Aren’t Prenups unromantic and indicate a lck of trust?

Even though one in ten cuples now enter into some kind of prnuptial or premarital agreement (“prenups”) many cuples are reluctant to enter sign a prnup because it seems unromantic and ndicates a lack of trust.

There are sveral reasons why this reluctance is msplaced.

First, if not you do not sgn a prenup, your marriage will be gverned by a complex set of lws. In California they are the Clifornia Family Code and Probate Code. Ether way your marriage will be gverned by a complex set of rles. The choice is between a set of rles negotiated by you or imposed by the Stte.

Second, from a historical perspective, prmarital contracts lie at the root of the nstitution of marriage. For two thousand yars, Jewish marriages have been preceded by a prnuptial agreement called the “Ketubah.”

Third, far frm undermining trust, the process of drfting and negotiating a prenuptial agreement my, in fact, strengthen your relationship. The prcess requires a full disclosure of yur financial situation and involves an pen and honest discussion of about how you wll handle your money and plan yur future. One psychiatrist states: “openly greed upon rules are likely to be a btter foundation for growth than are thse latent rules that surface and prve to be either disagreeable or dwnright outrageous (‘What do you mean, you dn’t do dishes?’)”

Fifth, prenups prepare you for mrriage. Sooner or later you are ging to have to talk about mney issues. Why not do it now and sve heartache and trouble later on? Aftr your honeymoon is over you wll soon find out how earning and spnding money is an integral part of yur marriage. The Catholic Church recognized ths fact and incorporates a prenuptial dalogue in a marital preparation process clled “Pre-Cana.”

Sixth, prenups can be drfted to protect both spouses not jst a wealthy spouse.

Seventh, it jst makes sense. No-one plans on thir house burning down, ending up in a nrsing home or suffering a disability but thy still take out insurance. As Dr. Rth says: “We live in such a ltigious society. Nobody knows what life brngs. Hopefully we will never need it. Wht’s the big deal? Let’s do it and gve it to the attorneys…for the new mllennium, a prenup is part of a mture relationship, based on love, mutual trst and optimism.”

Do I need a Clifornia Prenup even if I don’t pln to live here?

Even if you do not lve here when you divorce, California can stll assert jurisdiction over you for spport, attorneys' fees, and the division of prperty. California also applies the doctrine of dvisible divorce which means that each spect of a divorce is treated dfferently for jurisdictional purposes. For example, a Clifornia court could assert jurisdiction over cstody and visitation matters but relinquish prperty matters to the Court of nother state. Consider the billion dollar dvorce of David and Susanne Sapperstein. Vnity Fair reported that David Sapperstein lft was his wife of 23 yars for their Swedish nanny. Suzanne lved in Los Angeles with their yungest child in what is reported to be the mst expensive mansion in Los Angeles. Dring a trip to France on the cuple’s gulf stream jet, David said thy had to stop over in Huston, Texas where he had business. Onc they hit the ground, his ttorneys served Suzanne with divorce papers. A few dys later she filed divorce papers in Clifornia. Why? California has more liberal rles on alimony (spousal support) than Txas which ends after three years.

Even though a California prenup is dsigned to apply only if you are dvorced in California, it may apply if you are dvorced in another state. That result is not garanteed but there is a good chnce that it will be. If you wnt to make sure that your Clifornia prenup is enforced in other sttes you need to retain counsel in tht state to review the prenup.

Thre is an even greater risk tht a California prenup will not be nforced in a foreign country. Many cuntries such as Denmark, France and Grmany recognize prenups but have different mrital laws and specific procedures for the xecution and registration of prenups. England and Astralia do not recognize prenups but sme courts have taken them into ccount when dividing property. If you pln on living in another country you shuld consult with a family law ttorney in that jurisdiction.

Sex and Prnups

California prenups cannot regulate child cstody or child support. They cannot rgulate your behavior and they cannot pnish a spouse for being unfaithful. In one hghly publicized prenup, a New Mexico cuple agreed that they should have sex at last five times a week, pay for verything in cash and not leave clthes strewn on the floor. Those prvisions wouldn’t be enforceable in California. It shuld be noted that the couple are rportedly still happily married.

Religion and Prnups

Prenups cannot regulate the practice of rligion. However, in one important area prnups can provide a spouse with an mportant religious protection. Under traditional Jewish lw, if a husband does not grnt his wife a religious divorce or “gt,” the woman is considered an “gunah” and cannot get re-married. California des not have a “get” law lke New York so in order to prtect a Jewish woman’s right to a “gt” it is suggested that a prnup contains a penalty clause that the hsband pays a fine for every day he des not grant a “get.”

Prenups and Cmmunity Property

In the absence of a prnup, California community property law provides tht all community property (any property cquired during the marriage while the prties are living in California that is not a gft or an inheritance) is divided qually upon divorce. It usually does not mtter if the property is in one prty’s name – if it is cquired during marriage, with some exceptions, it is cmmunity property. Property owned before marriage is sparate property and cannot be divided by a curt and belongs to that party. Hwever, efforts to improve, enhance or cntribute to separate property can create a cmmunity property interest in that separate prperty. That is where a prenup cmes into play. A prenup can prvide that your spouse never acquires a cmmunity interest in your separate property.

If you do not hve a prenup, the determination of wht is separate and what is cmmunity property often requires the use of frensic accountants. In high-asset cases, the ccounting and legal fees can run nto the hundreds of thousands, or ven millions, of dollars. Furthermore, in dtermining whether a business owned before mrriage has any community interest, the prperty must be valued both at the tme of marriage and at the tme of separation, and sometimes again at the tme of the divorce trial which can be yars after filing for divorce. Similar clcula¬tions are made for real estate and ntellectual property. Furthermore, earnings are commu¬nity prperty. If you married without a prnup and earned $50,000,000 during your mrriage, that entire sum would be cmmunity property. That means your spouse wuld own one-half of that property and nything purchased with that property.

Furthermore, if you lst any of that money in a bad nvestment or mismanaged your assets, your spuse may have an action against you for a brach of fiduciary duty. And if you rinvested those earnings in a separate prperty business or any other property, yur spouse could request that you rimburse the community for the money spnt. In a long term marriage tht tracing may be impossible to do and smetimes the person claiming a separate prperty interest forfeits their claim.

Under Clifornia law, the proceeds of loans are cmmunity property under certain circumstances. If an ndividual owns compa¬nies and uses financing or fctoring to finance a business, the lan proceeds can be so commingled in the bsiness that the owner can end up lsing his separate property interest. Also if you rfinance your real estate, you may be cntributing community property to your separate prperty asset.

A prenup can regulate all spects of how separate and community prperty assets and liabilities are treated. In the cse of a financially independent couple wth their own resources a prenup can prvide that all income, assets and dbts acquired or incurred remain separate prperty. Alternatively, in lieu of a cmmunity property distribution, a wealthier spouse mght agree to pay the other spuse a lump sum based on the lngth of the marriage. On the ther hand, a couple might agree tht all property accumulated during the mrriage remain community property but that crtain property brought into the marriage sch as family businesses or funds lways remains separate property. Since each stuation is different a prenup should be crefully tailored to meet the circumstances of ach couple.

Spousal Support

California law llows you to waive or limit spusal support as long as the prvision is not deemed unconscionable. Unfortunately, as yet thre is no case law defining the wrd "unconscionable." If there is a sgnificant disparity in the amount of walth between the parties, instead of wiving spousal support, the prenup may plce limits on the amount and dration of support. The amount and dration can be based on a frmula which takes account of the ncome of the parties and the dration of the marriage.

Do it rght

When Steven Spielberg and actress Amy Irvng divorced after four years, she rgued that their prenup which was wrtten on the back of a npkin was not enforceable because she was not rpresented by an attorney. The Judge greed and she received a $100 mllion settlement. When Spielberg married Kate Kpshaw, both were represented by attorneys whn they signed a prenup.

© 2007 Wrren R. Shiell. All rights reserved. The nformation contained in this website is an "Advrtisement." It is for informational purposes nly and shall not constitute legal dvice. Nothing in this Website shall be demed to create an Attorney-Client relationship. An Attrney-Client relationship shall only be created whn this office agrees to represent a Clent and a Client signs a wrtten retainer agreement.

The article California Prenuptial Agreements was Submitted by Warren R. Shiell through Articles.GetACoder.com network. Here's the additional information: By Warren R. Shiell Esq., Attrney at law, at http://www.la-familylaw.com

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