April 2011 Archives

Is the Spousal Support Waiver in Our Premarital Agreement Valid?

As a San Diego attorney, clients with premarital agreements often ask whether the spousal support waiver provision in their premarital agreement is enforceable. Whether my client wants to enforce the agreement or have it not enforced, the answer is - it depends.

The Premarital Agreement Act applies to premarital agreements executed after January 1, 1986. For a spousal support waiver to be valid, it must pass the "representation by counsel" and "not unconscionable" requirements.

If the party against whom enforcement of the spousal support waiver provision was not represented by independent counsel at the time the premarital agreement was signed, then the spousal support waiver is not valid. This means: (1) if the parties prepared the agreement themselves without legal counsel, the waiver is not valid; or (2) if Party A wants to enforce the waiver against party B, and Party A was represented by independent legal counsel but Party B was not, the waiver is not valid.

If the representation by counsel requirement is met, then the court determines as a matter of law whether the spousal support waiver is "unconscionable". Factors the court considers in making its decision include: (1) whether there was a fair, reasonable and full disclosure of the property or financial obligations; (2) whether the parties waived in writing any right to disclosure of property or obligations beyond what was disclosed; (3) whether a party did not or could not have had adequate knowledge of the other party's property or financial obligations; and (4) other current circumstances that make the waiver unconscionable at the present time.

Even if all these requirements are met, a court can set aside the entire premarital agreement if it was not executed voluntarily. Factors for whether a premarital agreement was voluntarily executed include: (1) if the agreement was first presented at least seven days before it was signed; (2) any duress, fraud, or undue influence; (3) whether both parties had capacity to enter into the agreement; and (4) any other factors the court deems relevant.

An example of other factors / current circumstances that might make a spousal support waiver unenforceable is if one party recently had an accident, is now paralyzed and cannot work or support himself or herself, the court could find the provision to be unconscionable.

What if I want to move with the children?

Sometimes, during or after a divorce, my client may decide to move away from San Diego. The most frequent reasons I hear are that my client can no longer afford to live in San Diego, have family/friends elsewhere, or received a great job offer out of San Diego.

When there are no children involved, a party is free to move. However, things become complicated there are minor children involved and the moving party wants to move with the children.

Whether you are the one requesting to move, or opposing a request to move, it is important to consult or retain an experienced San Diego divorce attorney. Once divorce proceeding have begun, both parties are automatically restrained from removing the minor children from the State (and usually the County once temporary custody orders are entered) without written consent of the other party or court order.

If the non-moving party objects to the move, then the party requesting the move must file a motion requesting to move-away and the court will determine whether to grant the request. The court bases its decision on many factors, including:

• The reason for the proposed move;
• Whether the move is to frustrate the other parent's contact with the minor children;
• The children's interest in stability and continuity in the custodial arrangement;
• The distance of the move;
• The age of the children;
• The children's relationship with both parents;
• The extent to which the parents currently are sharing custody.
• The nature of the child's existing contact with both parents;
• The relationship between the parents including, their ability to communicate and cooperate effectively and their willingness to put the interests of the children above their individual interests;
• The wishes of the children if they are mature enough;
• The child's community ties;
• The child's health and educational needs;
• The child's circle of friends; and
• The child's particular sports or academic activities within a school or community.

Often, when a request to move-away is granted, the non-moving party's time with the child(ren) increases in the summers and during holidays. If the request is denied, the court cannot prevent the party that requested the move from moving, however, that party cannot move with the child(ren). If the party still wants to move, the court still fashion a visitation schedule with ample summer and holiday time for the moving party.

Family Law Filing Fees in San Diego County

If you are heading to the court house to file a Petition for dissolution of marriage (or a Response), don't forget to bring your check book. Here in San Diego County, the current filing fee for a "first paper" (which includes a Petition or a Response) is $395. And while that may seem quite expensive, it could be a lot worse.

The Associated Press recently reported on a new law in Romania which allows each of the country's municipalities to set their own fee for a divorce. The towns' fees range across the board, with the most expensive being Sangeorgiu de Mures. Couples divorcing in Sangeorgiu de Mures must pay 10,000 lei, which is approximately $3,370. To put this in perspective, The Associated Press reports that this amount is nearly 60 percent of the average annual salary. Interestingly, the fee to divorce in Sangeorgiu de Mures is 2,000 times what it costs in the capital city of Bucharest.

So why the high fee in Sangeorgiu de Mures? The Associated Press reports that the goal is to discourage divorce, as many of the town's 8000 residents are catholic. And in fact, it appears to be working. According to The Associated Press, a number of couples have actually decided to remain married after learning of the high fee.

Unfortunately, here in San Diego, the first paper fee isn't the only filing fee a divorcing couple may have to pay. The fee to file a motion or Order to Show Cause is $40, with an additional $20 charge if that motion is to modify or enforce a custody or visitation order.

If you are receiving public benefits, are a low-income person, or do not have enough income to pay for your household's basic needs and your court fees, you may qualify for a fee waiver. If you qualify, and woud like to ask the court to waive all or some of your court fees, you can complete and submit a Request to Waive Court Fees (Judicial Counsel Form FW-001). The form, as well as the current fee schedule, are available on the San Diego Superior Court's website.

Divorce Litigation: Can My Spouse Pay For My Attorney?

Did you happen to catch CNBC's documentary Divorce Wars when it premiered last weekend? Promoted as "CNBC goes inside the confidential world of multi-million dollar divorce revealing the secrets of winning and losing on a battle field of emotional pain and financial gain", the show highlighted, among other stories, the creation of Balance Point Funding, a company that provides money from private investors to fund divorce litigation in exchange for a percentage of the divorce settlement. According to its founder, Stacy Napp, the idea for the company was born from the challenges she faced in funding her own divorce litigation.

While creative, this is not the only option for a divorcing spouse in California. Rather, as a San Diego Divorce attorney, I regularly file motions for a contribution from the other spouse to my client's attorney fees under Family Code Section 2030. This type of a motion is appropriate where there is a disparity between the parties in access to funds to retain counsel (in other words, "need"), and where one party is able to pay for legal representation of both parties (in other words, "ability"). The statute is designed to ensure that each party has access to legal representation, including access early in the proceedings, to preserve their respective rights.

While Family Code section 2030 addresses the allocation of attorney fees and cost, what about costs other than attorney fees and costs, such as court costs, expert fees and consultant fees? Family Code section 2032 provides a procedure by which either party may file a motion requesting that the court designate their case as complex or involving substantial issues of fact or law related to property rights, visitation, custody, or support. If the case is then designated as complex, the court has the discretion to allocate between the parties attorney fees and also court costs, expert fees, and consultant fees.

R&B Singer Rihanna's Restraining Order Against Chris Brown Modified: An Overview of the DVPA

This month's edition of Rolling Stone magazine features a cover story on R&B singer Rihanna, in which she opens up about why she agreed to a modification of her restraining order against ex-boyfriend and fellow R&B singer, Chris Brown. The restraining order stems from an assault that occurred on the then couple's way to the 2009 Grammy Awards.

Discussing her decision, Rihanna explained:

"It doesn't mean we're gonna make up, or even talk again. It just means I didn't want to object to the judge."

She continued:

"We don't have to talk ever again in my life."

"I just didn't want to make it more difficult for him professionally."

"What he did was a personal thing -- it had nothing to do with his career."

"Saying he has to be a hundred feet away from me, he can't perform at awards shows -- that definitely made it difficult for him."

According to US Weekly.com, the original restraining order required that Brown stay 50 yards from Rihanna, unless they were both attending an "industry event", in which case Brown was permitted to be within 10 yards of Rihanna. The modified restraining order now permits Brown to have contact with Rihanna, provided he does not harass, annoy or molest her.

Although in this case the restraining order was issued as part of a criminal case, Rihanna could have pursued a restraining order in family court as well. The Domestic Violence Prevention Act authorizes the family court to issue a restraining order for certain acts of abuse perpetrated against certain individuals with whom the respondent has a domestic relationship. Those relationships include, among others, a spouse, a cohabitant or former cohabitant, and a person with whom the respondent is having or has had a dating or engagement relationship (as was the case with Rihanna and Brown).

Importantly, the remedies provided in the DVPA are not exclusive, meaning that they are in addition to any other civil or criminal remedies that may be available such as a criminal complaint or a civil tort action. Thus, had Rihanna pursued a restraining order in family court, it would not have precluded the filing of the criminal complaint against Brown.