Articles Posted in PreNuptial

agreement-signing-1524318.jpgThe division of community property in divorce can be a tedious and contentious process. The parties must identify, characterize, and place a value on all assets that may be subject to division. To avoid this task, couples often choose to prepare a prenuptial agreement in advance of the marriage, a document that sets out how any existing and future assets will be treated should the couple get divorced. Alternatively known as an “ante-nuptial agreement,” this document also allows the parties to preserve their separate interests in certain assets. It is not uncommon for one party or the other to question the validity and enforceability of a prenuptial agreement. In order to ensure that the document is prepared and executed in compliance with California law, it is important to consult with an experienced family law attorney from the San Diego area.

In a recent divorce case, the wife challenged the trial court’s determination that the couple entered into a valid and enforceable prenuptial agreement. Here, the parties were married in 1995 and separated in 2001. At the time of their marriage, the wife seemed to be the spouse with more financial stability. She was a successful and talented artist, owned her own home, had a large retirement fund, and earned considerably more than her husband. His career was not as lucrative, but he got a job right before signing the prenuptial agreement that provided health insurance.

According to the husband, the couple agreed to execute a prenuptial agreement because the wife had already been divorced twice, and she did not want to “co-mingle” their assets and income. They each signed the agreement and initialed the bottom of each page, and a notary signed and acknowledged the document. In 1995, the husband began working for Microsoft and earned a significant amount of money over the next 13 years. The couple separated in 2001, and since then they have lived apart. The husband filed for divorce in 2012, and in 2013 he sought an order from the court that no community property existed due to the prenuptial agreement.
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balance-875412-m.jpgSection 2030 of the California Family Code clearly authorizes courts to issue an award of attorney fees to parties to divorce actions. When a party makes such a request under this statute, the court determines whether an award of such fees and costs is appropriate, whether the parties have disparate access to funds to retain counsel, and whether one of the spouses is able to pay for the legal representation of both. Courts have concluded that the purpose of the statute is to provide “parity” – a fair hearing with both sides equally represented. Interestingly enough, a party’s financial resources are but one factor that the court considers in determining how to allocate the overall cost of litigation equitably between the parties. It is vitally important to understand your financial rights in a divorce proceeding. An experienced San Diego family law attorney would best be able to identify and assess your rights and protect your financial future.

While the statute is clear with respect to the court’s authority, every divorce case is unique, and whether any one party would be entitled to an award of fees and costs is decided based on the facts and circumstances presented. In a recent, complicated divorce case initiated in California, the parties disputed the court’s award to the wife of pendente lite attorney fees to litigate a matter her husband brought in Nevada. Prior to their marriage, the couple signed a prenuptial agreement in Nevada, identifying Nevada law as governing the interpretation and enforcement of its terms.They also entered into a marital settlement agreement ratifying the prenuptial agreement. After separating and then reconciling, the parties subsequently entered into a post-marital agreement allowing the wife to seek fees and costs from the court in which a potential divorce action is pending.
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baby-feet-1440380-m.jpgThe most simple divorce case is not easy. Without question, there are difficult emotional and financial aspects to any dissolution of marriage. But certain cases are simply more complicated and unconventional than others, requiring the parties – and their attorneys — to be fully apprised of the most current laws applicable to family law matters. It is often argued that parties to divorce cases that involve children are especially encouraged to engage a family law attorney to handle the matter. If you are considering divorce, you are encouraged to contact an experienced family law attorney who is aware of the local laws and procedures affecting San Diego family court matters.

A highly unusual case making recent headlines concerns a bitter divorce between a former host of “The View” — Sherri Shepherd and her T.V. writer, husband — Lamar Sally. According to a recent news article, the couple is seeking to divorce after just three years of marriage, and after commissioning a surrogate to have a baby for them through in-vitro fertilization. The embryo was created using a donated egg and Sally’s sperm. To add to this complicated scenario, there have been reports that Shepherd does not intend to raise the child, pay for any related expenses, and wants no parental rights or responsibilities. The child is due to be born later this month.

On May 2nd, Sally filed a separation petition in Los Angeles Superior Court citing irreconcilable differences. Four days later Shepherd responded by filing divorce papers in New Jersey where the couple had lived together. Interestingly enough, California recently passed a law recognizing surrogate births as valid, whereas New Jersey generally does not recognize the validity of surrogate birth arrangements. Sally is requesting full legal and physical custody of the child and is asking the court to declare the prenuptial agreement to be invalid due to fraud.
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504799_piggy_in_love_5 sxchu username veave_pl.jpgAccording to a study recently published in the Journal of Family Psychology, women who have cold feet and get married anyway are approximately two-and-one-half times more likely to divorce. The study, conducted by researchers at the University of California, Los Angeles, asked 464 newly married couples whether they had doubts prior to getting married. 47 percent of men and 38 percent of women reportedly admitted to premarital doubts. Despite that more husbands than wives claimed to experience marital hesitation, researchers found that uncertainty on the part of the wife was a better indicator of future divorce.

Four years after the study began, about 19 percent of women who admitted to pre-wedding jitters were divorced. Only eight percent of those who did not express doubts were no longer married. Additionally, approximately 14 percent of men who experienced feelings of hesitation prior to getting married were divorced four years later. Only eight percent of men who did not report cold feet were divorced. Neither spouse admitted to premarital doubts in 36 percent of the 464 couples surveyed. Four years later, only six percent of those couples were no longer married.

According to researchers, people who were hesitant about getting married were also less satisfied with their marriages four years later. Lead study author Justin Lavne said it is unclear whether the doubts of those individuals who were uncertain about getting married were specific to their partner or the institution of marriage in general.

Although no one likes to think their marriage will end in divorce, most people in California would benefit from executing a prenuptial agreement. A prenuptial agreement is a contract entered into by a couple prior to marriage that will normally outline any spousal support or property division obligations in the event of a divorce. In the State of California, a prenuptial agreement must meet strict criteria and may not address child custody and support obligations. If you are considering marriage, you should contact an experienced Southern California family law attorney to discuss the options available to protect your financial interests.
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1282210_abstract_note sxchu username fangol.jpgMusic star Stevie Wonder recently filed for divorce in Los Angeles from his wife of 11 years, Kai Millard Morris. Although the couple has been married since 2001, they reportedly separated in 2009. Wonder, whose real name is Stevland Morris, cited irreconcilable differences as the reason for the couple’s split. In his petition, he reportedly agreed to pay an unspecified amount of child and spousal support and asked the court to award him joint custody of the couple’s two children, 10-year-old Kailand and 7-year-old Mandla.

Although Wonder amassed most of his fortune prior to meeting his wife in 1999, some of the couple’s assets will likely be split due to California’s community property laws. According to California law, any assets earned during the course of a marriage are shared equally among spouses in the absence of a premarital or other agreement to the contrary. Additionally, the couple will likely not be required to share any assets earned after they separated.

Although no one likes to think their marriage will end in divorce, this case is just another example of a couple who likely would have benefited from entering into a prenuptial agreement. In California, a premarital agreement is a contract entered into by a couple prior to marriage. A premarital agreement will normally outline any spousal support or property division obligations in the event of a divorce. In California, a prenuptial agreement must meet stringent criteria and may not address child custody and support obligations. Judges will normally look to the California Family Law Code when determining whether a prenuptial agreement is enforceable. If you are considering entering into a premarital agreement in the State of California, you should contact an experienced family law attorney to discuss your rights and help you protect your financial interests.

Getting divorced is often a stressful and emotional time. You are likely to have a host of questions about child custody and support, alimony, property settlement agreements, name changes, and many other family law matters. A skilled California family law lawyer can help.
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For high asset divorce cases in San Diego, the best time to protect your assets from divorce is before you are married. Many people are familiar with the concept of prenuptial agreements. However, there are strict rules that may affect the enforce ability of a California prenuptial agreement, and the advice of a knowledgeable attorney is essential to truly protect yourself as this is a complicated area of the law.

If you have a prenuptial agreement and are contemplating divorce, one of the first things you need to do is to have that agreement reviewed by an experience family lawyer to determine whether or not it is enforceable. Even an executed prenuptial agreement may have some of its terms set aside by the Family Law Courts. One common issue of this type is spousal support. If the court determines that spousal support is needed or the formalities not complied with, it can set aside the written agreement to the contrary.

There are two types of assets in divorce cases: separate and community. As a general rule, separate assets of the parties were obtained prior to the marriage or after the separation. Community assets were obtained during the marriage. Quasi-community assets were obtained during the marriage, but are located outside California.

Community assets are usually distributed equally with exceptions for omitted assets and breach of fiduciary duty and some other limited exceptions. It’s important to understand that separate assets can become community assets in certain circumstances. If you already have a high amount of separate assets, you don’t want to make the mistake of adding to community property assets that could remain separate but are not due to commingling. Your lawyer can advise you how to avoid this common mistake.

Especially in today’s volatile market place, it may be vital to make sure that values are accurate. Recent appraisals of real estate investments can make a significant difference in the bottom line.

Another issue in high asset divorce cases is financial wrongdoing. If your spouse is a spendthrift with unreasonable personal debt and out-of-control spending habits, documentation of those habits may improve your position in seeking a fair division of assets.

Many people are tempted to conceal assets prior to or immediately after filing for divorce. This is a big mistake that can lead to serious legal and financial consequences.

Marriages with high assets may also have high debt. The court usually divides debt equally as well. However, a court order assigning joint debts to a divorcing spouse will not prevent damage to your credit if your former spouse fails to pay. One strategy you may want to discuss with your lawyer is liquidating some of the marital assets to pay off marital debt, thus reducing this potential risk.
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High asset cases with require a San Diego attorney or lawyer in most cases due to the issues regarding division. High asset divorces in San Diego may have higher financial stakes than the average divorce as well as more complex issues to address in reaching a property settlement. As a rule, the sooner you obtain qualified legal advice, the more realistic expectation you will have and the easier to reach a settlement in accordance with the law.

One factor in high asset marriages is the prenuptial agreement. These agreements set forth the division of property in the event of death or divorce, and most include a list of assets and debts for each party. However, there are strict rules regarding prenuptial agreements that may make some or all of their terms unenforceable in a divorce. For example, the prenuptial agreement may state that the spouse will not receive spousal support. But the court can set aside that provision if it believes that spousal support is warranted. Having adequate attorney representation before signing a prenuptial agreement is advisable. Having adequate representation in reviewing the prenuptial agreement’s enforceability at the time of divorce is critical. The schedule of assets listed in the prenuptial agreement may also be a valuable tool in helping your lawyer identify hidden or missing assets at the time of separation.

Another common issue in high asset divorce cases in San Diego is concealment of assets. Since community property laws direct the equal division of all assets of the marriage, many people are tempted to conceal some assets to avoid having to share them. However, this practice is illegal and can incur severe consequences and penalties. By paying close attention to financial issues throughout the marriage, you may be able to be better prepared to deal with the issue of hidden assets. Be especially alert for suspicious financial behavior if you suspect the marriage is ending, even before the divorce papers are served.

In some high asset divorce cases, the issue of financial wrongdoing often arises. Failure to pay bills in a timely manner, unsound investments, excessive personal debt or uncontrolled spending by one party may affect the final division of property as well.

Finally, in many high asset cases, one spouse is the primary breadwinner while the other stays home. A divorce can result in devastating financial consequences for the stay-at-home spouse. Spousal support may be critical in making the transition to self-support. Further education may be necessary, as well as assistance with immediate living expenses. Your lawyer can help you determine and negotiate a reasonable amount and term of spousal support to enable that transition.
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Facebook iconThe public eye has been on the social networking giant Facebook in the past week, with its initial public offering and subsequent lackluster performance. Less noticed, but still making headlines, is the marriage of Facebook’s Chief Executive Officer, Mark Zuckerberg, to his longtime girlfriend Priscilla Chan. While we all wish them the best in their marriage, any California divorce attorney will tell you that, particularly when large amounts of money are involved, a prenupial agreement can help avoid bitter disputes over property division if the union one day comes to an end.

Zuckerberg and Chan married the day after his company’s record-breaking IPO, which has led many to speculate as to the motivation behind the timing of the surprise ceremony. Some of the more cynical views posit that the timing of the marriage after the IPO means that all of his earnings from the event are his own separate property.

California is a community property state, which means that there is a presumption that assets acquired during the marriage belong to the community estate–that is, each spouse owns an equal share in everything acquired during marriage. Inversely, assets acquired before or after a marriage, or by gift, bequest, devise, or descent, are presumptively separate property. During a marriage, this distinction may not be significant, but upon a California divorce, classifying assets as community or separate property is one of the most difficult and contentious parts of the divorce process.

Upon divorce, a couple’s community property is divided equally between the two former spouses, regardless of who earned it. Generally speaking, a person’s separate property is not distributed to the other spouse upon their divorce.

In the case of the marriage between Zuckerberg and Chan, Zuckerberg acquired a substantial sum of money just before their marriage, which means that fortune is his separate property absent a clear written agreement to the contrary, such as a prenuptial agreement.

What is not clear is whether or to what extent any appreciation (or depreciation) in the value of Zuckerberg’s stock in his company would be considered community property. Generally, dividends from stock owned by one person before marriage are separate property. However, when one spouse dedicates time and effort to a company during the marriage, and that use of time and effort contributes to the growth of the company, courts frequently attribute some portion of that growth to the community. That means that upon divorce, the other spouse may be entitled to a portion of the difference in value between the company at the outset of the marriage and its value at divorce.
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Angelina Jolie Brad Pitt CannesLast month, celebrity Brad Pitt proposed to his partner of seven years, Angelina Jolie. The couple, collectively known as “Brangelina” has been one of the most talked-about celebrity couples since they first started dating in 2005, after filming Mr. and Mrs. Smith as costars in that movie. Though the couple had long maintained that they would not marry “until everyone in [the United States] had the right to get married,” they apparently changed their minds for the benefit of their children. The couple currently has six children together, three of whom are adopted.

Both Pitt and Jolie have substantial assets to their names. According to some estimates, Pitt is worth about $150 million, while Jolie holds her own at about $120 million. While a prenuptial agreement is important for any couple’s marriage planning, it is especially important for two individuals with as much separate property as Pitt and Jolie have.

A California prenuptial agreement is a legally binding agreement between two persons engaged to be married and governed in California by the Uniform Premarital Agreement Act. The agreement takes effect upon marriage. Under what is known as the statute of frauds, a prenuptial agreement must be in writing to be enforceable at law.

California law prescribes what may and may not be addressed in a prenuptial agreement. In particular, a prenuptial agreement may not address child support or custody. This limitation is particularly noteworthy in cases such as Pitt’s and Jolie’s as they have six children together.

A court will generally find a written prenuptial agreement enforceable unless:

  • A party’s agreement was not voluntary; or
  • The agreement was “unconscionable” when executed, which occurs when all of the following are met:
  • The party did not have a fair, reasonable, and full disclosure of the assets and obligations
  • The party did not provide a written waiver to full disclosure
  • The party could not have reasonably known of the undisclosed property or obligations

While it is not known whether Pitt and Jolie have executed a premarital agreement, many speculate that they surely have. Some critics of prenuptial agreements argue that the agreements stifle the notion of “’til death do us part” and kill the romanticism inherent in newly engaged couples. However, this argument is akin to saying that insuring one’s house and possessions against a fire all but strikes the match. Preparing for the unexpected is not only wise; it also preserves the possibility of an amicable split, should any split occur at all.
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