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Prenuptial Agreements: A Logical Need In Many Situations

Clay Butler — Mon, 29 Nov 2010 22:28:32 +0000

Prenuptial Agreements: A Logical Need In Many Situations

Prenuptial agreements can be a somewhat awkward subject to discuss, especially for those in committed and loving relationships. Such agreements are often mistakenly perceived by many, as reducing the institution of marriage to a business relationship bound by strict contractual obligations on both parties. Such perceptions can be hard to overcome. Even so, prenuptial agreements can be invaluable in certain circumstances and may actually contribute to stronger, more trusted marital relationships in the right contexts.

A prenuptial agreement, or a prenup, as it is more commonly referred to, is an agreement that typically covers the financial implications of an ended marriage. It basically spells out the financial obligations of both the husband and the wife in the event they decide to mutually end their married relationship. A prenuptial contract clearly describes how the two sides will split their financial assets, their physical assets and their financial obligations and liabilities if the marriage ends in a divorce. Each state, of course, has its own set of divorce laws that cover many of these same issues. However, quite often couples find that such laws are too generic for their situations and prefer drawing up a more customized prenuptial contract for their specific requirements.

A prenuptial agreement can be especially vital in certain situations. For example, when one partner is significantly wealthier than the other, a prenuptial contract can ensure that the marriage is not being motivated by money. Similarly, if one partner earns a lot more than the other, a prenuptial agreement can be used to limit child support or other payments. Sometimes, individuals who are remarrying, use such contracts to ensure that children from the current marriage and those from the previous one get their fair share of any inheritances that might need to be distributed upon that individual’s passing. These are by far, not the only situations were marriage contracts make sense. Situations in which one partner has a high debt load, or where one spouse may be part-owner of a business for instance, also can benefit from a prenup.

As with any contract, prenuptial agreements too have their limitations. For instance, such contracts are not enforceable when it comes to issues such as child custody or child visitation. Nor can they address issues such as the religion in which to raise a child. Several states also allow courts to invalidate agreements relating to issues such as alimony or division of household duties, if the court feels that the contract unfairly favors one spouse over the other.

What Is Common Law Marriage?

Clay Butler — Mon, 22 Nov 2010 22:25:51 +0000

What Is Common Law Marriage

A common law marriage occurs when a couple proclaims themselves to be married by their words and actions, and live together as husband and wife. These actions can include filing joint tax returns and the wife taking on the last name of the husband. In some jurisdictions, a significant time period also must have passed during the time in which the proclamations have been made.

Simply living together is not enough to constitute a common law marriage.

In the United States, common law marriages can be created only within ten states. Alabama, Colorado, Iowa, Kansas, Montana, North Carolina, Oklahoma, Rhode Island, South Carolina, and Texas, as well as the District of Columbia, consider common law marriage as legally binding as any other recognized marital status.

In all other states, common law marriage – known outside of the United States as marriage by habit and repute, de facto marriage, and informal marriage – has no legal consequences. If, however, a common law marriage between a couple was created validly within a common law state, all other states will recognize it also. It simply cannot be created within them. For example, a common law marriage which was created in Alabama will also be valid in California, even though California has no common law marital status itself. This is done under the principles of comity.

Utah will recognize common law marriage only when it has been validated by a court, and New Hampshire will allow it for probate purposes alone.

In comparison to regular ceremonial marriage, a common law marriage is not licensed by governmental entities and they are not solemnized. There is no such thing as a “common law divorce,” although Texas will allow common law marriages to be annulled. In order to dissolve the marriage, the process is the same as with a ceremonial marriage; it must be done through a trial court. A probate or family court will normally be used.

As with ceremonial marriages, a common law marriage cannot be created when one or both partners are at that time married civilly to other parties, until dissolution of the previous marriage is complete.

The only state to currently recognize same-sex common law marriages is Iowa, but this has been untested in court. No other states permit common law marriages between same-sex couples.

Collaborative Family Law

Clay Butler — Mon, 25 Oct 2010 18:26:54 +0000

The Outcome of Court Cases can be Uncertain

When couples decide to separate or end their marriage the thought of going to court to resolve personal differences is not only stressful it can have an uncertain outcome that may not serve the needs of either party. Resolving conflicts using the court as the mediator is an experience that should be avoided in most cases. Thanks to a Minnesota lawyer a new approach to conflict resolution was created in 1990.

Collaborative Family law also known as Collaborative Divorce and Collaborative Practice is a process that helps couples work through their differences using lawyers and other family professionals. This collaborative choice gives both parties the opportunity to focus on what is important in terms of individual needs as well as present and future family and personal expectations.

Another important feature of this process is the initiation of pre and post martial agreements which are executed in a consensual fashion rather than with an oppositional attitude. Couples are able to begin married life on firm legal ground where all of the financial issues that can ruin a relationship are discussed and confirmed legally.

When a couple agrees to use Collaborative law instead of litigation they sign a Participation Agreement which is a binding contract that stipulates that both parties will take into consideration the needs of each other as well as the children. The agreement also specifies that if a settlement cannot be reached the lawyers will remove themselves from the case and help clients make the transition to trial attorneys. In most cases Collaborative law establishes an open and cooperative environment where each party and their lawyer can work out a settlement that benefits everyone involved.

The Collaborative Law Process Has Spread Across the World

The damaged caused by court proceedings outweighs the positive features of divorce cases especially when cost and personal well being are considered. The idea of controlling emotions and looking at both sides of the issue can be exceptions in typical court proceedings. The Collaborative Practice spread rapidly across the US, Canada, Australia, and Europe because it does address emotional well being and personal integrity. Individuals walk away with some semblance of dignity.

There are more than twenty-two thousand lawyers trained in Collaborative Law worldwide according to the International Academy of Collaborative Professionals. There are Collaborative lawyers in forty-six US states and in some states it has become the predominant method of resolving family disputes and divorce issues.

Defacto Marriage & Cohabitation

Clay Butler — Fri, 04 Dec 2009 20:24:03 +0000

A common law marriage (sometimes called a defacto marriage) is a marriage created by cohabitation and agreement, rather than by ceremony & licensing. Many people believe that couples who live together for 7 years or longer have a common-law marriage. This is not true. Only 15 states and the District of Columbia recognize common-law marriages. Texas law recognizes common-law marriage, and there are several criteria that can be used to determine a common-law marriage.

Under Texas law, if you “hold yourself out to be married” by telling the community that you are married, using the same last name, filing joint income tax returns, and calling each other husband and wife, then you can be considered to have a common law marriage. A couple who wants to establish a common-law marriage in Texas can sign a form provided by the county clerk. Most common law marriages, however, have no written agreement. Couples in a common-law marriage must (1) agree to be married, (2) cohabit, and (3) represent to others that they are married.

A commonly asked question is, “How many years must we live together before we are common law married?” In Texas, there is no formal length of time required for cohabitation. You do not need to live together for years, or even one year, to be considered common-law spouses. The determination of a common-law marriage is not based on length of time spent living together. Rather, it can be based on (1) representing to others that you are married, and (2) the nature of the agreement between both partners.

If you choose to end your common-law marriage, then you must follow standard divorce proceedings — even though you never had an official wedding. In Texas, either partner in a common-law marriage has two years after separation to file an action proving that a common-law marriage existed. To obtain a divorce from a common-law marriage, you must go through the same process as traditionally married spouses.