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In Divorce, Family Law Blog

How Do Prenups Work in California? When Are They Not Valid?

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

In Military Divorce

Civilian vs Military Divorce

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Divorce can be a complicated, stressful, and confusing time for any couple. Gaining an understanding of how the process works can greatly reduce the expense, emotional strain, and time dissolution takes. If you or your partner is an active member of the United States Armed Services, chances are that you’ll be dealing with some divorce situations that don’t typically affect civilians.

There are differences in civilian vs military divorce and it is important to know your rights.

Having a spouse within the military typically affects how support will be calculated, how pension rights and other benefits may be altered, and how custody and visitation rights are decided.

From the very beginning, a military dissolution can provoke questions and issues that civilian couples are not usually exposed to. For example, some partners are confused about where they should file for a divorce, since the court must have jurisdiction over both partners. This means that you must file for a dissolution in a state where the military spouse resides, or in a state that both partners agree to.

This is just one example of issues that you need to be aware of while going through in a civilian vs military divorce.

Support for Spouses and Children

Just like anyone else within California going through a divorce, members of the military are required by law to provide support to for their family.

The department of defense requires all members of the service to comply with custody, support, and visitation orders as given by the court. The military will even go as far as to impose sanctions, including punishments as drastic as removal from the military service, if the individual in question neglects to pay that support.

The rates of spousal and child support are typically controlled by each individual state. But there are usually unique issues that arise when it comes to military spouses, including enforcing support orders after a service member has been deployed, calculating amounts and modifying agreements.

Military law contradicts with civil law in that a military member is required to give a portion of their BAH which may be higher than what a court would order. However, until there is a court order stating different, the military member has to pay the rate stated by the military or risk being in defiance of military regulations.  It is important to have a request pending in court right away to avoid having to pay more than required.

When it comes to child visitation and custody, partners face an issue that is challenging no matter what the circumstances are. For military personnel, however, visitation and custody matters can be further complicated by uncertainty regarding future deployment and frequent movement.

In California, courts want parents to share their children equally absent any compelling reason not to.  If a parent is on deployment or stationed overseas a custody plan will be created that will give them as much contact as is reasonable considering the circumstances including distance and age of the child.  Once the service member returns, their absence will not be used against them in a custody proceeding. There are very clear laws on this.

Benefits and Pension Rights

 Although the military operates under rules that are somewhat different to the private sector, it’s important to acknowledge that it is still, technically, an employer. The military provides various benefits, including a pension and medical support aspects such as life insurance and other opportunities for service members to take advantage of. All of these benefits can be subject to division in a military dissolution according to the law of the state in which the divorce is taking place.

As a military spouse, you are entitled to receive a portion of these benefits including a survivor benefit plan and perhaps lifetime medical coverage.

Minella Law Group Can Help

Unless the member of the military service within the partnership has only been part of the service for a short period of time, meaning that they have limited assets to deal with, it is important that partners do not attempt to negotiate a dissolution or settlement without an attorney. There are very specific rights that are involved and must be requested.  An amicable dissolution can be reached, but should be done with an experienced attorney who knows what to look for.

If you are facing a divorce and the United Stated Military is an employer, the qualified staff at Minella Law Group can assist you.  For more information or to schedule an appointment for a no cost consultation call us at 619-289-7948 or visit our contact page. We look forward to meeting with you.

 

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