The Multi-Disciplinary Nature of Family Law: Expecting the Unexpected

Family businesses present another unique set of challenges in divorce.  Just because two people are married doesn’t mean that they are exempt from the statutes, rules and written agreements that govern their business relationships.  In addition to the rights that an owner spouse has by virtue of being a spouse, he or she also has rights to information and to influence decision-making that can add a measure of control in the business if properly invoked as part of a divorce action.  For this reason, discussing the formation of a business from a family law perspective before the form is documented will eliminate surprises if there is ever a divorce.

A  common misconception about transactions between married people is that a person who trusts his or her spouse to manage the household financial affairs can avoid the legal effect of such management if he or she later claims a lack of knowledge or a lack of understanding.  In reality, it is not that easy to do.  A person is presumed to have read and understood any document he or she signs.  Many lay people presume that a fiduciary duty exists between husbands and wives.  This is not the case, and the elements of fiduciary duty need to be proven before a spouse can make a claim for a breach of that duty to avoid the legal effect of signing a document.  Since lay people frequently lack the training to understand the effect of legal documents or the impact they can have in the event of divorce, having a divorce lawyer to consult before they are signed insures that nothing is missed.

Gifts are another area ripe for controversy during divorce proceedings.  When a couple marries, they may receive gifts of cash or property from family.  People seldom pay attention to whether the documents reflecting the gift prove that it was intended for only one or for both members of the couple.  Parents or other family members considering gifts need education on now to make their intentions clear to be sure that gifts to one spouse alone can be protected as non-marital property.

As distasteful as it may be to scrutinize every transaction on multiple levels, it is better to decide consciously that other concerns are more important than to take action without being fully advised.