San Diego Divorce Attorneys Blog

A New York appeals court is making waves throughout the family law community as a result of its recent controversial ruling. Before Elizabeth Cioffi-Petrakis and Peter Petrakis got married, they entered into a premarital agreement, commonly known as a "prenup". At trial, the court ruled that the premarital agreement was void. On appeal, the trial court's decision was upheld. Many attorneys throughout the U.S. believe that this case may have enormous implications on every premarital agreement case in the future. Divorce attorneys are surprised that the premarital agreement was held void and by the court's rationale.

The basis for voiding the premarital agreement in the divorce proceeding was "fraud in the inducement." Just four days before her wedding to Mr. Petrakis, Ms. Cioffi was presented with a prenup and an ultimatum. Although Ms. Cioffi's parents had already spent $40,000 on the wedding, Mr. Petrakis told Ms. Cioffi that he would not marry her unless she signed the agreement. Moreover, Mr. Petrakis orally promised to tear up the agreement and put her name on title to their home as soon as the couple had children. In reliance on Mr. Petrakis' oral assurances, Ms. Cioffi signed the prenup. Once the couple had children, Ms. Cioffi pushed Mr. Petrakis to follow through with their oral agreement and he refused.

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At the time Ms. Cioffi signed the prenup she was represented by an attorney and all other typical enforceability requirements were undisputedly met. The written agreement also contained a provision specifically stating that both parties were precluded from relying on all prior or contemporaneous oral agreements. Notwithstanding that provision, both courts ruled that the premarital agreement void by applying the contract principal of fraud.

In Del Mar and across California, if both parties are represented by counsel from the onset of negotiations, there is no required waiting period that must pass before the parties can sign an enforceable premarital agreement. However, if only one party is represented by counsel, the unrepresented party must consider the agreement for a minimum of seven days before signing it. As long as these and the additional statutory requirements are met, many family law attorneys feel that premarital agreements are extremely difficult to set aside.

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In a 1938 California case, the court determined fraud is an appropriate basis for setting aside a post-marital agreement. It would seem that New York was not too far off the mark when it applied the generally accepted contract defense of fraud to family law. More and more, divorce lawyers are seeing the stricter standards applied to civil litigation at large are being applied in family courts.

Continue reading ""Shocking" Case Voids Prenup in Divorce" »

In the past few years internet dating and the concept of online love connections has exploded. It has become increasingly more socially acceptable to find a mate online than when the concept first arose with the invention of the internet. Recently a new trend has emerged: internet marriages.

The idea that a marriage can occur without the physical presence of one spouse is not so new and trendy. A proxy marriage is a legal ceremony which occurs when one (or both) spouses are not physically present. If both spouses are not present, the wedding is called a "double proxy wedding". Usually a "stand in" will be present in the absent spouse's place. Generally, proxy marriages are not legally recognized throughout the United States except in limited circumstances such as for military personnel. In Del Mar, the courts recognize proxy marriage as valid in certain circumstances. California is in the minority of states in this respect.

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While proxy marriages were traditionally entered into mainly by active duty military, they are now being used between people who met online and may have never seen each other in person. Weddings are literally being conducted over the internet through services such as Skype and Google Hangout. The purpose of requiring both parties to be present and to conduct a ceremony in the presence of a witness is to ensure the voluntariness of the marriage. The main concerns of the states which do not allow proxy marriages include: facilitation of fraud by those attempting to gain U.S. citizenship and the possibility that they will be used by human traffickers to bring women into the U.S. Although individuals are generally interviewed when they apply for citizenship and questioned about the details of their wedding, the Times reports that officials working for Homeland Security and the State Department do not specifically ask if the wedding occurred by proxy.

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Although many stats disallow proxy marriages, generally every state recognizes marriages legally conducted abroad. This means that if two parties legally marry in a foreign jurisdiction in accordance with that jurisdiction's laws, their marriage is generally recognized in any state. The recognition of marriages legally conducted abroad is being used as a loophole to circumvent the restrictions on proxy marriages. As divorce lawyers are aware, if a proxy marriage occurs pursuant to the marriage laws of a foreign country and that country recognizes the legality of proxy marriages, the proxy marriage will be legally recognized in any state.

Continue reading "Overseas Marriage Loophole" »

If you have as much money as Tiger Woods, maybe it can buy you love. After a massive cheating scandal broke in late 2009, Elin Nordegren filed for divorce from her successful golf star husband, Tiger Woods. In a record-breaking settlement, Nordegren walked away from her marriage with $750 million. In return for her cash pay-out, Nordegren agreed to never publicly speak out about Woods' affairs with over twenty different women. Despite their incredibly public divorce, just over two years after the couple reached a global settlement, Woods' again proposed marriage to Nordegren.

Apparently Woods is not satisfied with his not-so-new found single lifestyle. His friends say he is incredibly unhappy without his family and has not managed to hold a steady girlfriend since Nordegren. Although Woods has dated several other models since his divorce, he hasn't recovered from his split with Nordegren. On or around Christmas 2012, Woods got down on one knee, presented her with a ring, and "re-proposed" to his former wife. Nordegren is considering Woods' proposal, but only on the condition that he agree to include a $350 million anti-cheating clause in their prenuptial agreement. Reportedly, Woods has no problem agreeing to Nordegren's condition despite the fact that his accountants think he is crazy. Woods is ready to sign on the dotted line, set a wedding date, and return back to his former married life.

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California is a "no fault" state. This means that in a San Diego divorce proceeding infidelity is irrelevant when dividing assets and debts, setting spousal and/or child support, and determining custody and visitation rights of the parties. Despite this default rule, parties have the ability to agree to abide by different rules. As in the Woods-Nordegren reconciliation, parties can agree to put an "anti-cheating" provision in a premarital agreement. Under such a provision, a spouse would be punished if he or she was unfaithful during marriage. If no such provision existed, neither party could be punished by the courts for infidelity. There are strict rules that a divorce attorney must follow when drafting any agreement, especially a premarital agreement, in order to have it enforceable by the courts. It is important to contact an experienced family law attorney to draft any contracts between spouses.

If you are considering divorce in San Diego, a legal separation from your spouse, or have questions regarding scheduling a consultation, contact us here. Nancy J. Bickford is the only divorce lawyer in San Diego representing clients who is a Certified Family Law Specialist (CFLS), and who is actively licensed as a Certified Public Accountant (CPA). Don't settle for less when determining your rights. Call us today 858-793-8884 for more information about our divorce attorneys in San Diego.

Another Housewife is getting divorced. Bethenny Frankel, creator of the Skinnygirl franchise, is divorcing her Husband Jason Hoppy after only two years of marriage. For months Frankel has been fighting rumors that the couple is splitting but she has finally confirmed that a divorce is on the horizon. Frankel released the following statement regarding the divorce, "It brings me great sadness to say that Jason and I are separating. This was an extremely difficult decision that as a woman and a mother, I have to accept as the best choice for our family."

In 2008, Frankel agreed to join the cast of Bravo's The Real Housewives of New York. At that time, only four short years ago, Frankel had a "mere" $8,000 in her bank account. To Frankel, The Real Housewives was an opportunity for her to build her own brand and advertise her Skinnygirl line of alcoholic beverages. It seems as if her plan worked because currently Skinnygirl is the number one fastest growing spirit in the United States. In addition, Frankel is now also a best selling author with her own skin, clothing and health products. Further, Frankel received a $40,000 check for each episode of her reality show. Considering the size and diversification of Frankel's fortune, the first question surrounding her divorce is whether she will have to split everything with her husband. Because the Frankel and Hoppy signed an enforceable premarital agreement, all of Frankel's empire should be safe from division.

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A premarital agreement is an important tool that can be used to protect assets of ambitious entrepreneurs. As a default rule, under California community property laws, any earnings or accumulations of a spouse during marriage is community property. Thus, one of the main functions of a premarital agreement is to alter that default rule and order that any earnings or accumulations of a spouse during marriage remain that spouse's separate property.

A premarital agreement can be especially helpful for a spouse with big aspirations but without a significant fortune entering into the marriage. California community property laws protect all of a spouse's property that he or she had before marriage. Upon agreement or by their actions, parties can convert separate property to community property. However, as a general rule, a spouse's assets before marriage will be remain theirs in full post-separation. On the other hand, pursuant to the default community property rules, if a spouse creates a large franchise during marriage, this franchise is subject to equal division between the parties.

Please don't hesitate to contact us in San Diego if you would like to inquire regarding the divorce process in San Diego, have questions regarding child custody and visitation, or would simply like to set up a consultation appointment with Ms. Bickford. Nancy J. Bickford is the only attorney in San Diego County representing clients in divorces, who is a Certified Family Law Specialist (CFLS) and who is actively licensed as a Certified Public Accountant (CPA). Don't settle for less when determining your rights. Call 858-793-8884.

The divorce proceedings between reality star Kim Kardashian and athlete Kris Humphries have by far exceed the length of the couple's 72-day marriage. Recently, Kardashian's new boyfriend, rapper Kanye West, was deposed by Kris Humphries' lawyers. During a deposition, the deponent must answer a series of questions while under oath. This means that any lie told during a deposition may constitute perjury. Humphries' deposition of West may have been an attempt to invalidate his premarital agreement. Many speculate that the premarital agreement contained an infidelity clause and that Humphries is attempting to show Kardashian violated it by starting a relationship with West before the date of separation.

In response, Kardashian's lawyers argue that Humphries' postponed arguments to invalidate the straightforward premarital agreement is simply a delay tactic to draw out the divorce proceeding. Despite Humphries' alleged attempts to extend his litigation with Kardashian, the judge assigned to the case has set a trial date. The former couple will appear on February 15, 2013 and argue their case before the court. As long as the trial date is not pushed further back by Humphries' legal team, Kim Kardashian should finally get a resolution to her second marriage.

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Depositions are a common form of discovery in family law proceedings. Discovery is the process in which the parties can formally ask each other for documents and information in order to gather all relevant facts in the case. Although expensive, depositions can provide attorneys an opportunity to ask the parties and/or other witnesses for the information needed to proceed to trial or to negotiate settlement. Other forms of discovery such as special interrogatories are available to ask parties questions under oath. However, special interrogatories can be less effective than deposing a party because the lawyer is only permitted to ask follow-up questions after receiving a response. This question and answer process can continue for months because each party is entitled to 30 days to respond to interrogatories.

If discovery is not complete, and both parties do not have all the relevant information in a case, it is difficult for a court to rule or for the parties to reach a settlement. If the discovery process is drawn out such in the Kardashian-Humphries case, the entire dissolution process can take years to complete. Thus, it is important to retain a lawyer familiar with the discovery process and deadlines. Once a trial date is set by the court, such as in the Kardashian-Humphries case, discovery is subject to a cut-off date. After this date, no further discovery may be propounded.

Divorce can be a frightening and a daunting process. If you are considering a divorce from your spouse, a legal separation, or have questions regarding spousal support or child custody, please don't hesitate to contact us. Nancy J. Bickford is the only lawyer in San Diego representing clients in divorces, who is a Certified Family Law Specialist (CFLS) and who is actively licensed as a Certified Public Accountant (CPA). Don't settle for less when determining your rights, call 858-793-8884.

America has waited on the edge of its seat for Jennifer Aniston to find true love ever since her divorce from Hollywood bombshell Brad Pitt in 2005. This August Aniston announced her engagement to boyfriend Justin Theroux. The couple met while filming their recent comedy "Wanderlust." Because Aniston has obviously been husband shopping since her previous divorce, the engagement was not a big surprise. However, the media was shocked to learn that Aniston refused to consider a premarital agreement.

Advisors reportedly insisted that Aniston sign a premarital agreement in order to protect her current fortune worth an estimated $150 million and her future earnings. Aniston continues to star in successful films and is still collecting millions. According to a source close to the star, "Jen is a hopeless romantic, so money is the last thing on her mind now. The way she sees it, Justin is her soul mate, and she trusts him implicitly with every aspect of her life - including her finances." This decision has made Aniston's friends and family a bit nervous but she insists she is madly in love and that this marriage will last an eternity.

Under California Family Code section 1610, a premarital agreement is defined as "an agreement between prospective spouses made in contemplation of marriage and to be effective upon marriage." The parties to a premarital agreement essentially enter into a contract to avoid the community property system. The parties may contract with respect to the following: the rights and obligations of each of the parties in any property; the right to manage and control property; the disposition of property upon separation, divorce or death; and the choice of law governing the construction of the agreement. A premarital agreement only becomes effective upon the marriage of the parties. However, after marriage, the parties may amend or revoke the agreement. In order to revoke or amend a premarital agreement, the parties must do so in a signed written agreement. Oral modifications are unenforceable.

Without a premarital agreement specifying the distribution of property upon divorce, California community property laws will apply if Aniston and Theroux ever divorce. Any property earned by Aniston prior to marriage will be considered her separate property. Thus, her current 150 million dollar fortune should be safe if proceedings between her and Theroux are less than amicable. However, during marriage Aniston may inadvertently change the character of that separate property to community property. Therefore, it will be important for her to discuss the implications of her actions with an experienced family law attorney before making any changes.

Any income earned by either party during marriage is community property and subject to equal division upon divorce. This may seem like a small risk for Aniston but when considering Katy Perry's short marriage, it may not be. During her 14-month marriage to Russell Brand, Perry earned approximately $44 million. As community property, Brand has a good argument that the cash should be equally divided. However, like a gentleman, he refused to accept any of this small fortune. Hopefully if Aniston's marriage turns sour, Theroux will do the same.

Please contact us if you are considering a divorce from your spouse, a legal separation, or have questions regarding child custody and visitation. Nancy J. Bickford is the only lawyer in San Diego County representing clients in divorces, who is a Certified Family Law Specialist (CFLS) and who is actively licensed as a Certified Public Accountant (CPA). Don't settle for less when determining your rights. Call 858-793-8884 in Del Mar, Carmel Valley, North County or San Diego.

Child superstar Miley Cyrus recently got engaged to fellow actor Liam Hemsworth.

The couple first met in 2009 on the set of the film The Last Song. Although their relationship has been a bit rocky, Cyrus, 19, and Hemsworth, 22, agreed it was time to get married. Much of the recent media attention has been critical of the pending nuptials for the young couple. The main argument against the marriage is that Cyrus is not old enough to make such a commitment. Newly engaged couples are eternally optimistic and excited for the future; however, much talk is already surrounding a potential Cyrus-Hemsworth divorce.

According to the federal Centers for Disease Control and Prevention, 48% of people who marry before reaching age 18 are at a greater risk of divorce within 10 years. In contrast, only 24% of people who marry after age 25 risk the same unfortunate outcome. In addition to statistics on marriage and age, studies have been conducted regarding the connection between education and divorce. The University of Virginia's National Marriage Project has discovered a link between lower divorce rates and college degrees. This study claims that people without a college degree are 3 times more likely to get divorced within 10 years as those with college degrees. Because neither Cyrus nor Hemsworth attended college, this study is being cited to predict their future break-up.

All marriages and relationships tend to have problems at some point in time. However, there are a few reoccurring trends that tend to afflict more relationships. According to the New York Times, financial tension is one of the leading factors leading to divorce in America. Faculty at Utah State University conducted a study which found that couples who disagree about finances one per week were 30% more likely to get divorced than couples who did not. Many times teens like Cyrus are unfamiliar with budgeting and finance, which can lead to disagreements about finance in a young marriage. It may be important to have finance-related discussions or to create an agreement prior to marriage. Younger married couples may also have to adjust from a more stable and comfortable life of living at home to the world of unemployment and forty hour work weeks living with their new spouse.

Among the other top culprits for divorce are: (1) disagreements about child rearing, (2) division of household responsibilities, (3) expectations in the marriage, (4) addiction, (5) sex, (6) physical, psychological and/or emotional abuse, (7) communication breakdown, (8) marriage infidelity, and (9) religious and cultural strains. Many of these issues can be discussed prior to marriage. Preferences on child rearing and religious preferences may seem obvious but it couldn't hurt to have a discussion about it before you tie the not. It is important to consider that not all statistics are not accurate all of the time; therefore there is hope for all marriages in general regardless of the ages of the bride and groom.

Please contact us if you are considering a divorce from your spouse, a legal separation, or have questions regarding child custody and visitation. Nancy J. Bickford is the only attorney in San Diego County representing clients in divorces, who is a Certified Family Law Specialist (CFLS) and who is actively licensed as a Certified Public Accountant (CPA). Don't settle for less when determining your rights. Call 858-793-8884 in Del Mar, Carmel Valley, North County or San Diego.

In New York, a man is suing his ex-fiancé for contributions made in contemplation of their upcoming nuptials. Specifically, Steven Silverstein is asking for $19,000, which she allegedly withdrew from their joint bank account prior to the most recent split, $28,000 in rent to represent her ½ contribution for the apartment they shared, and $27,000 he spent in nonrefundable deposits a wedding photographer, hotel rental, videographer, and furniture rentals. The couple was engaged for two years during which Kendra Platt-Lee broke off the pending wedding twice.

Platt-Lee has since moved to San Diego and is pursuing a career in marketing. According to her lawyer, Platt-Lee denies all allegations and even plans to file a countersuit against Silverstein for failure to return her personal belongings. It is her position that relationship was resolved when she returned the $32,000 engagement ring he had given to her. The question for the Manhattan Supreme Court is whether the cash, the rent, and the deposits were all gifts from Silverstein to Platt-Lee or whether he has a right to reimbursement now that she has cancelled the wedding.

According to California Law, Platt-Lee followed the correct protocol in returning her lavish engagement ring. An engagement ring is typically considered a gift, however, if the couple separates prior to the wedding, the circumstances of this break-up may determine the true owner of the ring. Under California Civil Code section 1590, the "giver" of the engagement ring, here Silverstein, is entitled to the ring or the value of the ring if the "receiver", here Platt-Lee, later refuses to enter into the marriage. In addition, the "giver" is also entitled to return of the ring if both parties agree to call off the pending nuptials. However, although the law is not crystal clear, generally, if the "giver" refuses to enter into the marriage, he or she is not entitled to return of the gift given in contemplation of that marriage. These are general principles of law and any evidence of fraud may still affect the outcome of a particular case.

Calling off a wedding can be an emotional experience for both parties but they still may be wondering who is still responsible for the presently incurred costs. Engagement is not a legal contract and does not confer upon the parties the same rights as a marriage. If a party has signed a contract with a vendor, he or she may still be required to pay that vendor even if the wedding is called off. However, if both parties have signed the contract, they will both be liable to the vendor. Under general property division laws in California, any property acquired individually by a party is his or her separate property before the date of marriage. This same principle is true regarding any debts acquired prior to marriage. It is important to consider the individual agreements made between the parties and what arrangement was made regarding wedding expenses. Principles of contract law may apply to these situations especially if the parties entered into a written agreement or premarital agreement that contained a relevant clause.

In order to protect against unforeseen circumstances such as a wedding cancellation or postponement, many soon-to-be spouses are getting wedding insurance. Wedding insurance can cover no-show vendors, ruined photography, stolen wedding gifts, and various other mishaps.

Please contact us if you would like to know your rights upon marriage. Nancy J. Bickford is the only attorney in San Diego County representing clients in divorces, who is a Certified Family Law Specialist (CFLS) and who is actively licensed as a Certified Public Accountant (CPA). Don't settle for less when determining your rights. Call 858-793-8884 in Del Mar, Carmel Valley, North County or San Diego.

On May 19, 2012, Priscilla Chan married the creator of Facebook, Mark Zuckerberg. The couple met in 2003 at a fraternity party at Harvard where they both attended college. The wedding ceremony took place at the home they share in Palo Alto and most of the details are still being kept private. However, the wedding date has sparked the most media attention. Mark and Priscilla tied the knot just one day after Mark's company went public. On his wedding day, Mark owned 503 million shares of Facebook, which at the time, was worth an estimated $17 billion. Sources indicate that Priscilla has no interest in Mark's fortune. In fact, she recently graduated from medical school at the University of California, San Francisco and plans to pursue a career as a pediatrician.

San Diego is located in one of the few states that have adopted community property laws. In community property states, any property acquired prior to marriage is separate property. Separate property will be awarded to the owner upon divorce without offset. Anything acquired after marriage is community property and generally distributed equally upon divorce. According to these laws, any property owned by Mark or Priscilla prior to marriage is their respective separate property and will be distributed to the owner upon divorce. However, after marriage, any earnings of Mark or Priscilla will become community property. In other jurisdictions, courts apply the equitable division rules. Under this statutory scheme, all property owned by either party at divorce is divided equitably by the courts regardless of ownership prior to marriage.

Although Mark has made it clear that his Facebook fortune is his separate property by marrying Priscilla the day after his company went public, the distinction between separate and community property can become blurred over time. Once separate property becomes commingled with community assets, the spouses must keep diligent records of the source of the funds or risk transforming once separate property into community property.

The main question upon the Zuckerberg divorce would be whether Priscilla is entitled to the increased value, if any, of Mark's Facebook stock. The general rule in California is that stock acquired prior to marriage remains the owner separate property upon divorce or legal separation. However, the Zuckerberg case will be different because it is Mark's job to continue to contribute to the growth of Facebook as well as its stock. So this situation begs the question - is the increased value of the Facebook stock merely stock or Mark's earnings during the marriage? One possible solution to this gray area would be the creation of a premarital agreement. Prior to marriage, Priscilla and Mark had the option of determining how the increased value would be divided upon divorce. In the past, Priscilla had Mark sign a "relationship agreement" outlining the details of their relationship before she would agree to move to California to be with him. Considering the massive fortune at stake and the previous history between the parties, it is likely that the parties executed a premarital agreement prior to marriage.

Please contact us if you are considering a divorce from your spouse. Nancy J. Bickford is the only attorney in San Diego County representing clients in divorces, who is a Certified Family Law Specialist (CFLS) and who is actively licensed as a Certified Public Accountant (CPA). Don't settle for less when determining your rights. Call 858-793-8884 in Del Mar, Carmel Valley, North County or San Diego.

A New York Court recently granted the state's first contested no-fault divorce. While New York's no-fault divorce law is only one year old, California enacted no-fault divorce over 40 years ago, in 1970.

photo by Keith Lovett

Wife filed for divorce under New York's year old no-fault divorce law on the grounds that her marriage was "irretrievably broken." Wife testified that she has not had marital relations with her Husband for over five years, they slept in separate bedrooms and never ate meals together. Although she is in poor health, she testified that her Husband had not taken her to her doctor's appointments in the last five years or even asked about her health for the past ten years. She further testified that she had "no hope for the marriage ... and that her only wish is for a divorce so that she can have one-half of her marital assets and leave them to her four children before her demise."
Husband contested the divorce because he wanted to remain married saying he "worked hard to acquire everything the parties had" and didn't want to lose it in a divorce.

The Court applied the new no-fault law and granted Wife's request for a divorce stating, "[I]t is this Court's determination that the parties' relationship has so deteriorated irretrievably ...the plaintiff is entitled to a judgment of absolute divorce,"

In California, a no-fault divorce allows for a divorce without requiring either party to present evidence of wrong doing or breach of the marital contract. The idea behind a no-fault divorce was that removing the fault requirement would also remove some of the bad blood from the divorce process, and allow couples who wanted to break up to do so without having to make false allegations to justify the divorce to the court. No longer would couples, or even just one party, who wanted a divorce have to choose between lying under oath in open court or remain married.

Prior to no-fault divorce in California, a divorce could be obtained only through a showing of fault. This requirement meant that one spouse had to plead that the other had committed adultery, abandoned them, was cruel, or some other culpable acts. To get a divorce, parties often lied, colluded and committed fraud upon the court in order to get around the statutory limitations of the fault based requirement. Prior to the enactment of no-fault divorce, many prominent attorneys and judges in California believed that the "legal fictions" used by parties to satisfy the requirements for divorce made oaths meaningless and threatened the integrity of our legal system by encouraging perjury. Without committing perjury, many couple could not obtain a divorce, even if both parties wanted a divorce.

California's no-fault divorce law provided a straightforward ground for ending a marriage - irreconcilable differences. Not only did California's no-fault divorce laws eliminate the fault requirements to obtain a divorce for spouses seeking a divorce by mutual consent, but also in cases where only one party to a marriage wanted a divorce.

No-fault divorce ushered in other changes to divorce laws. Under no-fault divorce, gender-based responsibilities such as the Husband always being responsible for child support while the Wife was always responsible for custody gave way to gender-neutral responsibilities such as both parties being eligible for custody and responsible for child support.

As an interesting side-note, California's no-fault divorce policy even invalided a Marital Agreement that was intended, after Husband had an affair, to "preserve, protect and assure the longevity and integrity of an amicable and beneficial marital relationship between them." In the Diosdado case, rather than divorcing, the parties agreed to be subjected to a legal obligation of emotional and sexual fidelity to the other. If either party volitionally engaged in certain acts with any person outside of the marital relationship, that party would be in breach of the Marital Agreement, which provided for liquidated damages should the obligation of sexual fidelity be breached. Damages included that the party in breach would be: (1) required to vacate the family residence, (2) solely responsible for all attorney fees and court costs, and (3) pay $50,000 over and above any settlement or support obligations. Of course, Husband had another affair and Wife sued for breach of contract, seeking to enforce the liquidated damages clause of Marital Agreement. However, the Trial Court granted Husband's judgment on pleadings, because the Marital Agreement was contrary to the public policy underlying California's no-fault divorce laws. Wife appealed, but the Court of Appeal affirmed stating, "Here, where the agreement attempts to impose a penalty on one of the parties as a result of that party's 'fault' during the marriage, it is contrary to the public policy underlying the no-fault provisions for dissolution of marriage. [See Family Code §2310, Family Code §2335.] For that reason, the agreement is unenforceable."

Continue reading "California's No Fault Divorce Travels to New York" »

The most recent controversy in Hollywood is the split between multi platinum recording artist, Katy Perry, and movie actor, Russell Brand, who announced the end of their marriage on December 30, 2011 after only 14 months. Rumor has it that the couple did NOT have a prenuptial agreement. Katy Perry made a record breaking $45 Million during the marriage. Russell Brand only made about $7 Million. In California, which is a community property state, assets are split evenly among the couple if there is no pre-nup, meaning Perry stands to lose over $20 million not including the two homes the ex-couple purchased together during the marriage.

A prenuptial agreement is a contract between two people about to get married that spells out how assets will be distributed in the event of divorce or death. Premarital agreements or "pre-nups" establish the property and financial rights of each spouse.

At one time, a premarital agreement that was not made in contemplation that the parties would remain married until death was considered to be against public policy in California and other jurisdictions, but the CA Supreme Court concluded in 1976 that the validity of a premarital agreement "does not turn on whether the parties contemplated a lifelong marriage" and in 1985, the California Legislature adopted most of the provisions of the Uniform Premarital Agreement Act. Pursuant to Family Code section 1615, a premarital agreement will be enforced unless the party resisting enforcement of the agreement can demonstrate either (1) that he or she did not enter into the contract voluntarily, or (2) that the contract was unconscionable when entered into and that he or she did not have actual or constructive knowledge of the assets and obligations of the other party and did not voluntarily waive knowledge of such assets and obligations.

The most important factor of a solid premarital agreement is honesty. Both parties must fully and completely disclose of their assets. If it turns out either person was hiding something, a judge can throw out the entire contract. The document should be signed as early before the nuptials as possible to avoid the appearance of coercion, another key reason why some agreements are rendered null and void by the court. A valid pre-nup should also be "fair" and will not leave one of the parties destitute.

You should consider getting a pre-nup if you fall into any of the following categories:

• You have assets such as a home, timeshare, stock or retirement funds
• Own all or part of a private or family business
• You may be receiving an inheritance
• You have children and/or grandchildren from a previous marriage
• You or your spouse is much wealthier than the other
• One of you will be supporting the other through college
• You have loved ones who need to be taken care of, such as elderly parents
• You have or are pursuing a degree or license in a potentially lucrative profession

Continue reading "Should I get a prenuptial agreement before I get married in San Diego, California?" »

According to FOX news, former NFL superstar Deion Sanders has filed for divorce. His wife, Pilar Sanders, filed a response this week in which she alleges Deion was unfaithful. "She accuses him unkind, uncaring, insensitive, cruel and unusual treatment, as well as physical, mental and emotional abuse of her and their three children." The response urges the court to punish Deion for "immoral, corrupt, lewd, perverted, unnatural, sinful conduct." Ironically, the response is similar to that filed by Deion's first wife Carolyn. Carolyn also accused Deion of adultery and "cruel treatment."

Pilar is requesting that the judge throw out the couple's prenuptial agreement and instead grant her most of the marital estate. As grounds for this request, Pilar alleges she was under duress when she signed the agreement. Prenuptial agreements, otherwise known as premarital agreements, must be carefully drafted in order to be enforceable in a California family courts.

California Family Code section 1615(a) states that a premarital agreement is unenforceable if not entered into voluntarily. A premarital agreement is presumed involuntary if the party had less than seven calendar days between the day the party was presented with the contract and advised to seek independent legal counsel and the time the party signed the contract. However, it is important to note that this rule does not apply to a party represented by legal counsel throughout the premarital agreement process. Therefore, if a judge concludes that Pilar was in fact under duress when she signed the premarital agreement, the judge is likely to find the agreement unenforceable.

A fundamental element of any contract formation is freely given consent of the parties. This consent is defeated if one of the parties enters into the contract under duress. Duress often appears in California law as a defense to any type of contract actions. It is crucial when drafting and executing premarital agreements to ensure no party signs the contract under duress.

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Premarital Agreements ("PMA") can be very tricky. As experienced San Diego family law attorneys, we work hard to keep up with changes to the PMA rules. The rules for "PMA's are contained in California Family Code Sections 1600-1617. In addition to parties essentially creating their own agreed upon law (within the boundaries set by the PMA Act) for what is to occur in the event a marriage ends, the rules and the courts interpretation of the rules are constantly changing.

PMA's may cover the following subjects:

• Property rights and obligations, property management and control, and disposition of property;
• Making wills, trusts or other arrangements to carry out the premarital agreement provisions;
• Life insurance ownership rights and disposition of death benefits;
• Choice of law; and
• Any other matter, including personal rights and obligations that do not violate public policy or statutes imposing criminal penalties.

Although PMA's may not limit child support, spousal support may be limited if certain conditions are met. One of the conditions for limiting spousal support in a PMA is the "7-Day Rule," which requires that PMA's be presented at least seven calendar days in advance of signing.

California Family Code §1615(a)(1) states that a PMA is not enforceable if the party did not execute the agreement voluntarily. §1615(c)(2) states that a PMA was not executed voluntarily unless the court finds that the party had not less than seven calendar days between the time that party was first presented with the agreement and advised to seek independent legal counsel and the time the agreement was signed.

The California Court of Appeal recently decided a case interpreting the "7-Day Rule" for PMA's. In the case In re Marriage of Cadwell-Faso & Faso, the Court of Appeal held that the seven-day waiting period mandated by FC §1615(c)(2) does not apply to parties who are represented by counsel.

In Faso, both parties wanted a PMA. In December 2005, Husband's attorney drafted the PMA. Husband provided it to Wife and advised her to obtain her own attorney, which she did. Wife requested her attorney prepare an Addendum to the PMA providing money to her in the event of divorce. Husband rejected four different versions of the Addendum. On May 17, 2006, Wife called off the wedding because they could not agree to terms for the PMA/Addendum. The parties subsequently spoke, agreed to terms, and Wife's attorney prepared a new version of the Addendum. The revised Addendum was faxed to Husband on May 19, 2006 and forwarded to his attorney. The parties signed both the PMA and the Addendum. Prior to signing, Husband was advised by his attorney that the Addendum was not enforceable because it was not being signed seven days after he received it (it was being signed 6 days after). Wife was not told this information. Wife signed the PMA/Addendum and married Husband believing the Addendum was valid. Husband signed the PMA/Addendum believing it was invalid.

Although the trial court condemned Husband's behavior finding that he "shrewdly" maneuvered Wife to the alter "in a manner that frustrated her desire to reach a mutually acceptable agreement," it ruled that the Addendum was unenforceable due to the seven day waiting period. The fifth version of the Addendum was not presented to Husband seven days in advance of signing.

Wife appealed and the Court of Appeal reversed, holding that the Addendum was enforceable and that the seven day waiting period only applies to unrepresented parties.

This reinterpretation (or clarification) of the Family Code is just one of the many pitfalls clients and their attorney's face when preparing, enforcing or disputing PMA's.

I do wonder if the decision would have been different if the trial court did not find that Husband was the "bad guy", who hid his belief the Addendum was invalid from Wife and shrewdly maneuvered her to the alter. Under different facts in a future case, the court very well may "clarify" the statute to arrive at a different result, particularly to protect a more innocent party. Also, this "represented party" exception to the seven day rule may not apply to PMA's signed prior to January 1, 1986, when the Uniform Premarital Agreement Act became effective.

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.

As reported by NBC SanDiego.com, professional skate boarder Tony Hawk recently filed for divorce in North San Diego County. Hawk filed for divorce from third wife Lhotse Merriam. Hawk and Merriam were married in 2006; they have one child.

Raised in San Diego, Hawk is well known for a videogame series based on his skateboarding. Tony Hawk: Ride, a game which involves riding on a skateboard shaped controller, was launched in 2009. Because the game was launched during Hawk's marriage to Merriam, one question that may arise during the divorce process is whether any intellectual property rights Hawk may have in the game are community property to be divided in the divorce.

Absent a prenuptial agreement to the contrary, intellectual property rights (e.g. patents, copyrights, trademarks, trade secrets) are property to be classified and, if appropriate, divided in a divorce. In a divorce, property is generally classified as either separate property or community property. Property that is classified as community property is then divided between the spouses.

For intellectually property rights to be classified as community property to be divided in a divorce, they must be acquired from work that was done during the marriage.

But what if the rights were acquired from work only partially done during the marriage? For example, a spouse begins to write a book during marriage, but doesn't finish the book until after the divorce? In this case, the community would have a proportional interest in the property.

What if additional time and effort is then needed to market the book? Such post-marital efforts generally decrease the community's interest in the property.