Many individuals don’t know how postnuptial contracts work and how they are used. If you are considering a postnuptial agreement, review this guide to familiarize yourself with the basics.
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In 1969, California was the first state to sign no fault divorce into law. That means that things like extramarital affairs or abandonment are not of interest to the court as it applies to the actual divorce.
If you have minor children and are getting divorced, you and your spouse – with the help of attorneys – can often work out questions of custody, visitation, and other related issues with the help of your attorneys.
In some California cases, however, the court will appoint a person known as a minor’s counsel to represent the children.
The following explains what a minor’s counsel is and what their role in a divorce case is:
What is a California “minor’s counsel”?
A minor’s counsel is a lawyer appointed by the court to represent the best interests of the child. Attorneys who fill this role must meet the training, experience, and education requirements mandated by California law.
After they’re appointed, they gather information in several different ways, including interviewing the child, reviewing court files and relevant records such as school and medical reports, and investigating further if necessary. If the child has wishes they’d like to share with the court, this is also done through a minor’s counsel.
When is a minor’s counsel needed?
Most divorce cases involving minor children can be resolved without the help of a minor’s counsel. However, in some cases, the court will decide that a minor’s counsel should be appointed. This is sometimes done based on a recommendation from a parent, one of their attorneys, the child, a relative, or other parties with knowledge about the case, or the court can decide that having a minor’s counsel is in the child’s best interests without a recommendation.
The following are some of the circumstances that might prompt the court to appoint one (or more, if there are multiple children):
- The divorce case is highly contentious.
- The parents have an extended legal history.
- The child is under stress due to the divorce dispute.
- Claims of abuse, neglect, or child abduction have been made.
- The court needs more information about what’s in the child’s best interests.
Although most divorce cases don’t require the help of a minor’s counsel, this position can help the court decide what’s in the child’s best interests in more complex cases. With each parent being represented by an attorney, a California minor’s counsel represents the child’s interests and gives related information to the court.
It is imperative to have a skilled family law attorney advocating for you and your child. Dont leave your time with your child up to chance, put yourself in the best position possible by having zealous representation.
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Attorney Kathy Minella is on the court appointed list as a minors counsel. She is regularly appointed to assist the court in difficult and complex custody cases. Our attorneys are skilled in presenting custody cases in court that demonstrate the best interest of the child. Please call 619.289.7948 for more information.
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In a typical mediation proceeding, each party consults separately with the mediator, and then the mediator brings both spouses together to craft a compromise agreement, which the spouses then sign.
Are you worried about the cost of divorce? This article describes the various categories that might cause financial concern during a divorce.
Gone are the days when getting prenup or postnup seemed a bad omen for the marriage. Currently, about 51% of prospective couples believe prenups and postnups do not mean a lack of faith in marriage but insurance to your finances and emotions in case of divorce.
Unfortunately, the terms prenup and postnup are often used interchangeably while they have different meanings. What is the difference between prenups and postnups, and which applies to your case?
Keep reading for these answers.
Differences Between Prenup and Postnup
Some of the major differences between prenups and postnups are:
Timing
Prenups are signed by engaged couples who expect to get married soon. Although the prenup is signed before marriage, it becomes valid after the couple ties the not.
On the other hand, postnups are signed by couples after they are already married. A prenup may be signed days, months or even years after the marriage. The couple decides when the terms of the agreement become effective, which may be a date before or after the signing date. A past date can go back to their wedding date.
Coverage
A prenup mainly looks at the property owned by the prospective couple before marriage. However, the postnup covers property earned before and after marriage. If the marriage has already lasted for a while, it gets tricky to agree on the community property since it should be divided 50/50. It also has to consider businesses and property that didn’t exist before the marriage.
Validation of the Document
Signing a prenup becomes valid if it meets California’s Uniform Premarital Agreement Act and is signed by both parties. However, a postnup becomes valid after being approved by the court.
Before the court approves the postnup, they need to confirm that each spouse came to the agreement voluntarily and that the agreement is fair to both parties. The court does not validate the document if the agreement does not meet such legal requirements.
Should You Get a Prenup or a Postnup?
If you are yet to say ‘I do’, don’t wait until you are married to get a postnup. Instead, get a prenup since it is easier to acquire than a postnup.
Fortunately, getting a postnup is only complicated but not impossible. Therefore, if you are already married, don’t hesitate to get a postnup as it will come in handy in case you separate or divorce your spouse. Either way, seek legal advice to ensure that you come up with a prenup or postnup that will help you in the future.
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If you or your family is need of legal assistance, we offer a no cost consultation.
Prenuptial agreements (prenups) are not always a fun topic of conversation with your soon to be spouse. Discussing divorce before you even get married is not ideal as when you look at your fiancee, the last thing you see is your future ex-spouse.
However, with the current divorce rate in California being above 50%, discussing what happens to your assets in case you do end up divorced should be considered a responsible conversation. It is better to have a financial discussion when you are getting along, rather than during acrimony when feelings are emotional. A prenup can drastically ease your divorce process and save you both a ton of money and time.
To get the most from a prenup you must understand how they work and what is needed for them to be enforceable.
How Do Prenups Work in California?
Prenups in California are dictated by California’s Uniform Premarital Agreement Act (UPAA). According to this act, a prenup is an agreement between prospective spouses dictating what happens to their present assets and future assets after they become married. California is a community property state, so without a prenup, everything earned during marriage is considered joint and will be split.
A prenup allows you to alter California law and divide your assets as you want, which may mean not equally.
The property included in a prenup may include financial interests, income, real estate or debts. For a prenup to be valid, the parties to the agreement must provide full disclosure of assets to each other. They both must be fully informed about what the other has before signing. This would include all property and all debts, you should be fully aware of the financial situation of your soon to be spouse.
Additionally, each spouse MUST have at least seven days to review the final draft before signing and both parties MUST be represented by their own attorney. If the time period is less than seven days from when the document is received and when it is signed, it can be deemed unenforceable. Both parties must have their own independent counsel so it can be deemed they had full knowledge when signing.
What To and Not To Include In a Prenup
A prenup generally includes language about the division of finances. For example, what happens if one owns a house before marriage and they plan on living in the house after marriage and using marital income to pay the mortgage. This is a perfect situation to identify in a prenup. It will also include what happens it debt is accrued during marriage. Some people will include a waiver of inheritance rights if they have children from another marriage. It is truly up to you on what you want the prenup to include.
However, the prenup cannot include any provisions regarding child custody or child support. These would be deemed unenforceable provisions.
What Can Make a Prenup Invalid?
A prenup becomes invalid if it does not follow the requirements of the UPAA. For instance, if one spouse signed the prenup under duress without having full knowledge of the assets and debts of their partner, or being forced to sign an agreement without an attorney, the prenup can be deemed invalid. The prenup can also be deemed invalid if a family law judge finds the agreement is unfair.
When a prenup becomes invalid, it is not enforced by the court during a divorce. Your divorce proceedings continue as they would without a prenup.
Get Legal Advice About Your Prenup
Although you and your fiancee are on the same page on how to go about the prenup, it is always advisable to get legal advice from a reliable lawyer. The lawyer will explain all the legal jargon, helping you avoid mistakes. Additionally, you will weigh all the pros and cons together and come up with the best plans for your future.
If you’re in need of legal advice or consultation, please don’t hesitate to reach out to us at 619.289.7948
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Collaborative divorce is when spouses work together in an honest and open manner to attempt to reach a settlement without having to go to court.
