Prenuptial Agreements: Perception is Everything

In the US (and the Western world generally), it is stereotypical to suspect that a prenuptial agreement benefits a wealthier and/or better earning party, more likely the future husband, at the expense of the less advantaged spouse.

After all, why else would they bother with a prenup? Right?

Well, there are actually a number of reasons, which have been explored at length in many other posts on this blog.

Attorneys are reminded daily that every case is unique and one size does not fit all when it comes to agreements and creative solutions to family law problems.

But other legal systems, religions and cultures apparently have a completely different take and frame of reference on the antenuptial agreement.

For example, in Iran today, prenuptial agreements reportedly require husbands who divorce their wives to pay them exorbitant amounts of money. Amounts that could easily take them fifty years to satisfy their obligations. Impossible burdens that send many men to jail.

That’s an extreme but nonetheless eye-opening illustration that, within limits, parties are free to devise outside the box customized outcomes that work for their particular family.

They aren’t limited to what some other family – or even most other families – thought would work for their families.

Learn more about how diverse prenups (or other agreements) can be in this AFP video: Iran pre-nups land thousands of men in jail.

No-Fault Divorce Retrenchment: Trend or Fluke?

It seems like only yesterday that New York became the last state in the USA to allow no-fault divorce. But it was actually 2010.

One of the more surprising recent events in the always-evolving universe of divorce and child custody law is unfolding right now in the state of Texas.

After decades of no-fault divorce, the Texas legislature is considering restricting – not abolishing though – the availability of no-fault divorce.

The bill has been debated and refined over several months. The original bill was more expansive.

As currently constituted, the proposed legislation restricting divorce to fault-based grounds would come into play only in marriages where there are minor children and only if one of the spouses opposes the divorce. So, if there are no children of the marriage or if both spouses agree to getting a divorce, proof of fault would not be required.

Interestingly, to all appearances, the proposal has gained considerable traction in the state. And adoption into law is not unlikely in due course.

The reasons behind the bill are the same policies that kept no-fault divorce (and before that, divorce of any stripe) at bay for so long in so many places: a desire to protect children and strengthen the structure of the family unit.

If adopted, some divorces in Texas will almost certainly take longer and cost more. And some simply won’t happen. Good, bad or indifferent.

The larger question for those of us who follow such things is, of course:

What – if anything – does this proposed legislation in Texas possibly portend for Florida and other states in the US?

Anyone who has been contemplating divorce, strictly on the back burner, may want to follow developments in Texas as well…

Read more in

  1. this Texas Lawyer article: No-Fault Bill Could Make Divorce More Expensive, Increase Conflict
  2. this [Houston] Eyewitness News ABC TV 13 article: TEXAS BILLS PROPOSED TO MAKE DIVORCE MORE DIFFICULT and
  3. this [Austin] kxan-TV NBC article: Texas bill making divorce harder gets early movement .

New York Boy Ruled to Have Three Legal Parents

Husband and Wife had no children.

Husband and Wife meet Girlfriend, who lives in an apartment in their house.

Husband and Wife begin a “threesome” with Girlfriend.

Since Wife was not able to get pregnant, Girlfriend becomes pregnant by Husband.

This happens according to plan and agreement of the three to raise Boy together after his birth.

Wife and Girlfriend both attend all obstetrical visits and alternate overnight feedings and care of Boy after his birth.

In time, Husband and Wife drift apart and … Wife and Girlfriend become a couple. And move out of Husband and Wife’s marital residence, which they had all been living in.

Again, in time, Husband sues Girlfriend to establish his paternity rights.

Whereupon Wife sues Husband for divorce.

In the meantime, Husband and Girlfriend settle their case by agreeing upon joint custody of Boy.

Then, for good measure, Wife sues Girlfriend and Husband to establish herparental rights to Boy.

Now, up until this point, the law has only recognized two legal parents per child.

But this is a pretty unique case.

And based on the unique facts of the case, including the parties’ agreement, the New York Family Court finds that all three, Husband, Wife and Girlfriend have parental rights over Boy.

Also key is Wife’s established maternal relationship with Boy.

Timesharing (if parties don’t agree otherwise) is divvied up as follows:

  • Wife has Wednesday overnights, one week of vacation during the school year and two weeks over the summer
  • Husband has weekends and
  • Girlfriend has the rest.

Read more in

  1. this New York Post article: Historic ruling grants ‘tri-custody’ to trio who had threesome and
  2. this New York Magazine’s The Cut article: Ex-Polyamorous Trio Granted ‘Tri-Custody’ of Their Child by a New York Judge

Uh, Yes, Committing Rape May Be a Viable Path to Paternity Rights and Lawful Fatherhood of a Child

Man rapes Woman.

Woman gets pregnant.

Man is tried for rape.

Man is convicted of rape.

Woman’s Child is born.

Man seeks to establish his parental rights and access to Child.

And in many states in the USA, Man just may succeed.

A Wyoming resident expresses shock that Wyoming lands among these states.

And that legislation proposed to remedy this situation garnered no media attention or public interest.

As a result, the bill simply faded away and died a quiet death.

Leaving Wyoming among the seven states that have no laws to protect women or children from biological fathers who are alleged to be rapists.

Twenty-two states may allow for termination of parental rights where the biological father has been convicted of the crime of rape.

Twenty-one states, including Florida, may allow for termination of parental rights even without a conviction of the crime of rape.

Here in Florida, there must be “clear and convincing evidence” of the rape. A more lenient standard than is required for a criminal conviction, but still pretty rigorous.

Read more in

Parents’ Divorce May Forge Stronger Bonds Between Brothers and Sisters

Divorce can shake up familial relationships. It’s easy to leap to the conclusion that that is all bad.

But there may be a silver lining. One child of divorce, now an author, shares how her parents’ divorce actually bound her and her brothers together … forever.

To the point of earning the envy of parents of siblings who were not close.

Read more in this New York Times Style piece: The Secret to Sibling Success.

Shades of Domestic Violence … Aftermath …

Husband and Wife have four year old Daughter.

Unbeknownst to Wife, Husband and Wife’s marriage has hit the skids.

Husband allegedly sends text messages intended for a contract killer, instructing him to murder not only Wife but also Daughter.

Luckily, the text messages are misdirected to Husband’s former work Supervisor.

Supervisor takes the messages seriously, and reports them to law enforcement.

As a result, Wife and Daughter remain safe, and Husband is arrested on charges of criminal solicitation for first-degree murder., two counts.

Husband’s apparent motive is collecting on Wife’s $500K life insurance policy. Husband has reportedly been unemployed for a while.

Husband contends that he wrote the text message some time ago, in a moment of anger, but that he never sent it. Husband speculates that Daughter found the message on his phone and sent it.

The only marital strife Wife is aware of in her marriage is financial, due to Husband’s unemployment.

The above may have been a first episode of domestic violence in a family, seemingly completely out of the blue.

But further along the domestic violence spectrum, is this couple.

Boyfriend allegedly breaks into Girlfriend’s home, and viciously beats and rapes her.

When finished, Boyfriend warns Girlfriend that if the legal system punishes him, upon his release, he will find and kill her.

Boyfriend is indeed tried and convicted. He is serving a fifteen year plus sentence.

Girlfriends takes his threat to heart though.

She legally purchases a gun and applies herself to target practice.

She intends to be prepared for Boyfriend’s release from prison.

Ironically, she’s rather be prepared with a taser gun that would merely incapacitate Boyfriend.

But taser guns are illegal where she lives and conventional guns aren’t.

So she target practices. And files lawsuits mounting constitutional challenges to the taser gun bans drawing support from a recent Supreme Court decision.

Read more in

Custody of the Family Pet Is Closer to Becoming a Thing

Husband and Wife are divorcing.

Miscellaneous property.

No kids.

Just Fido.

Adopted during the marriage.

Both adore him.

Neither can bear not to see him again.

Any animal lover can relate.

Other than American family court judges.

Who have stubbornly rejected treating pets as anything besides personal property, a thing to be distributed based solely on their monetary value.

That has been the divorce law of the land.

Until now.

Alaska has broken the ice. Finally.

From now on, Alaska family court judges will decide the “ownership or joint ownership” of family pets following divorce, based on the “well-being of the animal”.

This is a significant paradigm shift.

Consistent with cultural changes in recent years.

And numbers of private divorce settlement agreements.

And perhaps the occasional rogue divorce court ruling.

It remains to be seen though whether or, more likely, when, other states will follow in Alaska’s footsteps.

Read more in

  1. this Washington Post article: In a first, Alaska divorce courts will now treat pets more like children and
  2. this [UK] Daily Mail article: Alaska divorce courts will now treat pets more like children – giving judges the power to determine custody .

The Right Way and the Wrong Way to Divide Retirement Benefits in Divorce

Husband and Wife divorce.

As part of their property division, or equitable distribution, Wife is awarded half of Husband’s 401(k).

Wife chases Husband for her share.

Then Wife chases the administrator of Husband’s 401(k) plan.

All to no avail.

What’s wrong with this picture?

Wife failed to obtain a QDRO, a qualified domestic relations order.

Prepared properly and entered at or before the final judgment of divorce, a QDRO is the key to the kingdom that is the ex’s retirement plan. A key that can be turned without having to tear out your hair or throw yourself on the mercy of your ex.

But there is a price tag associated with this key. Two actually.

The first is for proper preparation, often by an attorney who specializes in nothing but QDRO preparation..

The second is for administration by the ex’s retirement benefits administrator.

These fees may run roughly $1,000 to $2,000. Not a trivial sum.

But the retirement benefit to be shared is likely a substantial sum of money.

And the red tape involved in getting to it without a properly prepared QDRO is … substantial. Very.

Sure, it would be better if QDROs didn’t cost as much as they do.

But paying for them is a lot less expensive than having to go back to court to try to collect by other means.

Read more about QDROs in this Bloomberg Personal Finance article: The Divorce Penalty: This 401(k) Fee Can Add Insult to Injury .

Timing May Be (Almost) Everything When It Comes to Classifying Property as Marital or Not

Older Woman and Younger Man start a brief relationship, and Older Woman becomes pregnant.

Older Child is born and couple breaks up. Amicably.

A couple of years later, Older Woman wins the lottery and becomes a millionaire – twelve times over.

The following year, the couple takes a vacation together with Older Child and … Older Woman gets pregnant, again.

They discuss marriage.

But Older Woman insists on entering a prenuptial agreement to protect her winnings.

It is apparently consistent with the testimony of both in the Australian family court that Older Woman transformed into a name-dropping socialite.

Younger Man consulted with an attorney and did agree to enter the prenup.

The couple did marry.

And the marriage ultimately did not work out.

During the divorce, Younger Man attacks the prenup as coerced.

In particular, Younger Man testified that Older Woman taunted that she would block Younger Man’s access to their children if he didn’t sign the prenuptial agreement.

The Australian family court judge found Younger Man more credible and likeable than Older Woman.

But the law is the law. The lottery was separate premarital property to begin with.

The Younger Man felt free to consult with an attorney, and did so.

And already successfully took Older Woman to court over co-parenting issues with Older Child.

So, on top of everything else, the asserted coercion fell flat.

Read more in

Father Pursues Timesharing By … Forcibly Breaking into Mother’s Home

Oregon Father and Mother have Children together. Father and Mother split up.

Father and Mother apparently are unable to agree on timesharing arrangements.

Father’s notion of how to deal with that situation is, allegedly, to … break into Mother’s home.

Perhaps this was not the first poor solution that Father had attempted.

Because Mother was ready for him … with a gun.

Which Mother reportedly discharged in Father’s general direction.

Father promptly took off – after allegedly breaking several of Mother’s car’s windows – only to be arrested when he surrendered himself to law enforcement authorities a few days later.

Father now faces several criminal charges and is confined pending payment of a $50,000 bond.

Hopefully it goes without saying that Father’s conduct will not help him in family court anymore than it will find favor in criminal court.

Why Father didn’t simply file for timesharing in family court in the first place is a mystery. He would almost certainly have saved himself a great deal of money and heartache … and likely been granted substantial timesharing.

Read more in this Portland [OR] KATU 2 TV news article: Man wanted after rampage over child custody dispute turns self in.