Protecting Yourself in a Relationship: Part Two

Posted on Nov 12, 2014 by Katie Carter

On Monday, we talked about how contracts can help in a bunch of different situations.  Whether you’re married (and want to stay together), married (and want to get the heck out as soon as possible), unmarried (and never plan to marry), engaged, or anything in between, you can negotiate a contract that helps protect you—no matter what happens.

In so many of these relationship cases, a big part of the problem is that no one knows exactly what to expect if the relationship fails.  I can’t tell you how many women I’ve counseled who have laid awake at night worrying about custody and visitation, support, and how the assets (like the house) will be divided.  Removing the worry from the equation allows you to focus on what’s truly important—whether you want to save your relationship or end it.

Knowing really is half the battle, and it gives you the freedom to decide what you really want.  No one should feel trapped in a marriage or a relationship that is unsatisfying, unfulfilling, abusive, or generally unhappy.  You have options.  You should know about your options, so that you can make the best decisions possible for yourself and your future.

On Monday, we talked about prenuptial agreements—basically, what kind of contracts you can enter into if you’re thinking about getting married.  Prenuptial agreements protect you in the event that you decide to break up later on, and they can be a great way, especially for people with substantial assets going in to the marriage, to protect themselves later on.  Even if you don’t have a lot of money now, you may want to write some rules yourself about how your divorce would proceed (if it ever happened).  It may sound anti romantic, but it’s really not.  Prenuptial agreements ensure that both parties get involved in the relationship for the right reasons, with the same views for the future, and without any misunderstandings.  For more information about prenuptial agreements, click here.

But engaged couples aren’t the only couples that might want to consider memorializing some type of agreement with respect to their relationship.  Lots of people can benefit from spelling out exactly what the terms of their relationship are going to be—not just because they might break up, but also for the piece of mind and the level of understanding it promotes between the two people involved.  Let’s talk more about other situations, and the types of agreements that can help make navigating them easier on everyone involved.

    You’re not married, and you don’t want to get married—maybe ever

        The Nonmarital Agreement

You don’t have to get married (or plan to get married) in order to want to protect yourself, your children, and your assets in the event things don’t work out with your partner.  For a long time, we saw nonmarital agreements between same sex couples all the time, but there’s no reason that these types of agreements should be limited to any particular group of people.  If you’re involved with someone in a long term relationship, it’s a good idea to get one of these agreements in place.

People choose not to get married for all types of reasons.  Still, in the event that you breakup later, the fact that you don’t actually need to get divorced doesn’t necessarily mean that your split will be drama free.  In fact, without a divorce, sometimes breaking up is even harder to do.  Why?  Well, for one thing, the court doesn’t have the authority to get involved and help you split anything up.  If you never married, everything you own is separate, and it’s yours—no one else really has a claim over it.  But the reality is that, in a long term relationship, the line between what is yours and what is mine gets muddied.  Especially if you have shared bank accounts, purchased real estate, or had children together, things can get really complicated really fast.  Without the support of the courts to help you sort it all out, you’re left on your own.  There are really no rules out there (and nothing legally to help you) work it out.  It’s a major disadvantage.

A nonmarital agreement is a legal contract that would help you spell out exactly what should happen in the event that things don’t work out.  Once you have a contract in place, if you do break up, the court does have the authority to enforce your contract.  If your ex boyfriend doesn’t do what he said he was going to do with respect to your shared home, you can take him to court on a breach of contract action.  It’s important to have some recourse!

You don’t necessarily have to have foresight here, either.  If you’re already involved in a relationship where you don’t plan to get married, you can negotiate an agreement at any point.  Obviously, it may be more or less difficult to do this if your relationship is already eroding, but it may still be possible.  It’s definitely something worth discussing with your significant other.

You’re married, and you’d like to stay married

        The Marital Agreement

You may have hit a rocky patch and things probably don’t feel exactly the way you want them to, but that doesn’t mean that you’re ready to throw in the towel and give up on your marriage.  Maybe you feel like just a few little things could help make the difference, and you want your husband to commit to doing some of these things to help save the marriage.

Marital agreements can include all sorts of things, but we often see them include specific things that one spouse or the other wants—sometimes, it’s a date night each week, other times it includes marriage counseling.

Of course, depending on what you put in your agreement, some of the terms really aren’t legally enforceable, but it does help manage expectations and encourage spouses to talk about what they need to make the marriage work.  (If you put in your agreement, for example, that you’ll have sex three times a week, your husband can’t later take you to court for breach of contract if you only have sex twice a week—or not at all.  That’s really not legally enforceable, even though other provisions, like if you agreed to sell the marital house and split the proceeds, in the same agreement can be legally valid.)  Still, it can really help foster open, honest communication.

Not only that, but the marital agreement can also include the terms of the separation agreement, so that both parties know what’s going to happen in the event that they aren’t able to save the marriage.  If one party doesn’t hold up his or her end of the bargain, the other spouse then has the ability to move forward with a divorce—and the separation agreement is already finished.  At that point, the parties would just have to separate for the statutorily required period of time (one year, unless you (1) don’t have minor children, and (2) already have a separation agreement in place) and then file for an uncontested, no fault divorce.

    You’re separated, and you’d like to try your marriage again

        The Reconciliation Agreement

If you’ve already separated, it doesn’t mean that you automatically have to move forward with your divorce.  If you and your husband want to give it another go, that’s great!  It’s still not a bad idea to get an agreement in place to govern your reconciliation, just like you would do if you were getting divorced.

I know, I know—we’re back to the objection that doing this kind of thing is unromantic.  It may not be the most romantic thing you’ve ever heard, but, at the same time, it does afford you some level of protection.  Maybe it’s just because I’m an attorney, but I do personally think that security is sexy.

A reconciliation agreement is a lot like all the other agreements we’ve discussed so far.  Like a marital agreement, it provides specific terms for the marriage to continue.  It gets to the root of what the parties think the problems are, and tries to solve them—usually with things like date nights, marriage counseling, and things of that sort.  Like a marital agreement, it also includes the terms of the separation agreement, just in case things don’t actually work out the way you want them to.

    You’re married, and you don’t want to be married anymore

        The Separation Agreement

The separation agreement is the contract that divides all the assets and liabilities in your marriage.  To get a divorce, you don’t have to have a separation agreement—you could also litigate your divorce in the courts and let the judge decide how everything should be divided, if you prefer.  The thing is, though, that most people DON’T prefer to go to court (because, really, the judge doesn’t much care who gets what).  Whether they’re negotiating their divorce, seeing a mediator to help with their divorce, are participating in a collaborative divorce, or are attempting to do it themselves (without hiring an attorney), most people’s goal is getting that signed separation agreement in place.

In a separation agreement, we take out all the aspirational stuff about saving the marriage, and just focus on what needs to be divided so that both people can go their own separate ways.  We handle everything in a separation agreement, from real and personal property, to retirement accounts, custody and visitation of the minor children, spousal and child support.  It’s a pretty important contract.

No matter where you are in your relationship, there’s a type of contract out there that might help make things easier.  Whether you stay together or break up, you and your significant other should have a “meeting of the minds” discussion, where you lay out exactly how you want your life together to be.  Failing that, of course, pre-agreeing to the terms of your breakup can provide a lot of comfort (not to mention a ton of protection), too.

For more information about drafting an agreement to end or save your relationship, give our office a call at (757) 785-9761.  We’re here to help!