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What I do
Essentials of Premarital Agreements.
Contracts between parties who are planning to marry are variously referred to as Ante Nuptial Agreement, Pre Nuptial Agreement or Pre Marital Agreements. They all refer to the same process. They have a special purpose in the law, because they provide an opportunity for parties contemplating marriage to make agreements that may be binding upon them after they marry.
Under the law, these agreements usually address specific issues; what will happen if their marriage ends by the death of one of the parties, or if the marriage ends by divorce.
This is an agreement that only becomes enforceable if the marriage ends as described above.
A court being asked to consider such an agreement as evidence in a subsequent legal matter will undertake an examination of the contract to determine whether it should be enforceable. The first consideration is whether or not each party had access to separate legal counsel at the time the agreement was entered. If so, was there a full and fair disclosure of assets at the time it was signed. If these conditions are met, the court next considers whether the agreement was fundamentally fair at the time it was entered into. Finally, the court determines whether the agreement is fundamentally fair to each party at the time it is being considered.
A premarital agreement can establish property rights for the parties that may not be available to them without the agreement, principally with respect to establishing property as non-marital. In an action for dissolution, such a consideration may have implications. Under Minnesota law marital property is deemed to be all property acquired by either party during the marriage. Non-marital assets are all property acquired by either party prior to the marriage, or property that comes to one but not the other by inheritance, or as a gift to one but not the other by a third party.
It is important to parties who are taking the time to enter into a premarital agreement to establish valuations of assets by competent evidence. If parties simply write out their estimates of valuations of assets on a legal pad, that may not be sufficient to establish their value in a subsequent action for dissolution.
Collaborative law is a very good process to use for a premarital contract for a number of reasons. Most importantly, the parties can establish an environment in which sensitive issues can be addressed in a way that protects each party’s interests. Four way conversations can be used to identify each party’s concerns and provide the space within which to address those concerns.
Collaborative law provides another important benefit. The usual use of a premarital agreement
is to address the limited legal issues as described above. In the collaborative setting parties may talk about and resolve other issues of concern that would not usually be part of conventional premarital agreement. For example, if either or both parties have had a prior marriage with children, provisions might be drafted to resolve issues of financial contributions to the marriage with consideration of the separate issues of prior children. Numerous other considerations may arise.
Essentials of Marital Dissolution (Divorce)
The term “Dissolution of Marriage” is more commonly used than is the term Divorce. The legal action is one in which the bonds of matrimony created with the marriage are now dissolved, changing each party’s legal status from married to single. Clients sometimes create a new term, “Disillusionment of Marriage,” which is understandable, but not what the statute addresses. There is no legal process that can repair disillusion.
Dissolution addresses seven primary issues: first, dissolving the bonds of matrimony; second, addressing the parenting and support issues regarding minor children; third, providing spousal maintenance by fixing the amount and term where appropriate; fourth, establishing the character of assets as marital, non-marital or mixed, and awarding a division of those assets; fifth, addressing debt, including past, present and future state and federal income tax filing and use of dependency exemptions; sixth, fixing the payment of attorney fees and expenses of the dissolution between the parties; and seventh, name change of either party.
Once you and your spouse have signed a retainer agreement with collaborative attorneys, the process usually will start with a joint meeting of the parties and your attorneys. The initial meeting might also include other professionals if you have agreed to use those services at this time, usually a mental health professional either to work as a coach or a family specialist if
there are minor children. It may also include a financial specialist. Those roles are described elsewhere, and you may click on the link to those terms to take you to that discussion.
At the initial meeting you will review and sign a participation agreement, which sets the terms of the collaborative process. You will likely sign a Joint Petition, which is held in the file until a final agreement is reached. We may also review the “Welcome to Air Collaborative’, which further explains the process, how it works, what is essential, and the things you have control over. We will set an agenda, and talk about things that are most important to you to be discussed first.
Most of the work in the collaborative process is done in joint meetings. Early in the process we will begin working on the final document, called a Stipulated Findings of Fact, Conclusions of Law, Order for Judgment and Judgment and Decree, Together with a Marital Termination Agreement.
When the final agreements are reached, the parties have the exact document that will be submitted to the court for entry of the final decree. This process occurs as a stipulated default, approved by the court without either party ever having to set foot inside a courthouse.
Essentials of Paternity Matters.
Paternity is the process of establishing who the father of a child born out of wedlock is, and
the establishment parenting and support for the child.
Paternity is an interesting action under the law. It is quasi criminal in nature, referring to the parties as plaintiff and defendant. The father is treated as an unwilling party who must be compelled to support the child.
In reality, matters of paternity occur in a wide range of circumstances. For some parties, the pregnancy occurs within a relationship that may be long term and include parties who are living together. In other cases it may occur between parties who barely know each other. In any event, it is an area of the law is served well by the collaborative model.
The best interests of the child is a standard that is applied, in divorce, adoption and paternity.
In reality, it is the interests of the child that are paramount. A man who is being declared as the father is known as the putative father until that relationship is clearly established.
When I first began practicing law in the 1970's, nearly every paternity matter that came to me was a father who was desperately desiring to be declared not to be the father. In those days, there was not good blood testing. While a man could be excluded as the father of the child, he could not be clearly established as the father. With the advent of DNA testing, results are frequently established in the 99th percentile of probability.
If there is doubt as to the father, blood testing will be ordered by the court. Blood testing may
be obtained by the parties voluntarily without an order from the court.
Essentials of Declaration of Parentage:
Whenever a birth occurs in a hospital outside marriage, if the identity of the father is known he will be asked to sign a Declaration of Parentage. This document establishes a claim by the man that he is the father, and allows county child support workers to establish a child support obligation for the father that is binding.
Many times fathers who sign these papers without obtaining legal advice believe it to be an establishment of their rights as a father. It is not. If a man wants to have a parental right of access to the child, he must initiate an action in district court to be adjudicated as the father
of the child.
Collaborative law provides a process that is beneficial to both parties in helping to create a relationship between the father and the child. It is possible to begin working on this result even before the child is born. It can be beneficial even where the parties intend to become married, and is very important if the parties wish to have a relationship as parents and agreement for provision of support for the child.
The court can adjudicate the man as the father of the child, set the fathers obligation for providing support to the mother, and establish parental access. But the court cannot create a relationship between the parties for the best interests of their child. The collaborative process can provide this.
© Bruce Peck Law Office
Bruce Peck Law Office
I help good people make tough choices during difficult times.
