Monday, November 5, 2018

How Will I Know? Get a Pre-Nup...

One of the late, great Whitney Houston's first hits leads to a very good question clients often have pre-marriage... How will you know if he/she really loves you?  How long will that love last? Before marriage, should you consider a pre-nuptial agreement, when everything is good between you, to protect you both agree you both in the event of a divorce?

It depends on your situation. If you both agree and decide together that a pre-nup is in the cards, an attorney can help you out on this. Several reasons exist for a pre-nup, not just a lack of trust.  You can still "fall in love whenever you meet," and have trust and a strong relationship, but you can also agree to go into the relationship with open eyes and honesty.

Pre-nups allow couples to keep the items they bring into the marriage separate in case of a divorce. They also allow couples to make determinations, when things are good and happy, about what property division may look like if things aren't so good and happy in case of a split. 

Additionally, pre-nups are useful to allow people to keep things like family heirlooms clearly separate that otherwise, in the State of Indiana, would be presumed to be a part of the marital estate in a divorce case. While there is a presumption that can be rebutted as to family heirlooms and inheritances, clear language in a pre-nup allows couples to have less to fight about when they may be at their worst, emotionally exhausted going through a divorce.

Pre-nups are also helpful to allow couples to be clear about intentions regarding pre-marital assets, estate planning, and taxation.  If you want to keep things separate for kids of a prior marriage or keep a business interest separate or your assets in a trust separate, a pre-nup can do that without the messiness that could later occur if divorce rears its ugly head.  Pre-nups don't plan for divorce; rather, pre-nups help in the event a divorce happens.

*The opinions expressed are of the blogger only and were not intended as legal advice or as an avenue to open a lawyer-client relationship.

Saturday, January 13, 2018

Release Me --- Post-Conviction Relief is not for the Faint of Heart

Wilson Phillips hit, Release Me, is about love and loss of a romantic relationship. You and your loved ones may have lost relationships due to the court process and be looking for release of another sort. You may seek to obtain a new trial for a loved one who was wrongfully convicted of a crime.

You may want to tell the court that it did not really find what it was looking for, so release your loved one, and let a new trial occur. The problem --- it's not that easy.  The standards for post-conviction relief proceedings are stringent and do not rely upon the adage - "he didn't do it, so let him go."

After an appeal, a post-conviction relief motion may be considered, generally, for newly discovered evidence; for ineffective assistance of trial counsel; and ineffective assistance of appellate counsel.  When you argue your counsel was ineffective, you have to prove that counsel's performance was below standards of reasonableness that cannot be explained by ANY strategy, and that the deficient performance led to a different result in the trial. So, not only must the post-conviction attorney prove that your loved one was convicted of burglary with an attorney who was so bad they had no redeeming qualities, but the quality of your loved ones' attorney was so bad, that is the only reason for the guilty verdict.  This is a pretty hefty standard. This begs the Court to uphold counsel's effectiveness.  Ineffective assistance of counsel will generally only be a grounds wherein there are cases that are likely won and lost on evidence that is based upon credibility of witnesses and wherein there is not a lot of solid physical evidence to corroborate witness testimony.

*The opinions expressed are of the blogger only and were not intended as legal advice or as an avenue to open a lawyer-client relationship.