Practitioners do not often connect current political issues with family law concepts. However, family law concepts deal with
Many states have recognized postnuptial agreements, which in fact codifies them. The standards for enforceability may be more rigorous than those for pre or antenuptial agreements. It may be that maintaining the marriage is an important goal for a couple who are experiencing marital strain due to the fact that one of them may be at risk for deportation if divorced.
Depending on the timing and circumstances of the marriage, and that it is not a fraudulent marriage under immigration law, consider a postnuptial agreement to determine the obligations of each spouse to the other and maintain the marriage until the requirements of immigration law are met so that families will not be faced with the Hobson’s choice of where children might live if one parent is deported.
The matter is further complicated if the children are born in this country. Immigration laws are complex and changing, so it would be reasonable to consult with a specialist; in fact, one’s client may have retained counsel for the immigration issue prior to the dysfunction within the marriage. Practitioners often consult with other experts or specialists in custody issues, business valuation issues, or trust issues. The body of law that controls substantive issues is often complex, nuanced, and requires the expert work of a specialist. Divorce counsel should also consider the impact on the children of any couple who face the prospect of ending a marriage that was initiated in good faith but perhaps without perfected immigration status. While we see cases of significant vitriol, the ethical obligation of counsel may well be the impetus to a creative solution for a family facing not only a transition but also dislocation.
In the same way, clients now confront the unknown in a very costly but necessary expense of divorce: maintenance of medical insurance. As COBRA premiums escalate, affordability is in crisis for our clients. The party who is employed with a benefit structure that provides affordable medical insurance (and that is getting more difficult as time goes on, even for public employees) cannot continue to cover the non-employed spouse or spouse who was employed without benefits. Depending on the personal circumstances of the client, it may be that the use of a postnuptial agreement that would not end the marriage will allow the parties to maximize their share of income and the marital estate.
Needless to say, this attempt at a creative solution will not work for all, or perhaps not for many. However, as people become educated about the process, some make very practical decisions on how they will live their lives. All options need to be addressed. People’s real lives and futures take so many forms today, and we need to advise our clients in ways that acknowledge those changes.
Judge Anne C. Dranginis (retired) served for more than 21 years on the superior and appellate court bench. She was appointed the chief administrative judge for family matters for the Connecticut Superior