shlep: the Self-Help Law ExPress

Fans of Clint Eastwood (and/or Sondra Locke) will probably understand the meandering shlep that began for me last month by reading Forrest Carter’s Western classic Gone to Texas, then found me borrowing the dvd of The Outlaw Josey Wales from my local library over the weekend, and resulted in this posting on living-together and pre-nuptial agreements.  (If the rest of you want to connect the dots, you’ll have to use your self-help skills and click on the above links.)

 Rather than gossip about Clint and Sondra, I’ll just say that they might have saved themselves a lot of grief and legal fees if they had entered into a Living Together Agreement prior to their breakup in 1988.   As FreeAdvice.com wisely notes “safeguarding income and assets – and negotiating an agreement — in the event of termination of the relationship or death is far easier to accomplish when neither party is angry, under stress and/or hostile.”  Although FindLaw for the Public‘s compilation of links to Marriage and Living Together Laws in 50 States, is a must-see on this topic, most self-helpers would surely do themselves a favor by stopping first to read the extensive Nolo.com materials on Living Together. 

While noting that a living-together agreement may not seem very romantic, Nolo nonetheless advises: “Practically speaking, your agreement will help you avoid trouble when you mix your money and property, and it will make clear your intentions and expectations regarding property ownership, household expenses and the like. It can also greatly ease the division or distribution of property after a breakup or death. On a more personal note, the process of negotiating and drafting your agreement may well strengthen your abilities to communicate with and understand each other.”  Nolo offers a Property Rights of Unmarried Couples FAQ, which answers questions on buying a home, debt, death, palimony, and more.  Other materials at the site cover Parenting Issues for Unmarried Couples, Medical and Financial Decisions, Claiming Your Partner as a Dependent on Your Tax Return, and Common Law Marriage.

  Because even the nicest married couples can end up splitting, Prenuptial (Pre-marital) Agreements can make a lot of sense.  There are quite a few places to go for information on this topic.  For example, the ABA Guide to Marriage, Divorce and Families (256 pp, April 2006, $16.95) offers a free, 12-page Sample Chapter online covering Pre-marital Agreements.  After a good discussion of the concepts involved and issues that should be considered, the chapter lists a few additional resources, including FreeAdvice’s Pre-Marital Agreement page (which has a lengthy Q&A), and advice from The Equality in Marriage Institute.  update (Jan. 8, 2007):  You can find a good FAQ on Pre-Nuptial Agreements at the website of the Montgomery Law firm, Cary, NC.  The site also has an extensive Family Law Glossary.

Nolo.com also has put together a number of very useful articles and FAQs on the topic of Prenuptial Agreements, including the podcast: Should You Use a Prenuptial Agreement? (May 2006, click for the transcript), which is an interview with attorney-mediator Katherine Stoner, co-author of the Nolo book Prenuptial Agreements: How to Write a Fair and Lasting Agreement.  In the 13-minute podcast, Stoner “explains prenuptial basics including when you need a prenuptial agreement, when a prenuptial agreement is unenforceable, the effect of a prenup on estate planning, dealing with business ownership in a prenup, prenup negotiations, and how and when prenups apply to same-sex couples.” 

 At the main Nolo.com website, you can also find a Prenuptial Resource Center.  There is an overview section, an important article explaining What You Can (and Can’t) Do With a Prenuptial Agreement, and other to help you decide Is a Prenuptial Agreement Right for You?.   Readers should be quite interested in the unexpected answer to the question Do We Need a Lawyer to Make a Prenuptial Agreement?: “It may sound surprising coming from advocates of self-help law, but yes, you do need a lawyer when making a prenuptial agreement.  If you want to end up with a clear and binding premarital agreement, you should get help from a good lawyer. In fact, you will need two lawyers — one for each of you. Here’s why. . . ”  Despite that advice, authors Irving and Stoner make a very important related recommendation:

“That said, it’s best not to ask your lawyers to start writing up a draft or final agreement until the two of you have settled on its essential terms. You should put those terms in writing — either in a written outline or a draft agreement you create yourselves. A prenup prepared by a lawyer who isn’t working from terms you’ve both agreed on is likely to be one-sided and adversarial. If you provide your lawyers with an outline or draft prepared by both of you, the whole process — and the final document — will be more balanced.” 

One of the best self-help strategies is the avoidance of problems through proper planning.  The above resources should help thoughtful couples avoid a lot of legal headaches when they break up. 

afterthought (Jan. 20, 2007): LegalZoom.com, the web resource that allows you to create legal forms online (and reviews your answers and the forms before they are finalized), has information on pre-nuptial agreements, to help you make informed decisions.  The page that starts there pre-nup procedure notes: “Filling out the Questionnaire is free. There is no time limit. At the end, you may decide whether or not you wish to purchase. ”