expert online series

Attorney Louis Parley on Separation and Prenuptial Agreements



Current Time: Wed Jun 4 03:14:15 EDT 1997

MsgId: jcafe(1)
Date: Thu May 29 21:21:20 EDT 1997
From: Divorce_Central_Moderator
At: 152.163.194.145

Welcome to Thursday Night Live! at Divorce Central. Tonight at 10:00 pm EDT attorney Louis Parley will be our guest. Mr. Parley is an expert in Separation and Prenuptial Agreements. Please join us!
MsgId: jcafe(2)
Date: Thu May 29 21:55:44 EDT 1997
From: Divorce_Central_Moderator
At: 152.163.194.145

Welcome to Thursday Night Live! at Divorce Central. Tonight at 10:00 pm EDT attorney Louis Parley will be our guest. Mr. Parley is an expert in Separation and Prenuptial Agreements. Please join us!
MsgId: jcafe(3)
Date: Thu May 29 21:57:55 EDT 1997
From: Divorce_Central_Moderator
At: 152.163.194.145

Welcome to Thursday Night Live! at Divorce Central. Tonight at 10:00 pm EDT attorney Louis Parley will be our guest. Mr. Parley is an expert in Separation and Prenuptial Agreements. Please join us!
MsgId: jcafe(4)
Date: Thu May 29 22:01:23 EDT 1997
From: Louis_Parley
At: 152.163.194.145

DIVORCE CENTRAL MODERATOR: Welcome to Thursday Night Live! Tonight attorney Louis Parley will present a discussion of Separation Agreements and Prenuptial Agreements.
MsgId: jcafe(5)
Date: Thu May 29 22:02:11 EDT 1997
From: Louis_Parley
At: 152.163.194.145

DIVORCE CENTRAL MODERATOR: Mr. Parley, what should a Separation Agreement typically contain?
MsgId: jcafe(6)
Date: Thu May 29 22:02:59 EDT 1997
From: Louis_Parley
At: 152.163.194.145

LOUIS PARLEY: The short answer is everything...
MsgId: jcafe(7)
Date: Thu May 29 22:04:36 EDT 1997
From: Louis_Parley
At: 152.163.194.145

LOUIS PARLEY: The short answer is everything...
MsgId: jcafe(8)
Date: Thu May 29 22:07:08 EDT 1997
From: Louis_Parley
At: 152.163.194.145

...because most Separation Agreements become the terms of the final divorce, they should cover all of the issues between the parties. These include custody and visitation arrangements, child support, including medical care and education expenses, alimony, and other spousal support issues, such as medical and life insurance and property division arrangements, which would include obligations for outstanding debts, division of household contents, transfers of stock ownership, and other items of property.
MsgId: jcafe(9)
Date: Thu May 29 22:08:17 EDT 1997
From: Louis_Parley
At: 152.163.194.145

DIVORCE CENTRAL MODERATOR: Should each person have his or her own attorney, or will one attorney for both do?
MsgId: jcafe(10)
Date: Thu May 29 22:10:41 EDT 1997
From: Lisa4344
At: 152.163.213.8

this is my 1st time in Thurs. nite Live.....how do i get in?
MsgId: jcafe(11)
Date: Thu May 29 22:10:47 EDT 1997
From: Louis_Parley
At: 152.163.194.145

Yes. Each party needs to know the consequences of all of the terms, and needs all of that information without any qualifications. When one attorney is representing both people, the chance of the attorney not providing complete information and advice is high because what is good for one person, may not be good for the other.
MsgId: jcafe(12)
Date: Thu May 29 22:11:57 EDT 1997
From: Divorce_Central_Staff
At: 168.100.204.58

Welcome, Lisa! You ARE in. Just press the pause while typing button at the bottom of the screen before inputting your question.
MsgId: jcafe(13)
Date: Thu May 29 22:11:58 EDT 1997
From: Louis_Parley
At: 152.163.194.145

DIVORCE CENTRAL MODERATOR: If the parties have settled through a mediator, should they still have their own attorney review the Agreement?
MsgId: jcafe(14)
Date: Thu May 29 22:13:12 EDT 1997
From: Lisa4344
At: 152.163.213.8


MsgId: jcafe(15)
Date: Thu May 29 22:13:51 EDT 1997
From: Divorce_Central_Staff
At: 168.100.204.58

Lisa, to see new action, make sure to press the "reload" button at top.
MsgId: jcafe(16)
Date: Thu May 29 22:14:15 EDT 1997
From: Louis_Parley
At: 152.163.194.145

Yes. A mediator will try to help the parties arrive at arrangements they are comfortable with, but may still not make all of the advantages and disadvantages clear, as that could inhibit the parties' making a deal. Consulting with a lawyer increases the probability that each person will understand their rights and what they are giving up to achieve the settlement.
MsgId: jcafe(17)
Date: Thu May 29 22:15:45 EDT 1997
From: Louis_Parley
At: 152.163.194.145

DIVORCE CENTRAL MODERATOR: If the parties have an amicable divorce, and want to draw up their own agreement, can they do this and file it with the court? or do they still need their own attorneys?
MsgId: jcafe(18)
Date: Thu May 29 22:16:53 EDT 1997
From: Lisa4344
At: 152.163.213.8


MsgId: jcafe(19)
Date: Thu May 29 22:17:05 EDT 1997
From: Louis_Parley
At: 152.163.194.145

Unless they basically have nothing to divide or don't have any issues involving children, everyone should have an Agreement reviewed by a lawyer so that they understand their legal rights and the consequences of the Agreement.
MsgId: jcafe(20)
Date: Thu May 29 22:17:44 EDT 1997
From: SueSoCa
At: 207.146.237.151

If divorcing by Settlement Agreement, can child and spousal support later be modified by a Court?
MsgId: jcafe(21)
Date: Thu May 29 22:18:09 EDT 1997
From: Divorce_Central_Staff
At: 168.100.204.58

Can you outline some of the pitfalls and traps the divorcing are prey to when signing these separation agreements. How can we help people to think strategically?
MsgId: jcafe(22)
Date: Thu May 29 22:18:09 EDT 1997
From: Louis_Parley
At: 152.163.194.145

DIVORCE CENTRAL MODERATOR: Assuming they do it themselves and have it reviewed by a lawyer, can they then proceed on their own, and if so, what is the next step?
MsgId: jcafe(23)
Date: Thu May 29 22:19:00 EDT 1997
From: Divorce_Central_Staff
At: 168.100.204.58

Hi, Sue --welcome!
MsgId: jcafe(24)
Date: Thu May 29 22:20:19 EDT 1997
From: Louis_Parley
At: 152.163.194.145

Do-it-yourself divorces, which are known in the legal system as pro se cases, are occurring more frequently. Most court systems provide guidance and most local Bar Associations or Legal Aid organizations can provide booklets for assistance.
MsgId: jcafe(25)
Date: Thu May 29 22:21:16 EDT 1997
From: Lisa4344
At: 152.163.213.8


MsgId: jcafe(26)
Date: Thu May 29 22:22:38 EDT 1997
From: Louis_Parley
At: 152.163.194.145

Regarding thinking strategically in a Settlement Agreement can best be answered by an example. The term, "alimony" upsets many men. However, if you realize that it gets deducted from his taxes and his income to the former spouse, very often the reality is that Uncle Sam gets less in taxes, which means there's more money for both people...
MsgId: jcafe(27)
Date: Thu May 29 22:22:53 EDT 1997
From: Lisa4344
At: 152.163.213.8

I am currently separated with a prenuptial agreement in standing. Can i still recieve temporary spousal support?
MsgId: jcafe(28)
Date: Thu May 29 22:24:15 EDT 1997
From: Louis_Parley
At: 152.163.194.145

...It is because of those sorts of issues that using lawyers becomes important, so that each side can develop a strategy that offers an opportunity to maximize their mutual interests.
MsgId: jcafe(29)
Date: Thu May 29 22:25:41 EDT 1997
From: Louis_Parley
At: 152.163.194.145

In answer to Lisa's question, unless the Agreement says, "No," and you live in a state that will accept that, you should be able to seek temporary spousal support.
MsgId: jcafe(30)
Date: Thu May 29 22:27:13 EDT 1997
From: Divorce_Central_Staff
At: 168.100.204.58

What about unfair separation agreements --can they be easily reversed?
MsgId: jcafe(31)
Date: Thu May 29 22:31:11 EDT 1997
From: Louis_Parley
At: 168.100.204.58

In answer to Sue: Assuming that the agreement becomes a divorce judgement, the child support will be modifiable on the basis on a change in circumstances.
MsgId: jcafe(32)
Date: Thu May 29 22:31:14 EDT 1997
From: SueSoCa
At: 207.146.237.151

While negotiating and an impass is reached, then do the parties and their attorneys take the issue to Court?
MsgId: jcafe(33)
Date: Thu May 29 22:32:09 EDT 1997
From: SueSoCa
At: 207.146.237.151

So you present the Agreement to the Court as the judgment? If in the interim one party wants a part of the Agreement changed, how is that done?
MsgId: jcafe(34)
Date: Thu May 29 22:32:40 EDT 1997
From: Louis_Parley
At: 168.100.204.58

Unfair separations cannot be easily reversed. A bad deal is something you may be stuck with. The question will be whether or not there was some sort of fraud or failure to disclose important financial information, or duress. If none of those arise, then the parties will be stuck with the agreement.
MsgId: jcafe(35)
Date: Thu May 29 22:34:11 EDT 1997
From: Divorce_Central_Moderator
At: 152.163.194.145

Sue, is there a signed Agreement or not?
MsgId: jcafe(36)
Date: Thu May 29 22:35:21 EDT 1997
From: Divorce_Central_Moderator
At: 152.163.206.15

Sue, is there a signed Agreement or not?
MsgId: jcafe(37)
Date: Thu May 29 22:35:41 EDT 1997
From: Louis_Parley
At: 168.100.204.58

If the document that we are calling a separation agreement is being negotiated for the purposes of finalizing the divorce, the probability is that it will be signed at about the time the final divorce decree is entered...
MsgId: jcafe(38)
Date: Thu May 29 22:35:55 EDT 1997
From: SueSoCa
At: 207.146.237.151

If an agreement is signed, but not presented to the Court for judgment, can it be changed prior to presenting for judgment?
MsgId: jcafe(39)
Date: Thu May 29 22:37:48 EDT 1997
From: Louis_Parley
At: 168.100.204.58

So that a change of mind will probably result in a trial. However, if the agreement is negotiated and signed and the parties are going to live apart for some time under the agreement, then if problems arise before the final divorce looms, renegotiation may be possible...
MsgId: jcafe(40)
Date: Thu May 29 22:38:34 EDT 1997
From: SueSoCa
At: 207.146.237.151

Is a clause in an Agreement about paying college education costs enforceable by a Court?
MsgId: jcafe(41)
Date: Thu May 29 22:38:37 EDT 1997
From: Louis_Parley
At: 168.100.204.58

This last example would occur where people are planning to get divorced in states where one of the grounds for divorce is that they've lived apart for a year or two or three under a separation agreement.
MsgId: jcafe(42)
Date: Thu May 29 22:39:14 EDT 1997
From: Louis_Parley
At: 168.100.204.58

Let's with the modification issue first...
MsgId: jcafe(43)
Date: Thu May 29 22:40:42 EDT 1997
From: Louis_Parley
At: 168.100.204.58

The separation agreement is a contract that can be modified only by the people who signed the contract. Where the separation agreement also becomes the divorce decree, certain parts of it can be changed by the court, most particularly, child support and alimony, but not property division.
MsgId: jcafe(44)
Date: Thu May 29 22:42:16 EDT 1997
From: Louis_Parley
At: 168.100.204.58

Sue, on the college tuition question: Whether or not that will be enforced by the court largely depends on what the contract says. For instance, there are states where a court could not require, at the end of a trial, for one parent to pay for college. But if the parents put it in an agreement, it CAN be enforced by the court.
MsgId: jcafe(45)
Date: Thu May 29 22:43:23 EDT 1997
From: Divorce_Central_Moderator
At: 152.163.206.15

Let's discuss Prenuptial Agreements now. What is the attitude of the courts with regard to enforcement of Prenuptial Agreements?
MsgId: jcafe(46)
Date: Thu May 29 22:44:48 EDT 1997
From: Louis_Parley
At: 168.100.204.58

Courts will look at prenuptial agreements very carefully because of the time lag between when they are signed and when they are being presented to the court. They are hesitant to hold people to deals made many years ago, on the basis of information that probably is no longer relevant...
MsgId: jcafe(47)
Date: Thu May 29 22:45:50 EDT 1997
From: Louis_Parley
At: 168.100.204.58

For example, an agreement made ten years ago that a woman would not receive alimony may no longer make sense, now that she has three children and hasn't worked in the last seven years.
MsgId: jcafe(48)
Date: Thu May 29 22:46:29 EDT 1997
From: Divorce_Central_Moderator
At: 152.163.206.15

What parts of a prenuptial agreement are unenforceable, if any?
MsgId: jcafe(49)
Date: Thu May 29 22:48:00 EDT 1997
From: Louis_Parley
At: 168.100.204.58

Provisions trying to deal with child custody, visitation, and child support will traditionally not be enforced. Alimony arrangements will be looked at very carefully, especially if they deny support to a spouse before a final divorce period.
MsgId: jcafe(50)
Date: Thu May 29 22:48:27 EDT 1997
From: Divorce_Central_Moderator
At: 152.163.206.15

What is enforced in a Prenuptial Agreement?
MsgId: jcafe(51)
Date: Thu May 29 22:49:29 EDT 1997
From: Louis_Parley
At: 168.100.204.58

Waivers of inheritance rights have long been recognized. In fact, many states have specific statutes addressing those waivers, in particular...
MsgId: jcafe(52)
Date: Thu May 29 22:51:35 EDT 1997
From: Louis_Parley
At: 168.100.204.58

Courts have become increasing more willing to recognize provisions dealing with property owned before the marriage and increases in the value of those properties during the marriage. The courts will be more willing to NOT share the increased value of the property if there is a prenuptial agreement indicating that the increased value won't be shared.
MsgId: jcafe(53)
Date: Thu May 29 22:52:11 EDT 1997
From: Divorce_Central_Moderator
At: 152.163.206.15

Is it a good idea to have a Prenuptial Agreement when entering a second marriage? What are the advantages and disadvantages?
MsgId: jcafe(54)
Date: Thu May 29 22:53:24 EDT 1997
From: Louis_Parley
At: 168.100.204.58

If one or the other people have children from a prior marriage whom they are concerned about providing for, a prenuptial is very useful. For instance, having a new spouse waive any inheritance rights provides more freedom to leave more of your estate to your children...
MsgId: jcafe(55)
Date: Thu May 29 22:54:49 EDT 1997
From: Louis_Parley
At: 168.100.204.58

Since people in second marriages may be more attuned to the problems of a divorce, trying to address some of the anticipated issues could avoid a lot of problems later on. For example, if both of the new spouses are working, the possibility of alimony waivers being enforced increases.
MsgId: jcafe(56)
Date: Thu May 29 22:55:41 EDT 1997
From: Lisa4344
At: 152.163.213.8

I have waived inheritance rights to his children from his 1st marriage. Am i in trouble here?
MsgId: jcafe(57)
Date: Thu May 29 22:57:14 EDT 1997
From: Louis_Parley
At: 168.100.204.58

Lisa: That agreement will probably be enforced.
MsgId: jcafe(58)
Date: Thu May 29 22:58:20 EDT 1997
From: Divorce_Central_Moderator
At: 152.163.206.15

Thank you, Mr. Parley, for joining us tonight. And thanks to everyone for being here. Good Night.
MsgId: jcafe(59)
Date: Thu May 29 22:58:30 EDT 1997
From: Louis_Parley
At: 168.100.204.58

Thank you, and good-night. It was a pleasure.