If You Need to Wait Because You Can't Afford to Divorce...

There is a lot of discussion going on about whether the number of divorces being filed is decreasing. Many observers say that is true because of the economy, and it makes some sense. As bad as a family situation may be, many people begin to feel that they can't afford to get divorced.

• Some people are experiencing the mortgage crisis in their lives. Home values are plunging in many areas, although not as much in North Texas. Tarrant County home values, so far, are still doing pretty well and houses are selling, but who knows for how long. Even so, it is harder to get mortgages now.

• Many people are losing their jobs. Again, although Tarrant County seems to be stronger than many other areas, unemployment has greatly increased. Everyone is eventually affected by what is happening everywhere else.

• The stock market fall has badly damaged many retirement accounts and investment portfolios. The values are down by a third to a half, sometimes more.

• With prices rising, even for those people lucky enough to hang onto their jobs, it is hard to pay for food, fuel, utilities and other necessities.

• Insurance costs are going up and coverage is falling. Health care costs are increasing. Anyone with health issues now certainly faces greater difficulty in paying for necessary services.

Given those circumstances, it's no wonder that people may be deciding to wait on a divorce until they can better afford it.

For people choosing to wait, here are some other options:

1. Get a post-nuptial agreement. Many people are familiar to some extent with pre-nuptial agreements. I have written about them before. A post-nup is like a pre-nup, only later. Texas law allows a married couple to sign a partition agreement to divide their assets and liabilities. It can also provide for how present and future income will be managed. While it is not cheap, a post-nuptial partition agreement is probably much less expensive than a divorce and it will accomplish about the same thing as a divorce as far as property division. An attorney would be needed for each side. I would suggest using Collaborative Law to work out the agreement on the best possible terms for both parties, so you would be best served by contacting Collaborative lawyers.

2. Do financial planning. This is a less dramatic step than doing a partition agreement. The couple could meet with a financial planner to brainstorm ideas to find the best way to manage their finances during the downturn and into the future. A lot of the stress people are experiencing is from uncertainty about survival now and in the future. Getting qualified help to plan a strategy may resolve the concerns and leave the parties in a better frame of mind. A certified divorce financial planner or a regular financial planner can probably help you with this.

3. Take steps to enhance your marriage. Getting counseling is a common suggestion, but it makes sense. If you feel like you can't afford a divorce, but one or both of you is miserable in the relationship, then maybe you should try to make the relationship more bearable. Sometimes a marriage retreat can be helpful. There may be some groups around that you could join. Or, you could go to individual and couples counseling. Things around the house might really improve if you and your spouse follow through with counseling. Even if your marriage doesn't survive, at least the divorce later on might be more civilized. First, contact a marriage and family therapist and give it a try.

If you are haveing serious problems at home with your spouse, but you think you can't afford a divorce, you should consider the suggestions above.

Will You Marry Me? I Have Health Insurance

Charles Jamieson, a Palm Beach, Florida attorney recently pointed out a subtle trend with families in an excellent post about the role of health insurance in family life. He wrote the following in his Palm Beach County Family Law Blog:

"Getting married for money or for wealth dates back to genesis or even earlier. Divorce attorneys and most other people are aware of this dynamic and probably know people who have married for this reason. However, getting married for health insurance coverage is not so well known. This lesser known behavior should not be surprising, given the difficulty people have in today's society finding and affording reasonably priced health insurance. Consequently, for some modern couples, the words: 'In Sickness or in Health' have taken on an actuarial meaning. These couples may not be marrying for 'richer or for poorer'. Instead, they may be getting married for affordable co-pays and deductibles. These couples weigh any marital doubts that they may have against the medical needs that they do have. For the same reasons, a spouse may prolong an unhappy marriage so that they can maintain affordable health insurance coverage. With either scenario, the psychological pressures can be immense. A recent article in The New York Times profiled a number of couples, who have dealt with the motivation of obtaining health insurance in terms of becoming married or divorced. To review this article, please click here."

Charles points out how economic and/or medical conditions can directly affect one's marital status, both encouraging some to marry and encouraging some to stay married. With medical expenses being one of the leading contributors to price increases, the situation is likely to become more common.

Another way to deal with the situation is to use a prenuptial or post-nuptial agreement. Those agreements can be used for estate planning purposes as well as controlling the impact of debt and medical expenses. Parties can technically remain married, which can keep insurance in effect, but have all of their assets and debts divided by a binding agreement. Likewise, an older couple might marry to maximize some retirement or insurance benefits, but operate under a prenuptial or post-nuptial agreement for tax or family (keeping peace with their children) reasons.

Sometimes attorneys are able to help people come up with creative solutions for emotional and financial difficulties. The best advice: Look (go see an attorney) before you leap. Find an attorney with the experience, expertise and willingness to be creative. Solutions are available if you look in the right places.

The Increasing Popularity of Post Nuptial Agreements

There has recently been much discussion about post nuptial agreements in three excellent blogs (Sam Hassler's Indiana Divorce & Family Law Blog, the New Jersey Divorce and Family Law blog by Victor Medina and New York Divorce Report by Daniel Clements), as well as The New York Times. The posts and newspaper article all mention how popular and more common post nuptial agreements have become. That seems to be the case here as well.

Post nuptial agreements are contracts between husband and wife dividing up all or part of the assets they own. The agreements are also known as partition agreements. They may be done for estate planning purposes to help manage taxes and to distribute assets according to the wishes of the owners. They may be done to protect a business from personal claims or to protect personal assets from business-related claims or debts. They may also be done to preempt or minimize divorce issues. There are many legitimate purposes for preparing such an agreement. Hopefully, having such an agreement will reduce tension between the husband and wife and clearly define their financial relationship.

Under Texas law, the agreement needs to be in writing and signed by both parties. There needs to be full disclosure of the assets and liabilities. The agreement must have been voluntarily entered into with adequate time for consideration. It is not required, but it is highly advised that both parties have an attorney to review and advise. Someone signing a post nuptial agreement without an attorney is taking an enormous risk. If the agreement is valid, it will not likely be set aside, even if it turns out to be very one-sided or unfair, which seems to be different from the law in Indiana, New Jersey and New York. In Texas, it's "signer beware"!

The safest way, for both parties, is to use the Collaborative Law process to reach an agreement on the terms of a partition or post nuptial agreement. That would address all the legal requirements and would assure that both parties really understood what they were doing and fully participated in the decision-making process. Even if the parties don't agree to use the Collaborative process, they should each have their own attorney so they can complete an agreement that is workable and appropriate for their needs.