Online, you’ll find any number of so-called (self-proclaimed) experts in family law. From divorce coaches to mediators to regular parents who’ve just been through a (usually high conflict) divorce or custody case themselves.
This is often great. Divorce coaches can do things – and give advice – that I can’t in the sense that it is often therapeutic in nature and focused on the best, healthiest outcomes for the women involved.
But when they cross the line and start to give legal advice, well, things can get hairy.
I came across just such a content creator this morning. It’s important to say, though, at the outset, that it is not my goal here to be a mean girl or to assume what her intentions are. I don’t know whether she’s a predatory person, preying on vulnerable women at a really difficult time in their lives. I don’t know whether she has legitimately good intentions but happens to be wildly, horribly, badly informed.
But I do know that her intentions, whatever they are, will not protect you from a bad outcome if you rely on advice from a person who is not qualified to give it.
What was her advice?
Her advice to women was, before they agree to become a stay at home mom, to either insist on a prenuptial agreement or a postnuptial agreement that included a provision that, if she’s out of the workforce for 5+ years, he’ll pay 100% of kid expenses post divorce.
Sounds great, right?
After all, by that time, she’ll probably be professionally compromised and unable to re-enter the workforce easily. She certainly will be unlikely to be in a position to earn what she could have earned had she stayed employed. The costs to her will be significant.
Why is this advice a problem?
This is – not to put too fine a point on it – terrible advice. Horrific advice, even.
Why? It sounds good!
It does sound good! But the problem is that it is NOT enforceable. In Virginia – and in many other states, though you’d want to consult with a licensed attorney in that state if you want to be sure of the laws in another state, since I’m only licensed here – anything relating to the kids is modifiable based on a material change in circumstances.
Your separation or divorce would certainly be a material change in circumstances, meaning that this provision would be up for negotiation or litigation if push came to shove.
Maybe not worse than this, but … it’s also not specific. Does this mean child support IN ADDITION TO paying all of the medical expenses, extracurricular expenses, private school tuition, etc? What does 100% of the costs relating to the kids mean?
I also think it’s problematic in the sense that there is no way to legally contract around your responsibility to pay child support. And, even if you’re the custodial parent, you pay child support. You may not stroke yourself a check each month – that would be silly – but you do have a responsibility towards a portion of your child(ren)’s care. The court has held before, time and time again, that you cannot contract yourself out of this obligation.
I saw this happen before, with another mediator (another walking red flag, you might say). He laughed about it, telling me how dad wanted to not pay child support, so he and his soon-to-be ex-wife agreed to him paying a lump sum in lieu of child support. Well, the wife took the lump sum and immediately filed for child support. The judge called the lump sum a gift and ordered guideline child support. The mediator had a, “what can you do? Who can predict these things?” attitude that was really shocking from someone who has more than 20 years of experience in Virginia family law mediation. Like, this was far from an unpredictable outcome. How could you not know?
Except that he didn’t.
Well, probably he wouldn’t sign it anyway. What’s the harm?
Chances are, he won’t sign it. But, consider … what if he DID? What if he consulted an attorney, she told him this wouldn’t be enforceable, and he signed it anyway? He figured, “We probably won’t get divorced,” and, anyway, it will alleviate her concerns, but when push comes to shove, I won’t have to do it anyway.
Only they do separate and, eventually, divorce.
She has relied on this provision and is in for a rude awakening if he has signed and she finds that she can’t hold him to this. He’s protected. Safe.
So, too, is the mediator or divorce coach. You could complain, or report them to the BBB, or something … but they’re not an attorney. They can’t really give legal advice. They do, of course; this woman did in the specific post to which I am referring. But you relying on their legal advice is on you. You should have consulted with an attorney. You should have known what you were doing.
And you thought you did. You thought you were being smart, getting something in writing before you made the leap to become a SAHM.
But if you are a SAHM now, you’re up the creek without a paddle.
Couldn’t I ask the court to enforce it anyway?
This is probably worse. You could litigate the agreement. You could try to get the court to enforce it. Lots of people do when they find themselves in this position.
But, if there’s no legal basis for your argument, you could spend a bunch of money just to find out that the agreement will be enforced.
Did you read Belle Burden’s memoir recently? Strangers? She found herself in a sort of similar position. She had negotiated a prenup that was supposed to be to her benefit, but then – after separation and during divorce – she tried to fight it to keep the court from enforcing it. But she never really had a chance; the court was always going to enforce her agreement.
Your situation is a little bit the opposite, because it won’t enforce your agreement – but not because prenups aren’t enforceable. Because you agreed to something that is not enforceable, and we have specific case law that says so. Someone’s already been here, done that, and not prevailed. You could litigate, but you’d be out probably tens of thousands of dollars – and be in no better position later.
What would the likely outcome be?
It really depends on what else is in your agreement. Does it include a waiver of spousal support or retirement? Do you waive interest in the business built during the marriage? Those provisions would likely be enforced, and they are common ones I see in prenuptial and postnuptial agreements.
Most agreements also include a provision – a “boilerplate” provision, is what we call it – that if part of your agreement is struck down, the rest survives. This is a general provision most lawyers will include to protect the integrity of the agreement. If yours was omitted because you had a non-lawyer divorce coach or mediator draft your agreement, that might be one thing you could attack – but I still think it would be very expensive and time consuming, with potentially little success.
The provision that relates to the child(ren)’s expenses, though, would almost certainly not survive, even if the rest of your agreement did.
So, anyway, all of that to say … You really should beware of the advice you receive. You should always double check with a licensed, experienced attorney to make sure that your proposed agreement is as protective of you as it should be. And, really, in my opinion, you should beware of prenups and postnups in general. Often, a provision like this is specifically put in to lull you into a false sense of security, while the other provisions really strip you of what you would have been entitled to receive under the law.
For more information, to schedule a consultation, or to register to attend an upcoming divorce seminar (which, hey, is helpful even if you’re engaged or newly married but trying to figure this kind of thing out), give us a call at 757-425-5200 or visit our website at hoflaw.com.