Planning for Cohabitation: If You Have Been Married Before
Jan L. Warner & Jan Collins
One of two marriages end in divorce. But even more frightening, six of ten remarriages go by the wayside -- with a 75% remarriage mortality rate in some areas of the country. Of all people who marry today, more than half have been married before. There are more than 35 million step-parent households in the United States. And tens of millions of children in the United States are members of blended households.
What does all this mean? It means that those who enter unmarried relationships after one or both partners have had a traditional marriage may be faced with obligations to an ex-spouse and children, not to mention anger, jealousy, and other complex issues that will be carried into the new relationship. This tends to make a cohabitation relationship many times more stressful and more difficult that a traditional marriage.
Therefore, before you enter into your relationship, you and your partner should disclose and evaluate all of the potential trouble spots, discuss and get answers to the economic and other questions that concern you and your partner, and try to avoid failure in your relationship.
You will find that the major trouble spots will concern financial and children's matters. If you can not discuss these matters fully, arrive at mutually satisfactory solutions, and satisfy yourselves that your relationship has a chance, then you must consider whether you are willing to jump into a boat that may be already sinking.
Geoff, a schoolteacher, and his wife divorced after fifteen years. His two children lived with his ex-wife. A few months after he met Stella, Stella moved into his house. When she found out, Geoff's ex-wife sued for more child support and alimony, stating that since Stella had begun sharing expenses with Geoff, Geoff had more money with which to support her. Geoff had to hire a lawyer, an expense he did not anticipate, and Stella began to contribute more to take care of the household expenses. Stella's tax returns were subpoenaed and he became deeply involved in Geoff's process. After a year, it became too much. Stella left.
Think about it! Beginning a new relationship is tough enough -- but its much tougher when you find court papers on the doorstep seeking more support or a change of custody or visitation.
What if you find out, after entering a live-in relationship, that your new partner has a poor financial history -- owes past due child support, has judgments against him or her which prevent him or her from owning any property, or has recently gone through bankruptcy -- all this despite the new Lincoln he or she is driving. And even worse, you may not realize that your income may be considered in a suit to increase his or her child support or alimony. And the cost of hiring lawyers and going to court can be out of sight.
Since most couples don't ask for disclosures and don't check out the finances of their partners, if child support or alimony is past due or if money is owed for a business deal or if there has been a bankruptcy, the new relationship can be compromised early. Sometimes these issues come to light only after one partner pleads for a loan to "help out."
And although there is no legal obligation to help, faced with a "Catch 22" situation of either trying to make the relationship work or losing a partner, some write the check to try to make it work. Often, out of fear of losing a relationship, you may tend to ignore many of the important economic and relationship questions that should have been raised and dealt with beforehand. There are situations where homes and retirements have been lost to bail out a new partner who later bails out of the relationship.
If it seems difficult to deal with these questions now, just think how tough it will be after the relationship begins -- or what you will do after the relationship ends with you at the short end of the financial stick. Bottom line: You and your partner should both disclose and receive full financial disclosure so there will be no surprises later. This is as much a part of sharing your past as sharing family histories, past relationships, and aspirations for the future. So don't be afraid to ask questions and to review (or have some knowledgeable person review for you) five years of your partner's tax returns. And let him or her review yours.
Why not exchange credit reports? Review divorce decrees and support orders? Look at employee benefits and insurance policies? Discuss and agree upon who is going to pay for what? If either of you have children, you should consider estate planning to protect them -- get new wills and sign durable powers of attorney for financial purposes.
Gina's husband left without support for the children. Seeing that getting support would be an uphill battle, Gina quietly got divorced and went back to work. Everything was fine until Ann and Gina moved in together. Gina's ex-husband and her parents sued for custody of the children, claiming that Gina was unfit to have them with her. They also sued Ann, saying she was a bad influence on the children. Both Ann and Gina had to get lawyers, to undergo psychological testing, and to go through the court proceedings.
If you or your partner have been married before and either of you have children, you should know that custody disputes can arise at any time and for a variety of reasons, some of which relate to the legitimate best interests of a child and others which relate to financial, control and other issues.
This is especially true if you enter into a gay or lesbian relationship. Former spouses will sometimes use the threat of child custody litigation out of anger to retaliate. This practice must be discouraged. In fact, the use of a child for a person's own selfish interests, if it can be proved, is a strong factor against the poisoning party being granted custody or visitation.
The earlier you know a dispute may be coming, the earlier you can begin to prepare. And like other aspects of your relationship, preparation is essential. If custody or visitation becomes an issue, you can expect to deal with not only lawyers, but also guardians and therapists for a long time. And you can bet that your new partner will be involved in the process.
In addition to significant expense for lawyers and experts, not to mention discovery and court costs, you can expect the polarization of families and friends, grandparents asserting their rights, continuing emotional crisis for the children, personal lives becoming public information, and years of turmoil.
You can also expect that both you and your former spouse will be going to your friends and neighbors, asking them to testify about why your sexual orientation will not adversely affect the child or children. So, before you get into a bitter dispute that can go on for years and can cost you and your former spouse many thousands of dollars, think about discussing your new relationship with your former spouse. You both should ask and then honestly answer few basic questions:
Is there a legitimate, good faith reason for a dispute -- or is it on account of your relationship? Is the child being used to gain leverage and negotiate a better financial deal?
Who is really the best custodian? Will visitation really hurt the child?
If there are questions that need to be decided, can you and your ex resolve your differences without going to court? In other words, would it help to try to mediate the issue -- and if that doesn't work, can you use arbitration?
Since the fees and expenses will be great, have you thought about how you will finance the battle? Will the fees be paid by you, relatives, borrowed money, cashing in assets?
If, after asking and answering these questions you still find that the dispute is unavoidable, then you must begin preparation and learn how to protect yourself. Since you will be dealing with counselors, therapists, guardians, and lawyers, you must underStellad the roles of the various players, what to do, what not to do, whom to trust, and whom to not trust.
The Courts always look to the best interests of the child based on the facts before making a decision. In some situations, grandparents, and possibly other relatives or third persons have been granted custody and visitation.
Young children are not always awarded to the mother, and when an older child is involved, that child's preferences may be given weight by the Court, dependent upon the circumstances of the case. Today, there are more men and other relatives who are receiving custody of their children because they have the best plan for custody. And today, gays and lesbians are beginning to be granted custody of children.
Child custody and visitation cases are serious business. Don't begin one unless you are prepared to finish it. And if you are going to become involved, make sure to hire an experienced matrimonial lawyer to protect your interests.
Today, gay and lesbian relationships are difficult enough without having to deal with issues arising from your prior heterosexual relationships -- either financial or custodial. The more planning you do and the better informed you become, the more likely your relationship will succeed. And, no matter what else you do, it is wise to sign a cohabitation agreement before you finalize your plans. A cohabitation agreement is a written contract that can regulate your future relationship and allow you to retain control of your lives.
Since these types of cases are complicated, you should hire a good lawyer to help you, one who understands the issues and is willing to help you. Here are some tips about Finding and Hiring The Right Lawyer
Hiring the right lawyer is important because you will be placing your personal and economic future in his or her hands. This is especially difficult when it comes to problems facing gay and lesbian couples because it may be difficult to find someone experienced and who understands your special concerns and needs.
When it comes to marital litigation, you should seek out an experienced matrimonial lawyer. Don't use lawyer friends who won't charge you. But you might ask friends and family about whom they may have used and find out what they liked -- and didn't like -- about an attorney. The best question for you to ask is "Would you use this lawyer again?"
Since clients often misunderstand the role of the lawyer, they go in thinking that the lawyer has all the answers. This is a big mistake. Dealing with a lawyer without a plan and strategy is no different than trying to build a home without a plan.
You must become an informed partner in the process with your lawyer. Your lawyer should explain the matter to the extent necessary to permit you to make informed decisions about what can and can not be accomplished. Then, as a client, you will bring your lawyer information so that your lawyer will underStellad your goals and
Early on, you and your lawyer should agree early on about the objectives of representation and the means of pursuing your objectives. Here are some suggestions to have a good relationship with your lawyer:
1. understand how you will be billed and how you will pay your fees and expenses. Make sure your fee arrangement is in writing and that you underStellad it before you sign.
2. understand the time increments on which you will be billed. For example, if you are billed in tenths of an hour -- 6 minute intervals -- and you use 30 seconds when you call, you will be billed for six minutes. So save up your calls.
3. understand who will represent you -- the attorney or an associate. Try to get an estimate of how long it will take to complete the task and an estimate of how much it will cost. It is also important to know whom to call when you have a problem and who will return your calls.
4. Oftentimes, you will not need to talk to the lawyer. Ask for the paralegal or secretary whose time is billed at lower rates.
5. When you have questions, write them down and then either call or make an appointment with the lawyer. Take notes of what you ask and the answers given so you can keep up with your case.
6. If there are billing questions, talk to billing clerk or the secretary who handles this aspect of the business. The lawyer should be the last resort.
7. If you don't underStellad something, ask. If you have a problem with way your lawyer is handling the case, then ask him/her about it. Don't sit back and let it fester.
8. Especially in this newly emerging area of the law, no lawyer should guarantee or promise you a result.
If litigation appears to be on the horizon, ask your lawyer about alternative ways in which to resolve disputes. Although litigation -- that is, going to court with lawyers -- is the method of dispute resolution most familiar to lawyers and the public, in most instances, courts are costly, inefficient, and slow. Litigants may be involved in the system for months, even years, especially when the issues involve matters like these.
This oftentimes means that the very question that must be resolved may not be resolved -- or may be delayed too long. Today, not everyone's needs are best served by the court system.
In contrast to courts which are public, expensive, and comparatively slow, alternate dispute resolution techniques are private, faster, and less expensive in time, money, and emotional stress.
Mediation is a non-binding way in which an impartial facilitator who has no coercive powers can begin an exchange and suggest solutions to some of the problems. In some states, for example, mediation is required in some cases -- like custody disputes between parents. Some states require licensing while others do not. In any event, if you use mediation, it is not wise to enter into any long-range agreement without your lawyer reviewing the matter and advising you.
Arbitration, on the other hand, places a third party -- like a lawyer or an accountant who is an expert in the field -- in a decision-making position. This decision can be either binding or non-binding, depending on the wishes of the parties.
You should always discuss options in which you can resolve these difficult disputes with your lawyer, and an efficient, private, and less expensive method certainly deserves discussion.
So make sure you are aware of the potential problems and that you get disclosure before it's too late. If you have been married and divorced before, you'll know why.
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