Unique Issues in a Same Sex Prenuptial Agreement

lesbian-couple-with-childIn June 2015, the Supreme Court of the United States ruled that same sex marriage was legal in all 50 states. This means that all Georgia marriage laws, including ones applicable to prenuptial agreements, apply to the same way to same sex couples as they do to heterosexual ones. But, there are some unique issues pertaining to some same sex marriages that need to be addressed. Family law attorneys strongly urge same-sex couples to draft a prenuptial agreement considering, at a minimum, the following issues.

  • How long they have lived together as though married. Many same sex couples have lived together for many years.  One party may have stayed home with the children while the other one worked outside the home. One party may have worked while the other pursued education. Will there be alimony in the event of a divorce? If so, the court will only consider the contributions of each party to the marriage from the date of the marriage. In a prenuptial agreement, the couple can make a statement about the contributions each have made to the relationship and agree upon a date earlier than the date of the marriage that can be used for making alimony decisions.
  • Determine which assets and debts are joint and which are separate. The couple may have assets, such as a home, and bank accounts that are only in one of their names. Under Georgia law, assets brought into the marriage are not divided during the divorce proceedings. Only property acquired during the course of the marriage is considered marital property. A prenuptial agreement can designate these as joint assets. Debts can also be dealt with in the prenup.

Source

http://www.divorcelawinfo.com/states/ga/gapropdiv.htm

http://www.divorcesupport.com/divorce/Georgia-Premarital-and-Prenuptial-Agreements-3644.html

Five Myths Debunked About Prenuptial Agreements for a Same Sex Couple

myths-photoMyths surround prenuptial agreements which essentially discourage couples, same sex or heterosexual, from entering into one. At least five of those myths have been debunked.

  1. Only wealthy people need prenuptial agreements. Not true. Marrying couples, no matter what their financial status will likely have bank accounts, charge cards, car payments and perhaps student loans and other assets and liabilities they do not think about until it comes times to put together the premarital agreement.
  2. Prenuptial agreements presume there will be a divorce. Not true. Negotiating the terms of the prenup gives couples an opportunity to discuss their expectations of the relationship which can lead to a more solid foundation than if the topics are not discussed.
  3. The agreement will not be upheld in court anyway. Not true. A properly executed premarital agreement, reviewed by an attorney and signed by two witnesses and notarized, will, according to Georgia statutes, “be liberally construed to effectuate the intent of the parties.” As long as one party did not exercise coercion or force the other party to sign under duress, the agreement will be upheld.
  4. A premarital agreement means we do not trust each other. Not true. Discussions about the foundation of the marriage, possibility of divorce, and full disclosure of assets and liabilities, and plans for future accumulations together, can add a layer of trust that is often missing from the relationship where such discussions do not take place.
  5. Putting together a premarital agreement is expensive. Not True. Divorces are expensive, but they are far less expensive when a valid premarital agreement is in place. It is like an insurance policy. It will save you money in case the event insured against, divorce, ever actually happens.

Source

http://www.divorcesupport.com/divorce/Georgia-Premarital-and-Prenuptial-Agreements-3644.html

http://www.prenuptialagreements.org/prenup-myths

How To Ask for a Prenuptial Agreement

asking-for-a-prenup-photoYou are in love and planning to get married, but you want a prenuptial agreement (prenup). The subject is an emotional one since it interjects the possibility of a divorce into the otherwise loving moments of wedding and honeymoon planning. Those that have “been there, done that” have suggestions that may make it easier for you to broach the subject with your soon-to-be spouse.

Engage in a Conversation

Do not start by making a demand like, “I want a prenuptial agreement.” Instead, broach it in a conversational way by saying, “Let’s talk about a prenup.” Make it clear you are not expecting your marriage to end in divorce, but view a prenup the same as an insurance policy. No one expects to ever have to use it for an emergency, but it is nice to know it is there just in case.

Be clear about why you think it is a good idea. Explain any life experience you  have had that leads you to believe you need this agreement to be in place before you get married.

Listen and Negotiate

Listen to the concerns of your future spouse. Understand the objections and be willing to negotiate.  If coming to an agreement seems impossible, work with a mediator who can assist you in writing the agreement together.

Allow for Changes

The prenup covers events that have not yet happened. As time passes, there may be a need to change the terms. Provide for this contingency in your original plan. You can also add a “sunset clause” provision whereby the agreement will expire on a date certain.

After the two of you have agreed to have a prenup, contact a Georgia family law attorney who will know how to draft the agreement so it meets Georgia’s prenuptial agreement legal requirements.

Source

http://www.businessinsider.com/how-to-ask-for-prenup-2014-9

https://www.entrepreneur.com/article/227088

The Best Answers to Frequently Raised Objections to a Same Sex Prenup

objections-to-a-prenupWhen one party asks the other to sign a prenup, there is usually tension. The one not making the request objects to it. When reasonable answers are given to objections, negotiating a prenup can actually improve a relationship.

Having a prenup means we don’t trust each other. A discussion of the terms of a prenup occurs in a trusting relationship, when each party feels free to discuss their own concerns. Each party is trusted to provide full disclosure of their assets and debts. Skills learned in negotiating this sensitive subject can be an indication on how problems can be solved during the marriage

We don’t need a prenup because we are never going to get divorced. As nice as that thought is, no one can predict the future. Everyone hopes for the best, but happily ever after doesn’t work out for everyone. Plus, if you don’t get divorced, you never need to talk about the prenup again. Meanwhile it acts as an insurance policy. It’s there if you need it, but you hope you never do.

Having a prenup will make me worry all the time that a divorce is imminent. Actually, having a prenup sets aside worries about what will happen in case of divorce. Decisions concerning asset division, spousal support, debt allocation and others are all determined so that you can rest easy and set aside sleepless nights, knowing how your financial situation will be affected in the event you do divorce.

If we do divorce sometime in the distant future, the prenup we enter in today may be unfair. As years pass, you can renegotiate the terms, only it will then be a “postnup” not a prenup. You can also add a clause that says the prenup will expire upon a date certain. For example, if the marriage lasts a certain number of years, the prenup will no longer be valid.

Source

http://www.prenuptialagreements.org/prenup-objections/

Same Sex Couples Need Prenuptials Agreements Too

prenup-photoThere are a number of reasons same sex couples need prenuptial agreements in order to resolve issues before they arise. The prenup can define how assets and liabilities will be divided in case of a divorce. It can establish whether or not there will be spousal support and, if so, how much that will be.

A prenup may determine ahead of time if there will be a lump sum paid to one party in the event of a divorce. Some prenups arrange for a certain amount of money to be paid to the other for every year the marriage lasts. The prenup can even determine who will get possession of the family pet. One area where enforcement of a prenup is still a gray area of law is when there are children involved.

Prenups, Child Custody, Visitation and Support

Courts generally do not automatically follow a prenup in regards caring for and providing for children. Custody and visitation issues are decided according to what the court determines is in the best interest of the children at the time the decision needs to be made. The issue of child support is also one for the court to decide based on guidelines that apply, as in custody and visitation, at the time the decision needs to be made.

Georgia Courts require a divorcing couple to work together to come up with their own parenting plan. A prenup can articulate resources the couple will use to help them do this if they have disagreements. For example, the prenup may have a provision requiring the couple to go to mediation to help resolve disagreements that may arise when they are working on formulating their parenting plan.

Source

http://law.justia.com/codes/georgia/2010/title-19/chapter-9/article-1/19-9-3

http://dcss.dhs.georgia.gov/child-support-guidelines

Alimony in Georgia

alimonyAlimony is where one party makes support payments to the other following a divorce. Under Georgia law, an award of alimony is not automatic, but either spouse may request support from the other. In some cases, the parties are amicable and agree between themselves about alimony payments. When they cannot agree, the court will decide if the requesting party is eligible to receive alimony and, if so, the amount and the duration of the award.

A Georgia court will not order alimony to a person who either abandoned the family or committed adultery. In other cases, the court may order either rehabilitative or permanent alimony after considering all relevant factors.

When the Parties Consent to Alimony

When the two spouses agree that one will pay alimony to the other, and can also agree on all relevant terms, such as the amount that will be paid and the duration of the payments, they put their agreement in writing and file it with the court. If the court accepts their agreement, it becomes part of the court orders in the final divorce decree. The parties will be bound by their agreement and it will be enforceable the same as any other court order.

Rehabilitative or Permanent Alimony

When alimony is requested, the court evaluates each case individually depending on the needs of the requesting spouse and ability of the other spouse to pay. Alimony generally falls in to two categories. Rehabilitative alimony, which is paid for a set period of time to allow the requesting spouse time to complete training or education in order to be able to support themselves. Permanent alimony may be awarded after a long-term marriage. `

When the spouses cannot agree on whether alimony should be paid, how much should be paid and for how long, the court will consider the following factors in making an alimony order.

  • The length of the marriage.
  • The length of time one party may need in order to become gainfully employed.
  • Whether one party contributed time and effort toward the professional career of the other.
  • Whether the party requesting alimony gave up a career in order to take care of the home and children.
  • The age and health of each party.
  • The standard of living each enjoyed during the marriage.
  • The financial resources of each party including property that was divided during the divorce settlement.
  • Future earning capacity of each party.
  • Ability of one party to pay support to the other.
  • Any other factor the court deems relevant.

If permanent alimony is ordered, unless the parties have agreed to a different arrangement, it will terminate if the receiving spouse remarries. Permanent alimony may also terminate if, according to a Georgia statute, the receiving spouse dwells “together continuously and openly in a meretricious relationship with another person, regardless of the sex of the other person.”

Your New Year’s Resolution #1: Making Sure Your Estate Plan Is In Order

estate planningOne of the most important resolutions you can make is to make sure your estate plan is in order.  This means more than just having a will. If you have minor children, you need to plan for who will manage their inheritance for them. You also need to prepare for how your finances will be managed when you are unable to take care of them yourself as well as arrange for health care decisions to be made on your behalf if it becomes necessary.

The only way to be sure your wishes are followed if you become incapacitated or die is to have proper documents in place when you are still able to make your own decisions. If you die without planning ahead for how you want your assets to be distributed, they will be divided according to state law. Your family and heirs will have no say in what happens. There are a few documents you most certainly should have in place prior to becoming incapacitated or prior to your death.

Importance of Having a Will

Drafting your will gives you the opportunity to specifically plan for how you want your personal and real property to be distributed after your death. You name someone you trust as executor, or administrator, who makes sure your wishes as you expressed them in your will are followed.  In order to be a valid will, it must meet Georgia rules including that it must be in writing, signed by the testator, who is the person writing the will, and be signed by the appropriate number of witnesses.

If you die intestate, which is without a will, Georgia law establishes the order upon which your heirs will receive your assets. If you are married without children, your widow will inherit all of your assets. If you do have children, your wife and children will each share equally in the estate as long as your widow receives no less than one-third of your entire estate. The law provides for various contingencies depending on your family members who are alive and available to share in the estate.

Providing for Minor Children by way of a Testamentary Trust

You may leave any possession to your minor children by way of a testamentary trust included as part of your will. This means you name someone you trust to manage the assets until your children reach the age of 18. You can also state a different age upon which you want your children to receive their inheritance. Once again, preparation of this document gives you the opportunity to articulate your wishes which the trusted person must carry out.

Other Important Documents You Should Have Up to Date

Two documents which are important to have ready in case you are unable to manage our own health care decisions or financial affairs include:

  1. A Durable Financial Power of Attorney: In this document, you name someone you trust enough to act as your agent and handle your finances if you become ill or incapacitated. This person will pay your bills, collect and deposit funds which are due you, make investments and make any other financial decisions that need to be made. You decide when it takes effect, which can be on the day you sign it, upon a date certain that you designate or when you become incapacitated. You also designate when you want the power to end.
  2. A Healthcare Power of Attorney: You name an agent who will make health care decisions for you when you are unable to make them for yourself. Your agent will be able to make decisions about whether  you should go to a nursing home, be admitted to hospice care, donate organs or even allow an autopsy.

For either power of attorney, you may change your agent and name an alternate agent in case the person you initially want to act for you is unable to or refuses to act on your behalf.

Five Common Mistakes Made by Startups

picjumbo.com_HNCK3991You may dream of starting your own business, but are hesitant due to the daunting statistics showing that only 50 percent of startups survive five years. Instead of giving up your dream, find ways to make it work. Many entrepreneurs lose their business because of errors they make that put them on the road to failure. Increase your chances of success by avoiding these most common mistakes.

Failure to Choose the Appropriate Business Structure

One major factor that may determine whether your business is a success is how you decide to structure it. You want to be sure you use a business format that will protect your personal assets from business liabilities and debts. Depending on how you structure your business will also influence your ability to obtain funding, the amount of taxes you pay and how your records must be kept. Some possibilities are:

  • Sole proprietor: You are the sole owner of the business.
  • Partnership: You and one or more partners own the business together.
  • Corporation: There are several different ways to structure your business as a corporation.
  • Limited Liability Company: This is a hybrid between a partnership and corporation and works well for many types of businesses.

A business law attorney will evaluate your situation and advise you on the ideal business structure that will best meet your needs.

Failure to Put Contracts in Writing

Businesses run on contracts.There are contracts between business partners, contracts with vendors, leasing contracts with property owners and employment contracts, just to name a few. One big mistake people often make is entering into a partnership on a handshake. You may have been best friends since fifth grade and rooted for the same sports teams and read the same books. That does not mean you will agree on how to conduct business.

You need a partnership agreement that will specifically articulate how the business will be run and how decisions will be made. Define the policies, business hours and what will happen if one partner dies, wants to leave the business or bring in another partner. Planning for all these contingencies and reducing the expectations to a written agreement will preserve not only the business, but also the friendship.

Failure to Delegate

Running a business is more than a full-time job. It can be overwhelming if you try to do everything yourself. Those who have been successful advise those who are just starting to remember that they cannot do everything themselves. One successful business owner reports that he almost lost his business due to his failure to delegate.  Fortunately, he was able to turn it around around when he realized that he “did not need to know everything” and could delegate certain tasks to others so that he had more time to do the parts of the business at which he was more competent.

Failure to Adequately Research the Need for the Product or Service

You may think your idea is wonderful. You are absolutely certain there is a need for your product or service and that people will line up to purchase whatever it is you are selling. Hopefully, you are right. But, if you create a service or product for which there is no market need, your business will fail. You need to do market research to evaluate whether there is really a need that your business can fill.

In order to have the best chance of success, contact this office for guidance. As an experienced business attorney, I can assist you with determining the best structure for your business, draft necessary contracts and provide services that will help prevent future litigation.

The Georgia Family Violence Act

domestic violence

The Georgia Family Violence Act is designed to protect family and household members from the violent acts of another family or household member. Family has a broad definition under the statute. Specific people who fall under this statute include:

 

  • Current and former spouses.
  • Parents who have a child in common whether or not the two parents were ever married or ever shared a household.
  • Parents and their children.
  • Stepparents and stepchildren.
  • Foster parents and foster children.
  • People who are currently sharing the same household or who shared the same household in the past.

These people are protected from harm that occurs to them due to any felony committed by the violent family or household member. According to the specific language of the statute,  violent acts that will result in increased penalties if directed toward a family or household member include:

  • All degrees of assault.
  • All degrees of battery.
  • Stalking.
  • Criminal damage to property.
  • Unlawful restraint.
  • Criminal trespass.

The process of protection from violence begins when one party petitions the court and asks for an order of protection from violent acts of the other party. The court may make a temporary order of protection without holding hearing. After a hearing is held, the temporary order will either be vacated or turned into a permanent order or an order lasting for a certain number of years.

Types of Protective Orders That are Available

In response to the petition for a protective order, the court may make any order that will serve the purpose of stopping the violence and protecting the victim from any future harm.  Some of the most common orders are:

  • Directing the abuser to stay a certain distance away from the petitioner and have no contact at all.
  • Ordering the abuser to stay away from the residence and granting sole possession of it to the abuse victim.
  • Requiring the abusing person to provide housing for the victim and the children.
  • Awarding temporary custody of the minor children to the non-abusive parent.
  • Providing a legal way for the victim to get any personal property.
  • Ordering the abuser to refrain from harassing or interfering with the victim.
  • Deciding which party will have to pay court costs and legal fees.
  • Ordering any party who is involved to undergo psychiatric testing or counseling in an effort to prevent any further family violence.

A court’s order of protection will last for one year. The order may be extended or made a permanent court order as the circumstances require.

How Does an Order of Protection Actually “Protect” Victims?

When a person violates a protective order, he or she may be immediately arrested and charged with contempt of court as well as with the crime of violating a protective order. A sentence of up to 12 months in jail and/or a fine up to $1,000 may be imposed.

Although there is really nothing about a protective order that will stop a determined abuser from stalking or harassing. It does compel law enforcement to respond and arrest the perpetrator who is violating a protective order.

If you are a victim of family violence, you can find help 24 hours a day, 7 days a week by calling the National Domestic Violence Hotline at 1-800-799-7233 or 1-800-787-3224 (TTY) where you will speak to a real person who can provide you guidance. Georgia has its own 24/7 hotline you can reach at 1-800-33-HAVEN or 1-800-334-2836. You do not have to be physically in Georgia in order to make that call. There are language interpreters for many different language available to speak with you.

An Introduction to Probate in Georgia

probateFollowing the death of a Georgia resident, or of someone who owns property in Georgia, the law has a number of different petitions which may need to be filed in the probate court of the county of the decedent’s domicile in order to begin the probate process. If the decedent left a will, the original will must be filed with the court in order to ultimately distribute the decedent’s assets according to the decedent’s wishes. If the decedent died without a will, i.e., intestate, probate law of the decedent’s domicile will determine how the estate will be divided.

There will need to be named a personal representative of the estate. If there is a will, that person is called the executor. If there is no will, that person is called an administrator. Ultimately, the probate court will issue a document to that personal representative, Letters Testamentary or Letters of Administration, as the case may be, giving the named representative the authority to act on behalf of the estate.

The personal representative has a duty, specifically a fiduciary duty, to comply with the obligations imposed by the court. The personal representative, whether executor or administrator, has a duty to the heirs to preserve their assets and to distribute those assets as instructed.

Role of the personal representative

As the personal representative of the estate, you have a fiduciary duty to the heirs to preserve their assets and to comply with the wishes of the decedent. The court requires you to take an oath, swearing that you will comply with the law in administering the estate. If you fail to fulfill your duties as the personal representative, or breach your fiduciary duties, you may be held personally liable for any losses. An overview of your obligations includes:

  • Locating, identifying and keeping safe all the decedent’s assets.
  • Paying all the debts of the estate. Notice of the death must be published within 60 days of issuance of Letters Testamentary or Letters of Administration so that creditors of the decedent are made aware of the death and may file a claim against the estate.
  • Sell real estate if required to pay debts or to distribute assets. This may require a specific court order to authorize you to do this.
  • Some state and federal tax returns may need to be filed. This may become complicated if there is a surviving spouse or if the estate earns money between the date of the death and distribution of the assets.
  • Distributing the assets to the heirs according to the wishes of the decedent or by the requirements of state law.
  • Filing required reports with the probate court. This includes, among other reports, an inventory of all the assets in the estate and how they are eventually distributed.
  • Filing a Petition for Discharge after all the tasks have been completed and the probate proceedings are ready to be closed.

These duties are not to be taken lightly. Often, legal counsel is needed to guide the personal representative through the process.