La Mia Famiglia – Gava e Fornelli
You might be puzzling over my title – but rest assured that with the divorce boom among baby boomers, there will undoubtedly be more marital agreements being written for middle class or moderate income couples. Most marital agreements (a/k/a “prenups”) are relevant for estate planning purposes and so most of them tend to be drafted by estate planning attorneys and not so many by family law attorneys. And in case you’re wondering, there is no “standard form” for such an arrangement as the circumstances are as varied as the couple entering into the agreement.
Historically, marital agreements were more along the lines of blueprints for divorce. Some still retain that character, but well-drafted agreements tend to address the marital arrangement as it progresses through time, what a divorcing spouse will be entitled to after five years, ten years of marriage and of course – what those inheritance rights are. The interesting fact about these agreements is that many couples will get them prior to the marriage or soon into their marriage and then will simply forget about the document and often draft other legal arrangements or take actions inconsistent with the agreement. A will’s provisions can have interesting effects on the marital agreement and marital agreements that are not well-maintained can be problematic on a number of levels.
Last week Jim Bailey, a Denver attorney who litigates marital agreements, presented to the Women’s Estate Planning Council an insightful overview of the new Colorado legislation regarding marital agreements. You can read the House Bill (13-1204) concerning the Uniform Premarital and Marital Agreement Act here.
In a nutshell, one of the more interesting details for the new law is the specificity of the waiver provision, which states:
If you sign this agreement, you may be:
- Giving up your right to be supported by the person you are marrying or to whom you are married.
- Giving up your right to ownership or control of money and property.
- Agreeing to pay bills and debts of the person you are marrying or to whom you are married.
- Giving up your right to money and property if your marriage ends or the person to whom you are married dies.
- Giving up your right to have your legal fees paid.
Colo. Rev. Stat. Ann. § 14-2-309 (West).
Interesting to think about the focus of marital agreements on financial matters as differences over finances is often cited as a major or contributing factor to divorce. There was also a comment by Jim Bailey about men tending to focus on the assets while women tend to focus on the relationship….
Bottom line to keep in mind is that in the dissolution of marriage context, the domestic relations court will often very carefully review a marital agreement – so if you’re thinking about one, make it good.
And what about those pesky non-legal considerations for divorcing boomers. . . . ?
Who you gonna call? Who will a divorced person name as their health care agent or agent under a financial power of attorney after they have divorced? Divorce is a death of the marital relationship and while many of us can have amicable breakups and positive relationships, we are made “legal strangers” to a former spouse. These decisions are important but difficult to consider – who we will choose to help us out in case of emergency? We will all die someday, but the fact is with increasing longevity, a majority of people – including those youth-glorifying baby boomers – will be disabled or incapacitated for some period during life. This is one of the biggest reasons to have durable powers of attorney in place – in case you need them. Estate planning for blended families can be complicated – not the least of which is figuring out what are your individual and common goals and values. Sometimes the finances are the easy part!
When older adults merge households, there can be a fruitful mix of traditions, with a few challenges mixed in. If we think of later life as a time of harvest in the autumn, this can assist in imagining what the harvest may hold for us. I quote from Anam Cara, the late John O’Donohue’s beautiful book:
when it is autumn in your life, the things that happened in the past, or the experiences that were sown in the clay of your heart, almost unknown to you, now yield their fruit. Autumntime in a person’s life can be a time of great gathering. It is a time for harvesting the fruits of your experiences.
Anam Cara: A Book of Celtic Wisdom (2008: HarperCollins) at 167. Bringing in the fruits of harvest, the intended and unintended, the sweet and perhaps the less sweet, can help us understand the aging process not just as the wearing down of the physical being but as the ripening of the soul, as O’Donohue describes so poetically. Marital agreements and other important documents can help blended families forge a path toward better understanding and maintaining peace.
©Barbara Cashman 2014 www.DenverElderLaw.org