Protecting Yourself in a Relationship
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 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.
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) 997-7731. We’re here to help!