Hello michele201,
Thank you for your question and for bringing it to Google Answers. I
will try to provide you with information that I can find on this
matter; however, keep in mind that Google Answers cannot be a strict
substitute for legal advice as noted in the disclaimer at the bottom
of the page. I hope that I've provided you with some sources and
advice on this matter, however. I have also given you some options
for free legal advice in Philadelphia.
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"My question is 1, can we put in the divorce papers an
agreement about the business we share?"
Yes, you can. You can put anything you want into the divorce papers,
which are binding legal contracts. You may want to make a separate
contract as far as the business goes (will he buy you out or you buy
him out or the like) just to keep things professional out of your
private lives. However, many divorce agreements include property and
debt division, so it follows that you would want to include your
business in these papers.
Once the divorce papers are signed, everything in them is enforceable
as with any contract. You or he would have to show good cause (such
as fraud or misrepresentation) in order to get them overturned.
Therefore, do not agree to anything in the divorce papers that you
don't want to, thinking that you can get it overturned later. Most
likely, you cannot, even if what you signed is not in your best
interest and does not make sense. As an example of this, I know a
couple that got divorced, with the wife making more than the husband.
The wife had custody of the kids. The husband agreed to an exorbitant
amount of child support which was far beyond his means, but he had to
pay it and later even went to jail for not being able to pay it,
despite the fact that the amount was far above what the state standard
for child support for someone of his salary would have to shoulder.
He had agreed to it in his divorce papers and was bound by it to the
point of prosecution.
He did not have proper legal representation and he paid for it later.
Do not make this mistake if you can help it. Before signing any
contracts, you really need to have them looked over by a lawyer.
Trying to go back later and say that you didn't understand what you
were signing will not do any good. The assumption is made that you
have the chance to get legal help and if you do not that that is your
fault. You might be able to get some help from a legal clinic or law
school students around you. If there is an illegal clause in the
agreement, it could be thrown out later and you could end up with
nothing. If there is a clause in it that is unfavorable to you, you
could sign it without realizing and then find out later what you
actually agreed to.
To make the agreement legal and to make it as enforceable as possible,
you'll want to file it with the court along with your divorce papers
(do NOT settle for just a simple unofficial written agreement between
the two of you; it may also be binding but it is much harder to prove
and easier for a court to throw it out). You will want a law
student/legal clinic-type person to look it over and notice anything
that is odd about the agreement or not agreeable for you.
Here are some Google Groups threads dealing with this matter:
alt.support.divorce
"To sign or not to sign ? Need advice"
http://groups.google.com/group/alt.support.divorce/browse_frm/thread/bb98f4387e94a707/c8d53e0a7eedfab8?lnk=st&q=divorce+papers+business+agreement&rnum=5&hl=en#c8d53e0a7eedfab8
DivorceSource-- "Marital Separation & Settlement Agreements"
http://www.divorcesource.com/promotions/agreements/agreements.shtml
"A Marital Separation Agreement (or Settlement Agreement) is a legal
binding agreement between you and your spouse, which resolves many
issues like, property and debt division, spousal support, child
custody, visitation, child support, insurance coverage, just to name a
few (a separation agreement typically addresses over 30 essential
issues)."
Family Education-- "Legal and Parenting Implications of Separation"
http://life.familyeducation.com/divorce/legal-separation/45522.html
"Remember, a separation agreement is a binding contract?one that is
put in writing, signed by both parties, and typically notarized."
----------------
"2, He has agreed to permanent
spousal support should our business go under, is that legal and can he
fight it later"
There seems to be no reason why you can't include this clause if he
agrees to it. If the two of you privately agreed to this, judges
would be more than likely to not step in-- they would only step in if
an agreement could not be reached. Here is my source for this:
"Pennsylvania Spousal Support/Maintenance/Alimony Factors"
http://www.divorcesupport.com/divorce/Pennsylvania-Spousal-Support-Maintenance-Alimony-713.html
"... if you and your spouse are unable to reach and agreement on this
issue, the Court of Common Pleas will order support from one spouse to
the other on a case-by-case basis..."
Just in case you wish to know, here are the rules governing the
awarding of spousal support in divorce cases:
"Pennsylvania Spousal Support, Alimony pendente lite (APL) & Alimony Laws"
http://www.divorcehq.com/articles/alimonypenn.html
In Pennsylvania, there are three types of support: spousal support
(before the divorce) and alimony pendente lite and alimony, which are
awarded after the divorce.
Spousal support--
"Pennsylvania law provides that if the spouse receiving spousal
support has committed one of the fault-based grounds for divorce, the
court has the right to refuse to award spousal support. The payor
spouse's right to raise the fault grounds is called an entitlement
defense to the payment of the spousal support. In Pennsylvania, there
is no fixed length of time that spousal support is payable. However,
spousal support will generally be automatically converted into alimony
pendente lite (APL) payments upon the filing of a divorce complaint by
either party."
Alimony pendente lite--
"The amount payable for APL is based upon a percentage of the
difference of after tax monthly incomes of the parties after
consideration of other support obligations. Pennsylvania courts have
held that the purpose of APL is to permit both spouses the financial
ability to proceed in the divorce action. As such, the payor spouse
cannot raise the entitlement defenses available in spousal support
actions. In other words, even if the spouse seeking APL has committed
adultery or has abandoned the marriage without a just cause, that
spouse may be entitled to APL payments. "Pendente lite" is a Latin
phrase meaning pending the litigation. As such, APL payments generally
last until the divorce decree is issued and equitable distribution has
been finalized. For the spouse receiving APL, this fact often causes
them to attempt to prolong the entry of the divorce decree and
finalization of equitable distribution as long as possible. On the
other hand, the spouse required to make the APL payments is generally
is motivated to finalize the divorce and equitable distribution issues
as soon as possible to limit the duration of APL payments."
Alimony--
Alimony can be awarded by the judge for any amount of time; if you
agree to lifetime support if the business fails and the judge agrees
to that, then it would be included in the agreement. However, the
judge might not agree to this stipulation and might also include a
clause that if you got married or began living with another person
that the alimony would stop. This is up to the judge.
"In Pennsylvania, after a divorce decree has been issued and the
process of equitable distribution has been finalized, any support
payable to a spouse is now titled "alimony." Pennsylvania law provides
that alimony is only awarded if a spouse cannot meet their reasonable
needs after taking into consideration their income and the assets they
were awarded as part of equitable distribution. Receipt of alimony is
not guaranteed, its award is within the discretion of the court. Some
situations in which alimony may be payable include those situations
when the spouses have a great disparity in income, when the parties
had a long-term marriage, when one spouse suffers from a mental or
physical disability, or when one spouse primarily cares for minor
children who are not yet of school age. Depending on the facts of a
particular case, alimony can be awarded to allow a spouse a specific
amount of time to "rehabilitate" himself or herself (often termed
rehabilitative alimony), for the rest of that spouse's lifetime (often
termed permanent alimony), or until a specific condition is met in the
future. Another type of alimony payable in Pennsylvania is
"reimbursement alimony." Reimbursement alimony is awarded to a spouse
to reimburse them for expenses incurred by the other spouse such as
when one spouse pays for the majority of marital debt or when one
spouse supported the family while the other pursued an education. In
Pennsylvania, alimony, except reimbursement alimony, is usually
terminated when the recipient spouse begins residing with another
person in a marriage-like relationship or when the recipient spouse
remarries or dies."
Here are the guidelines for how much support would be awarded:
Pennsylvania Support Guidelines
http://www.pacode.com/secure/data/231/chapter1910/s1910.16-4.html
If the judge, you and your husband all agree to this contract, it
would be enforceable. However, he could always come back and fight it
later, as anyone could who has signed a contract. The contract could
be overturned if there was any fraud or misrepresentation (do not lie,
exaggerate or not tell the complete truth in any way in this
contract!). If you notice any types of errors or misleading
information in the contract, get it changed now or it could be grounds
for having it overturned later. If there is anything illegal in the
contract, that could cause the contract to be overturned. As I said
before, try to have it looked over at a legal clinic or by law
students or law professors to ensure that it checks out as a binding
document.
Here are some sources for free legal help in Philadelphia:
Philadelphia legal services
http://www.clsphila.org/free_legal_services_in_Phila.htm
Community Legal Services, Main Office
1424 Chestnut Street
Philadelphia, PA 19102
215-981-3700
WWW.CLSPHILA.ORG
Community Legal Services, Law Center North Central
3638 North Broad Street
Philadelphia, PA 19140
215-224-2700
Philadelphia Legal Assistance
1424 Chestnut Street
Philadelphia, PA 19102
215-981-3800
WWW.PHILALEGAL.ORG
Philadelphia VIP
215-523-9550
(or go to Community Legal Services or Philadelphia Legal Assistance)
WWW.PHILLYVIP.ORG
Women=s Law Project
215-928-9801
(Telephone counseling and referral only.)
----------------
"3, If he agrees to my terms, has them put into the
divorce documents and we both sign, should he decide to not pay
support, is a divorce and spousal agreement enforceable in Canada?"
The divorce and the divorce agreement, as obtained in Pennsylvania
courts, would be legally binding in Canada under the principle of
comity. Comity is a doctrine under which countries accept other
countries' jurisdiction over matters such as marriage and accept
marriages and divorces that were performed in other countries. There
is a limit to comity-- gay couples are allowed to marry in Canada and
the United States does not recognize these as marriages because it has
explicit laws forbidding gay marriage. As long as your marriage (and
subsequent divorce and divorce agreement) doesn't violate any Canadian
laws, it will be recognized. It is actually better to get an American
divorce and agreement, since you were married in America. Did Canada
recognize your marriage? If so, then they should certainly recognize
your divorce and its subsequent agreement.
Human Rights Campaign
"Marriage for Same-Sex Couples in Ontario and British Columbia, Canada"
http://www.hrc.org/PrinterTemplate.cfm?Section=Home&CONTENTID=14834&TEMPLATE=/ContentManagement/ContentDisplay.cfm
"Under the flexible doctrine of comity, countries recognize and
enforce each other's legal acts including marriages. Although more
than mere courtesy and accommodation, comity does not achieve the
force of an imperative or obligation. In general, marriages performed
in other countries are recognized by the United States, the states and
localities. Despite principles of comity, some marriages are not
recognized because they are deemed to violate public policy such as
the age of those marrying."
Sources:
soc.motss
"Canadian Marriage Test Case for U.S. Courts?"
http://groups.google.com/group/soc.motss/browse_frm/thread/831cce1580d2ff10/62d6e16688487a7e?lnk=st&q=us+divorce+recognized+canada&rnum=3&hl=en#62d6e16688487a7e
Search terms:
(On Google Groups)
divorce papers business agreement
us divorce recognized canada
(On Google)
divorce agreement legally binding
us divorce canada comity
spousal support pennsylvania
philadelphia legal clinic
If you need any further clarification, let me know and I'll be glad to assist you.
--keystroke-ga |
