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How to make Prenuptial Agreements stick

Once you have decided to get married or have a civil union, you may decide that you need a Premarital (aka Prenuptial) Agreement with your soon to be spouse or partner.  There are several things that may make it more likely that your Premarital Agreement will endure.

In Colorado, if a party proves any one of four items, the Agreement is unenforceable.

  1. the party’s consent to the Agreement was involuntary or the result of duress;
  2. the party did not have access to independent legal representation;
  3. the Agreement did not include a notice of waiver of rights or an explanation in plain language of the marital rights obligations being modified or waived by the Agreement if the party did not have independent legal representation; or
  4. before signing the Agreement, the party did not receive adequate financial disclosure from the other party.

A consideration of time and basic fairness may also help your Premarital Agreement endure.  Although there is some case law upholding Premarital Agreements that were signed on the day of the wedding, it is prudent to have a longer period of time from the beginning of the negotiations and drafting of the Agreement and the signing.  It is not hard to imagine how a much shorter period of time would make it more difficult to understand all of the legal ramifications of the Agreement and what marital rights are being changed or waived.

In order for most contracts to be valid, the parties need to be in agreement (bargain and acceptance) and something of value has been exchanged for something else of value  (consideration).  A Premarital Agreement should include an element of basic fairness.  Due to the nature of a Premarital Agreement, the Agreement may be somewhat one-sided but it should not be completely lopsided.  The Premarital Agreement should be fair when it is made and may not be unconscionable (as to certain elements) at the time of the enforcement.

What is Early Neutral Assessment (ENA) or Early Neutral Evaluation (ENE)?

Early Neutral Assessment (ENA) is a voluntary, informal, alternative dispute resolution process that was first developed by the Hennepin County Family Court program in Minneapolis. It was initiated to allow parents to remain in control of major decisions about their family, while lowering the conflict that is so harmful to the children. ENA typically only addresses issues related to the children (i.e. parenting time and decision-making).

Some Counties use ENA for relocation cases and other Counties do not believe that ENA should be used for relocation cases.  Although ENA is usually used for pre-decree divorce cases, it may be used in a post-decree (after divorce) case.  The idea with ENA is to give the parents and idea of what the Court might do in their case and try to resolve the case outside of Court.

ENA is usually facilitated by a team of an attorney and a mental health professional. As of 2017, we have one ENA team in Larimer County, Kathleen McNamara, Ph.D. and Robert Smith, J.D.  and two ENA teams in Weld County, Jack Gardner, Psy.D. and Ashley Chase, J.D. and Barry Lindstrom, Ph.D. and Dianne Peterson, J.D.

Our ENA team members are very experienced attorneys or psychologists who have done numerous Child and Family Investigations (CFI) and/or Parental Responsibility Evaluation (PRE) reports and served as expert witnesses in family law cases.

As of July 2013, in Larimer County, the cost for the ENA session is $400 per person (more expensive than mediation with the Office of Dispute Resolution but cheaper than a CFI). Here is a typical example of the ENA process.  After the ENA team gives a brief overview of the process, each parent talks about their view of the situation, the other parent can briefly respond, and the attorneys, if any, can add any legal issues that were missed. After the ENA team asks any clarifying questions, the ENA team takes a brief break to talk separately about what they think the Court might do if the matter was litigated and then gives the parents their thoughts. The Court is available to answer questions or to put agreements on the record.

A video about the ENA process describes how the 17th Judicial District (Adams and Broomfield Counties) established an Early Neutral Assessment Program to help divorcing couples make their own decisions regarding child custody and developing their own parenting plan.

How to Work With Your Attorney and Save Money

1. Talk to your lawyer. Tell your lawyer what your concerns are. Think about your case, what would equal “success” to you? How do you think that can be accomplished? What is most important to you? What is less important?

If you do not feel that you can talk to your lawyer, it does not matter how expensive or cheap the lawyer is. It is easier for the attorney to address issues that concern you before the issues get out of hand. Attorneys can deal with anything that he or she know about, but surprising your attorney with information near the trial date can be damaging. Talk to your lawyer and be truthful.

2. Be aware of your emotional needs. Use the services of a mental health professional. Their hourly rate is often less than your attorney’s rate. Counseling fees are often covered by health insurance. The divorce process is very emotional. Many clients are so upset –who wouldn’t be –that they use their attorney as their therapist. Of course, the client is paying the attorney to listen to their emotional issues. Those emotional issues may be important to the legal case but the unburdening may be cheaper if done with a trusted professional or friend.

3. Your fears are reasonable. Everyone going through a divorce has concerns about financial stability, solitude, and the stress of being a single parent. Being informed and dealing with these concerns is essential.

4. Manage your anger. Frustration and anger are part of the divorce process. It is important to understand the consequences and long-term damage that acting on that anger can cause, especially when children are involved. If you do something out of anger, the result may be costly to your case.

5. Do not ask your lawyer to do something that is illegal or unethical. Lawyers are officers of the Court. They are not permitted to misrepresent information or facts to the Court. Attorneys also cannot permit their clients to misrepresent information or facts to the Court. If you do not follow your attorney’s directions and advice, or if you mislead your attorney, the attorney client relationship may be terminated.

6. Turn to others for support. If you ask your support network (friends, family, counselors) for help, you will generally be surprised at the outpouring of support. Reach out to those who will be there for you on a regular basis. Consider joining a divorce support group or a workshop for single parents.

7. Be prepared. You are often given “homework” and deadlines. You may be asked to completing Sworn Financial Statements, provide documents, respond to interrogatories, and review settlement offers. Although this is often difficult and time-consuming, it is important that you respond in a timely manner. Most cases are on a schedule that is set by the Court. There may be consequences for failing to complete items in the deadlines given by the Court or under the Colorado statutes. If you have questions about what has been asked of you, contact your attorney or their assistant to get help.

How do you win in a divorce?

As Parties begin the litigation, each Party expects to “win” in the divorce process, and expects the other Party to “lose.”

What is a Win? “Win” is defined as: 1. to achieve victory or finish first in a competition, and 2. to achieve success in an effort or venture. In most cases, divorce is not about finishing first in a competition since divorce is not a race.  The Courts in Colorado do not reward the first person to file for divorce.  There is virtually no benefit in filing first except surprise and that you will have to pay your attorney to draft certain things first. The one who files first (the Petitioner) may also have more control over the language in the first draft.

As a practical matter, is there any possibility of “winning” in a divorce? “Winning” might be defined as a marriage that worked out — by the time divorcing clients reach us, it is normally too late for that.  In the dissolution process, we are often dealing more with “damage control” than winning.

In a typical civil case, there is a Plaintiff (one who sues) and a Defendant (one who defends).  One Party receives a verdict from the Court or a jury (a judgment).  This is also true in criminal cases.  In a criminal case, it is the State (or the District Attorney) versus the Defendant.  The Court or the jury finds the Defendant guilty or not guilty.

In a family law case, there is a Petitioner (one who files the Petition) and a Co-Petitioner (if the Parties file together) or Respondent (if one Party is served with the papers).  In Colorado, there are no jury trials for family law cases.  Dissolution of marriage, legal separation and allocation of parental responsibilities cases are tried to the “bench”  — a District Court Magistrate or Judge.

Although a family law case is a civil matter heard in the District Court, whether a Party wins or loses is not as easy to determine.  This is in part because family law cases are usually complex and have many issues (parenting time with children, division of property, how to divide debts, etc.).

Can I Win?
“Can I win?” is one question clients always want to know.  I ask clients (1) what would you be thrilled to get in Court?  (2) what would you be satisfied with?  (3) what result would be totally unacceptable?  The point is to get clients to think about what equals “success” to them.  Of course, everyone would like to have all of their proposals and requests agreed to by the Court.  The reality is that virtually no divorce case is a straight up or down win.  Whether the Parties are negotiating an agreement or the Court is entering an order, the issues are a series of interlocking pieces with multiple parts.  So you might get the specific parenting time schedule you would like but other terms regarding the children are not ones you would have chosen.

What Does Winning Mean to You?
It is also important to understand what winning means to you and what winning means to your attorney.  Personally, I want the Court to agree with every argument I make and every fact I try to establish.  Ridiculous, I know, but I cannot stand losing anything.  As an attorney and a litigator, I want to make the strongest argument to the Court and get the best result for my client.

Questions You Should Ask Your Divorce Lawyer

 

Thanks to attorney Michael Sherman formerly of the Alabama Family Law Blog for questions to ask your divorce lawyer. I’ve added my comments in italics.

Picking the lawyer that will represent you is one of the most important decisions that you will make in your divorce case. You should try to find a lawyer who is skilled, smart, and who regularly handles family law and divorce cases. You want someone who is responsive and willing to communicate with you throughout the divorce process. Ask for recommendations from your friends, family, and coworkers, but in the end, trust your own judgment and instincts.

If you do not like the lawyer when you meet him or her, trust your instincts, you need to find someone who matches your style and needs well. You are not doing anyone any favors if you cannot stand your attorney or want their personality to be different than it already is.

Call to schedule a consultation appointment with the lawyer. This will give you an opportunity to evaluate how you are treated by the staff and will give you some time to interact with and interview the lawyer. After spending thirty minutes to one hour with the lawyer, you should have a good feel for whether he or she is the right lawyer for you. One factor that is often overlooked is whether a lawyer’s personality compliments yours. Your divorce lawyer is someone with whom you will be sharing many intimate details of your life as well confidential financial information. He or she must be someone with whom you are comfortable and whom you trust.

Many potential clients want to know if we offer a free consultation. Nope. My staff and I have no problem answering questions about my background, my philosophy, what types of cases do I handle, etc. but a “meet and greet” type meeting always turns into “my situation is this? what should I do?” I need the time to sit down with a potential client and talk about their case. My time and the potential client’s time is valuable.

During the initial consultation with the potential lawyer, you may consider asking her the following questions:

Do you specialize in family law? If you needed back surgery, would you go to a general practitioner? Likewise, there are many lawyers who are general practitioners that will handle a divorce case. In addition, they take business matters, bankruptcies, criminal cases, etc. That is not the type of lawyer you want handling your divorce case. Ask them what percentage of their practice is divorce and family law matters. If it is not at least 50%-75% of their practice, go elsewhere.

I agree with this. Family law is such a weird and complicated type of law. I do not believe that clients serve themselves well to go to an attorney who is a generalist rather than someone who primarily handles family law cases.

What would be the fee arrangement for you to handle my divorce case? Divorce lawyers normally set fees in one of two ways: they either charge a fixed fee for the entire case, or they charge a retainer against which they bill an hourly fee. Make sure you completely understand how you will be billed. A good lawyer will want to make sure that you completely understand and are comfortable with the fee arrangement. If you have any questions, ask.

Do not forget to ask what happens if you have a problem or question about your bill? Do you get billed for that too?

What other costs can I expect? In addition to lawyer’s fees, there are other costs that are typically associated with your divorce case such as court costs, subpoenas, and sometimes such things as private investigator fees, depositions, etc. Ask the lawyer what types of costs are likely to be involved in your case and how much you can expect to pay for them.

Understand the typical filing fees, how much a transcript of a Hearing might cost and how much a typical process server costs.

Will you send me monthly itemized bills showing the time that you spent on my case and the expenses incurred? If you are being charged by the hour, the lawyer should systematically keep you updated with regard to your trust account balance. If you ever have a question about a charge on your bill, talk to the lawyer about it. Address it sooner rather than later.

Your attorney should be sending you bills each and every month. You should also understand what the bill says. We have gone through two software programs trying to get a billing system that works well.

Do you have any resources that you can make available to me to help me reduce the pain and expense of divorce? Obviously, going through a divorce can be a very traumatic experience. A lawyer that is willing to educate you about the process and the law affecting your case will help remove some of the concerns that you may have.

What websites, brochures, or Court forms can you look at or use to reduce your fees?

Who else will be working on my case? Other lawyers, paralegals, and/or staff members will often perform work on your case. You want to be sure that the others work on your case are also competent and experienced. Also, find out at what hourly rate you will be charged for their working on your case, if at all. The hourly rate for less experienced attorneys and/or paralegals should be lower than that of the primary attorney on the case.

I try to introduce clients to my paralegal and our receptionist so they know who they are talking to.

What efforts will you make to try to settle my case? The vast majority of divorce cases settle. Some are settled before they ever get to the lawyer (that is to say that the parties have already reached an agreement and the divorce lawyer is only needed to draft the paperwork). Others settle on the day of the trial, in a room outside the courtroom, and still others settle at any stage in between. You want a lawyer who is willing to communicate with your spouse and/or your spouse’s lawyer (if he or she has one), to try to settle the case. Many lawyers will not make a deliberate effort to settle your case, but rather will prepare the matter for trial and only settle it if the other side takes the initiative or if it happens to settle on the day of court. This type of lawyer can cost you thousands of dollars in unnecessary legal fees. Additionally, you should ask what the lawyer thinks about mediation. Mediation is becoming more prevalent in divorce cases. If you think that it may be helpful in your case, you should ask the lawyer to explain the costs and benefits associated with mediation.

Make sure that you talk to your attorney about what settlement measures you are interested in and what they suggest.

What I can do to keep my costs down? By taking an active roll in your case, there are certain fact gathering steps that will reduce your legal fees. If a lawyer is charging you by the hour, you may be better off gathering many of the financial documents and other information rather than relying on the lawyer’s office to do it.

I wish that clients would do this more. It is so cost inefficient for my staff and I to be running around the city trying to get documents when the client can arrange to order the documents or gather them.

Do you survey your clients to measure their satisfaction? You should not let a negative answer to this question preclude your allowing the lawyer to represent you. Because so few lawyers actually do survey their clients, there are many very good competent lawyers who do not do this. However, all other factors being equal, a lawyer that surveys their clients to determine their satisfaction, is likely to render better service to their clients as they are more at tuned to their feedback.

Any business will tell you that surveying customers can be revealing and sometimes not pretty.  We have surveyed our clients regarding their satisfaction with our office and our services.  We got positive feedback but we have made some small tweaks based upon recommendations from clients.

As you ask the above questions and make a decision about hiring a lawyer, keep in mind that you have a right to expect your lawyer to do the following:

  • Explain the legal issues involved in your case and the possible outcomes under your fact situation.
  • Clearly explain their billing arrangement.
  • Copy you with all documents related to your case.
  • Provide you with accurate bills on a periodic basis.
  • Return your phone calls within a reasonable period of time (usually 24-48 hours) (the lawyer may be involved in a trial and be in Court for several days, but he or she should at least make arrangements to have someone from the office call you if they are unavailable).
  • Make efforts to settle your case on terms that are fair to you and once it is determined that the case will not settle, competently and vigorously prepare your case and you for trial.

Once you have found a good lawyer, remember that the lawyer works for you.  Do not be intimidated by them.  Do not hand over control of your case without question. The lawyer should be willing to explain the decisions that need to be made during the process of your divorce as well as their recommendations. However, in the end, you are the one who makes the decisions. Ultimately, if you are not satisfied with the lawyer, remember that you have the absolute right to terminate your relationship with the lawyer at any time, for any reason. Be careful in doing so, however, if you have a Court date looming. This can cause unnecessary delays or, worse, result in you having to proceed without proper representation.

It is true that terminating a relationship with your lawyer just before a big trial or Hearing can seriously jeopardize your case.  If you have concerns, talk to your lawyer about them or if you feel like you cannot — maybe you should look for a new lawyer –just not right before a big trial or Hearing.