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2019-blended-families

Legal Considerations for Blended Families

Once you have navigated the highs and lows of wedding planning, you can begin your life as a married couple. In the last decade or so, there has been an uptick in blended families.  Some of this is due to traditional second marriages, but some are because individuals are choosing to have children without feeling […]

Once you have navigated the highs and lows of wedding planning, you can begin your life as a married couple. In the last decade or so, there has been an uptick in blended families.  Some of this is due to traditional second marriages, but some are because individuals are choosing to have children without feeling the need to get married. Whatever the reason, with this increase in blended families, the legal implications should be addressed.

What is a blended family? There is no legal definition of blended family, but the term has come to describe when two parties with children of their own marry and create a new family unit. With the creation of this new family unit, come additional considerations for all involved, for example:

Is there is custody order for the children?

While you may have married and created your new family unit, you cannot forget that the children involved have other parents as well. If there is a custody order, the child may very well have to travel back and forth for periods of custody. As a new step-parent, you may be responsible for some of this transportation, and with it, interaction with your spouse’s ex. It is in the best interest of all involved that all the adults develop some relationship with one another, which can be easier said than done. Remember, you not only will be sharing custodial time with another household, if you are doing it right, but you will also be at extracurricular and sporting events for the children as well.  Life is complicated. If you find yourself entering into a blended family, it is highly advisable to establish a formal custody agreement, so all the parties know their roles going into it. However, it is important to keep in mind that if you are a step-parent, there will be times you need to take a back seat and let the parents make the major decisions.

Finally, if there is a custody order in place, and the child at issue lives in your household, you will be precluded from relocating. As a new step-parent of a three-year child, it is important to know that you and your new spouse cannot move out of the county with the child (without the other parent’s permission or the court’s permission) for the next 15 years. That is quite the commitment.

Is there a child support order?

With or without a formal custody order, there may be a child support order. This means additional income is either coming in or going out of your new household unit. Developing a family budget is always important, but it becomes especially important in blended families. Each family may choose to treat child support coming in differently, and it is important to have those discussions in advance. It is just as important to address child support obligations your new family unit must pay out.

 

What about estate planning?

Finally, how does this all impact estate planning? A step-parent is not a legal next of kin for a step-child. Accordingly, it is very important to meet with an estate planning attorney to review your options and prepare all the necessary estate planning documents for your new blended family.

Attorney Kellie Rahl-Heffner of Gross McGinley, LLP provides counseling to families facing domestic issues including separation, divorce, child custody, and child support. Krahl-heffner@grossmcginley.com

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Enforceability of Prenuptial Agreements

When contemplating marriage, there is nothing more romantic than a prenuptial agreement right? Acknowledging that discussing a prenuptial agreement with your potential spouse may not be the most comfortable topic of conversions, it certainly is an important one. Both parties to a prenuptial agreement should be exceedingly careful when entering into the agreement. The language […]

When contemplating marriage, there is nothing more romantic than a prenuptial agreement right? Acknowledging that discussing a prenuptial agreement with your potential spouse may not be the most comfortable topic of conversions, it certainly is an important one.

Both parties to a prenuptial agreement should be exceedingly careful when entering into the agreement. The language that is crafted at the time of execution will be enforced explicitly if a divorce is filed. Accordingly, all the heavy lifting with regard to the agreement is done while the couple is likely quite happy and not anticipating any of the problems that may arise.

A prenuptial agreement will only be tested if a couple is considering divorce. Until that time, it is likely that neither party has revisited the document. There could easily be decades between when the pre-nuptial agreement was crafted, and when it will be enforced.

23 Pa.C.S.A. §3106 is the Pennsylvania law that addresses pre-nuptial agreements. The law does not focus on what must be included in a pre-nuptial agreement but sets out what you must show if you want the Court to declare the agreement is not enforceable. The Court will always start from the assumption that the pre-nuptial agreement is valid and enforceable. As such, the spouse who is unhappy with the terms and wishes to discard the agreement has the burden to show, by clear and convincing evidence, that the agreement should not be enforceable.

There are limited ways in which a spouse can argue that a pre-nuptial agreement is unenforceable.

(1) A spouse can argue that they did not execute the agreement voluntarily. This is very difficult to do. A pre-nuptial agreement will generally have a provision in it stating that both parties are entering into the agreement knowingly and voluntarily. On occasion, a spouse will argue that they signed the pre-nuptial agreement under duress, so the agreement was not voluntary. Duress in this situation is nearly impossible to prove. This is because in Pennsylvania, duress must generally include a threat of physical violence. (Think gun to your head.) A threat from one spouse to the other threatening to take custody of the couple’s children or not follow through with the wedding are not threats that rise to level of legal duress. If you are a competent adult, who can read the pre-nuptial agreement in the language it is drafted in and you agree to sign it, then you have voluntarily agreed to the terms as far as the Court is considered. This is true even if you did not read the document but chose to sign.

(2) The other way a spouse can argue a pre-nuptial agreement is not enforceable is to show that when the agreement was drafted and signed, there was not full and fair disclosure of assets between the parties. This is the conventional argument made by a spouse seeking to discredit a pre-nuptial agreement, and generally the more successful one. The idea behind a pre-nuptial agreement is that both parties have laid all of their cards on the table so to speak. Both parties agree to disclose all of their assets, so the final agreement is a fair distribution of the total assets. If a party is unaware of an offshore bank account because that fact was not disclosed when drafting the pre-nuptial agreement, you may argue the agreement should not be enforced due to fraud or misrepresentation. At that point, you could take the matter before the Court, have the pre-nuptial agreement invalided and negotiate a completely new agreement.

Of note is that the terms of a pre-nuptial agreement are not required to be fair. The Courts will allow parties to enter into bad deals. In fact, Courts have found that parties are bound by the agreement, even if it was not read or fully understood. The duty to read the agreement or seek legal counsel before signing is on the parties. If a party blindly enters into a pre-nuptial agreement with the romantic notation that their prospective spouse would have their best interest at heart, they will be bound by that agreement unless one of the above-limited exceptions applies.

Attorney Kellie Rahl-Heffner of Gross McGinley LLP provides guidance to individuals in divorce matters, child custody, child support and protection from abuse cases. For more information, contact her at krahl-heffner@grossmcginley.com or 484-224-2802.

By: Attorney Kellie Rahl-Heffner of Gross McGinley LLP

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