The Law Office Of Oprea & Weber
A Family Law Firm
Prenuptial and Postnuptial Agreements
A prenup, also called a prenuptial agreement or premarital agreement, is a contract between an engaged couple that establishes how property will be split up in the event of a divorce or death. An engaged couple must agree on the terms of the prenup and sign the agreement prior to the date of their marriage. A well-drafted premarital agreement can provide peace of mind and reduce financial stress both prior to and during the marriage.
Because of the default statutory rules in the Texas Family Code, in a sense every married couple is subject to a premarital agreement. This is because, if you do not use a premarital agreement to design your own set of terms regarding what will happen in the event of divorce, you will instead be subject to whatever the Texas Family Code says will happen. Using the Family Code as your fallback has several disadvantages. First, those rules are not tailor-made to fit your particular circumstances and desires. Second, rules in the Family Code are more open-ended and leave much to the discretion of the court that is handling your case. This makes it much harder to predict what will happen to your property should the marriage come to an end.
Postmarital agreements, also called postnuptial agreements or postnups, allow married couples to change the nature of their community or separate property estates during marriage. This may occur when a marriage is very happy, but a couple desires more financial independence. A postmarital agreement can divide assets into separate property estates, determine that no community property will be created for the remainder of the marriage, or convert separate property into community property. A postmarital agreement can be executed at any point after the marriage begins.
For couples who are contemplating divorce, but want to avoid the stress and acrimony of litigation as well as maintain more control over the outcome, the collaborative process can be an attractive option.
The collaborative approach to divorce utilizes a structured system wherein each side is represented by a separate attorney who is dedicated to minimizing conflict and resolving dissolution issues outside of court. The collaborative “team” typically includes the parties, their attorneys, and two neutral professionals -- a mental health professional who acts as a facilitator of the process, and a financial expert, who is able to provide a neutral assessment of the parties’ financial situation and inventory of all marital assets. The collaborative process begins with the parties and their attorneys signing an agreement committing to resolving the case without resorting to court. The parties then proceed to negotiate the terms of the divorce during a series of group meetings.
The benefits of the collaborative process are numerous. The parties’ commitment not to take the case to court reduces the fear that the other party will act vindictively, or in a “zero sum” manner. When children are involved, the collaborative process invariably puts their needs at the forefront of all discussions in the case. The fact that the outcome will be agreement-based reduces the stress that the case will end with a court-ordered decree that benefits one side over the other. And the commitment to transparency and full disclosure on all financial questions saves everyone from the inefficiencies of the discovery process, and the fear that the other party might be “hiding” something.
A mediated divorce is an excellent alternative to a litigated divorce that allows you to prioritize conflict-resolution, cut down on costs and delays, and take charge of the divorce process. Unlike collaborative or litigated divorce, mediated divorce allows couples to reach a resolution without hiring separate attorneys. Although a mediator can’t be on either party’s side, he or she can help you identify and understand the issues that need to be addressed, and the mediator will help you avoid re-inventing the wheel. An experienced mediator will have seen many couples through the trying time of divorce and may have ideas for coming to agreements that would never have occurred to you. If you feel that you and your spouse are already close to a resolution with the division of your community estate or custody arrangements, or simply have the strong desire to work together towards a peaceful resolution, a mediated divorce can save you considerable money and stress, while streamlining and speeding up the process.
Mediated divorce offers many of the benefits of collaborative divorce, but is often less expensive, faster, and less formal. Rather than having a group of professionals—including two attorneys—who work with the parties throughout the entire divorce process, a mediated divorce gives you the freedom to have only a single professional on the case, and to bring in outside experts only when needed for specific issues, and in a more limited role. On the other hand, collaborative divorce might be the better choice if both parties would be more comfortable having their own attorney, or if there are issues in the case that are heavily disputed.
Approaching divorce from a litigation perspective is often a stressful and taxing proposition. It is vital to get the help of an experienced attorney who will approach your case with you and your family's best interests in mind. A litigated case begins when one party files a petition for divorce with the family law court in the appropriate location. That petition will state the outcome that party is hoping for. If your spouse has filed a petition for divorce, you will work with your attorney to draft an answer and perhaps a counter-petition which typically contains a different vision of how the case should be resolved.
Next, the case will often proceed to the discovery phase where the parties will request information (e.g. financial account statements, emails and text messages, or pay stubs and property records) from each other in order to garner evidence to present to the court. Participating in discovery and sharing information with the other party once it has been requested is mandatory in a litigation case. However, it is also possible for parties to simply agree to the free and informal exchange of information without recourse to formal discovery procedures. Such agreements can save the parties considerable time, money and stress.
Once the necessary information has been exchanged, the parties will usually engage in an informal effort to resolve the matter by agreement. It's important to remember that there are only two ways that a divorce case can end: 1) the parties reach an agreement; or 2) the parties go to court and have a judge or jury decide. Thus, if negotiation and mediation have failed, the case will proceed to a trial before a judge or a jury. The judge or jury will resolve all of the issues presented in the divorce.
Wills and Trusts
Whether your estate is very large or very small, virtually everyone can benefit from creating an estate plan to give you more control over what will happen in the event of your death or incapacity. An estate plan typically will cover three areas: the distribution of your assets, how your medical needs will be addressed if you become unable to make healthcare decisions for yourself, and who will make legal and financial decisions for you if you are incapacitated. It can also cover who will take care of your children in the event that neither parent is able to care for them due to death or serious injury.
The distribution of assets is typically governed by a will or a trust. Depending on your situation, you may be able to gain tax advantages through the use of a will or trust and gain much greater control over where and how your belongings will be distributed. Executing documents dictating who will make medical, legal, and financial decisions can also provide you with peace of mind regarding how decisions will be made in the event that you are no longer able to dictate the course of events. What’s more, having a will or trust in place will save your loved ones from the considerable time and expense of resolving your estate through the intestacy process.