Articles on Divorce: Legal

Being "smarter the second time around" means financial planning BEFORE moving in with and marrying your sweetheart. Since half of all first marriages in the State of California end in divorce within the first seven years, and the statistics are grimmer for second and third time marriages, hopefully we become "smarter the second time around."

More simply put, a "prenup" is an agreement entered into "before" the wedding vows and a "postnup" is an agreement entered "after the wedding vows." If a marrying couple does not have a legally binding agreement, later on, if there marriage ends, the Family Code controls what happens to marital assets and debts. On the other hand, a couple who has a prenuptial or a postnuptial agreement can preset the distribution of their assets and debts in the event their marriage ends by separation or divorce. And, that is "smarter." They are "opting out" of the Family Code, for a plan that personally suits their needs.

Preplanning with your partner opens up essential conversations about money and with that, conversations about values. How do you spend your money? How does your intended spend money? What debts do you each have? These are important areas to discuss before combining lives. Asking these questions is not being fatalistic. Having taken these precautions, "just in case" the marriage ends in a separation or a divorce, prevents someone being "caught off guard" financially if the marriage does terminate by legal separation or divorce.

The good news in California is that, since the case of San Francisco Giants' Barry Bonds received so much attention, the law is now more refined. The courts are now more likely to uphold a prenup so long as it meets certain requirements:

1. It must be voluntarily signed after a full and open disclosure between the parties of the facts concerning each party's income, expenses, assets and debts.
2. It must be signed enough ahead of the wedding date so that no one was under duress in signing. (Usually you need more than 7 days in advance of the date.)
3. If it contains certain types of agreements, the Courts will require the signature of an independent attorney for each of the parties.

It is always best to consult a lawyer concerning drafting a prenuptial, postnuptial, or cohabitation agreement. This has been a changing area of the law, so you want to take every precaution to develop an agreement that would work if and when it was needed.

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