There is really no such thing as a cookie cutter divorce. Though there are things that we see over and over again, and there are certainly some themes that emerge, at the end of the day I think that it’s safe to say that most divorce attorneys would say that every single divorce is different.
That’s mostly because no two relationships are the same, and no two people share the same priorities. In most families, it’s the children. But, of course, what the two parents want for those children can vary greatly. In some families, a homeschool education is paramount. In others, the parents look for ways to finance boarding school. Still others prefer to send their kids to the public schools, but emphasize the importance of advanced placement or international baccalaureate classes. In families where one or more children has a special need, the emphasis is different. If one parent is in jail, things are definitely different. For families where one parent is a merchant marine, or a deployable member of the armed forces, there are also some unique issues presented.
In marriages where there are no minor children, other issues take center stage. Maybe it’s the marital residence, or some other piece of real property, but it could just as easily be taking care of the aging family dog. In some cases, even after a divorce or separation, both parties want to continue caring for something (or someone) that has been important to them. I’ve seen couples who, even long after their divorce, both continue to jointly care for a mother/mother in law, or a close family relative, even though, for one of them, the familial relationship technically already ended.
There really aren’t any rules. In fact, not everyone who comes into my office even wants a divorce. I see people who aren’t married, people who are (and still want to be), people who are (and don’t want to be), and people who are already divorced (sometimes, a long, long time ago).
What I’m talking about today and Wednesday in this two part article are legal contracts you can draft that can help you achieve your objectives—pretty much no matter what those objectives are. Whether you’re married or unmarried, there’s a contract out there that will help you to either get married or remain unmarried, but protect yourself. Your assets, your children, and your sanity are things that need protecting. Regardless of whether marriage is in the cards for you (or if you’re already married), there are things that you can do to make sure that your interests are protected.
A note on signing contracts
Before I go too far into discussing the virtues of contracts and how much simpler they can make our lives, I do want to impress upon you one important thing. Before you sign a contract, you should make sure you’ve (1) read it, (2) understand it, and (3) are sure that it says what you think it says.
I’ve seen so many bad agreements over the years, and I’ve met the people that are bound to them. You need to know, ahead of time, that you should be careful. These contracts can be your salvation, in a lot of cases, but they can also be a curse, if you’re not careful and don’t pay attention to what you’re doing.
So, here’s the thing. A contract creates a legal obligation between two people where no legal obligation existed before. That’s part of the reason why we use them. Courts will enforce contracts between private individuals. When we write contracts, we’re kind of creating our own law. We’re making promises to do certain things, and the reason we do it is because we get something else (usually, something we want more) in return.
Because of this, signing a contract is a very, very serious thing. It’s not something that can be undone, or something you can just ignore because whatever you agreed to is no longer convenient or beneficial for you. It’s not that easy. In fact, in most cases, you’ll have to follow through with the agreement no matter what. The court will enforce it for you if you don’t follow through.
There’s really no way to “un sign” a contract once you’ve signed it. There is such a thing as duress, which could (theoretically, at least) cause a judge to find that a contract isn’t valid—but it’s nearly impossible to prove that duress exists. There’s also unconscionability, which basically means that no person would have signed an agreement that was so bad—but, again, it’s difficult for an agreement to be so one-sided that it rises to the level of unconscionability.
You just need to be aware of this ahead of time, so that you know to take signing and negotiating an agreement very, very seriously. There is virtually no chance that your agreement will be thrown out later. Before you sign an agreement you need to read it, understand it, and be sure that it says what you think it says. It’s never a bad idea, especially if your agreement is one you’ve written yourself or one you’ve worked with a mediator to draft, to have it reviewed by an attorney to make sure that it does what you think it’s going to do before you’ve signed it.
Of course, even though you should be cautious before you sign anything, in a lot of cases, contracts are the cheapest, easiest, most efficient way to handle relationship disputes. After all, anything is better than a litigated divorce, or, even worse, a situation where there’s no legal recourse at all and you just have to figure out how to handle it yourself (which is what would happen if you never married your significant other and then broke up).
Where there’s a will, there’s a way. No matter what your personal situation, an experienced Virginia family law attorney will be able to help you craft a solution that takes your personal concerns into account. In a contract, you have a lot of flexibility. There are lots of ways to accomplish your goals, no matter what point you’re at in your marriage. Let’s discuss.
You’re not married, but you’re thinking about getting married
The Prenuptial Agreement
You’ve heard of a prenuptial agreement. You’ve probably heard of them referred to as “prenups,” because most people abbreviate this way. Usually, we see prenups in situations where one (or both) of the people involved have large assets that need protecting. Check the laws in your state, though, before you get all hot and bothered. In most cases, anything you earned or owned prior to marriage is yours separately, and it really doesn’t matter whether you get married later or not. Still, depending on your situation, you may want to write an agreement that classifies property differently (so that things you earn aren’t necessarily automatically labeled as marital property), or that disallows an award of spousal support (if you earn more than your future husband).
You can set forth all sorts of other terms, too. There really aren’t a whole lot of limits. Certain things are either illegal or unenforceable, but your attorney can help provide you some guidance about what’s appropriate and not appropriate to include.
Prenuptial agreements get a lot of flack because they’re seen as un romantic (Americans are pretty obsessed with romance). Naysayers say things like, “You can’t get married when you’re already planning your divorce.” For some people, that may be true—it may not be the way they’d like to enter into their marriage. For others, though, prenuptial agreements provide freedom and security. They protect assets and avoid sticky situations later, and they help ensure that the people getting married are getting married for the right reasons. Not only that, but there’s a certain degree of security in knowing both what’s expected of you (and what you can expect from your husband)—and knowing what the alternative is.
A lot of divorcing women are paralyzed by fear. They don’t know what’s going to happen to them, their finances, or their children in their divorce action. They lie awake at night wondering about it, and literally worry themselves sick over it. There is a certain measure of safety in knowing what your options are. Either you stay married (and you already know what that looks and feels like), or you get a divorce. Usually, in a prenuptial agreement, most of the terms of the divorce are already handled, including things like how custody and visitation will be handled in the event that (1) you have kids together during the marriage, and (2) the relationship doesn’t work out.
On Wednesday, we’ll talk about more situations you may face, and the kind of contract you can enter into to protect yourself. Stay tuned!