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Depp-Heard Trial Brings Up Postnups In The Worst Way. But They’re Still A Good Idea.

Depp-Heard Trial Brings Up Postnups In The Worst Way. But They’re Still A Good Idea.

Couples who didn’t sign a prenuptial agreement should get a postnuptial one as life changes.

Believe me, as a divorcée — and coach for women during and after the ordeal — I know that. We all take the plunge with dreams of unconditional love, a warm home and the financial security of being part of a couple. It’s just that marriages don’t last almost half the time, and being realistic about this is crucial. That’s why women — and men for that matter — who didn’t sign a prenuptial agreement should get a postnuptial one as life changes.

We don’t have to look far to see how marriages unravel. It’s playing out live on television during the Johnny Depp-Amber Heard defamation case, in which Depp is suing his ex-wife Heard on the grounds that she defamed him when she wrote an op-ed in The Washington Post about being a survivor of domestic abuse. Heard has denied the allegations and filed a defamation countersuit against Depp for $100 million, claiming he is leading a smear campaign against her.

If a couple decides to reconcile after an affair, a partner can ask the unfaithful one to sign a postnup providing financial or other compensation if there is a repeat offense.

The couple didn’t have a prenuptial contract, and Depp claimed during the ongoing trial that when he brought up a postnuptial agreement, which is drawn up after a couple is married instead of before, it sparked a violent fight.

“I tried to calm her down and say that I was not out to screw her over or put her in a position that was uncomfortable. These were stock, normal things to do,” Depp testified about his discussion with Heard about a postnup, but he claimed the confrontation just escalated. In her testimony, Heard said she was the one who initiated a postnuptial deal.

Whoever’s idea it was, it’s safe to assume that a postnup wouldn’t have saved Depp and Heard from the acrimony of their post-divorce lives or kept them out of the courtroom. But that doesn’t mean it wouldn’t have been useful as they negotiated their split, or that it’s not helpful for other couples. While the prenup gets more attention, the mention of a postnup in the Depp-Heard trial could bring more attention to a tool many couples could benefit from.

The key difference between a prenuptial agreement and a postnuptial one is simple: timing. A postnuptial agreement is a legally binding document drafted after the marriage vows that addresses the terms of a divorce. Just like prenups, postnups can specify who walks away with what property following a death or divorce, as well as specify the amount of alimony. They also can safeguard who inherits family wealth or protect business property and income.

Too often, women aren’t secure when a marriage dissolves.

“None of us had protected ourselves in this way,” I thought on the drive home from a recent meeting of a divorced women’s support group I run. Not a single one.

We had all entered our marriages assuming our partner had our back, everything would work out and we didn’t need financial protection from the person who claimed to love us the most. We certainly didn’t require a “business-like” formal prenuptial contract when we were in love! As years passed and some women decided to stay home with the kids, they thought it was a joint decision with their husbands — never considering the personal consequences if the team split up.

“I’ve been taking care of the house and the family while he built his career in Manhattan, but now that we’re splitting, what do I do?” asked a woman at the meeting who is in her late 50s and had given up her career when she had children. She was far from alone.

When new issues and problems come up, a couple who don’t see a need for a prenup could find a postnup useful. One sadly common issue is infidelity. If a couple decides to reconcile after an affair, a partner can ask the unfaithful one to sign a postnup providing financial or other compensation if there is a repeat offense.

One woman I know, who asked that her name not be used out of privacy concerns, entered a postnup after her attorney suggested one following her husband cheating. She and her ex signed the agreement as they were thinking about reconciling because she wanted to be protected if it happened again. And it did.

“I am happy I had it,” she told me. “Divorces are emotional and such a difficult journey, so this is something that can alleviate some of that.”

She had two words for people who are considering a postnup but may be on the fence: “Protect yourself.”

I wish I had.

In a world where women’s reproductive rights could be taken away, our family court system is broken and women still earn 82 cents for every dollar men earn, when a woman sacrifices for the “team” (because she usually is the one who does) she absolutely must be compensated for that. This is especially important because “more than one in three families headed by unmarried mothers lived in poverty in 2019,” according to the National Women’s Law Center. If you’re a woman and think you’ll get a fair shake in divorce court that includes some kind of compensation for your selfless contribution to the family unit, think again.

“The family court system is awful. The one with the most money wins, or it comes down to the luck of who you get as a judge,” asserted Sandra Radna, a divorce attorney in New York. “It doesn’t always seem to be fair.”

That’s where a legal agreement that addresses developments that cropped up after starry-eyed lovers tied the knot comes in. “As soon as you give up financial control to your spouse, you give up your independence,” Radna told me. “And once you are put in that position, it’s hard to reverse it.”

The American Academy of Matrimonial Lawyers has seen an increase in couples signing postnuptial agreements these days. Half of divorce attorneys said they were drafting more of them in the organization’s 2015 survey. The most common issues covered were property division, alimony or spousal maintenance, and retirement accounts.

“One reason to have a postnuptial is to address something that had not been considered before,” Cary J. Mogerman, president of the American Academy of Matrimonial Lawyers and a practicing attorney in St. Louis, told me. “It has to be something in which both parties have an interest. Some enter into an agreement like this to save an already troubled marriage where circumstances are putting pressure on the viability of that partnership.”

Read more related articles at:

Amber Heard claims Johnny Depp refused to sign a prenuptial agreement with her

Johnny Depp and Amber Heard Disagree on Why There Wasn’t a Prenup Before Marriage

Also, read one of our previous Blogs here:

Don’t Be Like Johnny Depp, Get a Prenup

Click here to check out our On Demand Video about Estate Planning.

Click here for a short informative video from our own Attorney Bill O’Leary.

 

Don’t Be Like Johnny Depp, Get a Prenup

Don’t Be Like Johnny Depp, Get a Prenup

Not having a prenuptial agreement can be a costly mistake — not just for Johnny Depp, but for you as well.

Depp, 52, and his wife of just 15 months, Amber Heard, 30, are heading for splitsville. Heard filed a divorce petition earlier this week, citing irreconcilable differences, and requested spousal support. Depp’s response, according to The Associated Press, asked the judge to deny Heard’s support request — and asked that Heard pay her own attorney’s fees.

The couple reportedly did not have a prenuptial agreement, which could leave Captain Jack Sparrow’s treasure rife for plundering.
“Depp would be a poster boy for a prenup,” said Arlene Dubin, chair of the matrimonial and family law practice at Moses & Singer in New York. “If you were checking off the boxes [of who should consider one], he pretty much has them all.”

Generally speaking, she said, prenups are an important consideration for:

  • older couples;
  • those who come into the marriage with assets (as he did with a reported $400 million);
  • people who have children from prior relationships (as he does);
  • people who expect future celebrity and significant income (as he could, despite dismal reviews of “Alice Through the Looking Glass”).

Without one, the process of getting unhitched can lead to protracted and expensive legal battles, or result in a less-fair division of assets.

A multimillion-dollar net worth isn’t required to benefit. Hammering out a prenuptial agreement — or for unmarried couples, a cohabitation agreement — can make sense for many regular folks, too, said Joslin Davis, president of the American Academy of Matrimonial Lawyers. “It requires people to think ahead,” she said.
Take the case of older couples and those who are remarrying. A prenup can protect your assets not just in divorce, but in death, said Davis, who is also a principal of Allman Spry Davis Leggett & Crumpler, P.A., in Winston-Salem, North Carolina.

Many jurisdictions prevent spouses from being disinherited, she said, so a court could easily void provisions in a will that leaves everything to your kids from a prior marriage. But a prenup could be worded to require your new spouse to waive their right to dissent or take an elective share in your estate.

For young couples, a prenup offers the chance to hash out divorce handling of issues like joint efforts to pay off one partner’s student-loan debt, or how a partner might be compensated for leaving the workforce to care for their children.

“This way, the two people can write their own deal at the beginning of the relationship, at a time when they are in love and looking out for each other,” said Dubin, who is also the author of “Prenups for Lovers: A Romantic Guide to Prenuptial Agreements.”

Already married? Postnups are generally harder to come by. “Sometimes, one party may be advised that they are better off without one,” said Davis. “The law already favors them.”

Read more related articles at:

A Tale of Two Celebrity Marriages and One Prenuptial Agreement

We Don’t Need No Stinkin’ Prenup: Lessons for Johnny Depp

Click here to check out our On Demand Video about Estate Planning.

Click here for a short informative video from our own Attorney Bill O’Leary.

Prenuptial Agreement

Prenuptial Agreements: What Is A Prenup And Should I Get One?

Prenuptial Agreements: What Is A Prenup And Should I Get One?

By 

When two people get married, they’re not just uniting their bodies, hearts and souls; they’re also joining their financial assets. It’s a terribly unromantic fact — and probably the last thing anyone wants to talk about at length when they first get engaged.

Questions like “Should we get a prenuptial agreement?” can be downright buzzkills.

But if you’re planning to get engaged or already are, this is an important topic to unpack together.

We’ve set out to answer a number of questions you might have about prenups by consulting divorce lawyers and financial experts, along with a relationship therapist.

What is a prenup, exactly?

“It is a legal agreement entered into between two people before they are married that that can cover a wide variety of issues centered on property rights and assets,” says Ike Z. Devji, of-counsel asset protection attorney in Phoenix, Arizona. “In addition to the traditional role that most people think of (dictating the division and distribution of a variety of physical assets and setting terms for any required spousal maintenance at divorce), pre-nups can also cover death, incapacity, estate planning, student debt, spousal support and a variety of other legal issues including the division and attribution of income earned during marriage.”

What is the purpose of a prenuptial agreement?

There are many, but “one of the main reasons to sign a prenup is to deviate from what the law would provide in the event of a divorce,” says Elysa Greenblatt, a divorce lawyer in NYC. “People often want to protect their assets from distribution and a prenup is the obvious answer. There are other reasons that might not come to mind as quickly [such as] if one party has a child from a prior marriage — it can be important to have a prenup so that the parent can support that child with marital income. Another reason has to do with the fact that divorce laws vary state by state. If you live somewhere that has laws of equitable distribution but you may move to a community property state, it is important to protect your assets and set how they will be distributed.”

Often people want a prenup so they can keep what they brought into the marriage, which the law typically already protects — it’s when financial assets get commingled that things get complicated, and that, happens easier than you think.

Buying a house together with just one person’s money is commingling. Starting a business together using one person’s capital is commingling. Moving money around more than a few times can even qualify as commingling,” says Knight. “The longer you’ve been married, the more you are likely to commingle your assets [and have] non-marital assets turn into marital and, thus, divisible assets.

Aren’t prenups just for rich people?

Nope.

“Typically, you think of a prenuptial agreement as being for those individuals with substantial means to protect,” says Marcia Mavrides, a divorce attorney in Massachusetts. “This isn’t always the case anymore, and in fact, many millennial clients hire Mavrides Law (my firm) to assist them with a prenup to protect them from their future spouse’s student debt and visa versa. Even though these individuals may have significant earning potential, they realize that they should each be responsible for their own student loans. The best part is that these couples have discussed their financial situations in great detail before hiring attorneys to draft a prenup, so there are no unpleasant surprises.”

How much does a prenup cost?

There’s no fixed cost here, as it depends on both geography and how much negotiating takes place.

If you’re in a situation where your betrothed has the bulk of the assets (that would be protected under the prenup), then they should cover the costs of your counsel, which Frawley notes is common practice.

To get a better idea, you should absolutely meet with a lawyer for a consultation.

 

How long does a prenup take?

Again, it depends. Typically, the more assets you or your partner bring to the table (and the more ardent your lawyers), the longer this will take.

“Ideally, you should start the prenup conversation with your spouse shortly after getting engaged,” says Mavrides. “You and your fiancé should each find an attorney and begin the drafting process at least six months prior to your wedding.”

You may even start exploring prenups before you get engaged.

“I had a case this year where we did a prenup before they got engaged,” says Pollock. “The earner had a strong feeling about conditions under which he was willing to be married. He had to be sure [his prospective fiancee] agreed what marriage looked like before he was willing to do it.”

The couple did end up getting engaged.

Do both parties need a lawyer for a prenuptial agreement?

While you might be able to find a lawyer who will draft up a prenup for both of you, this is highly inadvisable. So, to be safe, the answer is yes.

“One of the hallmarks as to whether a prenup is ‘fair and reasonable’ at the time of execution is whether a party had an attorney at the time the document was being negotiated,” says Shemin. “Personally, if I am the mediator, or even if I just represent one party, I insist that the other party have counsel. This is the general practice. Parties can work with one mediator, or, one lawyer to do the drafting — but each party should/must (if not legally, then advisedly) have his/her own counsel. Since prenups are governed by state law, although this may vary state-to-state, it is generally considered the advisable and preferred practice.”

Can prenups be thrown out?

As legal contracts, one would think that prenups would be set in stone, but in exceptional cases, they can be broken in divorce.

“Prenups are not ironclad and can be overturned on a number of circumstances,” says Megan Gorman, managing partner at Chequers Financial Management. “If one party had a significant windfall, it would be prudent to speak with the attorneys who handled the prenup to understand your rights. There might need to be changes made to the prenup. Keep in mind things evolve and that the best course of action is to always be open with your spouse on finances.”

Can I get a prenup online?

Technically yes, but you’re likely wasting your time and money.

“Obtaining a prenup online is not advisable,” says Gorman. “There are complex legal issues at play. You need to understand your rights. An online approach is risky and will likely have holes in the event of a divorce.”

A ‘postnup’ is also an option

If entering into a prenup is not something you can afford in terms of time or money before your wedding, you can absolutely arrange a postnuptial agreement after you’re married.

“The cost is the same and the process is the same [as a prenup],” says Pollock. “Commonly with a postnup though there’s a specific purpose, or a live event that triggers re-examination, such as the purchase of real estate, where you want to specify how that would be distributed — or someone is thinking about leaving the workforce and wants to negotiate how assets should be distributed.”

This is perhaps another article in itself, but Dr. Fran Walfish, a relationship therapist in Beverly Hills, shares three quick tips on navigating this potentially touchy conversation:

1. Admit that this is a tough but necessary talk

“Tell your beloved intended that this is a hard conversation to have and that you want to make it as productive as possible. All of us struggle to hear difficult things. When you share and expose your vulnerability the other person feels safe to do the same with you.”

2. Discuss in a peaceful environment

“Be sure you are in a quiet place with no distractions so you can focus on the other person.”

3. Listen patiently and mindfully

“Be ready to accept anything the other person says. You don’t have to agree but listen openly without becoming defensive. If you are shy and don’t know what to say, offer compassionate reflection of what you hear the other person saying. This allows the other to feel heard, validated and accepted.”

Read more related articles here:

Financial Planning For Young Adults: Prenuptial Agreements—What You Should Know Before You Get Married

Considering a Prenup? Here’s Everything You Need to Know

Also, read one of our previous Blogs at:

SHOULD I GET A PRENUP?

Click here to check out our On Demand Video about Estate Planning.

Click here for a short informative video from our own Attorney Bill O’Leary.

Blended Families

Planning Future for Nontraditional Families

Planning Future for Nontraditional Families

Today’s non-traditional family are not just LGBTQ couples, but families undergoing gray divorces, blended families, stepchildren, multinational families and children born through assisted reproductive technologies, referred to as ART, in a recent article titled “How to Plan for LGBTQ, Blended Families, Cohabitation, Other Nontraditional Families” from Financial Advisor.

The key is having an estate plan prepared that is flexible so that last wills, trusts, and all documents reflect the non-traditional family very clearly and do not leave room for courts to make decisions. Here are a few new elements to consider:

Gendered pronouns and definitions. Ideally, your estate documents should use specific names of individuals, not pronouns. We live in a fluid society and using pronouns could lead to unnecessary complications.

Recognize ART and its implications. If there are children conceived by ART, they need to be explicitly included as children of the family. DNA testing can result in a child inheriting assets from a parent they never knew. It may be wise to exclude biological children, parents or siblings who do not have a relationship with the family.

Trust Protector/Trust Decanting. By including provisions that permit trusts to be decanted, that is, transferred from one trust to another, your estate planning attorney will create flexibility to allow a trust protector (a non-fiduciary appointment of a third party) to make changes. The selection of the trust protector is particularly important, as they could have a large impact on the overall plan.

Marriage, non-marital relationships, divorce, remarriage. An estate plan needs to prepare for future changes with precision and flexibility. Protecting the family, its privacy and dignity can be done by limiting the information in the last will, which becomes a public document. While we can’t know what the future holds, we can plan for change.

Prenuptial agreements. State laws vary on what is acceptable and procedurally necessary for a prenup to be enforceable. Typically, the agreement must be voluntary and include full disclosure of both parties’ financial situation. In some states, post-nuptials can be prepared, if the parties can’t agree on the document before they are legally wed.

Divorce creates special estate planning issues. Beneficiary designations need to be changed for life insurance, IRAs and other non-probate assets. Take affirmative steps to ensure that ex-spouses, or soon-to-be exes are removed as beneficiaries on all accounts, including pensions and insurance plans subject to ERISA.

Cohabitating couples. Marital gifts are tax free, but that is not the case for people living together. Estate planning and tax planning needs to be done, so the surviving partner is taken care of. This may include the creation of a cohabitation agreement, similar to a prenuptial agreement.

Planning for sickness and death. Explicitly stating wishes for end-of-life medical treatments, including feeding tubes, respirators, heart machines, etc., is step one in having an Advance Medical Directive created. Step two is deciding who is empowered to make those decisions. Someone who is unmarried but has a partner or a second spouse needs to be authorized. Note that when an individual is hospitalized, stepparents may attempt to deny access to spouses’ children, or children may block access to a stepparent. There should also be a Do Not Resuscitate (DNR) or Physicians Orders for Life-Sustaining Treatment (POLST) in place with the person’s wishes.

Non-traditional families of all types need to protect the family with estate planning and documentation. Issues about protecting children, making health care decisions for a critically ill partner and control of assets must be addressed in a way that respects the individuals and their families while working within the law.

Reference: Financial Advisor (Feb. 2, 2021) “How to Plan for LGBTQ, Blended Families, Cohabitation, Other Nontraditional Families”

Read more related articles at:

Planning for a Non-Traditional Family (Which Is Probably Yours)

Estate Planning For The Modern Family: What To Do When You’re Not The Cleavers

Also, read one of our previous Blogs at:

How Can Blended Families Use Estate Planning to Protect All of the Siblings?

Click here to check out our On Demand Video about Estate Planning.

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