Book Excerpts
What’s a “Gray” Marriage, and what are the challenges of a “Gray” Prenup?
People are now calling divorce of an older couple a “gray divorce.” Similarly, I call a prenup between seniors planning to marry a “gray prenup.” Similar to a gray divorce, a gray prenup has its own particular issues and challenges.
When older people (in their 50s, 60s, 70s, and beyond) get married, they often have children from previous marriages. Their financial loyalty is divided between their children and their new spouse. They generally wish to give and secure a financial legacy for their children. Hence the need for a prenup.
What does “Consideration” have to do with it?
Consideration is the hallmark of a good marriage. But prenups almost always are the antithesis of consideration.
When you think about it, in virtually all prenups, the less moneyed spouse is giving up marital rights. But does that person getting something in exchange? It seems logical that he or she should be trading those forgone marital rights for other rights. That’s what the legal concept of “consideration” in contracts is. As law students, we learned that to have a valid contract, there must be an exchange of consideration given and received on both sides, and that the exchange should be roughly equal, or in legal terms “sufficient.”
What’s a “Surgical” Divorce and How to Get One
“Surgical Divorce” is a term I’ve originated for a fairly simple divorce, where one party has engaged an attorney and the other is pro se. I’m asked this question a lot: “Why can’t you represent both of us?” It is considered a conflict of interest and therefore unethical for one attorney to be the attorney for both parties to the divorce. Attorneys are bound to represent the interests of their client. And as much as you might think there are no disputes between you and your spouse as you head toward divorce, one (or more) conflict may raise its ugly head. That’s why one lawyer can’t represent both of you. (An alternative below is to use an attorney functioning as a mediator, not as a lawyer.)
Med-Arb – An Emerging Method of Dispute Resolution
I had never heard of Med-Arb until I started writing my book on prenups, “The Generous Prenup.” I knew about arbitration, but not this intriguing combination of mediation and arbitration. When I started writing Chapter 6 in my book, (about the different ways people can get divorce), Med-Arb showed up in my research. Here’s how it works. What do you think about it?
The term Med-Arb stands for Mediation/Arbitration. This is a new area of dispute resolution in which the mediator is also the arbitrator. The parties agree to embark on mediation. The parties have also agreed that if the mediation process does not result in agreement (or to the extent it does not), then the mediator switches roles and becomes the arbitrator, and issues an award (i.e., a decision).