Articles Posted in Premarital Agreements

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Family Code section 3580 et seq. provides that spouses may enter into agreements regarding support upon separation. In Pendleton and Fireman, our Supreme Court held that parties could agree to limit or waive spousal support in premarital agreements. What about the time in between? Can married spouses who have not yet separated enter into enforceable agreements to limit or waive spousal support?

Although the answer to this question has not been definitively settled by our appellate courts, there is a strong argument to be made that married couples who have not yet separated cannot agree to limit or waive spousal support. Continue reading

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Bifurcation is an often underutilized procedure in civil cases (including family law cases) that, if used correctly, can significantly reduce the attorney fees and costs necessary to bring a case to a conclusion and can significantly increase the prospect of settlement.

So what is bifurcation exactly? In the process of bifurcation, the Court, usually on the motion of one of the parties, agrees to hear a trial on just one part of a case. Often times there are difficult issues, that once resolved, simplify the rest of the case. Continue reading

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As much as Johnny Depp has tried to keep the happenings of his divorce from Amber Heard under wraps, the media continues to report as their story unfolds. The latest headlines from Johnny and Amber’s divorce indicate that the parties have each set depositions of the other, which may or may not be postponed. Regarding the depositions, each of their attorneys have made varying allegations about the other party. It appears that although Amber showed up for a previously scheduled deposition date, Johnny’s attorneys were unable to take testimony from her because she was in the next room room crying, pacing, screaming, yelling, and laughing the entire time. Of course Amber’s lawyers say that this is completely false. Amber’s “people” also stated that it’s “highly unlikely that Johnny will appear and cooperate” for his upcoming deposition.

It is unlikely that when you think of the divorce process, you associate it with the taking of depositions. That is because depositions may not be as widely used in family as they are in other areas of law, but even so, depositions can be a valuable resource in a contested divorce matter. The following are some facts regarding depositions as they relate to divorce proceedings.

 

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In Family Law, tracing is the method by which a party proves that funds in a particular account are, or were, used to acquire separate property.  Family Code section 760 holds that all property acquired during a marriage, regardless of source, is community property, it can sometimes be a difficult and expensive endeavor to try to perform a tracing. In California Family Law, there are three ways to prove a tracing: 1) Direct Tracing; 2) Exhaustion 3) Total Marital Recapitulation.

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On June 13 Lisa Marie Presley filed for divorce from her fourth husband, Michael Lockwood. While Lisa Marie isn’t the only star we’ve written about to go through multiple divorces, her specific case highlights a common and sometimes very complicated issue in divorce which occurs when one spouse has taken control of the finances and the other has little to no involvement in financial matters (the so-called “out spouse” is the one who stayed out of financial matters during the marriage).   Continue reading

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After a 30-year marriage, Don McLean and wife Patrisha have finalized their divorce. The “American Pie” singer’s divorce followed his January 2016 arrest on domestic violence assault charges, for which he plead not guilty. The divorce paperwork filed by Patrisha after this incident cited “adultery, cruel and abusive treatment, and irreconcilable differences.” Continue reading

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The latest Hollywood divorce drama comes as Amber Heard files for divorce after a 15-month union with Johnny Depp. Heard alleged an incident of domestic violence just days before she filed for divorce, and pictures later surfaced of her with a black eye. The media is abuzz with discussions of whether the abuse actually happened, or whether it was just a ploy on Heard’s part to gain sympathy and secure more money from the divorce.

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Getting engaged is an extremely happy time for any couple.  The act of showing off the ring (and for millennials posting hundreds of pictures of the ring to various social media accounts) fills a bride-to-be with an amazing sense of excitement and joy for the upcoming nuptials.

What often gets forgotten in all the excitement of a wedding is, what happens after the ceremony; after all of the gifts have been open, the guests have left and you are sitting in a home with your new partner.  This moment should be marked as the beginning of a long and fulfilling relationship, but unless you lived with your spouse before you were married, you may find yourself wondering just who you are married to.

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Kaley Cuoco became the second-highest paid TV actress (2nd to Sofia Vergara), after signing a $72 million dollar 3-year contract for her role in CBS’s hit show The Big Bang Theory. Yes, that’s $1 million dollars per episode for 72 episodes….and yes, now I’m reconsidering my chosen career path. Ahem, sorry, I guess that’s beside the point.

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Kim Kardashian and Kanye West are currently scheduled to get married on May 24th in a non-televised Paris ceremony. Rumors are flying that the wedding will not take place unless both Kardashian and West have signed their premarital agreement (commonly referred to as a “pre-nup”). Apparently, only two week before the wedding, the power couple has not finalized their pre-nup. The Kardashian-West premarital agreement is allegedly much friendlier than Kardashian’s previous premarital agreement which was signed prior to her marriage to NBA star Kris Humphries. Therefore, the holdup does not appear to be the result of disagreement of the parties regarding the terms of the agreement. Likely the delay is the result of West’s recent management change which has caused additional complications and changes to the agreement.

As long as the parties sign their agreement prior to the wedding, does it really matter when it gets signed? The answer to that question is “yes”. Timing of the execution of premarital agreements is crucial especially if the agreement contains spousal support waiver provisions. In order to limit some of the objections to enforcement of premarital agreements, the party against whom enforcement is sought should be presented with the agreement and advised to seek independent legal counsel at least seven (7) calendar days before the date the agreement is signed. This procedure will ensure the parties had enough time to thoroughly consider the legal ramifications of the premarital agreement rather than just signing it immediately upon receipt.Although Kardashian and West will likely sign their premarital agreement just days before they walk down the aisle, their agreement will likely not be held invalid due to the timing of its execution. As long as Kardashian and West had ample time to review the agreement and seek the advice of counsel, they should be able to count on enforceability if a challenge were to be made on that basis. Further, although a court may conclude that the execution of a premarital agreement was done appropriately, the premarital agreement may be held invalid for a number of other reasons.

In particular, parties should be cautious to enter into agreements which seem “unconscionable” or especially unfair to one party. The unconscionability of a premarital agreement can invalidate the agreement if the agreement was unconscionable when executed or even if it has become unconscionable at the time one party is seeking enforcement. Competent legal representation of both parties at the time of negotiation and execution of a premarital agreement can save both sides significant time and money in the event of divorce if one of the parties has a reasonable basis to invalidate the agreement.
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