Postnuptial Agreements: When Are They Necessary?

“Marital contracts are not the product of classic arm’s-length bargaining, but that does not make them necessarily coercive. Such contracts may inhibit the dissolution of a marriage or may protect the interests of third parties such as children from a prior relationship.”  Chief Justice Margaret H. Marshall.

Unlike Prenuptial Agreements, which are drafted before a couple marries, a postnuptial agreement is entered into by a couple who is already married. The Postnuptial Agreement, which is often drafted in an attempt to improve a marriage, details the settlement in the event of a divorce. It is different from a Separation Agreement, which is used to actually get a couple divorced.

In order to be considered fair and just, the judge will consider:

(1)   whether the agreement was free of coercion or fraud;

(2) whether each party knowingly, and in writing, waived his or her rights to property and support upon divorce;

(3) whether each party had the opportunity to hire counsel;

(4) whether each party provided full and fair disclosure of finances, including current and reasonably anticipated assets, income and liabilities; and

(5) whether the agreement was substantively fair and reasonable at the time of execution and upon divorce.

The burden of satisfying these criteria is on the spouse seeking to enforce the agreement.

If you are considering having a postnuptial agreement drafted, please call Patricia S. Fernandez & Associates. Our legal team is dedicated to helping you choose the strategy that is right for you.

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Postnuptial Agreements

Divorce and Children: Responsibilities of the Parents

Even under the “best” circumstances, their parents’ divorce can be a confusing and stressful time for children. Divorcing parents should keep in mind the following:

 

 

1) In Massachusetts it is mandatory for divorcing parents to attend the “Parent Education Programs, Understanding the Effect of Divorce on Children”.  Sign up for the course as soon as possible. http://www.mass.gov/parenteducationbrochure. You cannot attend the class together.  You both must present a certificate of completion to the court before a divorce can be granted.

2) Divorcing couples should come up with a “parenting plan”, which spells out each parent’s rights and responsibilities regarding support and parenting time. Although some divorcing couples can do this without court intervention, it may be best to go to court and ask the judge for a “temporary order”, which will address these issues on a temporary basis while the divorce is being settled.

3) Do not make disparaging remarks to the children about the other parent. Ultimately, this will come back to haunt you.  Remember that your soon-to-be ex-spouse will always be the child’s mother or father.

4) Many children benefit from speaking with a licensed therapist, who will help them to process their feelings about the divorce.

5) Children should not be privy to the details of the divorce, except where it directly affects them; for example, parenting time schedules.

6) Do not discuss your new romantic interest with children during the divorce process. Even after the divorce is final, be cautious about introducing children to a new “significant other”.

7) Try to maintain “normalcy” for the children by allowing them to see their relatives and friends and by helping them to participate in their usual activities.

If you are considering Divorce, please call Patricia S. Fernandez & Associates. Our legal team is dedicated to helping you choose the strategy that is right for you.

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Paternity: Responsibilities and Rights

When it comes to their children, most men wish to “step up to the plate” and take responsibility for their children’s financial needs. However, the difference between responsibilities and rights is not always clear:

 

  • During my marriage, my wife had an affair and became pregnant. The child is not mine and we are now divorced. Do I have to continue to pay child support?

 

  • My ex-girlfriend now claims that I am not the father of our child, and she won’t let me visit. Do I have any rights?

 

  • What will happen if I sign a Voluntary Acknowledgment of Parentage?

 

  • I married the mother of my child when she was pregnant with our child. Does this mean that I have to take a paternity test?

 

  • I signed the birth certificate, but later the mother told me that the child was not mine. Do I have to continue to pay child support?

 

  • Although he is not my biological child, I have always acted as a father to my girlfriend’s 8-year-old son. Now my girlfriend has met someone else and wants to move out of the state. We have lived together since the child was two years old. His biological father is not involved. What can I do?

If you are not sure of your rights or responsibilities regarding Paternity, please call Patricia S. Fernandez & Associates. Our legal team is dedicated to helping you choose the strategy that is right for you.

 

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