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The good people at VoyageATL.com were gracious enough to interview me recently to ask me why I chose to become an Atlanta Family Lawyer. You can read the entire article here.

Please see my latest article on LinkedIn about the options you have to divide the marital home during a divorce in Georgia. Should you sell your home? Who gets the proceeds? What if my children want to stay in that house and not move away from their friends?

I answer these questions and more in this article.

Almost everyone who shops knows Walmart is the largest family owned business in the United States. The company now has 11,000 stores in 27 countries with annual worldwide net sales of more than $482 billion. The founder, Sam Walton, opened his first store in Arkansas in 1962 and, as the saying goes, the rest is history. Although Walmart is now owned by stockholders, Walmart family members own the controlling shares of stock.

In 1869, Henry John Heinz started his business making his first product: horseradish. His famous ketchup appeared on the market seven years later. It now sells 650 million bottles of ketchup every year. When John Heinz died in a plane crash in 1991, his wife Teresa took over the management of the family business.

Levi Strauss, owner of a dry goods store, became passionate about a new type of men’s pants designed by his partner, Jacob Davis.  They obtained a patent and began selling their blue jeans in 1872.  When Strauss died childless, he left the business to his two nephews, one of whom brought his son-in-law, Walter Haas, in to the business. The business is still run by Strauss and Haas descendants.

There are many other examples of family owned businesses that have thrived for years. They all have some elements in common that contribute to their longevity and success.

• Passion: The driving force behind the success of the family owned businesses is the passion the members have for the product or business and the connection they feel to their family members as they all work together toward their common goal.
• Values as important as wealth: The founders of the business have a compulsion to transfer their values, such as their work ethic, volunteering in the community and philanthropy, to their family members who they bring in to the business. Transferring wealth is important but takes a back seat to values. Almost all successful family businesses have a track record of philanthropy and charitable giving.
• New generations learn from the older ones: As young family members enter the business, they are willing to listen to their older family members as mentors. They respect how the business has been conducted through the years and recognize it as key to its current success.
• Older generations learn from the younger ones: The older generations are willing and eager to listen to the new ideas and introduction of new technology by the new family members. Both generations respect what they can learn from each other.
• Keep the family and business reputation intact: Both generations are cognizant of the business and family reputation. They are aware that how they act outside the business and how they treat other people will reflect on the entire family and on the business.

Family members who work long hours together for the success of their business find they need to create balance. They need to respect each other and the time they each need away from the business. They also need pleasant family gatherings where they do not talk about business and enjoy being together as family members, not just business associates.

You are in love and are planning to get married, but first you want a prenuptial agreement (Georgia 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 – Let’s Talk About a Prenup

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 had that leads you to believe you need this agreement to be in place before you get married.

Listen and Negotiate the Pre-Marriage Agreement Upfront

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 marriage prenup mediator who can assist you in writing the agreement together.

Allow for Changes in the Final Prenuptial

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 certain date.

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

In 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

When 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/

There 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

One 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.