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Prenups & Postnups: Do both of you really need your own attorney?

By: David R. Hartwig
May 18, 2017

When you are looking at, or preparing a prenuptial agreement, or a postnuptial agreement do you and the other person really need your own independent attorneys? Isn't is okay to just use the husband's, or wife's, attorney and leave it at that?

The answer depends on what you want from the agreement. Do you want the agreement to be as enforceable as possible if a divorce occurs? Or, do you want to be able to easily challenge the agreement, thereby having a good chance at getting out of it if a divorce happens?

One of the corner stones in enforcing either of these agreements is making everything an arms-length transaction; an agreement between equal minds of strangers, without all the "love" and "expectation" associated with a couple about to get married, or who already are married. And the best way to create such an arms-length transaction is to ensure that both parties are represented by their own independent counsel.

If you don't do that, then when the divorce hits the fan the unrepresented party can claim that he or she was misled by the represented party (or that person's counsel); that he or she relied on some other promises, or representations that were not part of the agreement; that he or she was lied to in order to get that person to sign the agreement; or that he or she was coerced, or forced under some threat (like refusing to marry if the agreement is not signed) into signing the agreement.

And then, the agreement will be in issue, and could easily be thrown out by the judge.

So, what do you want? A piece of paper that is going to cause litigation and fighting, or your best chance and avoiding all of that? If the later, make sure that both of you are represented by independent counsel.

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I am David R. Hartwig, Esq., a Salt Lake City attorney with extensive experience helping parents resolve simple or high-conflict custody issues reaching arrangements that work for children and parents. Child custody involves parent-time and visitation schedules, and can affect support. I help in all of these areas, providing comprehensive service clients need to achieve their custody goals.

Factors In Child Custody Decisions

As an experienced Utah child custody lawyer, I understand that custody cases may become a contentious issue even years after an order is finalized. The trend in Utah toward joint custody often creates messy, unworkable situations, which ultimately lead to enforcement issues when parents do not abide by their custody orders.

The best interests of the child must be considered, including:

• Whether joint legal or physical custody will benefit the child's physical, psychological and emotional needs, or the child's development

• The parents' ability to give first priority to the child's welfare, and reach shared decisions in the child's best interest

• Whether each parent is capable of encouraging and accepting a positive relationship between the child and the other parent

• Whether both parents participated in raising the child before the divorce

• The distance between the parents' homes

• The parents' maturity and their willingness and ability to protect the child from conflict that may arise between the parents

• The parents' ability to cooperate with each other and make decisions jointly

• Any history of, or potential for, child abuse, spouse abuse, or kidnapping

• Any other factors the court finds relevant

Despite the complicated and sensitive nature of custody matters, I have helped many clients successfully establish custody orders.

Get Help With Your Child Custody Issue

If you have a child custody issue, please contact me, David R. Hartwig, Esq. I am an experienced Salt Lake City custody lawyer dedicated to helping clients resolve complex custody issues and implement necessary custody orders. For high-conflict cases, I am also one of the few Utah child custody modification attorneys trained as a Special Master for ongoing dispute resolution.


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