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Benefits and Pitfalls of Pre-nup Agreements
In New York and New Jersey prenuptial agreements (agreements entered into by couples prior to marriage) are valid and enforceable agreements. A prenuptial ("prenup") agreement, once it is prepared and executed in the proper manner, and it reflects the intention of the parties, is very often viewed as any other contract is viewed and in the absence of any evidence of undue influence or very exceptional circumstances it would be the terms of the prenup that governs the division of assets and other financial issues upon divorce.
Very often a person (very often the one with the least assets) will telephone my office and state "we need a prenup. Can my fiancee and I come to your office and you draft it for us?" Other times they would say, "I got your number I just want you to look at my prenup because my fiancee's lawyer told me I had to have a lawyer but don't make a big deal of it I am sure its fine. I just want to sign it." Usually, the prenup is not "fine" it is usually extremely one-sided and should you sign it you give away a lot of rights that are afforded to you under the family law statutes of your state. In addition, the same attorney should never represent both parties to a prenup agreement. Each side must have their own counsel to ensure that negotiations are fair and both parties' interests are protected.
In every pre-nup negotiation there must be full financial disclosure. In addition, you must pick an attorney of your own choosing; Most importantly, you must listen to your attorney and if she tells you the document is one-sided try to negotiate a better agreement, you will not be released from your rights and obligations if you knowingly sign a one-sided prenup.
It is important that you understand the terms of a prenup and that you fully comprehend the impact of those terms in the event, however unlikely, of a divorce. For example, waiving alimony or maintenance may mean that after years of being a stay-at-home parent, or the one reducing your career opportunities for the sake of your family, you may not have sufficient resources to get back on your feet post-divorce. www.angelabarkerlaw.com
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It seems that we are slowly crawling out of the recession and all economic indicators reveal that 2010 promises to be a better year than 2009. However, events such as the attempted bombing in Times Square and the unprecedented oil spill in the gulf states indicate that life is nothing if not unpredictable and challenging. To meet those challenges planning is essential. The articles we have selected for this issue of the newsletter show that good planning may not prevent bad things from occuring, but can surely soften the impact of the blow.
We maintain and truly believe that life is a series of transitions, and at the Law Office of Angela Barker & Associates, LLC, we are committed to help ease the transition through the various life stages: whether it be a change in the family structure as a result of death, marriage, divorce, or separation. We are there for you as you buy or sell your home, and we assist our clients in planning for their loved ones' golden years and help them pass their assets on to the next generation. People are our business. For the benefit of our clients and the communities we serve, we have developed this newsletter as a legal and consumer resource. Enjoy!
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| A Review of Your Estate Plan is Essential After Divorce |
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The recent news report regarding deceased actor Gary Coleman is illustrative of the fact that you should review your estate plan after divorce. As I have repeatedly stated, an estate plan is not something you do once, then hide it away in a drawer. Rather it should be reviewed at least every three years and after major life changing events such as births, deaths and divorce.
In Mr. Coleman's case it was learned that he and wife Shanon Price were divorced in August 2008. However, the parties still lived together. It appears that Mr. Coleman granted Ms. Price authority to make medical decisions on his behalf. It was not clear whether that grant of authority was given prior to the divorce or at the time Mr. Coleman was admitted to the hospital for the injury which caused his death.
If it were the latter there is no cause for concern. The newspapers reported that Mr. Coleman was lucid and presumably able to give informed consent for the directive. However, if the consent was given prior to the divorce, it is not clear that, post-divorce, Mr. Coleman would have wanted his ex-wife to make any decisions, especially health care decisions on his behalf.
In many jurisdictions, estate planning documents such as power-of-attorney, wills, trust, health care proxies, designation of remains directives, and living wills
are given literal interpretation and very often a subsequent divorce may not cut off the rights of former spouse named in these documents. Very often ex-spouses inherit assets that the deceased would surely have wanted to go to others. It is essential that upon your divorce you review your estate plan to ensure that these documents reflect your current desires and goals. |
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| Mortgage Insurance Easier to Obtain |
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In another sign that the real estate market is recovering private mortgage insurance or ("P.M.I") appears to be easier to obtain. P.M.I. is additional insurance buyers are required to pay if they put down less than a 20% downpayment on their homes.
PMI protects the lender against loss if the buyer defaults on the home. P.M.I. enables those unable to afford a 20% down payment to still purchase a home for as little as 3% - 5% of the home's value.
Of course, as we have recently learned from the volatile housing market of the past three years, the purchase of a home is a huge investment that should only be made after you have carefully weighed your financial ability to pay. To find out more information about PMI and low down-payment loans you should contact the U.S. Department of Housing and Urban Development (HUD) Customer Service Department at www.hud.gov. |
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