Posts Tagged ‘Family Law’

This morning on CBS’s The Early Show, they had a wonderful piece on Co-parenting after a divorce.  Since I started my practice, I have maintained the philosophy that although it is sometimes healthier for a couple to no longer be married, when there are children involved, you are going to be a family forever.

This morning’s piece provided some good information and examples of successful co-parenting.  Dr. Jennifer Hartstei spoke about some of the key things to remember in co-parenting.  The Early Show also included a segment showing an example of a successful co-parenting (but separate family).  The Thomas’ have a website for parents who want to try co-parenting, co-parenting101.org.

Going through a divorce is traumatic for all parties involved.  Shouldn’t we do everything possible to minimize the harm it does to our children?

If you are going through a divorce and want to minimize the traumatic impact on your children, Laura L. Thatcher of Robinson – Thatcher, LLP can help you create parenting plans that work for you and your family.

Wishing you peace.

One of the funniest stand up comedy performances that I have ever seen was Eddie Murphy’s Raw. I will never forget the sketch about community property and divorce in California. I can still hear Eddie Murphy’s voice in my head, saying “Eddieee, I want half!”

Unfortunately, the reality of divorce is simply not funny.

Married Couples who live in California are subject to California’s community property laws. Simply put: all income or property acquired while the couple lives together during the marriage is owned equally by both spouses. There are some exceptions to this, including property acquired before marriage, income from separately owned property or property that is inherited or a gift.

Upon divorce, the value of community property assets must be equally divided. This division includes not only assets but debts as well. So, if one spouse accumulates a large amount of debt during the marriage, the other spouse is equally liable for that debt. This sometimes comes as a great shock to the other spouse.

California’s community property laws can be easily avoided. Before marriage, a couple can enter into a prenuptial agreement which states the couples intention regarding property rights, or if issues arise during marriage, the couple can enter into a postnuptial agreement.

Property issues are frequently complex and it is often helpful, or necessary to talk to a lawyer about these issues. If you have questions, please contact Laura L. Thatcher at Robinson-Thatcher, LLP.

Wishing you peace.

Everywhere you look these days people are engaging in “do it yourself” activities:  from improvement, to the real estate market (Redfin), to the stock market, to website design.  For a variety of reasons, an increasing number of people are representing themselves in court as well.

The high cost of litigation

Hiring a lawyer is expensive.  I recently heard a statistic that in 2009, the average divorce cost the couple $77,000.  In today’s economy, the average person often cannot afford to have a lawyer representing him or her throughout an often lengthy court battle.  So, on the one side, you have the high costs of legal representation, and on the other, you have a court system that is mired in rules, its own language and a complicated procedural structure to the uninitiated.

A law firm that offers unbundled services may be the solution for the person who wants (or needs) access to the legal system, but either cannot afford or does not want to hire a traditional lawyer.

What can a lawyer offer the legal do it yourself-er?

In the traditional model, a client hires a lawyer who takes the case and handles everything; frequently with little or no input from the client.  Unbundled legal service is essentially “à la carte” legal representation.  Generally, the client is representing himself, thus has full control over the process of the litigation.  The unbundled lawyer acts as a consultant for the client.

Unbundled services can range from offering guidance and advice, to filling out forms on the client’s behalf, to acting as a ghostwriting, to making limited court appearances for the client.  The unbundled lawyer’s role is determined by the client’s comfort and ability to represent him or herself, as well as by the client’s willingness to do most of their own legwork.

Support from High Court Judges

In January, 2010, New Hampshire Chief Justice John T. Broderick Jr. and California Chief Justice Ronald M. George wrote an Op-Ed piece for the New York Times in support of unbundled legal services.  In that piece, they acknowledged the concerns that some lawyers may have with the practice of offering unbundled legal services:  “that limited legal representation will encourage litigants to dissect their cases in an effort to save money, sacrificing quality representation that the litigant might otherwise be able to afford. . . .  Apparently, some are concerned that the court system will become so user-friendly that there will be no need for lawyers.”

In their article, the justices state that this is not the case, both strongly support having unbundled legal services as an available option.  Justices Broderick and George concluded that “lawyers make a difference and clients know that. But for those whose only option is to go it alone, at least some limited, affordable time with a lawyer is a valuable option we should all encourage. “

The Law Offices of Laura L. Thatcher can help!

The Law Offices of Laura L. Thatcher offers unbundled representation as part of the legal services available to our clients.  If you are considering representing yourself in a divorce, contact us to see if we can help you navigate the court system.  We can help you turn your everyday language into “legal speak” with confidence!

For various reasons, I have had postnuptial agreements on my mind for a while lately. This mental light bulb burning in the back of my head wasn’t caused by Tiger Wood’s unfortunate marital problems. Although the fact that I was visiting my mother in Florida while it probably helped it burn a little brighter, as I felt a completely unmeritorious personal connection to the whole unfortunate situation based on the fact that I was 10 miles away from where it all happened.

There are a several situations in which post-nuptial are warranted: 1) Salvage In order to put a Band-Aid on a relationship that is damaged in the hope that you can avoid divorce; 2) Time Travel You thought about getting a prenuptial agreement before you got married, but never actually got around to it and now you wish you could go back in time….; and 3) Course Correction Although your relationship is necessarily in immediate danger, the warning signs indicate that you would have smoother sailing fin financial issues were taken out of the mix.

Avoiding Impending Divorce

Following almost immediately on the heels of the public disclosure of Tiger Woods and Elin Nordegren’s personal tragedy, the press reported details of a revised prenuptial agreement leaked by “a lawyer familiar with the couple’s negotiations.” According to that unnamed source Nordegren would be paid many, many millions to stay with Tiger and “to be a dutiful wife in showing up with him at social events and in public as if they were still the perfect couple, and sign a nondisclosure form that will prevent her from ever telling her story.”

If this is true, I am the lawyer in me is deeply concerned about the ethics of the lawyer who leaked this information. That said we can learn something from the experiences of others who go before us.

A post-nuptial agreement allows a couple to plan for the equitable distribution of savings, investments, real estate and personal property in the event of a divorce. As such, it is a flexible document that can be structured to accommodate a couple’s specific needs and goals that suit their needs as opposed to what would happen by default under California law. Having the freedom to control what happens to your finances during marriage, in case of divorce or in the event of one spouse’s death allows the couple the freedom of time to work on the personal issues that are behind the threat of divorce. Keep in mind that no California Court will enforce provision that either tries to waive statutory child support obligations or to bind the court regarding child custody or visitation.

Oops! I Forgot to Ask For A Pre-Nuptial Agreement! Now What

Another common scenario where a prenuptial agreement is frequently valuable is in the case where the couple getting married simply neglects to have a prenuptial agreement prepared before the wedding. (There are many reasons this might happen, from fear that one’s fiancé would reject the idea, to a simple reluctance to go through the hassle of ONE MORE THING before a wedding).

I have a client who thought that a pre-nuptial agreement would be a good idea, but after spending years in court seeking a divorce from his ex wife, when it came time to re-marry, he couldn’t bear the thought of dealing with more lawyers, so married his second wife without a pre-nuptial agreement. Now, many years down the road, the client wonders if that was a good idea — although the marriage is strong, it leaves his business and his children from his previous marriage subject to California’s community property laws.

In this situation, a post-nuptial agreement was a solution to my client’s worries. My client gained the certainty that all of his children – both from his first marriage and with his current wife – would be provided for financially in the event something happened either to him, or in the event he were to get a divorce. He also protected his business (and business partners) should something happen to him. Finally, his current wife received assurances that she would also be provided for in the event that something were to happen to her husband. The benefit of certainty is often reason enough for your spouse to agree to a post-nuptial agreement.

Um, Honey, I’m Sorry, but I Lost the House in a Poker Game

That is one of the last things anyone ever wants to hear. Unfortunately, in a community property state, it’s possible, especially if one spouse has a gambling or drug addiction. If during the course of your marriage, your spouse develops an addiction or other behavior which can significantly affect your family’s financial well being, a post-nuptial agreement is one way of protecting the family’s security. Especially when there are children involved, a prenuptial agreement which makes the largest family assets the separate property of the “healthy” spouse can protect the whole family from the often tragic consequences addition may have on a family.

In the last few weeks we have had a number of popular celebrities pass away. In the midst of our grief on behalf of Farrah Fawcett, Michael Jackson, Steve McNair and their families, the furor over their estates provides us with a number of valuable lessons which we can use in our own estate planning.

Public information regarding the estates of each of these celebrities provides a framework to examine a number of issues including:

• Custody of Children
• Inheritance
• Continuing Parental Guidance
• Estate Taxes
• Privacy Concerns

Farrah Fawcett

Farrah Fawcett’s estate plan has not been officially made public.  There have been leaks from several “close confidents” which give us interesting insights into Farrah Fawcett’s estate plan.

From the sources available, it is evident that Farrah Fawcett employed a living trust to distribute her money upon her death.  The bulk of her estate was apparently left in trust to her son Redman O’Neill.  According to the Daily Mail article,Farrah appointed two trustees to manage the money for her son, and the trust was established with conditions to help him get his life back on track afterhis well known battles with drug addiction and legal problems.  Farrah Fawcett also gave a charitable donation to her alma mater, the University of Texas.

Farrah Fawcett’s estate highlights several proper estate planning techniques.  1) the creation of a trust allows her to provide continuing guidance to her son even after her death; 2) Charitable giving helps avoid estate taxes for very large estates (in 2009 there is a $3.5 million federal estate tax exemption, but the future of estate taxes is unsettled);  3) the trust is private.  Were it not for the “source” the details of Farrah Fawcett’s estate plan would not be made public.

MichaelJackson

Michael Jackson’s estate is teeming with legal controversy.  Although Jackson did have a living trust, it appears that the trust may not have been adequately funded.  (A living trust which is notfunded will be overturned – an important reason to have an estate planning attorney prepare a living trust on your behalf).

One aspect of Jackson’s estate which  is public is the will filed with the probate court on July 1, 2009. This will is an example of a “pour over will.”  Anything not included in the trust would be transferred into a trust through the probate process.

A key function of a will is to name guardians for your minor children, as Michael Jackson does in his will.  Generally, unless determined by a probate judge to be unfit, the guardians so named in a will be appointed by the court.

SteveMcNair

The estate of former NFL star SteveMcNair provides an illustration of what not to do.  McNair died without a will – or “intestate.”  Thus, all of McNair’s assets will be subjectto probate and will be distributed according to his state’s (Tennessee) laws of intestate succession.

To add a further layer of complication to McNair’s estate is the fact that he had two children out of wedlock.  Without a will to provide for these children, they will have to prove their right to inherit in probatecourt.  McNair’s widow, Mechelle McNairoriginally excluded his two older children from documents filed with theprobate court.  According to an interview with McNair’s agent, these issues have since been resolved.

Failure to implement appropriate estate planning documents, including a will and possibly a living trust will only burden your loved ones unnecessarily in the event of your death.  Losing a loved one is difficult enough, but to add complicated legal battles to grief for lack of simple planning is tragic.

In general, I am willing to wager that most people think that prenuptial agreements are only for the rich and famous or the very suspicious.  Well, not any more they aren’t.  In today’s increasingly complex world, premarital agreements are becoming an essential component to marriage.

Why would I want a Prenuptial Agreement?

The following is a list of reasons you may want to consider a prenuptial agreement.

• You have children from a previous marriage or relationship. When you have a family from a previous marriage or relationship, your legal and financial concerns are often very different than for people who are marrying for the first time.  A well drafted prenuptial agreement will help assure that your assets are distributed according to your wishes so that neither your first family nor your new family are cut off the event that you pass away or your new relationship breaks down.
• You plan to quit your job to raise your children. A prenuptial agreement can be a powerful tool to protect a stay at home parent, as it can provide for future security for a spouse who has sacrificed their career to raise a family.
• You own property or have significant investments. A prenuptial agreement can protect property you accumulated prior to the marriage, as well as any appreciation in the value of that property.
• You own a business. Without a prenuptial agreement, your spouse could own part of your business in the event your marriage ends.  Your business partners may not appreciate this.  A prenuptial agreement can prevent a spouse from becoming an unwanted partner in your business.
• A prenuptial can be a useful estate planning tool. A prenuptial agreement can ensure that your estate plan works as you designed it. 
• Your partner has a lot of debt.  If your partner has a large debt load prior to your marriage, a prenuptial agreement can ensure that you will not be responsible for the debt in the event of the dissolution of your marriage.

When presented with the idea of a prenuptial agreement, many people automatically put up road blocks and objections.  However, with some thoughtful planning and understanding, these objections can be successfully eliminated and even turned into powerful arguments in favor of a prenuptial agreement.

• Prenuptial agreements are not romantic.  Well, no they are not.  But a lasting marriage is not based on romance alone.  Qualities such as the ability to talk openly with each other about finances, children and the future are the foundation of a lasting marriage and a successful prenuptial agreement requires all of these components.
• A prenuptial agreement means we don’t trust each other. A successful prenuptial agreement requires honesty and full disclosure about each party’s assets, debts and desires.  Couples who truly do not trust each other would not be able to engage in the honest discussion that prenuptial negotiation requires.
• We Are Never Going to Get Divorced.  In today’s society, relationships often break down. In addition, a premarital agreement can define what happens to assets in the case of death, not just divorce.
• Prenuptial agreements always favor the husband/wealthier party.  As discussed above, a prenuptial agreement can provide future stability for a stay at home parent.  They can also ensure that the less wealthy spouse is financially taken care of (even if it is not the same asset split that a court might give in the absence of a prenuptial agreement).
• Prenuptial agreements are expensive. Couples should plan on spending approximately $1,500 for the drafting of a prenuptial agreement, and additional legal fees for the reviewing partner. However, when the costs of an ugly contested divorce are factored in, a premarital agreement is well worth the investment.

If you decide a Premarital Agreement is right for you, there are some things that you should consider:

• Both parties should be represented by separate attorneys.
• The premarital agreement should be discussed and prepared well in advance of the wedding.  In California, the agreement should be signed at least seven days before the wedding.
• Be honest, any concealed assets or debt could invalidate the prenuptial agreement,
• An open and honest discussion of assets, debts, children and aspirations should strengthen the marriage, not weaken it.

If you are planning on getting married and would like a premarital agreement, or are considering whether a premarital agreement is right for you, I invite you to contact me.