A thorny issue that arises early in many divorce proceedings is the question of who may live in the marital residence during the separation period. Generally speaking, the courts will not evict either spouse from the marital residence during separation if they are living together peacefully and have not voluntarily moved away. This principle leads some devious spouses to seek questionable or even fraudulent protection from abuse (PFA) orders. Spouses who have quick tempers must avoid confrontations that can provide legitimate grounds for a PFA order, which are granted when a victim can prove “a reasonable fear of imminent bodily harm.” Some judges will grant PFA orders even where the only grounds are a verbal threat or demonstrative act (such as smashing or throwing an object in the presence of a spouse).

In theory, the courts are authorized by statute to award exclusive possession of a marital residence on an interim basis pending equitable distribution. 23 Pa.C.S. § 3502(c); Laczkowski v. Laczkowski, 496 A.2d 56 (Pa.Super.1985). In practice, exclusive possession is most often awarded to the spouse who remained in the home while the other spouse willingly vacated. If the residence is nonmarital property or titled in the name of one spouse, the titled spouse may have an advantage. The level of conflict between the parties, the ability of a spouse to afford alternate housing, and the effect upon custody arrangements are other likely considerations. An exclusive possession order does not preclude the court from awarding the residence to the excluded spouse in equitable distribution. See, e.g., Kokolis v. Kokolis, 82 Pa.D. &C.4^th 214 (Allegheny Co.2006), affirmed, 927 A.2d 663 (Pa.Super.2007). Yet, practically speaking, it can be very difficult for a spouse who is evicted from the marital residence to return. This is one of the first issues that a spouse should discuss with a lawyer at the beginning of any divorce proceeding.

Divorcing spouses often ask me about credit card debts and loans. While a divorce court may assign responsibility for paying credit card debts and loans that were incurred during the marriage, the court generally lacks jurisdiction over the creditors. In other words, the divorce court cannot force the credit card issuer to collect from one particular spouse if both spouses were cardholders.

If both spouses’ names are on the credit card accounts or loans, then creditors may choose to collect from one spouse or the other or both, at their discretion. Surely, the divorce court can hold a spouse in contempt if he or she failed to meet his or her court-ordered responsibility to pay the debts, but that is cold comfort when the other spouse’s credit rating has been ruined and debt collectors are calling on the phone.

My thoughts? (1) Use marital funds to pay off marital debts. The divorce courts may give full credit, partial credit or no credit at all if one spouse uses his or her post-separation earnings to pay marital debt, but the courts will grant full credit if marital assets are used to pay marital debt. (Just be cautious about impairing cash flow for current expenses.) (2) The spouse who has greater income may have a greater ability to pay debts. (3) If the debts are excessive and income is minimal, consider bankruptcy.

This article contains some good information about credit cards and divorce.

An article published recently in USA Today reports that prenuptial agreements are more acceptable today to couples who are engaged than at any time in the past.

Nearly one-third of single adults say they would ask a significant other to sign a prenup, according to a February survey of 2,323 adults by Harris Interactive.

 Only 3% of folks with a spouse or fiancée have a prenuptial agreement, but that’s up significantly from the 1% reported when Harris conducted a similar study in April 2002.

Personal-finance expert Suze Orman encourages every engaged couple to get one to protect their current and future assets as well as to shield themselves in case a mate secretly runs up massive credit card debt (which could damage both partners’ credit scores).

 More than one-third of adults — 36% — said prenups make smart financial sense, according to the Harris survey. When Harris asked that same question in 2002, 28% said so.

“People are hopeful,” Orman says. “They want their relationship to last. … It’s just natural that they don’t think they’ll need a prenup. Never in a million years do they think (divorce) will happen.”

 In 2008, the divorce rate was about 50%. Among married Americans, the median duration of their wedded life in 2008 was 18 years, according to Pew Research Center’s analysis of government data.

Given those odds, “Hope is not a financial plan,” says Orman, who urges that every couple get a prenup. “The time to plan for a divorce is not when you’re in a state of hate,” she says.

Among the divorced, 15% say they regret not having a prenup in their most recent marriage, according to the Harris poll. Men are more likely than women to have this regret, at 19% vs. 12%. Nearly 40% of divorced Americans also say they would ask their significant other to sign a prenuptial agreement if they remarried.

Prenuptial agreements make sense for lots of reasons, especially for people who have family businesses, children from a prior relationship, or substantial personal savings or retirement savings. See my previous post:

 ”Once You Pop the Question, How do You Spring the Prenup?“

The Chicago Sun-Times, Huffington Post, and The Daily Beast are reporting that Elin Nordegren, the wife of golfing billionaire Tiger Woods, is demanding that Woods renegotiate the terms of their prenuptial agreement after learning of Woods’ multiple infidelities. Under their 2004 agreement, Woods allegedly agreed to pay Nordegren the sum of $20 million if they should separate after ten years of marriage. The recent news reports claim that Nordegren is now demanding $55 million to stay with Woods for another two years, seven years in total.

If the reports are true, why would Woods agree to such terms?  The obvious answer would be “to induce Nordegren to commit to marital reconciliation.” Yet, a less obvious, perhaps more cynical answer would be “to let the negative publicity abate before announcing that the couple is divorcing.” By letting the media firestorm subside, even temporarily until the couple can make a plausible announcement about having attempted to reconcile, Woods might be able to preserve his valuable sponsorships. Pure speculation on my part, sure, but if his sponsorship worth hundreds of millions of dollars per year were at stake, wouldn’t it make sense to throw a little money her way?

Asking your fiance for a prenup doesn’t have to spoil the joy of your engagement. Personal finance experts agree that prenuptial agreements are an effective way for couples to make financial plans for their future. More than one-third of all couples say they would like to have a prenuptial agreement, according to a recent survey. A prenuptial agreement can address important topics like spending, credit card debt, and estate planning, as well as protecting family businesses and premarital assets, providing for children’s needs, and avoiding costly, protracted litigation in the event of a divorce. These three tips might make the conversation easier to have:

Allow enough time.

First, give your betrothed plenty of time to think about it. No one likes to be rushed. You know how crazy it can be to make wedding arrangements, so don’t let the prenup be the last thing on the list. A good rule of thumb would be three to six months before the wedding.

Create a context.

Next, help your fiance to understand why you need a prenup and how it fits into the “big picture.” You might want to present the prenup along with wills, health care powers of attorney, living wills, insurance policies, and other estate planning documents. The prenup is just one of several documents that will establish the financial foundation of the marriage.

Get independent legal counsel.

Finally, encourage your fiance to hire independent legal counsel. You might even offer to pay the bill. This step will allow your fiance to ask questions that might be uncomfortable for you or your lawyer to answer, and it may ensure that the agreement will be enforceable.