Prenups in California
Preface to Prenuptials
If This is Your First Introduction to Prenups, This Page is Devoted To You….
A Casual Conversation From A Lawyer Who Did Not Previously Believe in Prenups..
There is a Link Below If You Want To Go Straight To the Law.
When we receive a call, it’s one of three types:
- People who want us to review a prenup their spouse had created (it’s a must by law);
- People who hire us to create a prenup; or
- People who are battling their thought as to whether or not to have a prenup.
The first two are easy, the third I will discuss here. I was never a big fan of prenups, then I became a lawyer for the past 33 years, and my views are very different. In my opinion, prenups are important for both males and females, and the better you know the person, the more likely you are to require one (because your mind will ‘trust’ them more and you are at greater risk).
Why a Prenuptial Agreement?
For those who have not researched me, I am probably best known for my skills as a high-level negotiator. I have dealt with many complex cases for political figures, producers, actors, federal agents, and the like; I train lawyers nationwide in these skills and am writing a book on the topic. Why am I sharing this information? As a negotiator who has spent a lifetime learning human behavior (I authored a 6-hour script for a video program on resolving relationship issues in a week called Relationships 901), the one area I find consistently harder than most, is the one that deals with relationships. It is hard to believe that people so close to each other are now ruthlessly seeking to damage and injure the other party. These are the same people who could not wait for their mate to call before they were married…and now?
The Lawyer Factor
The second factor to consider is that when one party seeks divorce, and hires a lawyer, that person will seek to best represent their client. As a result, they will propose a number of ideas and strategies to your (soon to be X) spouse, and now it is no longer the same case it could have been. What’s worse, if your spouse is low on funds, you will be the one paying for this lawyer to go after you, and in the world of litigation, $100,000 is just not that much money, especially not in a contested divorce case where assets are involved….would you like an example?
As the lead attorney of the firm, I am involved in both contracts and litigation, but not in the area of family law as it is not all that much fun for me (I normally hire lawyers to conduct family litigation). Two years ago, my friend had discovered that she was in a solid mess because of what her X husband was seeking and what her previous 3 law firms had done to her case. As she was low on funding as a result of this, we stepped in and helped her out pro bono. This case only required help in two areas: child custody and child support. I did not think it would require much time as those are not complex issues.
Would you be surprised to know it took $140,000 in legal hours to almost resolve (yes this case is still going on as the lawyer has filed more motions) just those two issues? Never underestimate what your spouse will state to win, or what their lawyer will file and how many times he or she will file motions to drive up your legal costs. What now if there are more issues involved, such as material assets, retirement accounts, and other issues such as comingling?
Let’s assume you worked hard, had children, acquired some material assets such as real estate, vehicles, a brokerage account, a retirement account, and then even commingled (ie mixed personal and marriage) assets. Now, you have a divorce and you have to pay two sets of lawyers (safely at $500 an hour or more if they’re good); what will you have left? Do you know ‘how’ many people have gone from owning a 5-bedroom house to renting a 1-bedroom apartment after a divorce.
Doesn’t a Prenup Make a Negative Statement?
You can never please everyone; no matter what position you take, someone will always disagree. Some spouses will understand and others won’t. In all honesty, a Prenup is also a good way of finding out if someone is with you for your money. Have you ever wondered why it’s most often the poorer spouse who complains about the Prenuptial Agreement? They have nothing to lose….
A Prenup does not make a negative statement. A prenup is an insurance policy for a rainy day. You can also remind your spouse that if things don’t work out, the Prenup will save them the headache of Divorce Court. Even if the spouse is not paying for it, he or she will not enjoy this skin-tearing, ruthless event. Divorce court is no fun for either party. Additionally, a Prenup allows you the benefit of being more generous with your spouse. You will not have to worry that if you spoil him or her that you will be setting up a pattern for which you will be financially punished should the marriage end.
I did not believe in Prenups. However, having practiced family law, and witnessed first-hand how vindictive and destructive couples can be in divorce court, I could not imagine not having one if I were to be remarried in this day and age. By the way, divorce court (also called family court) is usually open to the public; if you have any doubts, see for yourself what awaits you on the other side; it can make purgatory look like a blessing.
Last But Not Least
A Prenup is not to be used as a weapon; it should be used as a shield. However, it should be only viewed as a scenario of last resort. In addition, there is nothing to say that you have to provide your spouse with nothing should you divorce; this is especially the case if your spouse raised the family or remained at home because that is what you wanted. You should not be unfair. Where both of you are working and earning equivalent amounts, then everything is obviously very different.
I would prefer to know that you use the Prenup as a way of liberating yourself. You can now spoil your spouse, you can comingle your assets, you can spoil him or her at your heart’s content and know this will not be held against you by some lawyer locking eyes with you as if you were a criminal. Know that once you are protected, it is easier to be free. A great relationship is hard to find so go ahead and spoil your person, have fun, and treat them as if it will take you 5 years to find the next great relationship. Honor the relationship for how lovely and valuable it is and you will find that not only will you never have to open up that Prenuptial, but that you may even make that spouse your heir…good luck out there!
If you would like to read the law in this area, CLICK: PRENUPTIAL CONTRACT