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Pre-nupt

Pre-Nup Mediation

Tuesday, September 30th, 2014

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As Georgia divorce attorneys, we often tout the benefits of utilizing mediation as a means to settle divorce, contempt, and modification action in lieu of proceeding to trial. But, very rarely do we suggest mediation as a way to negotiate and settle the terms of a pre-nuptial agreement or pre-nup, until now.

Typically, one soon to be spouse’s attorney drafts the pre-nuptial agreement. Once the agreement is drafted, it is then forwarded to the other betrothed’s attorney for review. The attorney will then volley the agreement back and forth with proposed changes until both parties are satisfied with the agreement. During pre-nup negotiations, it is not uncommon for the more financially established party to seek a more aggressive or protective pre-nuptial agreement, and it is often a challenge for the other party to beneficially modify the terms of the agreement especially if the initial draft was proceed by the moneyed party’s attorneys. This can often produce feelings of animosity between the couple, especially if the negotiations between the attorneys become acrimonious

Mediation is an excellent way for parties to clearly communicate and resolve their differences concerning the terms of a pre-nuptial agreement. Similar to how mediators help parties seeking to resolve conflict during divorce proceedings, a mediator can help level the playing field in pre-nup discussions, and referee the concerns of both parties in a non-confrontational setting. Additionally, a mediator may propose ideas to help the parties resolve their conflict that neither party would have thought possible or practical otherwise.

Relying on mediation may not be the best route for every couple seeking to enter into a pre-nuptial agreement, but it is definitely a viable option to consider, as seeking mediation may help mitigate some of the negative feelings, delay and expense associated with traditional pre-nup negation.

Pet Prenups?

Sunday, September 7th, 2014

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As discussed in a recent installment of our series Celebrity Divorce Chronicles, Melanie Griffith and Antonio Banderas are ending their marriage of 18 years. According to reports, the couple’s divorce seems to involve the common issues of divorce, such as child custody, child support, and property divorce. However, one potential issue of the couple’s divorce is not as common: a pet custody battle.

Celebrity news outlets such as the Examiner report that Griffith is seeking to retain custody of the three dogs that the couple adopted last year, over the objection of Banderas. Although “pet custody” is not a matter that is traditionally viewed as an issue of divorce, our attorneys have experienced an increase in the number of divorces where “pet custody” is a contested issue. We refer to “pet custody” in quotes, because Georgia law does not recognize the concept of “pet custody.” Pets are considered property according to Georgia divorce law, not children or family members. Thus, a Georgia court will not order visitation or custody schedules for pets. Rather, a court will award the pet or pets to one spouse as a division of marital property.

If a couple wishes to set out certain rules for sharing “custody” of a pet post-divorce, or if a couple wishes to settle the issue of pet ownership in the event of divorce, entering into a prenuptial agreement addressing such issues is advisable. Due to the rise in disputes regarding pet ownership post-divorce, pet prenups, or the inclusion of pet related clauses in a couple’s prenuptial agreement, is also becoming a popular trend. Although such an agreement between spouses is generally not necessary, couples who believe pet ownership may potentially be a contested issue in the event of divorce should seriously consider addressing this issue in a prenuptial agreement.

I Signed a Prenup, but I No Longer Believe Its Terms are Fair. Can I fight it?

Sunday, August 31st, 2014

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The short answer to this question is: Yes, divorcing spouses may definitely challenge the enforceability of their prenuptial agreement. In fact, this practice in not uncommon. The downside of making this legal maneuver is that there is no guarantee such a challenge will be successful.

The general purpose of prenuptial agreements are to predetermine alimony awards and establish how property will be divided in the event of divorce. If a divorcing couple has entered into a prenuptial agreement, it is very likely that the court presiding over the divorce case will enforce that agreement and incorporate the terms of that agreement into the Final Order and Decree of Divorce. However, Georgia courts have wide discretion in determining whether a prenup is valid and worthy of enforcement. Once a prenuptial agreement is challenged by a party during a divorce action, the presiding judge will ask the following questions to determine the validity of the prenuptial agreement:

  1. Was the agreement obtained through fraud, duress, or mistake or through misrepresentation or nondisclosure of material facts?
  2. Is the agreement unconscionable?
  3. Have the facts and circumstances changed since the agreement was executed so as to make its enforcement unfair and unreasonable?

See Mallen v. Mallen, 280 Ga. 43 (2005); Alexander v. Alexander, 279 Ga. 116 (2005); Blige v. Blige, 283 Ga. 65 (2008); Gravley v. Gravley, 278 Ga. 897 (2005); Sanders v. Colwell, 248 Ga. 376 (1981).

If the answer to these questions is no, the agreement will be deemed valid and enforceable. On the other hand, if the answer to any of these questions is yes, the agreement will likely be deemed unenforceable by the court.

Addressing Social Media in Prenuptial Agreements

Tuesday, August 26th, 2014

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Generally, prenuptial agreements address the subjects of alimony and division of property in the event of divorce. However, there is a growing trend favoring the inclusion of social media clauses in prenuptial agreements. Such clauses would determine the types of images and information formers spouses may share on social media sites such as Facebook, Instagram, or Twitter in the event of divorce. For example, a social media clause in a prenuptial agreement may prohibit former spouses from making derogatory or harassing comments about the other former spouse online. Alternatively, social media clauses could potentially prohibit former spouses from posting pictures of the couple’s minor children or embarrassing or disparaging photos of the other former spouse online. If adopted by the court and incorporated in the couple’s Final Decree of Divorce, such provisions would be enforceable via a contempt action. Alternatively, couples may choose to agree to certain penalties in the event the terms of the social media clause is violated.

In light of the increasing popularity of social media as a form of communication and expression, and the reality that it is all but impossible to erase a derogatory image or statement once it has been posted online, the increasing popularity of social media clauses in prenuptial agreements is understandable. For information regarding prenuptial agreements in Georgia, contact The Atlanta Divorce Team at Meriwether & Tharp. One of our experienced family law professionals will be more than glad to consult with you.

Celebrity Divorce Chronicles: Sonya Miller vs. Percy “Master P” Miller

Thursday, June 5th, 2014

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Although news of the Miller vs. Miller divorce is nothing new – Sonya Miller filed for divorce against the rapper back in October 2013 – the recent developments in the couple’s divorce proceedings reveal how extensive assets and the lack of a prenup or premarital agreement can further complicate the divorce process.

According news celebrity news outlets, Yahoo Music and TMZ, in a recent document filed with the court, Sonya Miller, Master P’s estranged wife, claims that the rapper has around $178 million in assets, and is seeking an award of 37%, or around $66 million, of her estranged husband’s fortune. In the document Sonya Miller filed with the court, which is likely similar to Georgia’s Domestic Relations Financial Affidavit, Mrs. Miller listed the artist’s assets as including:

  • 31 real estate properties, including properties in Los Angeles, Baton Rouge, New Orleans, Houston, Georgia and Tennessee, with a combined value of $19 million;
  • Various business entities, such as No Limit Records, Master P, Inc. and No Limit Forever, LLC, valued at around $136 million;
  • 13 cars, including Cadillac Escalades, Mercedes, a Rolls-Royce, BMW, and Porsche, among others, totaling around $235,000 in value;
  • Furniture, such as three chandeliers valued at around $300,000 a piece; and,
  • Various items of  jewelry

As mentioned above, of the rapper’s estimated $178 million in assets, Sonya Miller is seeking around $66 million. Because the couple did not have a prenuptial agreement, likely due to the fact that the couple married more than 24 years ago, before Master P began enjoying success as an entertainer. Although the lack of a prenup and the length of the couple’s marriage may not necessarily be beneficial to the rapper, they may turn out to be factors that weigh in Mrs. Miller’s favor as the California court presiding over the divorce matter determines how the couple’s community assets should be divided. The couple’s divorce has been pending since October 2013, and in light of Mrs. Miller’s recent court filings and the amount of assets at stake, there will likely be no resolution to this dissolution in the near future.

 

Prenuptial Agreements on the Rise Nationwide

Thursday, February 6th, 2014

The connotation that prenuptial agreements are legal tools that are only useful to the wealthy is still widely held. However, according to a survey of several family law attorneys nationwide, it appears that this view is dissipating and prenuptial agreements are gaining more and more popularity nationwide. According to a survey of the American Academy of Matrimonial Lawyers (AAML), 63% of the divorce and family law attorneys report seeing an increase in clientele seeking prenuptial agreements within the last three to five years. Specifically, many attorneys reported seeing a 46% increase it the number of women requesting prenuptial agreements.

This increase in the interest and the instance of couples seeking prenuptial agreements prior to marriage may be due to several factors such as the current state of the economy, the trend of individuals tending to wait until later in life to marry and society’s increasing acceptance of prenuptial agreements. Regardless of the rationale explaining the recent upsurge in the popularity of prenuptial agreements, as Georgia divorce attorneys we suggest that any individual or couple considering entering into a prenuptial agreement seek independent legal representation to discuss the merits and possible drawbacks of a prenuptial agreement in the context of their specific situation.

Asset Protection Alternatives to Prenuptial Agreements

Tuesday, November 26th, 2013

Prenuptial agreements, otherwise known as antenuptial agreements or prenups, are becoming increasingly popular as several individuals are postponing marriage until later in life and often after amassing personal wealth and significant separate assets. However, as prenups become more popular, they are also garnering a bad rap. Among couples seeking to wed, prenup is often viewed as a dirty word because it suggest to some that the party suggesting it is planning for divorce instead of focusing on the marriage.  Because of this, many chose not to discuss prenuptial agreements in order to avoid conflict.

But, just because the topic of prenuptial agreements may be a touchy one doesn’t mean that a future spouse seeking to protect his or her separate assets in the event of divorce are out of luck. There are alternatives to prenuptial agreements that may allow an individual to ensure that his or her separate property is protected in the event of divorce, and these alternatives do not require their future spouse’s consent or agreement.

Keeping separate property separate.

One of the simplest ways of ensuring that any separate property you have obtained prior to marriage is maintaining the separate nature of this property after marriage. This may sound simple, but during the course of marriage, especially a long term marriage, maintaining separate accounts and separate assets may be extremely difficult. For this reason, many individuals look to the options below in lieu of prenuptial agreements.

Trusts.

A trust is a relationship created at the direction of an individual, where that individual entrusts one or more people, often referred to as trustees, to hold the individual’s property subject to certain duties, and to use and protect that property for the benefit of others. Trusts may either be used by the family of a future spouse to protect an inheritance or family assets in the event of divorce, or a trust may be used by a future spouse to protect his or her individual assets. Trusts offer asset protection in the event of divorce, because once money or property has been placed in trust, it is deemed to be the property of the trust for legal purposes. If a spouse does not legally own property, it generally may not be subject to equitable distribution upon divorce. There are several types of trusts, and there are very stringent procedures that must be adhered to in order to ensure a trust is validly created and effective. If you are looking for an effective method of protecting your assets upon divorce, a trust may be a good option. Speak with a family law attorney for more information and details concerning how to structure your financial affairs prior to marriage, in order to protect your separate assets in the event of divorce.

Prenuptial agreement upheld in Georgia divorce case

Monday, December 26th, 2011

The Supreme Court of Georgia recently heard an appeal of a divorce case, which highlights the security, or risk (depending on which side you are on), of entering into a prenuptial agreement in Georgia. Sides v. Sides, S11F1140 (2011). In that case, the parties began dating in 1989 and, shortly thereafter, the Wife became pregnant. Id. Due to the great disparity in assets and income between the parties, they negotiated and signed a prenuptial agreement before marrying in 1990. Id. Under the agreement, “Wife would have been entitled to substantially more resources if the parties divorced after their twenty-year anniversary, and substantially less if the parties divorced prior to their twenty year anniversary.” Id. at 2. Nearly twenty years later, the Husband filed a Compliant for Divorce and Motion to Enforce the Prenuptial Agreement, which the trial court granted a mere 62 days prior to the couple’s twenty year anniversary, and the Wife appealed. Id.

The Supreme Court of Georgia affirmed the enforcement of the prenuptial agreement. The Court first laid out the factors to be considered by the trial court in deciding the validity of the prenuptial agreement: “(1) [W]as the agreement obtained through fraud, duress or mistake, or through misrepresentation or nondisclosure of material facts? (2) [I]s the agreement unconscionable?(3) Have the facts and circumstances changed since the agreement was executed, so as to make its enforcement unfair and unreasonable?” Id., quoting Scherer v. Scherer, 249 Ga.635, 641 (3) (1982).

In this case, both attorneys “deposed that they would not have allowed their clients to enter the agreement without full financial disclosures being made,” and Wife was long aware of the “vast disparity” between their incomes. Id. at 3. Thus, the evidence supported that full financial disclosures were made prior to signing and the agreement was not unconscionable. In addition,the increase in Husband’s net worth was anticipated and, therefore, it was not a “change of circumstance that would make the enforcement of the agreement unfair and unreasonable.” Id. at4. The trial court, thus, did not abuse its discretion in upholding the prenuptial agreement.

An Atlanta Divorce Attorney’s Thoughts on Celebrity Divorce – Owner of Los Angeles Dodgers

Friday, October 15th, 2010

In this weekly installment of An Atlanta Divorce Attorney’s Thoughts on Celebrity Divorce, I will discuss the ongoing divorce action of the owner of the Los Angeles Dodgers. As you may have read in the New York Times or other news outlets, the owner of the Los Angeles Dodgers is going through a divorce,putting ownership of the Major League Baseball team in dispute. The key to this case is a post-nuptial agreement, of which there are two versions – one version gives the team to the husband/owner and the other version makes the parties joint owners of the team. The owner’s wife is asking that the agreement be thrown out and is alleging that the version giving complete ownership of the team to her husband was obtained fraudulently. If the agreement is thrown out, the team will be divided with the parties’ other assets under California’s community property law.

If this case was in Georgia and the agreement was invalidated, the team would be equitably divided. As explained in detail in previous blogs, equitable division does not necessarily mean equal. The judge would consider all the circumstances in deciding how (or if) to divide the team. Thus, the outcome of the case could be much different in Georgia than in it would be in California, where the parties would each receive50% of the team. Closing arguments were recently completed and the judge now has 90 days to decide the fate of the parties and the Los Angeles Dodgers. It will be interesting to see how this one turns out.

Pre-nuptial Agreements in Georgia

Tuesday, March 10th, 2009

An ante-nuptial agreement (commonly referred to as a pre-nuptial agreement or “pre-nup”, according to O.C.G.A. § 19-3-62, is a contract into which a couple enters prior to marriage, which divideshis or her assets in case the couple’s marriage ends in divorce. Many people usually associate pre-nups with the rich and famous or the wealthy, but anyone can obtain a pre-nup in Georgiaregardless of their wealth and assets. Typically, each party will keep the assets that he or she had prior to the marriage and the division of assets is detailed in the pre-nup. One party usuallykeeps all of their money and assets that he or she had prior to the marriage and the other party keeps theirs. It basically says what is mine is mine and what is yours is yours. Also, if the marriage does end in divorce, the pre-nup will detail what (if any) alimony or assets the other spouse is entitled to receive.

The only enforceable clauses in a pre-nup deal with the parties’ assets. Recently, family law attorneys throughout the country have seen a new trend in pre-nups. Couples now want to addhealth-related clauses, such as how much weight his or her spouse can gain during the marriage or when they will have their first child. For instance, a man may want to add a clause that stateshis wife is only allowed to gain a certain number of pounds during their marriage and if she gains any more than the allotted amount, then she will be subject to monetary penalties. Not only areclauses like this unusual (to say the least), but health related clauses are not enforceable in the State of Georgia. The only clauses in pre-nups that are enforceable in Georgia are the onesdealing with money and/or assets of the parties.