I have never been married before. My fiancé wants me to think about having a prenuptial agreement. Why do we need such a thing? top

ANSWER: If you are marrying for the first time, whether you are rich or poor, young or not so young, it is advisable to have a prenuptial agreement. This document states the financial status and intentions of each party at the time of the marriage. It also includes any other matter that could lead to a court dispute in the event of death or divorce. Disputes over education for the children, career enhancement, alimony, household expenses and pension rights are not uncommon. Even the most romantic of couples discuss these things before they get married. The wealthier partner-to-be has rightful concerns that can be settled with a written agreement and the poorer partner has the opportunity to make an agreement relating to the important issues of career and children.

I have adult children from my first marriage. Will a premarital agreement protect them if I get married again? top

ANSWER: If you are contemplating a second marriage and you wish to preserve assets for the children of your first marriage, it is imperative that you have a prenuptial agreement in which your intended spouse waives rights to the property you want to go to your children. Your agreement should also address all other issues that could cause a dispute in the event of death or divorce. These agreements are not ironclad, however. The court has the discretion to take into consideration new circumstances that were not contemplated by the parties. But it is always better to go to court armed with a premarital agreement that states in detail the status and intentions of each party at the time of the marriage.

My spouse and I agree that we should live separately. Do we need a written agreement and a court document? top

ANSWER: If you are considering a separation, you should have a settlement agreement in place in case you eventually petition the court for a judgment of divorce or a decree of separation. Without a premarital agreement in place, it may be impossible to resolve all property, custody and support matters on your own and you may find yourself having to go through the arduous and expensive processes of negotiation, private mediation or court proceedings at a difficult time in your life.

My spouse wants a divorce and I want to try to save the marriage. What can I do? top

ANSWER: In your situation, it is best to try to save your marriage through counseling, mediation and other methods that do not rely on the legal system. If your state is a "no-fault" divorce jurisdiction, such as Connecticut or Michigan, your spouse does not need to prove that either party was at fault for the failure of the marriage. If your state requires grounds for divorce, your spouse cannot obtain a divorce without fault or cooperation on your part. In New York, for example, it is legally possible for one spouse to delay or refuse to divorce a spouse who desires to leave a marriage. Such a strategy, however, may not be wise due to serious financial and emotional consequences.

I didn't get a premarital agreement when I got married. Is it too late now that my spouse wants a divorce? top

ANSWER: In family matters, it's best to keep the involvement of the courts to a minimum and to do all things reasonable to avoid the ordeal and expense of having a judge make decisions for you in the event of separation or divorce. For this reason, you should negotiate a settlement agreement before you petition the court for a judgment or decree. Do not do this without the aid of independent counsel. This means that you and your spouse should have separate attorneys, even if one spouse's attorney does most of the document preparation and the other reviews and revises according to the agreement of the parties. This may sound cumbersome, but it saves loads of money, time and grief.

For the sake of the children, I want to get a divorce settlement agreement as soon as I can. What can I expect from the courts? top

ANSWER: With a settlement agreement in place before court proceedings are instituted, the court reviews the agreement with particular focus on the rights and needs of the children. In a no-fault jurisdiction, the court has to ascertain that there is no reasonable likelihood that the marriage can be saved. The court's judgment of divorce covers all aspects of child custody, visitation and child support as well as such property matters as pension rights, spousal maintenance and property divisions. Without a settlement agreement in place, it may be impossible to resolve all property, custody and support matters on your own and you may find yourself having to go through the arduous and difficult processes of negotiation, private mediation or court proceedings. These processes may be characterized as follows:

Can my spouse and I decide the child support and custody issues in our divorce? top

ANSWER: Any agreement regarding child support, visitation and custody is subject to the approval of the court. These are matters of the rights of the children to support and care and the obligations of the parents to provide for the children according to their means and the needs of the children. Orders are subject to periodic modification as the circumstances of the children change.

I know that dividing up property will be difficult in our divorce. We have a lot of debts and some of the real estate is only in my name. I have pension rights and we have both received gifts from our parents. What can we do to help solve these problems without too much trouble and expense? top

ANSWER: If you cannot resolve these matters on your own or with the aid of an accountant and an appraiser, your attorney will sort out facts relating to the issues of debt, separate property, pension rights and gifts. The attorney for your spouse will do a similar analysis. If an agreement still cannot be reached, the issues can be submitted to a mediator for recommendations. If this fails to bring about a settlement, you will have to go through the ordeal and expense of having a judge make decisions for you

Should I insist on a trial if my spouse will not cooperate in our divorce? top

ANSWER: You may not have a choice. Your best bet in such a situation is to be thoroughly prepared for a long, difficult and expensive ordeal. Hire the best lawyer you can. You may also need the services of an appraiser, a family psychologist, and your accountant. You might call upon your family, the family of your spouse and your religious advisor for advice. Try to have your case mediated. Get your records in perfect order and do not try to hide or obfuscate. Live your life with a minimum of stress and control any anger you may feel. If you have children, think of them at every turn. Your decisions will affect them greatly. Do not be afraid to compromise on small matters or monetary deal killers. Value and follow your attorney's advice. Do not expect complete vindication of your position or satisfaction with the court's decision.

I have no control over the money in my spouse's bank account. I have very little in my own name. Does this mean that I can't hire a lawyer to get a divorce? top

ANSWER: The courts try to minimize the advantage of a moneyed spouse over the poorer spouse in prosecuting or defending a domestic relations matter. If you wish to sue for divorce, your attorney can obtain orders at the beginning of the court case and during the proceedings for support payments or release of control of marital assets so that you proceed with the divorce action. The court may also award attorney fees in the final judgment.

My spouse and I have very different ideas about child support and visitation? Who can settle these important matters without extraordinary costs? top

ANSWER: The court deals with these difficult matters all the time and has in place a thorough and elaborate set of schedules and procedures for investigation, recommendations and reports to the court on each child for whom the court must make a ruling. This does not mean that you will be happy with any of the recommendations made on behalf of your children. Your ideas may be sound. The ideas of your spouse, though opposed to yours, may be just as sound. You both may both be shortsighted and narrow in your respective views of child rearing. If you cannot compromise, you should hire your own psychologist for an evaluation or recommendation to be used in court or with a mediator. In situations where the parties cannot agree and have divergent views, the court will conduct its own investigation and make a ruling in their interests regardless of whether you settle on property issues. The court's ruling can be appealed. It will be enforced if it is not obeyed and it can be modified for a change of circumstances in the lives of the children.

What kind of experts and documentation will I need if I go to trial in my divorce? Who will protect the interests of the children? top

ANSWER: Depending on your assets and liabilities, you will needs deeds, contracts, bank records, tax returns, and any other document that shows how, when and under what circumstances you acquired, disposed of, altered or held property and any contribution you may have made to the value of the property of your spouse. This includes business and personal property, property held with your spouse or others, property in which you claim an interest, pension and annuity rights, insurance policies, employment benefits, property gifted to children or other persons, stocks, bonds, options, land, vehicles, jewelry and assets such as a professional degree or license. To aid the court in valuing and awarding this property, you will need the testimony of your accountant, your appraisers and witnesses who can confirm your claims as to sources and dates relevant to the disposition or acquisition of the property. Your spouse will present a similar parade of exhibits and witnesses. With regard to the important issue of the interests of the children, the court may appoint one or more persons to investigate and evaluate the claims of the parties and the best interests of the children. You and your spouse will pay for this service.

I had a full trial in my divorce. Now my ex and I are arguing over the pension rights and the visitation schedule awarded by the judge. What can I do to stop this? Do I have to go to court again? Is it practical to appeal the judge's decision? top

ANSWER: Court matters are difficult and frustrating. For some people, through no fault of their own, they never end. If you are unhappy with the pension rights award and visitation schedule, you have the right to appeal. This is relatively painless except for the expense. If you prevail, you may have to retry these issues in court. If your appeals period has expired, you will have to bring these matters back to court for interpretation and enforcement. Your pension rights matter should be comparatively easy to resolve with a motion to the court. Testimony may not be necessary. Any motion, however, takes time and costs money. If you are right, the court may award you your attorney fees if your former spouse cannot offer a valid defense. Your visitation schedule is more difficult. You may require a recommendation by someone appointed to represent the interests of the children. This is not good for anyone. Sometimes, however, it is the only way to validate and enforce the rights of the children to proper visitation.

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