation, it increases the amount of attorney fees the other party incurs and is a relevant factor for a trial court to consider in awarding attorney fees. For example, we have found that attorney fees were justified when a wife caused delay in litigation by failing to complete auction procedures (after requesting the family business be auctioned), failing to execute a deed until compelled to do so, being slow to respond to discovery, and failing to produce an accounting even after receiving several continuances. 

None of husband's attempts to deflect blame for the protracted litigation on wife were valid. There was no evidence to suggest that the circuit court’s award of attorney fees was an abuse of discretion.

 

Court Rules lopsided prenup 'unconscionable'!

Court rules lopsided prenup ‘unconscionable’ A prenuptial agreement is a contract between marrying spouses, signed before the marriage, that lays out the terms should the couple get divorced. In many instances, prenups can be a very useful way of creating predictability and reducing the acrimony of a divorce. But as a recent California case shows us, if the terms are truly unfair, it may be unenforceable. In that case, the husband, who ran a hedge fund, had a net worth of $32 million and earned around $4 million per year at the time of the divorce. California is a “community property” state where all property acquired during a marriage by either spouse is considered to be owned by both spouses equally and if a couple divorces all property is divided equally. But under the prenup signed by this couple, the wife waived her community interest and agreed instead to a $10,000 payment upon moving out of the house followed by $6,000 per month in spousal support. She also waived any inheritance rights should the husband pass away during the marriage. The wife, who had a history of mental health challenges, went through emotional trauma before the marriage (she terminated one pregnancy at the husband’s request before they were married but refused to terminate a second one) and claimed she only saw the agreement the day she signed it, allegedly against her attorney’s advice. When the couple divorced, the wife challenged the prenup, arguing she didn’t enter into it voluntarily. The case made it to the California Court of Appeal, which ruled that at least as far as the spousal support provision went, the agreement was “unconscionable” (in other words, its terms were so oppressive and unfair that it shouldn’t be enforced). The court emphasized that the wife had only a high school education and was not employed during the marriage, the husband had a seven-figure income, and the amount she received was 10 percent of what she would have received without a prenup in place. The law, of course, varies from state to state, so call a family law attorney where you live to learn more.

Pets and Divorces: Do You Need A ‘Petnup’?

Pet custody can become as contentious in a divorce as the custody of children. That’s why in some states, like Alaska, California and Illinois, courts consider the pet’s best interests, similar to how they resolve child custody issues. In most states, however, pets are considered property, which means a divorce judge may well decide who gets the family dog the same way he or she decides who gets the house, the car, the living room sofa, the wedding china or any other asset that’s part of the marital estate.

But a dog or cat has physical and emotional needs that a pool table or patio set doesn’t have, so you may not want to risk your pet being equitably distributed like an inanimate object. To address this concern, “petnup” agreements between partners or spouses that lay out what happens if the couple breaks up have become increasingly popular.

The key consideration in a petnup is custody. Joint custody seems like it would make sense if both spouses are equally close to the pet. But many pet experts say this isn’t a great idea since the instability of shuttling between homes can cause behavioral issues in animals. Instead, primary custody with one spouse with visitation rights for the other might be a better option.

Another consideration in creating a petnup is whether you have kids and if they’re attached to the pet. If so, it may be in the kids’ own best interest for the pet to reside in the place of primary physical custody.

Either way, you shouldn’t draft a petnup on your own. If the pet truly matters, you should make sure the agreement is written in a way that will carry out your wishes and hold up in court. A family law attorney can help you with that.

Virginia Court of Appeals: A Closer Look With Charlottesville Divorce Attorney Rob Hagy: Lisa J. Wills v. W. Neil Wills

On February 9, 2021, the Virginia Court of Appeals issued the decision of Lisa J. Wills v. W. Neil Wills. Let's take a closer look at the case to see why the Virginia Court of Appeals ruled like it did.

In this case, Husband and wife were married on December 11, 2004, in Arlington, Virginia. They had one child, who was still a minor at the time of the circuit court proceedings. Husband and wife last separated on July 13, 2015, after which there was no reconciliation. On August 25, 2016,husband filed a complaint for divorce based on the parties’ having been separated for more than one year. The complaint requested that the court affirm, ratify, and incorporate into a court order the agreement entitled “Postnuptial Agreement” that was signed by the parties on January 8, 2005. Wife filed an answer stating that the parties had separated and reconciled on several occasions following the signing of the Postnuptial Agreement and asking the court to find that the agreement was abrogated by one of these subsequent reconciliations pursuant to Code § 20-155.

The circuit court found that the agreement was abrogated by Code § 20-155 when the parties separated and then reconciled on
one or more occasions following the signing of the agreement. Examining Code § 20-155, the trial judge stated, “Married persons, whether happily married or separated, may enter into an agreement to settle their respective property rights should the marriage subsequently dissolve, and should they separate or remain separated and then reconcile after signing the agreement, the agreement is abrogated unless the writing otherwise provides.” Thus, the circuit court essentially concluded that it was irrelevant whether the agreement was entered into with the intent to separate or with the intent to remain married.

The husband appealed and contends that the circuit court erred in ruling that the Postnuptial Agreement was abrogated based on the parties’ separating and reconciling subsequent to their signing the agreement. Husband argues that the last sentence of Code § 20-155 does not apply to the parties’ Postnuptial Agreement because that sentence applies only to separation agreements
and property settlement agreements, which he defines as “agreements entered into while separated or as an incident of separating with an intent of either indefinite separation or future divorce.” He argues that, because the parties signed the Postnuptial Agreement with the intent to remain married, the Postnuptial Agreement is not affected by the last sentence of Code § 20-155.

The circuit court in this case applied the last sentence of Code § 20-155 to all marital agreements settling property rights. However, that interpretation is inconsistent with the statute’s plain language. The first sentence of Code § 20-155 permits married persons to enter into the same types of agreements as parties intending to marry. See Code §§ 20-147 through 20-154 (governing premarital agreements). The second sentence of Code § 20-155 also addresses “marital agreements,” explaining an alternate manner in which “such agreement[s]” may be executed. The final sentence of Code § 20-155, however, does not use the words “marital
agreements” or refer back to “marital agreements” by using the words “such agreement[s].” Instead, in the last sentence of Code § 20-155, the General Assembly used the terms “separation or property settlement agreement.”

Having concluded that the last sentence of Code § 20-155 applies only to “separation or property settlement agreement[s],” the next question before the Court was whether the Postnuptial Agreement at issue in this case was a “marital agreement” or both a “marital agreement” and “a separation or property settlement agreement.” If the agreement falls only within the former category, then it was not affected by the last sentence of Code § 20-155 and not abrogated by one of the parties’ subsequent reconciliations. If the agreement was both a “marital agreement” and “a separation or property settlement agreement,” then the agreement was abrogated by one of the
parties’ subsequent reconciliations.

In order to determine what type of agreement the parties signed, we look to the agreement itself. When the parties set out the terms of their agreement in a clear and explicit writing then such writing is the sole memorial of the contract and . . . the sole evidence of the agreement. The agreement is entitled “Postnuptial Agreement,” and it recites that the parties were married on December 11, 2004. It states that “each party is aware of the fact that by virtue of their marriage, each shall or may acquire certain rights in the property of the other, either during their mutual lives or upon the death of either party” and that they “desire by this agreement to settle and determine their respective property rights and all other rights and demands arising out of the marriage relationship.” The agreement contains various provisions governing how the parties will act during the marriage and how those obligations will change in the event of a divorce or separation.

For example, it provides that husband will name wife as the primary beneficiary in his will “so long as the parties are neither separated nor divorced.” It provides that both parties waive their rights to spousal support but requires husband to pay wife $5,000 per full
year for the first five years of their marriage and then $10,000 per full year for the next five years of their marriage for a maximum payment of $75,000. It also requires husband to pay wife $2,000 per full year of marriage into a retirement account of her choosing until she turns sixty, unless the parties separate, in which event the payments will be terminated.

The agreement requires husband to maintain a life insurance policy on himself with wife as the beneficiary that will remain “in full force and effect so long as the parties are not separated.” It also provides that the division of property shall be in accordance with the Postnuptial Agreement “[i]n the event of separation, divorce, or death.

Certainly, the Postnuptial Agreement at issue is a “marital agreement” as it was an agreement between married people “settling the rights and obligations of either or both of them” regarding matters upon which Code §§ 20-155 and 20-150 specifically permit them to contract. See Code § 20-150 (enumerating subjects permissible in premarital contracts). It is also clear that the agreement is not a separation agreement as the terms of the agreement anticipate a continuing marriage, including requiring husband to make yearly payments to wife during the marriage. Although the Postnuptial Agreement addresses the parties’ rights and obligations in
the event of a divorce or separation, those potential events are treated as contingencies – not imminent likelihoods. Therefore, because the agreement is not a separation agreement, the remaining question is whether the agreement is a “property settlement agreement.”

In Virginia, spouses in the process of separating often enter into agreements that they entitle “property settlement agreements” in order to settle any obligations between them relating to property and support.

See 24A Am. Jur. 2d Divorce and Separation § 972 (“If spouses, upon their separation or impending divorce, create a contract that, considered as a whole, evidences that the parties intended it to be a final settlement of all obligations between them concerning
their property of any kind, courts consider it to be a property settlement agreement.” (emphasis added)). While no Virginia appellate court has expressly stated that a property settlement agreement refers only to an agreement made in connection with the dissolution of a marriage, the Supreme Court has strongly suggested that it was the legislature’s intention in drafting the last sentence of Code § 20-155 for agreements signed during separation proceedings to be abrogated when the legislature chose to use the term “property settlement agreement.” In Flanary v.Milton, 263 Va. 20, 23 (2002), the Supreme Court stated that “the 1998 amendment to Code
§ 20-155 [which added the final sentence to the statute] anticipates agreements made during proceedings for dissolution of a marriage, by providing that a signed separation or property settlement agreement is abrogated if the parties reconcile unless otherwise specifically provided in the agreement.” (Emphasis added). The Supreme Court’s interpretation comports with the
plain language of the statute as it accounts for the General Assembly’s decision to use the words “separation or property settlement agreement” – rather than “marital agreement” – in the statute’s final sentence. Therefore, we hold that only separation and property settlement agreements, which are marital agreements made in connection with the dissolution of a marriage
or a separation, are abrogated by a reconciliation between the parties.

Turning to the agreement at issue, we conclude that the Postnuptial Agreement at issue here was not a “property settlement agreement” as that term is used in Code § 20-155. The agreement was signed less than a month after the parties were married with the intent that their marriage continue. The terms of the Postnuptial Agreement show that it was intended to provide the parties with the same rights and obligations as a premarital agreement, which Code § 20-155 expressly permits. The agreement was not made in connection with the dissolution of the marriage or a separation. Consequently, the last sentence of Code § 20-155 does not apply to
this Postnuptial Agreement, and the agreement was not abrogated by one of the parties’ later separations and reconciliations. Accordingly, we reverse the circuit court and remand the case for proceedings consistent with this opinion, given that the Postnuptial Agreement at issue here was still in effect – not abrogated – at the time of the divorce.

If you are considering a prenuptial agreement, postnuptial agreement, or a separation or property settlement agreement, consult with an experienced domestic relations attorney in your area.

-Rob Hagy, Charlottesville Divorce Lawyer.

Postnuptial Agreement Still In Effect After Separation and Reconciliation.

In the case of W. Neil Wills v. Lisa J. Wills, the Virginia Court of Appeals, in a published opinion, ruled that the trial court erred in finding the parties’ Postnuptial Agreement was abrogated under Code § 20 155 by one of their later separations and reconciliations and, accordingly, the agreement was still in effect at the time of the parties’ divorce

Postnuptial Agreement Was Not Abrogated Pursuant to Code Section 20-155 By Later Separations and Reconiliations.

In the case of Lisa J. Wills v. W. Neil Wills, a published opinion, the Virginia Court of Appeals ruled that the trial court did not abuse its discretion in declining to award appellant additional attorney’s fees, but did err in finding the parties’ Postnuptial Agreement was abrogated under Code § 20-155 by one of their later separations and reconciliations.

Court OK’s Prenup Turned Post Nup.

Prenuptial agreements are a useful way for a soon-to-be-married couple to protect assets they are bringing into a marriage. Essentially, these are contracts that lay out exactly what each spouse is entitled to (and obligated to) in the event of a divorce. If you and your soon-to-be-spouse are considering such an agreement, be sure to work with an attorney who can make sure it’s properly executed. Otherwise it may not be enforced, as nearly happened in a recent Michigan case.

In that case, Carla Skaates and her husband Nathan Kayser lived together before getting married. Skaates had a dental practice purchased with her own assets. Kayser, who worked there as a business manager, also had a business of his own. The couple owned a third business together.

When they decided to get married, they spent 16 months negotiating a prenup. According to its terms, if they divorced the dental practice would go entirely to Skaates, Kayser’s business would be solely his and the third business would be divided equally, with Skaates having an option to buy out Kayser’s share. Everything else was separate property not subject to division.

The agreement also included a “cooling off” provision mandating that either party wait four months  before filing for divorce while participating in at least three marital counseling sessions.

Even though the agreement was styled as a prenup, the couple executed it just over a month after they got married.

Less than four years later, Skaates filed for divorce with no cooling-off period.

When a local judge enforced the agreement, Kayser appealed. He argued that it did not qualify as a prenup and was unenforceable as a “post-nup” because it left Skaates better off financially. He also argued it was void because Skaates breached it and because, like many post-nups, it violated public policy by encouraging divorce.

The Michigan Court of Appeals agreed with Kayser’s overall points about the enforceability of postnups but disagreed that they applied in this case. The court also observed that the couple attended marital counseling before Skaates filed for divorce and it was unsuccessful. It then ruled the agreement enforceable as a valid postnuptial agreement.

Some of the court’s language indicated that this decision easily could have gone the other way, however. So if you are negotiating a prenup, your best bet is to execute it before the marriage.

 

An Inheritance Is Coming. Should You Get A Prenup?

When many people hear the term “prenuptial agreement,” they think of celebrities and tycoons like Beyonce and Jay Z, Kim Kardashian and Kanye West and Mark Zuckerberg. After all, high-wealth individuals have more to lose if they get divorced. Still, there are plenty of reasons for “normal” people to consider entering into a prenuptial agreement (a contract you enter into with your spouse that details exactly what will happen in the event of a divorce) when they get married.

One reason might be an expected inheritance that you want to make sure remains in your family.

As a general principle, an inheritance that one spouse receives during a marriage should be safe. That is because in most states property that you bring into the marriage remains your “separate property” and can’t be divided during a divorce, as opposed to most other types of income and assets acquired during marriage, which would be considered “marital property.”

However, the devil is in the details. For example, if you put an inheritance into a joint bank account and use it for marital expenses, it may lose its protection as separate property. If you use it to improve your house, it could lose that protection as well. Even if you keep your inheritance completely separate from joint property, in some states it still may be applied toward child support, alimony and even your ex’s attorney fees.

However, a well-crafted prenuptial agreement can include language ensuring that a future inheritance cannot be divided or used toward legal fees or support in any circumstance, as long as your state’s laws permit this.

Admittedly, bringing up the idea of a prenuptial agreement can feel awkward to many people. Nobody headed to the altar wants to be thinking of divorce. But nothing in life is certain, and a little bit of foresight today can save you a lot of stress later on. Talk to a family attorney where you live to learn more.

Do You Need A Prenup For Your ‘Grey’ Marriage?

Last year, Amazon.com founder Jeff Bezos and his wife MacKenzie ended their 25-year marriage, joining hundreds of thousands of other couples who’ve obtained a “grey divorce” after age 50. 

Even after MacKenzie walked away with shares of Amazon.com valued at $38 billion, Jeff remains the world’s wealthiest person with his $115 billion stake in the company. But if Jeff remarries, he’ll very likely get a prenuptial agreement that lays out in advance exactly what the new spouse would be entitled to should that marriage break up too. If you are in your 50s or older and you’re getting married, you should also consider a prenup because divorce can be economically devastating, particularly if you don’t have the resources of a Jeff Bezos.

Here are some things to think about when considering a “grey” prenup.

First, ignore any negative stigma associated with prenuptial agreements. Many people mistakenly believe a prenup means you either don’t trust your new spouse or you’re entering into the marriage with an eye toward divorce. The reality is that a prenup underscores that a late-in-life marriage is a serious commitment. People likely have significantly more assets to protect than they did when they were younger and they are more likely to have other obligations, like child support or alimony, that would give them even more reason to protect those assets. Additionally, they’re likely to have children and grandchildren to whom they will want to leave their assets. 

A prenup can be a useful financial planning vehicle as you move into a new marriage. For one thing, you can use a prenuptial
agreement to address the financial well-being of both you and your soon-to-be spouse in the event of a divorce, while ensuring each
of you has assets to leave to your respective children. This can do a lot to head off potential tensions associated with
blended families. Without such an agreement, an estate plan can be altered at any time, creating the potential for additional
conflict and strife should the marriage end.

A prenup is potentially a good way to plan for your retirement. If you’re already past 50 when you marry, there’s a good chance your retirement assets will be supporting you sooner rather than later. If you both have retirement assets, you can decide in your prenup which spouse’s assets will be used for living expenses and whose assets you might delay receiving for tax purposes.  Meanwhile, you can also build into the prenup arrangements how retirement accounts will be divided between a surviving spouse and the deceased
spouse’s children to ensure both are taken care of.

These are just a few things to consider. If you do decide to get a prenup for your later-in-life marriage, it’s important to have a family lawyer who is experienced in drafting these types of agreements represent you. It’s also important that you each have your own separate attorney to make sure both your interests are being represented adequately.  This should lead to a fairer agreement and one
that’s less vulnerable to challenge should it ever need to be enforced. Talk to a family law attorney where you live to learn more.

Student Loan Debt Can Complicate Divorce Settlements By Charlottesville Divorce Lawyer Rob Hagy.

As the cost of higher education continues to skyrocket, so does the amount of student loan debt that graduates are saddled with going forward. Some 70% of students who earned bachelor’s degrees in 2012 had student loans, and these loans averaged a startling $29,400. Many students who have also taken out loans for graduate or professional degrees are now leaving school with debts in six figures.  According to the Federal Reserve Board, Americans now owe more money on student loans than they owe on auto loans or credit cards.  So what happens when couples with significant student loan debt divorce? Who gets stuck having to pay off the bill?

You might assume the answer is simple – the spouse who borrowed the money for school has to pay it back. But seldom is anything simple in the world of family law. In fact, the answer depends a great deal on the unique circumstances of the couple, as well as on the law of the state where the divorce occurs.

While each case is different, here are some of the factors that may come into play:

Were the loans taken out before the marriage, or after? Generally speaking, you’re more likely to be completely on the hook for a student loan if you took it out before you got married. In such a case, you undertook the obligation all on your own, before your spouse became your life partner.  What was the money used for? Student loans most commonly cover tuition, of course, and perhaps books, lab fees and the like. But loans can also cover your rent and other living expenses while you’re a student. To the extent that a loan was used to pay your living expenses while you were married, it’s more likely that a judge might think it’s fair to let your spouse pay for part of the debt – since he or she was also helped by the funds.

Who benefited from the degree? If you incur a lot of loans for a professional degree and then file for divorce shortly after you graduate, it’s more likely that you’ll have to pay back all the debt yourself.  That’s because any benefit you get from the degree in terms of enhanced earning potential will generally
accrue only to you; your spouse won’t share in it.  On the other hand, if you graduated some years ago and your spouse has enjoyed a higher standard of living for some time as a result of your degree, a judge might consider the degree more of a mutual benefit, and the corresponding debt as more of a mutual obligation.

Were the loans consolidated? Sometimes, married couples consolidate their separate student loans into a single loan. If the couple later get divorced, this can make it complicated to figure out what part of the debt belongs to whom.

Who can afford it? Regardless of everything else, if one spouse has a much greater salary or earning potential than the other, a judge may take this fact into account in dividing up a couple’s debts.

What are the tax consequences? Different ways of dividing up debts (and assets) can lead to very different tax results. These should also be taken into account when deciding who gets what part of
the tab. If you or someone you know has large student loans or other debts, it might be wise to address these in a prenuptial agreement (or, after a marriage, in a post-nuptial agreement). This can clarify what will happen in the event of a later break-up.

-Rob Hagy, Charlottesville Divorce Lawyer.  If you have questions about dividing student loan debt, contact me at (434)293-4562 or email me at rob@robhagylaw.com.