A new article on Forbes.com by Attorney Jeff Landers gives a nice overview of the reasons to gear up early once you sense that divorce may be one outcome of your marital problems.
While Jeff seems to suggest that divorce dirty tricks are the exclusive province of men, in our experience the risks and considerations he outlines in this otherwise informative article apply to both genders.
Landers points out that consulting an attorney early can not only provide you with a crucial checklist for contingency planning, but can also assure that your spouse won’t beat you to the punch by consulting several of the best area lawyers simply to disqualify them from representing you. He also notes that starting the action assures that if the matter goes to trial down the road, you will be the one, as the plaintiff, to present your case first.
Our clients in Connecticut should also know that by filing for divorce certain Automatic Orders take effect the moment the divorce papers are served on their spouse. These orders prevent the other party from doing a number of things including moving out-of-state with children, hiding assets, taking sole ownership of joint assets, changing locks on the marital residence, changing beneficiaries on existing insurance policies and more. The full text and a summary of the Automatic Orders can be found here on the Connecticut Judicial Website.
Bottom line? While you’re hoping for the best and working on your marriage it also makes sense to prepare well for the worst
Writing recently for the New York Times, author Matt Richtel in an article entitled, ” Till Death, or 20 Years, Do Us Part”, mused about whether setting an expiration date for marriage might be the best way to address new attitudes about marriage — those that render it expendable depending on circumstances.
Richtel, who writes most often about technology, makes his case for a twenty-year contract with tongue in cheek but does make the serious point that no real mechanism exists, short of prenuptial contracts, to mitigate the drama and stress of divorces that happen at statistically predictable stages of marriage.
Richtel implies that making marriage contracts renewable might have the double advantage of lessening the stigma of divorce where it proves inevitable, and, conversely, of raising the consciousness of couples whose marriages will grow stronger if re-examined and effectively re-negotiated at intervals that coincide with marriages’ biggest stressors. Various experts cited in the article suggest that these milestones involve the birth of a child, a job change, the death of a family member, or when the couple finds themselves living in an empty nest. While most of these events are unpredictable, others are not. Generally, for example, empty-nest syndrome shows up at roughly the twenty-year mark. The president of the American Academy of Matrimonial Lawyers, Kenneth Altshuler, quoted in the article, noted that, in his own practice, divorces seem to cluster around the 7 and 20 year marks. As it turns out, the seven year itch may be more than a movie title.
None of this is to suggest seriously that renewable marriage contracts are really ripe for serious thought given the tenor current political dialogue on the overall issue of marriage. Instead, however, Richtel’s article makes us think more seriously about what should be done at the beginning of a marriage to lessen the trauma and bitter discord that so often characterizes the end.
True, prenuptial agreements do put a temporary crimp in the image of unsullied romance that we expect to survive from the first date to the end of the honeymoon. (Although anyone who has ever planned a large wedding knows that only a strong dose of denial can keep that illusion alive.)
On the other hand, at what other point in a relationship will a frank and, mercifully, hypothetical discussion about the practical issue of divorce take a lesser toll on a couple’s relationship? Balance this against the angst that the couple will suffer if their marriage is among the half that end in divorce and at a time when love and goodwill are no longer the most important underpinnings of the negotiations. Once that comparison is made, the only remaining question is what will better serve the couple and their future children — betting everything that they will beat the odds, or promising from the start to do the right thing in the unexpected event that they won’t?
A recent decision of the Connecticut Appellate Court in the case of Felicia Pierot Brody vs. Cary Brody illustrates what can happen when the focus of a divorce case shifts from the issues in the marriage to the credibility, or lack thereof, of one of the parties to the case. In the Brody case, one thing that happened was that a lot of personal information became public – e.g., the husband’s awkward excuse for stashing condoms in his travel bag. Another consequence: Brody was ordered to pay $2.5 million in lump sum alimony even though his prenuptial agreement was meant to prevent that and even though the court was unable to ascertain his income. The trial took place in 2010. Recently the Appellate Court has ruled against Brody on all six issues he raised in his appeal.
For all most of us know, Mr. Brody might have told the truth from start to finish. However, the judge found him not to be credible which, as the finder of fact in a civil case, she was privileged to do.
Any judge will tell you that the best way to appear to be truthful is simply to tell the truth. Still, any divorce lawyer who’s practiced as long as I have, has encountered more than one client who is shocked to learn that their lawyer expects them to be honest.
What kind of lawyer wouldn’t help you hide your assets, understate your income or cover up your extramarital affairs? The answer: any good one. Yet, despite our best efforts, there are plenty of folks who remain unconvinced that honesty is the best policy even when the truth isn’t pretty.
The fact is, there isn’t much that happens in a marriage that the judge hasn’t heard before. Also, there can be two very different sides to every story even when the story is told by honest people. Your secret spending or infidelity might have led to enormous drama in your household, but in divorce court, might barely cause a ripple. Unless, that is, you deny the deed and the judge isn’t buying it.
Brody was not a divorce between members of the 99% although the basic issues were fairly universal. There was an issue of irresponsible spending — in this case buying one too many Ferrari automobiles , a wine cellar, and an airplane. There was an issue of suspected infidelity with no proof other than a few unused condoms. There was a business purportedly in decline — in this case the Defendant’s hedge fund. There were some “he-said-she-said” claims of verbal abuse. All matters divorce judges deal with day in and day out.
No case in Connecticut goes to trial without first going through at least one formal attempt at settlement usually with the assistance of a judge or court-appointed Special Master. Most cases settle before trial. Of the small percentage that do not, only a handful are appealed and those few find little success in overturning the decision of the trial judge.
In this case, the Defendant raised a number of issues that might have served him well during settlement negotiations. His business really had been embroiled in litigation with the SEC, for example, and the prenuptial agreement arguably offered him protection from a lump sum alimony award that would have to be funded by liquidating personal assets.
At trial, however, the judge found him not to be a credible witness. For one thing, he had admitted testifying falsely under oath in an earlier divorce proceeding that his wife had commenced but later dropped. Back then he had denied removing his wife’s jewelery from a safe, but had later come clean. Added to that was the finding that the Defendant had stonewalled during the discovery phase of the trial pretending that certain documents sought by the Plaintiff didn’t exist. With those two strikes against him, the case was pretty much over. The Plaintiff, whose personal net worth at the time of the marriage had been 29 million, and whose dividend income from her separate property was approximately $100,000 annually was awarded alimony and, tacitly, the designation of honest litigant.
According to a recent article published in USA Today, a study of over 7000 individuals conducted by researchers at the Ohio State University found that 79% of marital separations end in divorce.
The study found that the average length of separations that resulted in reconciliation was two years, while the average of those ending in divorce was three years. Surprisingly, the chances of reconciliation virtually disappeared among this group beyond the three-year mark. While many couples who lived apart for three or more years eventually divorced, others simply continued the separation indefinitely.
The study found that women with children under 5 years old were more likely to separate from their husbands rather than to divorce immediately.
All of this means that a great number of couples either delay or forego altogether the protection of laws designed to shield them financially in the event their marriage comes apart. These include laws governing the division of marital assets as well as laws regarding spousal and child support.
In a relatively new trend, some couples seriously contemplating trial separation begin the experiment by negotiating a formal post-marital agreement that sets out their respective financial obligations while still legally married and also in the event of an eventual divorce. In this way, they are able to enter into a trial separation — or in some cases even continue living under the same roof — with the security of an agreed-upon set of rules. This provides each of them with a degree of certainty about their financial future that would not otherwise be possible absent divorce litigation. With financial issues resolved, they are better able to understand the choices they face and to focus on other issues in their relationship.
Just like prenuptial agreements, post-marital agreements must meet certain standards in order to be enforceable. These standards are governed by the laws of individual states, but certain features are universal. First, they must be accompanied by full mutual disclosure of financial information. Second, they must be entered into voluntarily and both parties must have had at least the opportunity to have the agreement reviewed by independent counsel. All courts reserve the right to review both prenuptial agreements and post-marital agreements for fairness, but, provided there are no egregious flaws in the contract, courts generally support and enforce them as a matter of public policy.
Impending separation is not the only reason to consider a post-marital agreement. Events such as the birth of a child, a return to school, or the launch of a business can be good reason for couples to consider adding a post-marital agreement to their financial plan.
Because our last post highlighted a recent Wall Street Journal report about the skyrocketing divorce rate among baby boomers — especially those who have been divorced at least once before — we decided offer a quick primer on Connecticut’s Premarital Agreement Act.
Many people worry that premarital agreements — also know as prenuptial agreements and ante-nuptial agreements — send the wrong message about commitment and generate conflict and an atmosphere of pessimism from the start of a marriage.
Regardless of your beliefs about the wisdom or morality of entering into prenuptial agreements at the beginning of a first marriage, the stakes are often quite different when we choose to marry for a second time. By then, both parties are likely to have amassed some assets of their own and, importantly, may have children whose future welfare could be jeopardized in the absence of a prenuptial agreement.
If you do decide a prenuptial agreement is for you, it is important to do everything possible to assure that it is both fair and enforceable. According to a comprehensive overview on the history and development of the law on prenuptial agreements published in 2007 in the William and Mary Journal of Women and the Law, rules regarding the enforceability of prenuptial or premarital agreements vary considerably from state-to-state. According to the authors, prenups are not enforceable in England and in parts of Canada but instead simply serve as evidence of what the parties thought would be fair at the time the agreement was signed.
Connecticut’s Premarital Agreement Act goes a long way toward assuring that a carefully crafted agreement will ultimately be enforced by the court, but it also provides a number of requirements that must be met in order for a prenup to survive a challenge at the time of a divorce.
The agreement must have been entered into voluntarily.
The agreement must not appear to the court to have been unconscionable when it was executed or when it is sought to be enforced
Before signing the agreement, both parties must have been given a fair and reasonable disclosure of the amount, character and value of property, financial obligations and income of the other party
The party opposing enforcement must have been given a reasonable opportunity to consult with independent counsel
The terms of the agreement must not make it necessary for one of the parties to seek public assistance
In order for agreements to be honored at the time of a divorce it is not enough simply to recite that all of these requirements have been met. For example, if one party can provide credible evidence that he or she was under duress at the time the agreement was signed, it will not be enough that the agreement, itself, provided that he or she was not.
The degree of specificity and complexity of premarital or prenuptial agreements varies enormously.
Agreements may cover pre-marital property only or may deal, as well, with property acquired during the marriage. Parties can pre-determine spousal support rights, allocation of debts, and much more. It is also typical for couples to agree that their premarital agreement will expire after a period of time or that rights to such things as spousal support and retirement benefits will increase in accordance with a pre-arranged schedule as the years pass.
One set of issues that cannot be decided in advance by way of a premarital agreement has to do with the care, custody and support of children of the marriage.
As with most areas of contract law, there is no one-size-fits-all document. Instead, engaged couples should make every effort to learn what issues they may face in the event that the marriage ends either by divorce or by death, and to fashion an agreement that recognizes and accommodates each party’s wishes and priorities regarding their own financial future and, in many cases, the financial future of their children and grandchildren.