Pre/Postnuptial Agreements (9)Separation Agreements
There may come a time in a marriage when a couple experiences difficulties in the relationship. For many, marriage counseling is an option. For others whose marriage has become unsalvageable, divorce is the best way forward. However, there is a third option for those seeking time apart. Separation agreements serve as contracts between married spouses allowing the two to remain apart without divorcing. These separations may last months, years, or indefinitely. Factors covered by separation agreements typically include:
If the couple decides to make the separation permanent, their shared property may be divided. As a separation differs from a divorce, the couple is still legally bound through marriage. Also, both spouses are not free to seek new romantic partnerships as the act will constitute infidelity. It also does not grant either party the right to remarry. An attorney specializing in these agreements can be an invaluable asset for either spouse. He/she will advise you on the steps to take when requesting a separation as well as state laws applicable in the process.
The articles listed below will assist you in understanding what a separation agreement is and how it applies to the field of family law.
Prenuptial agreements are often incorrectly considered to be precursors to divorce. In reality, this arrangement simply serves to keep the best interests of both parties separated in the event that a marriage does end. For this reason, a couple considering drafting a prenuptial agreement should not do so without proper legal guidance. This ensures that all rules are met and no violations that could nullify the document are committed. Each future spouse should be represented by individual attorneys. The attorneys will advise the spouses regarding:
- What to include
- Which steps to go through in forming the contract
- How to avoid nullifying the contract
In order to form a prenuptial agreement, the couple does not need to be wealthy or own expensive assets. The document aims to serve the needs of both spouses by building a solid foundation for their future. The couple’s rights and obligations will be acknowledged in the contract should their union end in divorce.
Below are articles covering prenuptial agreements that you may find useful.
- Avoid Nullifying Your Prenup, Avoid These Four Mistakes
- Understanding Premarital Agreements
- U.S. Law Regarding Prenuptials
- Become Familiar With The Benefits Of Prenuptial Agreements
- Become Familiar With The Benefits Of Postnuptial Agreements
- What Is Collaborative Divorce?
- What Is Annulment?
- What Do You Need In A Divorce Lawyer?
- No Fault Divorce
- Misconceptions Of Premarital Agreements
Avoid Nullifying Your Prenup, Avoid These Four Mistakes
Prenuptial agreements are becoming more common in marriages in the U.S. Although some soon-to-be-wed couples see prenups as a sign that the marriage is doomed before it begins, the document serves only as a safeguard for the interests of the couple in the chance that the marriage does indeed end. However, as with any legal document, a prenup can be voided if certain circumstances or inconsistencies arise. If you are looking to make sure that your prenup is upheld in the event that your marriage ends, be sure to avoid the following common mistakes.
A Falsified Agreement
It isn’t uncommon for one of the soon-to-be-spouses to falsify or undermine the value of a certain asset. It is also possible that he/she could fail to disclose the existence of an asset as well. Proving such an allegation can be difficult without the assistance of an attorney with considerable experience in this area of divorce law. If it can be proven that asset value or any other information on the agreement is incorrect, the form may be nullified.
The Agreement Was Not Formed Under Sound Mind
As with any legally binding agreement, a prenup must be formulated with both parties being of sound mind and/or mental capacity. For example, if it can be determined that one of the future spouses was intoxicated when the agreement was formed and was unaware of what said agreement stipulated, the form may be dismissed. The same goes with coercion. Proving that one of the parties was not of sound mind can be difficult, but it is possible.
Legal Representatives Were Absent At The Signing
When entering into any form of legal agreement, it is strongly advised to have your attorney present. In most states, this is required. The attorney representing you will review the agreement. This is done in order to catch any irregularities, illegalities, or to question the other party regarding the value of assets identified in the agreement.
The Agreement Cannot Be Lopsided
A judge overseeing a divorce in which a prenup has become the focal point of the proceeding may find one or several factors listed that can be grounds for nullifying the agreement. One regards child support. If one party has stipulated that child support will not be provided in the event of a divorce, the prenup may be nullified since state laws govern the provision of child support. Spousal support, however, varies according to state. Other stipulations, such as most or all assets being awarded to one party, can also result in a prenup being nullified.
Ensure that your prenuptial agreement meets all legal guidelines by working with a divorce attorney from the law firm of Fischer & Van Thiel, LLP, in San Diego. Contact one of our attorneys today at 858.935.6211.
Understanding Premarital Agreements
Premarital agreements, more commonly known as prenuptial agreements, are written contracts between couples allocating what is to become of personal assets and/or support rights if the marriage is to end in divorce. These agreements are extremely important as they solely determine the distribution of a couple’s property. They should be flexible and address the couple’s present and future needs.
Premarital agreements work similarly to wills. They clearly stipulate what exactly is to become of a married couple’s property upon divorce without having the court decide. For example, if a couple owns a house prior to a marriage, the agreement will list which spouse will remain owner, or if other arrangements will be made with the home. The agreement must clearly take into account the various factors that may affect determination, such as:
- If the owner of the property allocates funds to uphold and maintain it, will the community property be eligible for any interest for those efforts?
- What if the non-owner of the property does the aforementioned instead?
- If the owner of the property allocates funds to uphold and maintain separate property, will the spouse be eligible for reimbursement of those funds used?
- If a loan was taken out to maintain separate property, will the community property collect interest?
In order to prevent any confusion regarding these scenarios, it is important to address them in the agreement. Simply acknowledging that the property shall remain the owner’s will not suffice. It must be addressed in a thoroughly detailed manner.
A premarital agreement also considers the following provisions:
- Premarital debts
- Living expenses
- Expenses for children of former marriages
- Life insurance for one or both spouses
- Payment of taxes (separate and joint earnings)
- Determination of either written or oral amendments
- Determination of property purchased under joint names
- Determination of state laws applying to the agreement
A premarital agreement can be amended at any time due to the high likelihood the couple wishes to change a stipulation at some point in the marriage. These changes may be a result of the spouses’ changing age, income, family size, etc.
In 2000, California’s Supreme Court upheld In re Marriage of Bonds, which stated that the Uniform Premarital Agreement Act would make premarital agreements much less difficult to enforce. It also stipulates that both parties, by agreeing, should be fully aware of any apparent unfairness the document may present.
In 2002, SB78 was enacted into California law by the state legislature. The law placed procedural requirements and restrictions on premarital agreements. These requirements and restrictions include:
- Allowing the party to seek legal counsel for the purpose of advisement prior to agreeing to the stipulations within the agreement.
- Allowing the party to whom the agreement is being presented at least seven calendar days to review and study said agreement before signing. The seven day window allows the party to seek legal counsel.
- Allowing the party to understand the effects of the agreement which includes any rights or obligations he/she is potentially relinquishing, unless waived.
- Allowing the agreement to be presented in the language the party is proficient in to avoid misunderstandings.
- Allowing the party to be fully aware of any and all assets and/or debts through full disclosure. Neglecting to stipulate said assets and/or debts will be at the fault of the party putting forth the agreement.
It is important to remember that premarital agreements are not appropriate for all couples preparing to marry. A large number of young couples with little to no assets and valuable property may find a premarital agreement unnecessary. However, for those entering a second marriage or are of older age may find an agreement convenient as it avoids lengthy litigation determining what will become of assets. It is also suggested to form an agreement to prevent community property claims by the other spouse. These agreements tend to be requested by the party whose wealth and property claims outweigh the other’s. However, the wealthier party may not wish to disclose the value of their assets or property and may avoid an agreement altogether.
The Interest Of Children From A Former Marriage
Regarding the children from a spouse’s previous marriage, a party may formulate an agreement to ensure their children receive his/her assets rather than allowing the court to determine where such assets are to be distributed. On the other hand, if a spouse has outstanding debts or tax liabilities at the time of marriage, an agreement can ensure that if divorce should occur, the other spouse will not incur these debts by protecting their estate and property.
A family law attorney from Fischer & Van Thiel will assist you to the best of their ability in formulating a premarital agreement. For more information, contact 858-935-6211.
Marital Property Agreement
A marital property agreement can be signed before or during a marriage. This document states how marital property is to be divided either in the event of divorce or the death of one spouse. In most cases, a marital property agreement is drafted with the assistance, guidance, and oversight of a skilled and experienced divorce attorney who can ensure that there is nothing abusive or improper about the terms of the agreement.
If you are considering signing a marital property agreement with your future or current spouse, or are seeking help with such an agreement’s enforcement in divorce, contact the San Diego divorce attorneys of Fischer & Van Thiel, LLP, at 858-935-6211 today.
Considerations in a Marital Property Agreement
Marital property is essentially divided into three main categories. The following three categories of assets and holding are to be addressed in the final signed copy of the marital property agreement:
- Real Estate
- Financial investments
A less common marital property covered in these arrangements is intellectual property rights. Couples are sometimes co-owners of a legally recognized idea. A marital property agreement is legally binding. Therefore is important to consider all factors and obtain experienced representation before the papers are signed.
If you are interested in a marital property agreement, you need to speak with an attorney as soon as possible. There is no substitute for having experienced representation on your side. To make sure you are adequately represented as you seek an appropriate division of assets, contact the dedicated San Diego divorce attorneys of Fischer & Van Thiel, LLP, at 858-935-6211.
Become Familiar With The Benefits of Postnuptial Agreements
Postnuptial agreements, like prenups, are viewed negatively by some, who see them as representing a lack of faith in a marriage. However, these documents provide incredible protection for both parties in a marriage, and can be an invaluable document for couples to take advantage of. Although similar in almost every way to prenups, postnups, as their name indicates, are created after a couple is already married, and specify guidelines to be followed by the spouses regarding things like asset and property division in the event that the marriage ends in divorce.
Although it is not required under California law, each party in a marriage has the option to be represented by individual counsel when formulating a postnuptial agreement, and must waive their right to counsel if they don’t want it. Due to postnups being much more difficult to enforce than prenups, many attorneys tend to apply the standards of the latter to the former. The benefits of receiving legal counsel when drafting a postnuptial agreement include:
- Complete and trustworthy legal advice in understanding how the postnup will work, and how it benefits each party
- Increased guarantee that the document will be enforceable, as its drafting has been overseen by a legal professional
Legal advice will serve both to benefit the client and to decrease the likelihood of the document being challenged.
Granting Fiduciary Duty
Fiduciary duty requires both spouses to exercise caution when it comes to the interests of the other. Once married, both will owe a fiduciary duty to each. Since this duty is owed after marriage, the postnup must reflect it, or risk being overturned at a later date. A husband or wife must be sure to disclose all debts and/or assets to their spouse in order to uphold each other’s fiduciary duty as a sign of good faith.
Get It In Writing
As with any contract, a postnup must be in writing and signed by both spouses. This will avoid any confusion regarding the stipulations. Also, the agreement should be formulated when both parties are of sound mind. This includes avoiding drafting the prenup during times of anger or resentment. The contract should reflect what both parties consider to be fair. Couples should avoid drafting the document without the guidance of an attorney, as well.
A postnuptial agreement should not be formulated without proper legal guidance. Contact an attorney with experience drafting these documents from the law office of San Diego’s Fischer & Van Thiel, LLP, at 858-935-6211.
Become Familiar With The Benefits Of Prenuptial Agreements
It’s been estimated that nearly ten percent of all couples planning to marry decide to formulate a prenuptial agreement in order to safeguard their assets should a divorce occur at some point in the future. This type of agreement is looked down upon by some in society who claim it brings a sense of pessimism that a marriage may not work. In reality, prenups encourage both trust and cooperation in a marriage by providing full disclosure of pre-marital assets and financial details. Almost everything can be listed in this type of agreement with the exception of provisions for children, such as child support and custody.
Remaining In Control
The greatest benefit of this type of agreement is that it allows a couple to stipulate exactly how they would like their assets to be divided in the event of a divorce. California is a community property state, and as such, without a prenuptial agreement in place, any income earned during a marriage will be equally divided between the two parties in the event of a divorce. The length of the marriage or the number of children involved will in no way affect the distribution of assets. If a couple refuses the prenup, they essentially relinquish control of how they would like their assets to be divided.
Fast And Inexpensive
As this document stipulates the distribution of assets and finances upon the dissolution of a marriage, it can prevent lengthy litigation and expensive court costs for the divorcing couple. In essence, the prenup is aimed at preventing the couple from going through a long, contentious divorce.
Not Written In Stone
The largest misconception regarding prenups is that they cannot be modified after their creation. This is untrue, and modifying the document is possible through amendments. For example, if one spouse provides the main source of income at the beginning of a marriage, but becomes the dependent spouse years later, the couple may amend the agreement to reflect this. It is highly suggested to review a prenup every few years to make any modifications required.
Whether you are looking for assistance in formulating a prenuptial agreement or you are looking to file for divorce, contact a divorce attorney from San Diego’s Fischer & Van Thiel, LLP, at 858-935-6211.
US Law Regarding Prenuptial Agreements
Prenuptial agreements, also known as premarital agreements, are becoming much more common in the United States due to the fact that they increase the likelihood of a speedy and affordable divorce process. This type of agreement specifically lists the assets that soon-to-be spouses will keep in the event their marriage ends, without having to engage in a potentially lengthy and contentious legal battle. Prenups are currently recognized in all 50 states, but must adhere to the following five guidelines in order to be valid.
They Must Be Written
As with any contract, a prenup must be written. The soon-to-be spouses must both sign the agreement in order to make clear to the court that they understand and agree to the stipulations listed therein. Although oral prenups can be formulated, they are generally not recognized in most American jurisdictions.
They Must Be Formed Voluntarily
Not unlike a will being formulated and signed voluntarily by a testator of sound mind, a prenup must be created in a similar manner. These agreements are very sensitive when it comes to the agreed participation of both parties and can become null if it is proven that one or both parties were forced into said agreement.
They Must Include Full Disclosure By Both Parties
In order for the agreement to be valid, both parties must include all available information regarding the assets listed therein. The same goes for any liabilities or income. Proof of such information must be included in the agreement.
They Cannot Be Unconscionable
If a prenup has been proven to significantly favor one party over the other, then it may become invalidated. For example, an agreement that states that one spouse will receive no property, alimony, or other assets in the event of a divorce is likely to be found unconscionable.
They Must Be Formulated By The Parties Themselves
A prenup must be formulated by the future spouses themselves, not by any other party. Although it is legal to request the services of an attorney who is knowledgeable in the formulation of such documents, the stipulations themselves must be made by the two parties whose interests the contract reflects. The two must then sign the document before a notary public.
Furthermore, the prenup may include a “sunset provision”. This type of provision will nullify the agreement after a specific date. The same may happen in the event of the birth of a child. However, the couple may renew the document if they so wish.
Ensure that your prenuptial agreement is legally binding by requesting the assistance of an attorney from the law office of San Diego’s Fischer & Van Thiel, LLP. Contact one of our attorneys at 858-935-6211.
Misconceptions of Premarital Agreements
If you are planning on getting married in the near future, remember that you are entering into a legally binding contract. To protect yourself if you ever need to break the contract, by getting divorced, you need a premarital agreement.
A premarital agreement, or sometimes referred to as a prenuptial agreement, is an agreement come to between you and your fiancée that spells out what is each person’s in the event of a divorce. However, while this seems simple and beneficial enough, there are still many myths about prenuptial agreements.
It Must Cover Everything: Many people believe that if a couple does not cover every aspect of a would-be divorce, then the agreement is void. However, these agreements must only deal with the most important issues (house, children, savings, etc). The rest can be dealt with if the occasion for divorce ever arises.
Equal Rights: Prenuptial agreements are there to help protect you from a biased court or mediator. Some think that these agreements are designed to only protect the richer spouse, but this is not the case unless you let that happen.
For Everyone: Speaking of the rich, this is not just for them. If everyone designed their own prenuptial agreements, divorces would not be so messy and damaging to the family. Think of it as taking responsibility for future events.
Contact a San Diego Divorce Lawyer
If you or a loved one needs legal help designing the perfect premarital agreement or need legal advice, contact the San Diego divorce lawyer of Fischer & Van Thiel at 858-935-6211 for more information.