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GETTING MARRIED? YOU MAY WANT TO CONSIDER A PRENUP!

July 26, 2020Filed Under: Asset Protection, Dissolution, Divorce, Property Division

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By Chris Diedling

If you are engaged and planning a wedding, this is supposed to be one of the happiest times in your life. You are soon to be married to the love of your life and your “happily ever after” is all that matters, right? The last thing you want to think about is what happens if you and your future spouse get divorced. However, as much as a marriage is the ultimate, intimate bond between two people who love each other, marriage is also a formal, civil contract between you, your partner, and the State. This civil contract comes with certain rights and legal obligations concerning assets, debts, and finances.


To put it simply, you are signing up for a lot more than “happily ever after” Marriage is a legal commitment involving sharing of property, debt, and the duty of support. The decision to enter into a prenuptial agreement is one that ought to be discussed by every soon-to-be-married couple. This discussion is a crucial planning tool for couples to get on the same page before any issues arise.  Rapper Kayne West perhaps said it best about prenups, “It’s something that you need to have because when she leaves your a**, she’s gonna leave with half”

WHAT IS A PRENUP?
A prenuptial agreement, also known as a premarital agreement, antenuptial agreement, or colloquially referred to as a “prenup,” is a written contract entered into by a couple prior to a marriage. This contract establishes the property and financial rights of each spouse in the event of a divorce or separation. A prenuptial agreement determines at least three important questions to be answered in a future marriage termination: 1) How your assets & debts will be divided; 2) How your assets & debts will be categorized; 3) Whether either party will be paying support to the other.

WHY WOULD I NEED A PRENUP?
You may be reading this article with skepticism and have thoughts such as, “if my future spouse and I really love each other, we wouldn’t need a prenup” or that “prenups are only for couples who can’t fully trust each other.” This is a perfunctory and naïve way of thinking. It is so easy to be blinded by love and the idea of “happily ever after” to the point where you never stop to consider the reality of marriage.
Some other common misconceptions and falsehoods about prenups include: “prenups are only for wealthy people,” “I have zero assets going into the marriage, I don’t need a prenup” “a prenup automatically means no future spousal support or alimony,” “prenups show a lack of commitment or faith in the marriage.”


All of these notions are completely false. Many of these myths have caused reasonable, intelligent people to entirely dismiss the whole idea of a prenup when planning their wedding. Some have been lucky enough to never know the consequences of not having one; others wish they would have had a prenup.


I am not trying to rain on your joyous wedding parade in the least. By all means, there is absolutely nothing wrong with being ecstatic about your upcoming marriage! Love and happiness are both real and attainable and you should be thrilled on reaching that point with your soul mate! But, it is equally important to acknowledge reality and plan responsibly for the future. After all, responsible adults commonly plan for life events, both positive and negative, as everyday occurrences. We utilize insurance policies to plan for disasters such as floods, fires, and car accidents, etc. We use estate plans to distribute assets to our beneficiaries after we’re gone. We set up trusts and college funds for our children. We invest and save for the future. Why should a prenuptial agreement be any different? Forget the minimal, temporary discomfort in approaching the subject with your partner. The reality is, at least 50% of marriages end in divorce and that statistic could be increasing according to recent studies.

Wouldn’t you want to be prepared for any event that has at least a 50% chance of occurring?
A prenuptial agreement is not planning for a likely marital failure. Rather, it is a vital tool for couples who genuinely trust each other enough to reach a comfortable agreement on the terms of a separation in the event the marriage does fail. Instead of looking at a prenup as a lack of trust or commitment in a marriage, look at it as an indicator of common sense!
A top-notch family law attorney once told me, “never marry someone you couldn’t stand to get divorced from.” Valuable advice indeed. If you are able to discuss the issues covered by a prenuptial agreement with your future spouse, you are planning for success. After discussing these issues, you and your partner will have a better understanding of each other’s expectations and a lot of future conflict can be avoided.

WHAT DOES A PRENUP DO FOR YOU?
A prenup will serve as a roadmap for an amicable resolution in the context of separation and through all of strife that comes with it. A prenup can save a lot of time, expense, and emotional hardship should a divorce ever occur.
Identify and allocate separate and marital property/debt: The prenup can identify each spouse’s separate property and/or debt and how these assets/liabilities shall be treated if a divorce should occur. You can also decide how marital property will be divided rather than leaving it up to the court to decide through divorce proceedings.
Spousal support considerations: The prenup can be used to guarantee either spouse a minimum amount of spousal support in the event of divorce. A couple can agree on no spousal support, a fixed or sliding amount, payments for a finite period of time or until a triggering event (such as remarriage) occurs. Keep in mind that all prenuptial agreements are subject to a court’s review and if your agreement isn’t fair, the court could invalidate the provision.
Allow children from a prior marriage to inherit separate property: The prenup can ensure that children from a prior marriage inherit their share of your estate when you die. Without a prenup, the surviving spouse may have the right to claim a large portion of the deceased spouse’s property, leaving little to nothing for the children of the prior marriage.

WHAT DOES A WELL-DRAFTED PRENUP NEED?
The most essential factor for a successful and legally valid prenup is full and complete disclosure of each spouse’s assets and debts going into the marriage. Full disclosure ensures that the prenup process is both fair and equitable in the eyes of the court.
Additionally, every valid prenup must be in writing and voluntarily signed by the parties. The prenup must be fair and reasonable and both parties must understand and clearly indicate such understanding of the agreement. Both parties must have had adequate opportunity to consult with legal consul. It is highly recommended that both parties to a prenup obtain legal representation. You will want to contact and attorney to ensure your prenup is prepared and executed in compliance with the law.

HOW CAN I GET A PRENUP?

If you would like to contact Chris to discuss a prenuptial agreement, please call 513-771-2444 to schedule a free 30-minute consultation!

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Seniors’ Finances Take a Hit with Divorce

April 15, 2020Filed Under: Divorce, Elder Law

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Americans aged 50 or more are experiencing gray divorce more than ever. The term gray divorce generally refers to the baby boomer generation and affects all classes and education levels. Research shows that splitting during middle age is particularly damaging to your financial well-being. According to Bloomberg News, the US divorce rate for couples past the age of 50 has doubled since 1990 and occurs most often in people who have married and divorced more than once. The rate of divorce among remarried individuals is 2.5 times higher than those in first marriages. And the financial outlook is usually the bleakest for those who have married and divorced more than once. Losing accumulated wealth for a second or third time can ruin personal finances on an unprecedented scale.

As such, relative wealth can be a protective factor in keeping couples together. Midlife marriages are not always torn apart by empty nest syndrome or a late mid-life crisis. Often, divorcing couples are already experiencing financial problems due to unemployment or job insecurity. These couples may not have the resources to enter into marriage counseling and may not see the point in fighting to remain in an unsuccessful economic partnership. Married couples with more to lose in divorce will often keep a less than perfect marriage viable to protect a lifestyle they are unwilling to forfeit. These couples will often live separate lives but maintain the economic structure within the marriage.

Susan Brown, who is co-director of the National Center for Family & Marriage Research, explains that if you are getting a divorce after the age of 50, expect your wealth to decrease by 50 percent. Brown goes on to state that the depression rate for those experiencing gray divorce is higher than the levels of those who have experienced the death of a spouse. If you are a woman and going through a gray divorce, expect your standard of living to plunge by 45 percent compared to a man’s 21 percent. One of the biggest financial tragedies of gray divorce is there is no appreciable window of time to recover the wealth you lost. The event horizon of your life is shrinking, and there is no time to undo the financial destruction. Even qualified career individuals will find ageism is rife within the corporate hiring sector. The prospects for landing a great new job or winning a lottery are very bleak. Statistics show you will be most unlikely to recoup your previous standard of living. This fact is particularly true in the case of women aged 63 or more who, in part, are experiencing poverty rates of 27 percent because of gray divorce. The Journal of Gerontology projects that by the year 2030, more than 828,000 Americans will be divorcing each year even if the gray divorce rate stays the same.

What to do if you become a gray divorce statistic then? One of the best ways to recover is to re-partner. Many older people are looking to re-couple and the digital age is providing more ways to meet than ever before. Online dating sites for older Americans are popular as are the more traditional senior community centers to make connections to like-aged people. If you choose to remain un-partnered however, you can expect to take about four years to end the depression cycle of gray divorce. However, remarrying or re-partnering will end the depression almost immediately with the stipulation you have chosen your partner wisely. Generally, re-partnering is more successful if you are a man since they tend to look for a partner who is significantly younger than themselves. As women live longer than men and because men do tend to seek younger women, older women are left with a vastly smaller pool of potential partners.

Protect your well-being and financial interests from gray divorce. Your best hope is to stay successfully married and continue on the path of building wealth and enjoying retirement years. If you find yourself going through a gray divorce, be sure to seek trusted legal counsel who can best advise you on how to protect your assets and future retirement years. Whether you are on your first, second, or third marriage take a look at how best to protect your financial picture in the event gray divorce happens to you.

If you have questions or need guidance in your planning or planning for a loved one, please do not hesitate to contact our Cincinnati office by calling us at (513) 771-2444.Facebooktwitterredditlinkedinmail

Divorce and the Collaborative Process

December 12, 2016Filed Under: Current Events, Dissolution, Divorce, Uncategorized

FacebooktwitterredditlinkedinmailI’ve been watching the show “Divorce” on HBO (Sarah Jessica Parker) fairly religiously because I like HBO and SJP and I also practice family law.

[Spoiler Alert!!]  In the first couple of episodes after divorce became a likely option for the characters, they started down what is often a common way of handling the conflict.    First, they went to mediation and tried to work things out without lawyers.  This show subscribes to a traditional stereotype of a lawyer – that they make everything worse and more expensive. So the characters opted not to go that route “to keep things amicable”. All things I’ve heard before.  Things were going well with mediation.  But then the husband talked to a friend who said he should “lawyer up” to make sure his interests are protected.   So he did that without telling his wife.  When the wife got wind of the husband getting a lawyer, she went for the best, most expensive lawyer in town to one up the husband and make sure her interests were protected.   This caused the husband to panic and decide he needed a “better” lawyer, so he went and hired the dirtiest meanest women-hating lawyer in town to protect his rights.   Then, the wife determined her lawyer was not getting the job done  so she fired him and hired the dirtiest, meanest man-hating lawyer in town to protect her rights.  Meanwhile, the parties were able to co-parent, deal with each other and parties of common friends and go to visit wife’s family for the holidays without the help of their lawyers.   The last scene was the husband being served divorce papers in the middle of coaching his daughter’s basketball game to wife’s surprise.   A recipe for disaster.

We are talking about a TV show so of course there is the usual bit of Hollywood dramatization and exaggeration. However, I would say its a fairly accurate portrayal of how things can go when starting the divorce process.  If these parties had been introduced to the Collaborative Process in the beginning, they may never have completely cut off their chance at an amicable resolution of their issues. Instead, they are spending their hard earned money “one-upping” each other with their lawyers and entering into the process using fear as a tactic.  Wife also managed to humiliate her husband and children in public as icing on the cake.

This is definitely one way to handle your divorce and there are lawyers out there willing to take your money to do it that way.  But usually the end result is not good for either party, especially if children are involved.

By contrast, the Collaborative Process insists that each party has the chance to hire a lawyer of their choice who is trained in the Collaborative Process before any sort of negotiation begins.  The parties hire their lawyers at the outset and can set the tone of their process.   Then, depending on the distinct issues in the case, the attorneys may recommend hiring a family relations specialist and a financial expert to help move the process along.  The process is meant to be a team approach and the lawyers advise on what the party’s interests are so that the party has a frame of reference as to whether they are agreeing to something for or against his/her interest.  Your lawyer is still fully on your side in an advisory position.     If you are interested in this approach to ending your marriage vs. the one described at the beginning of this blog,  contact me to set up a consultation to discuss your options.Facebooktwitterredditlinkedinmail

Can you force a parent to have visitation with his/her child?

November 22, 2016Filed Under: Child Custody, Dissolution, Divorce, Post Divorce/Custody Issues

FacebooktwitterredditlinkedinmailA question was recently posed to me regarding a parent’s ability to force the other parent to have visitation with his or her child.

You generally cannot force the other parent to exercise his or her visitation if you have full custody of your child. Visitation is considered a “right”. Similar to other rights – such as voting – you have the ability to exercise your right but can’t be penalized for choosing not to exercise that right. Your right can be taken away from you only for good cause. In contrast, supporting your child is a responsibility. A responsibility – such as paying taxes – can be forced upon you if you choose not to honor that responsibility. The Court has the ability to force the Obligor to pay child support even if he or she doesn’t want to.

One caveat to this is if the parents have a shared parenting plan (Ohio’s version of joint custody). I have heard one judge say that she would find a parent in contempt for not exercising his time under a shared parenting plan. I have never personally pursued such a finding because from a practical standpoint it just doesn’t make sense. The more logical pursuit would be to ask the Court to modify the non-compliant parent’s parenting time and increase his/her child support because he/she is not exercising the time, putting more of the burden on the other parent.Facebooktwitterredditlinkedinmail

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Olivia K. Smith, Attorney at Law
Cornetet, Meyer, Rush & Stapleton Co., L.P.A.
123 Boggs Lane,
Cincinnati, Ohio 45246
Tel: (513) 771-2444
Fax: (877) 483-2119
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Olivia K. Smith, Attorney at Law
Cornetet, Meyer, Rush & Stapleton
123 Boggs Lane
Cincinnati, OH 45246
Phone: 513-771-2444
Fax: 877-483-2119
oksmith@cmrs-law.com

Family Law Attorney Olivia K. Smith, LLC represent clients in Cincinnati, Anderson Township, Batavia, Loveland, Mason, Milford and other communities in Hamilton County, Clermont County, Butler County and Warren County.

Disclaimer: The information you obtain at this site is not, nor is it intended to be, legal advice. You should consult an attorney for advice regarding your individual situation. I invite you to contact me and welcome your calls, letters and electronic mail. Contacting me does not create an attorney-client relationship. Please do not send any confidential information to me until such time as an attorney-client relationship has been established.

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