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Monday, February 24, 2014

WHEN SHOULD I START WORKING ON A PREMARITAL AGREEMENT?

YOU’RE IN LOVE

Aw February, the love month, when flowers and chocolates flow like promises.  Except that your promises won’t rot and die like the flowers or get crunched in half and eaten whole like chocolate.

At least that is the plan.   Believe me, I love that plan.  I’ve got the same plan going myself so hooray and many happy returns to us.  And, so far, things are looking our way.  We made it past the December/January mine fields, the most popular months for breaking up.    So, love is in the air, and everything is perfect.  Except the statistics.  The statistics are not perfect.



Ask a married couple you know the following question: “Hey, married peeps, I know you’re still madly in love and everything is wonderful, but, um, do you ever feel like you are on a death march?  Like you’re trudging onward through the sleet and mud and darkness of night while all around you other married couples are dropping like flies?”  If they answer yes it is because while 6.8 out of 1000 people got married in 2013 over half that many, 3.6, got divorced.

YOU KNOW YOU NEED A PRENUPTIAL AGREEMENT

If you’ve been following my blog, you already know that anyone entering into a marriage with a bank account that has money in it should at least sit down with a lawyer for an hour and learn what marriage will mean to you financially.  If you missed it, check out my “Do I need a premarital agreement if I love my fiancé?”  post.

BUT WHEN SHOULD YOU GET ONE?

The answer is as early as possible, but I’ll be more explicit for my California readers.  Here in the Golden State the Family Code specifically states that a premarital agreement, also called a “prenuptial agreement” or a “nuppy” as one of my clients referred to hers, is not enforceable if it was not signed voluntarily.  How can you prove it was executed voluntarily?  Let’s walk through the steps:

So, it’s years down the road, and sugar plum snookums has, for some reason that certainly doesn’t have anything to do with anything you did, turned into a raging asshole.  He gets off the couch he’s been sitting on with his favorite bong for the past year and announces that he’s not leaving without half of your life’s work.  You aren’t intimidated though, because before you were married you smartly downloaded a form from WeHaveGreatPricesBecauseWeAren’tReallyLawyers dot com and your soon to be ex-hubby signed his rights away.  You dig up your precious nuppy and trot down to the court house.  

Is the judge excited to see you?  Does the judge give you a little pat of pride on your head and tell you how impressed he is with your foresight and organization skills?   How happy he is at the tax dollars you will save by keeping the divorce short and sweet?  

Maybe, but only after he asks these hard questions: First, did your husband have a lawyer when he reviewed and signed it?  Did he have at least a week to look it over before he signed?  Does he speak the language that the document is written in?  If he didn’t have a lawyer did your lawyer comply with the stringent requirements in California Family Code section 1615 that requires things like a separate waiver and a written explanation of the rights he gave up?  Did you fully disclosure your assets before he signed?  Was the document so unfair as to be unconscionable at the time it was signed?   Is there anything else about this situation that the judge could find fishy?

NOW, LET ME TELL YOU A LITTLE STORY ABOUT FISHY.

One time, years ago, I sat down with a new client.  Her betrothed had given her a prenuptial agreement to sign and she needed me to review it.  Fast.  I learned at our initial consultation that the wedding was planned for the next day.  Except, I didn’t learn it from her.  She only spoke a few words of English so it was her fiancé that informed me of the impending nuptials.  After I explained that I would not be able to assist them, Mr. Imported-a-Bride was furious and started threatening to deport her that day.  Ms.Hard-Luck started crying and repeating that she loved him and wanted to sign the paper.  Now, I’m not a stickler on making sure an agreement complies with the code perfectly when my client is the one who will benefit from its failure, and that is a fairly textbook set up for an unenforceable agreement, but aside from the obvious malpractice considerations, there is a basic human reason why I refused to put my name on that disaster:  the whole situation didn’t smell right.  

This is a lesson for you, too, even if your circumstances aren’t nearly so black and white. 

 Judges are human.  They have noses and they can smell a rotten deal.  The California Family Code clearly says that the court may consider “any factor” it “deems relevant” when deciding whether or not a premarital agreement is enforceable.  This means that not only does your premarital agreement need to follow the letter of the law, it also has to smell like those roses of Februaries long past.  The best way to do that is to give yourself and your loved one plenty of time to make an honest and fully informed decision.  

So, if you just got engaged on Valentine’s Day and you want to know when you should start working on your premarital agreement, the answer is:  As soon as the chocolates are gone.  
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