Since my last post, I’ve had several questions about the timing specifics for California premarital agreements.  Here are several key California prenup timing rules to keep in mind.  First, California law requires that seven days pass between the time you are first presented with a premarital agreement, and the time you sign it.  This is rather cleverly called the “Seven-Day Rule.”  Here’s a link to California Family Code Section 1615 in case you want to actually read the law.

You may have noticed that this rule is anything but crystal clear.  Some lawyers believe the rule means that seven days must pass between the time you deliver the final draft of your agreement, and the time you sign that draft.   Other lawyers believe the provision means you must wait seven days between the first time you discuss a prenup with your fiancé, and the time you sign the final draft.   You and your California prenup lawyer should discuss this issue if you have any questions.  If you’re concerned about enforcement, you should probably take the most conservative approach, and wait seven days between delivery of the final draft to your fiancé, and signing of the agreement.

Another timing consideration is whether you should sign on your wedding day.  Rather than give a direct answer to that, allow me ask another a question: who really wants to think about a contract on their wedding day?  Nobody, and for good reason.  You can’t possibly consider all the ramifications of signing a premarital agreement when you’re about to walk down the aisle.  Trust me: sign before your wedding day.  The earlier before the wedding the better.

Closely related to the signing on your wedding day issue, is the question of when you should start discussing the agreement with your fiancé.  The rule here is to bring up the agreement before the wedding invitations go out.  You want to avoid the presumption that your fiancé had no choice but to sign and marry you since Aunt Flo had already bought her plane ticket.

You should also keep in mind that your lawyers are going to need some time to draft a solid agreement, and additional time to negotiate the wording of various provisions.  Depending on the complexity of your assets, this can take months.   A good rule of thumb is to call your lawyer before the invites go out, and if you can’t do that, then no later than four months before your wedding date.

— Erik Newton

Some couples sign premarital agreements that include terms they know aren’t enforceable.  They do this because they wish to memorialize agreements in writing, whether or not California courts will uphold those agreements.

Other couples care mostly about protecting assets in case of a future breakup, and so enforcement is a top priority.

Either way, couples should consider the three prenup enforcement basics.  First, both parties absolutely must be represented by an attorney (even if one of the parties is an attorney themselves).  The case law has been quite clear on this score: when one party doesn’t know what they’re getting into, the prenup can be overturned.  Don’t risk it.  Get counsel.

Second, give the process time.  You must wait 7 days between delivering the final draft of your agreement to your fiancé, and the signing of that that draft.  Also, it’s best to begin negotiations before the wedding invitations go out.

Third, full disclosure of your financial picture is vital.  When in doubt, over disclose.  Each of you needs to know what you’re getting into if you want your agreement to be fair and enforceable.

— Erik Newton

We’ve always said that money fights lead to divorce.  This study indicates that at the very least, money fights predict divorce.

Here’s a quotation from an article discussing the study:

A new study, by Jeffrey Dew at Utah State University, attempts to quantify [the risk that money-related tensions lead to divorce]. His finding: Couples who reported disagreeing about finance once a week were over 30 percent more likely to get divorced than couples who reported disagreeing about finances a few times a month.

This is precisely the reason that couples need to discuss money before marriage.

— Erik Newton

Take a look at this NYTimes article about the necessity of holding money talks before marriage. Here’s an excerpt:

Divorce tends to be emotionally gut-wrenching for the people who go through it (not to mention those around them). But most couples don’t realize that divorce can also be among the most ruinous financial moves anyone can make…

The risk that any marriage will end in divorce is about 45 percent, according to David Popenoe, a professor of sociology emeritus at Rutgers University. The chances fall to about 40 percent for first marriages and decline further for college-educated couples, people from intact families and couples who share the same religion.

The article goes on to list several discussions that couples need to have before getting married if they want to avoid the statistics above.

— Erik Newton

Does it matter that he was cheating with his secretary for half the marriage?  What about the fact that she was never home for dinner and spent all her time at the office?  Guess what… In a California divorce, the answer is no.

California is a no-fault divorce state.  That means the court has no interest in who you think is to blame for the downfall of the marriage.  California courts do not want to hear about the lying, the cheating, the fact that he never listened, or that she was constantly nagging.  On the Petition for Dissolution of Marriage (one of the forms you file to get a divorce or “dissolution” started in California), there are only two optional grounds for a dissolution: Irreconcilable Differences, or Incurable Insanity.   That’s it.  Irreconcilable differences means that blame doesn’t apply.  Incurable Insanity means that you can prove by competent medical testimony that your spouse was incurably insane while you were married.

A related concern amongst parties is whether a judge will view one spouse in a better light because he or she filed first.  The reality is that judges do not care who files for dissolution first.  There may be other strategic effects to filing at different times, and you should discuss these with your California Divorce Lawyer.

One great advantage of a no-fault divorce system is that you don’t waste time and money proving blame, or cruelty, or infidelity, as in some states.   This is not the case everywhere.  Take, for example, supermodel Christie Brinkley’s recent divorce in New York State.  Through the course of that trial, the court allowed Ms. Brinkley to expose publicly husband Peter Cook’s tawdry affair with his 18 year-old assistant, as well as his addiction to pornography.  This kind of dirty laundry usually has no place in a California divorce.  Instead, you and your California divorce lawyer can focus on the legal issues: property division, support, and child custody if there are children involved.

One important exception to the no-fault divorce rule is a situation involving domestic violence.  The topic of domestic violence is outside the scope of this blog posting, but suffice it to say that California courts take domestic violence very seriously.  If you are in immediate danger, you should contact the police immediately and make sure you are safe.  If you have been a victim of domestic violence in the past, you should contact a competent California family lawyer to discuss your options.

A no-fault divorce means it’s not about who did or said what to whom during the marriage.  It’s about getting the divorce completed by applying community property, custody, and support laws, so you can leave the skeletons in the closet and out of the courtroom.

— Alison Grcevich

Probably the first question people ask about premarital agreements (also called prenuptial agreements, or “prenups”), is “when should we start planning?” I’m sure you can guess the answer: start planning as early as possible.

There are two main reasons to get started negotiating your premarital agreement early.   First, if it ever comes to enforcement, courts want to see that all the parties involved had plenty of time to consider what they were getting into, and that they got into it voluntarily. That means no signing on your wedding day. When California courts invalidate prenups, they often do so because one party either didn’t know what they were getting into (for instance, they didn’t have a lawyer), or they signed the agreement under unfair pressure – for example, they didn’t have enough time to fully consider the agreement. Give your fiancé enough time to fully discuss the agreement with his lawyer, and you avoid both of these problems.

Second, allowing for plenty of time is the more graceful approach to a difficult topic. A prenup can make your marriage stronger if you approach it gently. This means not dumping the idea on your fiancé two weeks before the wedding. There is no better way to terrify your fiancé than demanding he sign an agreement when the invitations have already gone out. Imagine: grandma has already booked her ticket, the cake is already mostly baked, and the dress is just back from the tailor. You come home one night, and drop a prenup in his lap. What do you imagine is going to happen? It’s not pretty – that’s not the kind of pressure to place on your future partner. Trust me, give him time. Bring the topic up slowly. Discuss it in terms of what’s fair and supports your relationship. You’re entering a life-long partnership here. Treat it respectfully.

A good California prenup lawyer can guide you around all these issues. Some lawyers can even draft a document in just a couple of days, but that’s not a situation you want to find yourself in. The longer you wait to get started, the weaker your agreement will likely be. Take the time and do it right.

— Erik Newton

It goes without saying that a divorce can be one of the most difficult experiences in your life. So why make it any harder?

I see divorce clients every day. The first thing they often tell me is “I just want this to be over with.”   So here are some simple tips to make that happen:

First, get organized! A divorce requires delivery of nearly all your financial records to your spouse. Even if you and your spouse have been sharing all the accounts, you will still need to put together copies of statements from every financial account, including bank statements, credit card statements, retirement accounts, pay stubs, etc. Start collecting PDF copies of all these statements now. If you stay organized, you can streamline and speed up.

Second, get your paperwork done! The divorce process requires a great deal of paperwork. The faster you work with your attorney to complete the paperwork, the faster you can finalize. The single (so to speak) most time-consuming task in a divorce is dividing community property. This is a difficult task, and can require lengthy negotiations. The negotiation process can’t even begin, however, until your attorney knows what assets you have. That means you need to complete your asset disclosure paperwork! The longer you wait to deliver those documents, the longer your divorce will take.

Third, reach a settlement! The number one most efficient way to wrap up your divorce is to reach a settlement.  While this is not always possible, if you are willing to negotiate and  reach a fair settlement, you will save yourself a great deal of time and money.  A good divorce attorney will help you understand what a fair settlement looks like.

Competent divorce attorneys will do everything in their power to speed the divorce process along, but remember, you are the ultimate decision maker. Don’t drag your heels!

— Alison Grcevich

What do I mean that you already have a prenuptial agreement (sometimes called a “prenup“)? If you live anywhere in the United States, then you live in a state that has rules about marriage. Those rules dictate how marital property is treated during marriage, and they dictate what happens to that property if the marriage ends. That, my friends, is a prenup: a bundle of rules and agreements about the assets of married couples. So the question is whether you want the rule-bundle California has set up for you, or some other rule-bundle.  A prenup, or premarital agreement, is how you create your own rule-bundle.

How do prenups strengthen marriages? As you have probably heard, most marriages end over disagreements about money or infidelity. We can’t do anything about the infidelity with a prenup because California is a no-fault divorce state, but we can definitely help with the money issues. Most money problems arise from a lack of communication. Couples don’t like to talk about money – it’s uncomfortable. What if he thinks I’m a gold digger? What if she thinks I’m already planning a divorce? Those are normal concerns, but I’m here to tell you – as someone who sees divorce every day – that your chances of staying married are hugely improved if you talk about money and financial expectations before marriage. A prenup is an absolutely vital part of that discussion because a prenup is a document designed to anticipate the most common money problems that couples encounter. It may turn out that you don’t need a prenup, but you owe it to your marriage to at least know what the rules are.

A prenup is not for everyone. Some couples are perfectly happy with the default rules set up by the state. If that’s the case, then great! But you owe it to yourself and your spouse to know what those rules are, and to talk about your expectations before you get married. That’s the kind of communication a good relationship is founded on.

— Erik Newton