With the average age of marriage increasing, people are bringing more and more assets into a marriage. With that in mind, you should consider how to protect those assets in the event of a divorce. People have a tendency to scoff at the idea of a prenuptial agreement, also known as an antenuptial agreement or ‘prenup.’ Prenups are viewed as a sign that you do not think your marriage will work out or that you do not trust your future spouse. But I will ask you this: Would you rather decide how your assets and liabilities are divided when you are in love with your partner and have each other’s best interests at heart, or would you rather wait to have that discussion until the worst-case scenario has occurred and you now despise each other?

What goes into a prenup?

A prenup helps ensure that you and your future spouse have a clear understanding of the division of finances and property if a divorce were to occur. It can also be used to outline how income will be utilized during the marriage, i.e. who pays what bills. In addition, a prenup affords you the opportunity to discuss various scenarios, such as whether you will receive additional finances at the time of divorce if you stayed home to take care of the kids.

If applicable, a prenup might also cover how business assets will be divided, how future inheritances will be divided, how children from a prior marriage will be taken care of, who is responsible for previous debts, who is responsible for debts incurred during the marriage, if any assets or finances will be kept separate from the marital estate, and how retirement or pension plans will be divided.

Sometimes a court will not follow the prenup during the divorce… why?

You had a bad lawyer. Kidding. However, a good lawyer will advise you that there are certain requirements a court will look at when deciding whether a prenup is valid, including the following:

1. Did you disclose all your assets? If you were hiding assets from your future spouse, then they did not know what they were truly agreeing to when signing the prenup. Therefore, it is unfair to hold them to that agreement.
2. Is the agreement unconscionable? What people define as fair might not be the same, but if a prenup is heavily weighted in favor of one spouse a court might find it invalid. This can be especially true when there is financial disparity between the parties, e.g. a millionaire with five lawyers talked their poor future spouse who could not afford an attorney to sign an agreement where the millionaire gets the majority of the assets if they ever divorce.
3. Did each person have time to read and understand the agreement without pressure? If you handed your spouse a prenup right as you were about to walk down the aisle, that can be viewed as duress. If you are considering a prenup, make sure you prepare it well in advance of the wedding.
4. Did each party sign and notarize the agreement? It is hard to hold your spouse to an agreement if they refused to sign it. No signature = no consent to be bound by the terms.
5. Did you agree that neither party should pay child support? It is unlikely a court would enforce this provision, because courts want children to be taken care of. However, the court may still find the rest of the agreement valid and binding.

Tennessee’s public policy favors prenuptial agreements.[i] These agreements are generally enforceable when entered into freely, knowledgeably, in good faith, and without the exertion of duress or undue influence.[ii]

How do I get my future spouse to sign a prenup?

For reasons discussed above, bring this conversation up as early as possible. Remind your partner that the goal is not to get a divorce, but that you want to make sure you are both protected in the event of a worst-case scenario. Take the time to talk through your concerns; after all, they say strong communication is the basis of a healthy marriage. Take the time to consider where the other person is coming from. And if that doesn’t work, consider sending them this article.

If you or your future spouse is considering a prenuptial agreement, you should seek the advice of a knowledgeable Nashville divorce attorney. The professionals at Cole Law Group have the knowledge and experience to assist you with any questions you may have about protecting your interests. Please contact us at (615) 490-6020 to request a consultation.

[i] Law v. Law, No. E2021-00206-COA-R3-CV, 2022 Tenn. App. LEXIS 166 (Ct. App. Apr. 26, 2022)

[ii] Tenn. Code Ann. § 36-3-501

In Tennessee the procedure for dissolution of marriage is pretty straightforward.  A no-fault divorce based on irreconcilable differences with no minor children involved has a minimum statutory waiting period of 60 days (90 days if minor children are involved.)  This uncontested divorce process should be completed within one year and consists of four primary steps:  1) File a petition for divorce with the  court, 2) Prepare a Marital Dissolution Agreement, 3) Agree on a Permanent Parenting Plan if minor children are involved, and 4) Schedule a final hearing in court. The procedure for a contested divorce, on the other hand, can take up to two years and beyond to finalize simply because of the filing of motions and counter motions, discovery (interrogatives, fact finding, and depositions), court ordered mediation, or multiple hearings and a backlog of court cases.

And even though a contested divorce by its very acrimonious nature takes longer to resolve, it is wise to be aware of certain mindsets and external influences that can turn a routine process into a never-ending nightmare.  Below are some bumps in the road that can derail a successful, timely divorce resolution.

REFUSAL TO COMPROMISE

An “I’m going to win at all cost” attitude doesn’t serve anyone well.  Realistically, it is probable that neither party will get everything he or she wants in the divorce.  Pick your battles, consider rational alternatives, and choose areas in which you might be willing to negotiate.  Avoid using the courtroom as an arena where you can “finger point”, out-strategize and demoralize your spouse.  Judges don’t take kindly to spousal attack, accusations, and constant bickering.

IT’S ALL ABOUT THE MONEY

Very few people find their “pot of gold” at the end of a divorce. If you reside in one of the nine community property states (Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington and Wisconsin), both spouses are considered equal owners of all marital property, and a 50-50 split is the general rule. In a common property state such as Tennessee, the court will determine a fair or equitable division of marital property according to certain variables.  Most judges will begin by awarding 50% of the marriage assets to each party and adjust that distribution based upon evidence presented.  If you believe that your spouse is hiding assets, then you and your attorney must act accordingly.  Otherwise, an extended fight over money or ownership interest in a business is expensive and you may not be rewarded accordingly.  Years of fighting the good fight over money can eventually chew up a large percentage of available wealth.

ONE SPOUSE DRAGS FEET

An unwillingness to “let go” can delay divorce proceedings and make the process even more painful.  A less-motivated party may procrastinate in responding to motions, postpone court hearings, and reject even generous settlement offers.  At times it is prudent to step back and allow the unwilling party time to emotionally adjust.  However, eventually, the process just has to be pushed along.  Reality is that a spouse who is determined to divorce will ultimately prevail.

CUSTODY BATTLE

A custody battle is  the single most emotional reason for perpetuating divorce issues and will create havoc with the divorce process.  Hostilities escalate when one parent  or the other attempts to use the children as pawns in order to gain leverage in financial matters, child visitation, or control over mutual parenting practices. If allegations of mental illness, substance abuse or emotional/physical abuse are made in a high-conflict divorce, a forensic psychologist may be appointed by the court to do an evaluation of both parents and the children.  A judge may also utilize the services of a guardian ad litem  (“GAL”) to help determine which parent should have primary residential responsibility.  The GAL’s job is to act as an advocate for the children.  He or she will interview people who come in contact with the children, prepare a report for the judge, and perhaps testify at trial.  An independent psychologist may also be employed to help the children through this traumatic chapter in their lives.  The undertaking of experts who attempt to resolve custody battles is lengthy and expensive and can delay the final divorce decree for a significant period of time.

THIRD-PARTY INTERVENTION

One of the most insidious obstructions to an expedient divorce is the involvement of third parties.  Third parties take on many faces–they may be relatives, lovers, close friends, persons with an axe to grind, someone who is seeking a “cause d’jour”, or an individual who has a vested interest in the outcome of financial disposition, child visitation, or primary residential issues.  (Grandparents are often dragged into the fray with the best of intentions because of a genuine concern for their grandchildren’s welfare.)  Third parties may affect the outcome of a divorce by offering advice, testifying, or providing significant financial support. Many times their involvement blindsides the opposing spouse.  If a divorce drags on interminably, you should always bear in mind that the causative factor could be third party intervention.

MODIFICATIONS AND APPEALS

And just when you thought it was over—here it comes again.  After a trial has taken place and a court order has been signed that covers all the divorce issues, either party may file an a post-divorce modification or an appeal.  

Post-divorce modifications are usually filed in order to change the terms of alimony, child custody, child support, visitation, or parental relocations.  Modification may occur when there is a substantial change in circumstances  from the time that the original order was entered.  A judge (or parenting plan) will often require that the two parties involved attend mediation prior to a modification hearing.   Post-divorce modifications may be concluded expeditiously or drag on for a lengthy period of time.

A Notice of Appeal must be filed within 30 days of the trial judge’s order.  The purpose of such an appeal is to determine whether the judge made a legal error that affected the outcome of the trial.  If the appellate court reverses the original judge’s order, then the matter will likely be sent back to the trial  court for further proceedings.  The appellate process can take a year or longer to complete.

CONCLUSION

So what can you do if you find yourself mired in chaos and divorce limbo?  First, reassess your goals to determine if they are viable.  Second, be flexible and choose your battles carefully.  Third, consider the factors above that may be true impediments to divorce resolution.  In addition, and most importantly, align yourself with a skillful family law attorney who has your best interests at heart, who can offer sound counsel, and who will be your forceful advocate as you navigate through the roadblocks of divorce.  Our Cole Law Group family law attorneys in Nashville have the knowledge and experience to help resolve the most highly contested divorces. Contact us today at (615) 490-6020 to schedule a consultation.