Recently in Premarital Agreements Category

Gwyneth Paltrow Announces her Split from Chris Martin

April 19, 2014

paltrow-divorce.jpgAfter ten years of marriage, actress Gwyneth Paltrow announced her separation from Coldplay star Chris Martin. According to Paltrow's website, the couple was working hard (separately and together) on their marriage for the past year without any success. Although neither party has officially filed divorce paperwork, the media speculates that a divorce is well underway. Some celebrities such as Kim Kardashian have litigated their personal family law matters in the public eye. However, more private celebrities tend to keep their personal issues out of the public court system.

Private mediation is a great option for celebrities who want to keep the details of their divorce confidential. Although private mediators are available for any family law litigants, not just celebrities, they tend to be too expensive for most cases. Private mediators in San Diego often charge between $400 and $750 per hour for their services. In addition, when you factor into the cost of private mediation the hourly rate for two attorneys (at least one for each party), the cost of private mediation can cost each party thousands of dollars per day. Some cases inevitably drag on for months or even years because the parties have reached an impasse on one or more issues. In those instances, the parties might agree that private mediation is worth the cost.

The media is buzzing with speculation regarding the Paltrow-Martin split. A lot of the dialogue surrounding this divorce is focused on how simple the dissolution process can be when the parties agree to avoid litigation. Media outlets claim Paltrow and Martin will simply put a rubber stamp on their premarital agreement and end their case. However, the divorce process is not that easy - even for celebrities. In California, family law litigants are required to exchange disclosure documents (consisting of an Income and Expense Declaration and Schedule of Assets and Debts) at the outset of the case. In cases where the parties' income and/or assets are complex, the exchange of disclosure documents can be a lengthy and expensive process. Inevitably, celebrities will spend a significant amount of money up front on attorney fees incurred for the preparation of their disclosure documents.

In addition to spending large sums of money and a lot of time in order to adequately complete their disclosure documents, celebrities will also inevitably require extremely specific and complicated settlement agreements - even if a valid and uncontested premarital agreement is in place. Each divorce case must end either by trial or through the filing of an agreed-upon judgment. Preparation of the judgment will likely require multiple drafts and settlement conferences between attorneys. Due to the complexity of celebrity divorce cases, it is not uncommon for celebrities to walk away from their marriages with six figure legal bills.

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Why Should I Get a Premarital Agreement?

February 13, 2014

benefits of a pre-nupMany engaged couples in San Diego contemplate getting a premarital agreement (otherwise known as a prenuptial agreement) before they take their walk down the aisle. However, many future brides and groom never bring the subject up with their future spouse for a variety reasons. For example, parties often misunderstand many elements of the premarital agreement process, are afraid of their partner's reaction, and resent the stigma that getting a premarital agreement equates to a lack of faith in the marital relationship. However, there are many benefits to getting a premarital agreement as explained below which should also be considered by those contemplating a premarital agreement.

Unintended Outcome
All couples who marry in California without signing a formal premarital agreement have entered into a different type of premarital agreement known as the California Community Property Law. If parties to do not contract otherwise, the default family code provisions governing property division and spousal support will apply upon divorce. There are so many rumors, myths, and misconceptions floating around about California divorce law that many divorcing couples are surprised about their legal rights upon divorce. By discussing a premarital agreement with an experienced family law attorney prior to marriage, both parties can become informed regarding default legal provisions. More importantly, the parties can reach agreements to create the outcomes they intend and expect upon divorce.

Uncertainty
Many laws regarding spousal support and the division of marital property contain many elements and factors. Further, California family court judges have a lot of discretion to determine fair and reasonable outcomes. Considering these two facts together, the outcome of a California divorce is nearly impossible to predict. A premarital agreement can provide certainty and peace of mind to parties considering divorce. Premarital agreements provide parties with the opportunity to protect businesses, family assets, and future income.

Cost
A premarital agreement is relatively inexpensive compared to a contested divorce which is litigated due to the upset expectations of the parties and uncertainty in family law. As recently modeled by California celebrity divorces, the dissolution process can be so lengthy and drawn out that sometimes it can extend longer than the underlying marriage. One disputed issue can result in multiple hearings or even a trial which can cost tens of thousands of dollars. Depending on the complexity of the case, the cost of a premarital agreement will not likely exceed the cost of just one hotly contested issue in a divorce case. Litigating a divorce also comes at a high emotional cost. By resolving the distribution of property and spousal support prior to (or even during) marriage, parties can avoid the emotional turmoil that accompanies divorce litigation.

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Kelly Clarkson Marries With No Premarital Agreement?

December 24, 2013

Kelly Clarkson marries with no prenupAmerican Idol winner Kelly Clarkson married fiancé Brandon Blackstone on October 20, 2013 in a quiet Tennessee ceremony. Although Clarkson has won 3 Grammys, 4 American Music Awards, and 13 Billboard awards throughout her successful singing career, no premarital agreement was reported before her wedding. Clarkson has been known to frequently "Tweet" about her happy relationship with Blackstone; however, even the happiest couples sign premarital agreements in some cases.

A premarital agreement, often referred to as a "pre-nup," is a contract containing spousal support and/or property division terms that would control in the event of a divorce. Without a premarital agreement, the community property laws of the State of California control property division upon divorce. Celebrities and high powered business people are the first ones to come to mind when discussing pre-nups; however, divorce attorneys report a jump in these agreements between people from all walks of life over the past ten years.

Many family law attorneys attribute the rise in premarital agreements to the fact that more people remarry later in life and are now looking to protect existing separate property assets. In addition, considering that many people are marrying for the second and third time as they get older, they also enter into premarital agreements to protect their children from their first and/or second marriages. Premarital agreements become more crucial when people enter into marriages with a significant amount of wealth or property. However, they can be entered into by any couple when they marry and can be altered over time as the parties acquire wealth and property.

If a couple marries without a premarital agreement but later wish they had taken that legal step, they have the option of entering into a post-nuptial agreement. A post-nuptial agreement can serve the same purposes as a premarital agreement. The only major difference between a premarital agreement and a post-nuptial agreement is that a post-nuptial agreement is signed after marriage. Therefore if Clarkson and Blackstone would like to reach a legally binding agreement regarding property and/or spousal support in the event of divorce, they could easily do so by signing a post-nuptial agreement.

Many couples avoid premarital agreements
because of the stigma attached to signing one. Engaged couples considering a premarital agreement may not discuss it with their significant others or family in order to avoid accusations that they don't believe their marriage will last. Singing a premarital agreement does not mean that the parties are already considering divorce or that they don't trust each other. In fact, a premarital agreement can be a great tool to get couples talking about financial issues and improve communication on these topics.

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Is My Prenup Valid? How the Date May Affect Validity

August 26, 2013

Premarital Agreement - PenThe date of a premarital agreement (commonly referred to as a "prenup") will determine the law applicable to its enforcement and validity. The law related to the validity and enforcement of premarital agreements has changed substantially throughout the past 30 years. Divorce attorneys are frequently asked the question:

"Is my prenup valid?"


Any premarital agreement executed after January 1, 1986 is subject to the Uniform Premarital Agreement Act (UPAA). However, prior law continues to govern any pre-1986 premarital agreements. In 2002, portions of the UPAA were significantly amended. Again, those changes do not apply retroactively so the 1986 version of the UPAA applies to all premarital agreements executed between January 1, 1986 and January 1, 2002. So, considering all of these timelines, the following is a list of differences to examine:

Premarital Agreement Executed Between 1/1/1986 and 1/1/2002

  • Relaxed statutory disclosure standards - Spouses are held to a lower duty to make a fair, reasonable, and full disclosure regarding property or financial obligations
  • Burden of proof - The party claiming the premarital agreement is unenforceable bears the burden of proof on that contention.
  • Representation of counsel - No requirement that party against whom enforcement is sought was represented by an attorney at the time the premarital agreement was executed.
  • Waiting period - No mandatory waiting period between presentation of premarital agreement to a party and the date it is signed.
  • Spousal Support Waiver - Relaxed statutory requirements applied to spousal support waiver.

Premarital Agreement Executed Between 1/1/2002 and the present

  • Heightened statutory disclosure standards
  • Burden of proof - Burden shifts to party attempting to enforce the premarital agreement to prove it was executed voluntarily.
  • Representation of Counsel - Party against whom enforcement is sought must have been represented by independent counsel or signed an express waiver of representation in a separate document.
  • Waiting period - There must be at least seven days between the date a party is first presented with the premarital agreement and the date it is signed.
  • Spousal Support Waiver - A spousal support waiver in a premarital agreement must meet strict statutory standards in order to be enforceable.

Continue reading "Is My Prenup Valid? How the Date May Affect Validity" »

"Shocking" Case Voids Prenup in Divorce

March 19, 2013

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.

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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.

Learn more about Del Mar divorce lawyer Nancy Bickford

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.


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Overseas Marriage Loophole

March 18, 2013

divorce-attorney-proxy-marriage.jpgIn 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.

Read more about divorce procedure in Del Mar, CA

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.

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Tiger Woods Reconciling with Elin Nordegren?

January 22, 2013

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.

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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.

Is her Divorce Putting Frankel's Skinnygirl Fortune in Jeopardy?

January 4, 2013

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."

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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.

Learn more about the divorce process in San Diego

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.

Kanye West Deposed in Kardashian Divorce

December 27, 2012

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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Common Family Law Terms Learn more about family law

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.

Jennifer Aniston Refuses a Premarital Agreement

September 6, 2012

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.

Miley Cyrus, Too Young for Marriage?

June 12, 2012

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.

Who Pays When the Wedding is Called Off?

June 7, 2012

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.

Mark Zuckerberg's Opportunistic Wedding

May 30, 2012

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.

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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.

California's No Fault Divorce Travels to New York

February 3, 2012

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.

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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."

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Should I get a prenuptial agreement before I get married in San Diego, California?

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

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