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Monday, June 30, 2008

What are the Most Common Causes of Divorce?

I attended a most beautiful wedding yesterday, of my dear friends Josie and Lemar, aka "Jomar".


At the wedding reception, the bold DJ inquired as to the longest-married couple in the room. A couple married for 40 years proudly raised their hands. "So what is your secret?" asked the DJ. The husband humorously replied, "We stay out of each other's hair".

Then, the DJ inquired as to the shortest-married couple (other than Jomar), which I proudly raised my hand. "So what is your secret?" he asked me. Without hesitation, I proudly stated, "Scott gives me everything I want."

I know we'll last forever.

But why do other marriages fail? Here are some top-cited reasons for divorce, as posted by the American Academy of Matrimonial Lawyers, in their article, "Making Marriage Last"

Why Marriages Fail

Not all marriages fail for the same reason. Nor is there usually one reason for the breakdown of a particular marriage. Nevertheless, we hear some reasons more often than others.

They are:

Poor communication
Financial problems
A lack of commitment to the marriage
A dramatic change in priorities
Infidelity

There are other causes we see a lot, but not quite as often as those listed above .They are:

Failed expectations or unmet needs
Addictions and substance abuse
Physical, sexual or emotional abuse
Lack of conflict resolution skills.

If you are considering divorce, please consider this: Statistics are against couples who remarry one another. More second marriages end in divorce than first marriages. Psychology Today stated that a whopping 60% of remarriages fail. And they do so even more quickly; after an average of 10 years, 37% of remarriages have dissolved versus 30% of first marriages.

If you have not yet divorced, but are considering it, please explore couseling. In this day and age, there are several resources for those whose marriages need help. If you need referrals, you may always contact this office in confidence. Marriage is for life. It is worth saving.

Saturday, June 28, 2008

What is a Post-Nuptial Agreement?

Although my office doesn't draft post-nups, I do get frequently asked questions on this topic.

I found a wonderful article on-line which can address some of these concerns.

A Mid-Marriage Change in the Rules May Make Sense
By Abigail TraffordTuesday, May 27, 2008;

A friend telephones me with the news: She and her husband are back together. Both are academics, and they've had a rocky few years. She came to Washington to pursue a dream of working on health-care policy. He was left in his university town. Her one-year fellowship turned into a five-year sabbatical. A commuter marriage, she said. Abandonment, he said. They were inching toward the edge of the divorce cliff.

Now they are starting over. They've settled their arguments over money. They've divided up some of their assets. They are maintaining two households but agree to try to spend no more than 10 days apart in a month. They are about to celebrate their 40th wedding anniversary. "Deep down we really do love each other," she says. "If you once loved in a passionate way, you can reclaim that."

The news is the tool this 60-something couple used to reclaim their marriage: the post-nuptial agreement.

The post-nup is a contract signed during marriage to manage financial affairs and divide income and assets in the event of death or divorce. Unheard of 25 years ago, this mid-marriage document is gaining a foothold in American matrimonial culture. It was even featured on the television program "Boston Legal." In a recent survey of members of the American Academy of Matrimonial Lawyers, 49 percent said they had seen an increase in post-nuptial agreements in the past five years.

Like its better-known cousin, the prenuptial agreement, the post-nup is responding to two demographic trends: the overall aging of the population and the increasingly common pattern of marriage, divorce and remarriage along with its complicated legacy of children from different relationships.

One purpose of the post-nup is estate planning. "That is a perfectly good reason to do it," says Jeff Atkinson, principal author of "The American Bar Association Guide to Marriage, Divorce & Families" (Random House, 2006). It is a way to direct retirement benefits to children of a previous marriage, or to an adult child with special needs. Or to make sure a beloved summer cabin stays in the family by making it separate from the couple's community property.
For my friends, the post-nup removed money as an issue in their marriage and allowed them to focus on their relationship.

To be sure, many couples fight about money -- one is a spendthrift, the other a saver. He buys a new car without consulting her. She resents the money going to college tuition for his children. And in late-life marriages, what's fair when one spouse earns more money than the other? A post-nup can give couples predictability and a sense of security about their financial future.
But using a post-nup to heal a troubled marriage is controversial.

"There are cases where that's advisable," says Gregg Herman, a family law attorney in Milwaukee. "But I only recommend it where there is an equal desire to stay married and work on the marriage." These are committed couples with "soft" problems of incompatibility, from struggling with retirement issues to coping with boredom. "Counseling and joint therapy are critical to these people," Herman says.

The post-nup is not recommended for couples who are confronting the "hard" problems: physical or mental abuse, infidelity, substance abuse. Nor for people who are really planning to break up and want to use the post-nup as a Trojan horse settlement in any future divorce battle.
Partners are rarely in the same place in a troubled relationship, and one spouse is often more committed to the marriage. The temptation is to use the post-nup as leverage to change behavior. For example, if one has a drinking problem or has had an affair but wants to preserve the marriage, the other makes staying together conditional on signing an agreement that says in effect: If you slip up again, you give up your rights -- you have to pay me a lot of money in support and I get the house, too! This kind of post-nup is really an ultimatum. Money becomes the glue of the marriage. As Herman says: "Money is rarely a good bond for keeping people together. People stay together because they love each other, not because of financial reasons."
States vary in how they view the legality of post-nup agreements. Spouses must fully disclose their income, assets and debts. They should each have legal representation -- and plenty of time to think about the terms so that neither is pressured to sign. And most important, the agreement has to be fair to both. Post-nups are held to a very high standard of fairness in financial matters, lawyers say, perhaps an even higher standard than are pre-nups.
These agreements are not about love. They can help couples deal with financial issues. But by itself, a post-nup cannot save a marriage.

Thursday, June 26, 2008

Madonna Divorce Rumors



Hollywood 411 summoned me to come discuss Madonna's impending divorce on air today. Unfortunately, I had other obligations.

Apparently, the couple who married December 22, 2000 (almost 8 years), are fighting nasty divorce rumors. Madonna has reportedly consulted with a divorce attorney. They allegedly have no premarital agreement.

Madonna is reportedly worth $595 million. So...What's at stake?

Properties

A £7 million family townhouse in Marylebone, London and a 10-bedroom, £6million property next door.

Two mews cottages for £2million each.

A £3.6million building in the West End used as the Kabbalah headquarters and a £1.6 million five-storey townhouse in Regents Park also used by the sect.

A £10million Ashcombe House estate in Wiltshire.

A £2million apartment in Manhattan, New York which overlooks Central Park and an adjoining apartment next door worth the same amount.



Cars

The couples vehicles include a £47,000 Audi Q7 4x4 a £35,000 Mercedes Benz people carrier and a £58,000 Range Rover 4.2 V8.

Here is a photo of the currently-intact family:


I do hope they can work it out.

Tuesday, June 24, 2008

Christie Brinkley Takes Her Divorce Public


The All-American cover girl is going through her fourth (4th) divorce. (She was previously married to artist Jean-Fran├žois Allaux [1973–1981]; musician Billy Joel [1985–1994]; and developer Richard Taubman [1994–1995]).

I was called into TV Guide station today to discuss her latest tactics with the cast of Hollywood 411. Apparently, her estranged husband Peter Cook has an affair with his teeange assistant Diane Bianchi (age 18), and paid her $300,000 to keep quiet. According to him, he kept quiet due to his kids.

Christie Brinkley will have none of that, and is determined to take this divorce public. She has subpoena'ed the young assistant to testify in court.

Sigh.

Please tune in to "Hollywood 411", on the TV Guide Channel tonight, 9 PST to see my commentary.

Monday, June 23, 2008

SuperLawyers, Myspace, Reality TV Shows

Recently, I was named a Rising Star Family Law Attorney by SuperLawyers and Los Angeles Magazine.

They had a section called, "Ask the Stars", and they asked me this question:
"How can my online profile be used against me in court?"

Here it is, my blurb:

"Kelly Chang Rickert of Law Offices of Kelly Chang in Los Angeles responds …
In court, all is fair in love and war. Therefore, if counsel can properly establish foundation and other admissibility hurdles for evidence, then anything, including personal or professional networking sites, blogs, etc., is fair game. In a case in which I represented a famous film star, she claimed she wasn’t working lately. However, on her Web site’s blog, she wrote that she was in Florida doing photo shoots. Opposing counsel printed that information and used it to destroy her credibility. NEEDLESS TO SAY, We never made it to court - WE SETTLED. Having a heavily trafficked site has its pros and cons. The pros are that you are easily recognized in the community. The con, in this case, at least, is that all users are privy to knowing things about you that can be damaging in court. Average Joes should take heed, too. If you are involved in a lawsuit, be extremely careful about what is out in the public domain. You can always get away with things if no one finds it. However, if a piece of damaging evidence—be it an Internet photo, a blog post or even a malicious e-mail—finds itself in the hands of opposing counsel, you will most definitely be shooting yourself in the foot."

With the advent of the internet, it is entirely possible to spy on people via Google. I would recommend that during a divorce, if you have damaging information on the internet, you refrain from posting any personal information on networking sites such as Friendster, YouTube, MySpce, or Facebook. Otherwise harmless information has an interesting knack of surfacing and becoming damaging during a divorce. Just be careful of what you post. Also, if you are planning on starring in a reality TV show, you should also be careful.

That being said, recently, "Are You Smarter Than a Fifth Grader's" producers contacted me with this request: FRIENDLY DIVORCED COUPLES: We are searching for couples that are recently divorced (at least 6 months). The couples must have split on good terms and now have a friendly relationship. The couples cannot have had any children together! We want couples that can banter back and forth in a good-natured way and are competitive with each other!

If you fit into this category, and are interested, please contact kristincastingshows@yahoo.com with the following details: NAME, AGE, CITY, and submitRECENT PICTURE & CONTACT info.

Wednesday, June 18, 2008

How Much Will My Divorce Cost?



A new client had just come in to see a famous lawyer.
"Can you tell me how much you charge?", said the client.
"Of course", the lawyer replied, "I charge $200 to answer three questions!"
"Well that's a bit steep, isn't it?"
"Yes it is", said the lawyer, "And what's your third question?"

HOW MUCH WILL THIS COST ME?
As expected, I get this question on a daily basis. First of all, I can only quote what I charge. Frequently, in divorce cases, you will need to hire other professionals - such as forensic accountants, appraisers, child custody evaluators, counselors, etc. Even just for my services- here is my answer - which never changes - IT DEPENDS.

TWO VERY SIMPLE, BUT VERY IMPORTANT POINTS!

One. Lawyers, like most professionals, are high hourly workers. The product I sell is my time. You are paying for my time by the hour, which is charged in increments of 6 minutes. Thus, if you call me for 5 minutes, you are charged .1 (or $30). If your phone call is 7 minutes, that equals .2 (or $60).

Two. Unless it is a flat-fee case (possible if there are no contested issues), the more time I spend on your case, the more expensive it will be. The amount of time I spend on your case depends on you, your spouse, your spouse's attorney, and the issues involved in your case.

Keeping these two points in mind, I will now refer to my article, The Purpose-Driven Divorce, to prepare some price estimates.

STEP ONE: FILING OF PETITION/RESPONSE
Purpose: To get the process started.

California is a “no-fault” state. This means that either spouse may file a divorce
without proving someone is at fault (i.e. cheating, physical violence, etc.). Thus, in
order to start a divorce, one party simply files a Petition for Dissolution. Currently,
this petition costs $320 to file.

After the petition is filed, the party who filed it must serve the other side with the
papers in order to notify them that a divorce proceeding has been filed. I highly
recommend that prior to serving the divorce papers, you notify the other side. We’ve
all seen the video footage of the crestfallen face of Kevin Federline, who allegedly
discovered via text message that Britney filed for divorce. Divorce is difficult enough.
If there is any room for courtesy, apply it.

After the other side receives the papers, they have thirty days to respond to the
Petition by filing a Response. The Response currently costs $320 to file. If they do
not file a response within thirty days, the person who filed the Petition (called the
Petitioner), may request a default judgment. In this case, they will generally receive
everything they ask for in their papers. (with some exceptions which you must discuss
with an attorney).

In California, Judgment is entered no earlier than six months after the date the
responding party (called the Respondent) is served with papers. Why six months?
This is the waiting period created by the Legislature to encourage reconciliation. It is
also a period where you can obtain all the financial information you need before
entering into an agreement. Obviously, if you can get divorced as quickly as you can
get married, our society would have greater problems than it already does.

After the initial Petition is filed, automatic temporary restraining orders (ATRO’s) kick
in. They apply to both the PETITIONER and the RESPONDENT. Some examples of
ATRO’s are the following: 1) cannot remove minor children out of state; 2) cannot
take benefited party off of insurance; 3) cannot transfer, convey, encumber, or
conceal property; 4) cannot create probate transfer without notice. The purpose of
ATRO’s, amongst other things, is to prevent angry parties from absconding with the
children out of malice, and to waste away all community assets in order to spite the
other side.

Filing and serving divorce papers is the first step. It is by far not the last step. To get
a Judgment, you must keep going.

Attorney time: 5 -20 hours ($1500 - $6000)
Process Server: $40 - $500

Court Costs: $400
Time Factors: Is the case new, or has it gone through several attorneys and collected 1000 boxes of documents? Is your spouse cooperative, or difficult to the bone, requiring private investigators to stake-out and serve him? Are there children? Are there properties? Have you reached any agreements about anything in your case?

STEP TWO: GETTING TEMPORARY ORDERS VIA OSC
Purpose: To have a sense of peace and order by having temporary orders in writing pending the Judgment.

Because it takes six months (or longer) to obtain a Judgment, in the interim, some logistics must be sorted out. For example: Who stays in the house? Who pays for the mortgage? If you are the supported spouse, will you get your living expenses paid for? What about spousal support? If you have children, who has custodial rights? What about child support?Because your questions need immediate answers, it is wise to get an immediate court date in order to resolve these issues. You get a court date by filing an OSC. This stands for “Order to Show Cause”, and can resolve issues of Child Custody/Visitation, Child Support, Spousal Support, Attorneys’ Fees, etc., pending the issuance of a Judgment. Currently, this costs $40 to file.Filing an OSC does not mean you are trigger-happy, and immediately racing to court to win. Remember: At all stages of divorce, you always have the option to reach an agreement with the other side. You are always in control of whether you want to go to court or not. Usually, if you reach an agreement, you can file it the Court. Usually, the Judge will agree with you, and even commend you for settling. There are certain exceptions, of course. For example, in California, you can never totally take away the Court’s power to rule on child support. It is always a good idea to file an OSC when issues of custody/visitation and support arise. Again, it takes six months or longer to obtain a Judgment. In the meantime, both parties should desire temporary orders for peace of mind.Of course, if both parties have been separated for a long period of time, and are self-supporting, and have no children, there may not be any issues to be resolved pending the Judgment. In this case, I would opt to forgo the OSC. Although the orders obtained through use of an OSC are called “pendent lite” (Latin for “while the case is pending”) temporary orders, in some cases, they may end up being the permanent orders incorporated into the Judgment. This is especially true in custody cases, because “status quo” is favored, and the longer a “temporary order” stays in place, the firmer a “status quo” arrangement becomes. It is essential to understand the important role of an OSC.

Attorney time: 10 - 30 hours ($3000 - $9000)
Court Costs: $40 per motion
Time factors: Are you cooperative and return my phone calls? Do you cooperate with my requests for documents? Are you immediately available to meet with me to go over the specifics of your case? Are you able to revise your declarations and promptly return to me? If you have witnesses, what is their availability, and do they cooperate? Is the other side represented? Is their representation well-versed with family law procedure and protocol? Does the court hearing conclude in one day? Does it get continued?



STEP THREE: DOMESTIC VIOLENCE RESTRAINING ORDERS

Purpose: In a high-conflict divorce and custody case, to protect the parties and children involved.

Unfortunately, sometimes, after a divorce or custody case is filed, someone gets angry and becomes physically or emotionally violent. This is particularly troublesome if there are minor children involved. In order to protect yourself, it may be vital to obtain a temporary restraining order against the other side.Temporary restraining orders (usually lasting no more than 20 days) may be granted without a full evidentiary hearing (based on declaration alone). Since they are granted based on one party’s declaration, they are set for hearing, where the Judge will take evidence from both sides before entering an Order for a longer restraining order. (lasting up to five years).In California, there is a rebuttable presumption that an award of custody to a perpetrator of domestic violence is detrimental to the best interests of the child. Because of the weight this carries, restraining orders are often abused in custody cases. It is essential to immediately consult with a competent family attorney if you are experiencing domestic violence in your case.

Attorney time: 15 - 40 hours ($4500 - $12,000)
Court Costs: $40 per motion
Time Factors: Domestic violence restraining orders are extremely important and take a lot of preparation. Preparation time includes setting up the case, interviewing witnesses, taking statements, preparing declarations, speaking with police officers. Are the court appearances on calendar ,and do they take place without delay? Does the Judge have time on his calendar to hear all witnesses? Do the witnesses appear? Does the other side have witnesses? Have you anticipated all issues that could be raised at the hearing?

STEP FOUR: DISCLOSURES OF FINANCES
Purpose: To Reach a Fair Settlement, and Ensure the Settlement Is Not
Later Overturned Due to Lack of Disclosure.

Frequently in relationships, one person knows more about their finances than the
other. California is a community property state. This means, all property acquired
after the date of marriage, before the date of separation, except for gift and inheritance,
is community property. Community property assumes the notion that even in
relationships where only one spouse works, the other spouse is contributing to the
marriage by staying at home and providing domestic duties.

Sometimes, the spouse that doesn’t work stays at home and does nothing. In a
community property state, that doesn’t matter. The law assumes they are contributing
something. Thus, in a divorce, both parties are entitled to half of what was earned
during the marriage.

Because of the community property laws, the law mandates that both parties must
make extensive financial disclosures. Generally, they will come in two parts – the
Preliminary Declarations of Disclosures (served at the outset); and the Final
Declarations of Disclosures (prior to settlement or trial). Because one party may know
more than the other, these mandatory disclosures are the court’s way of preventing
foul play. You must exchange disclosures. You cannot waive them.

If you are the supporting spouse, you may wonder: What happens if I don’t disclose
my assets? He or she does not know of my offshore bank account in the British
Virgin Islands.

There are several consequences to not disclosing. The Judge may overturn your
agreement. The Judge may punish you by awarding the non-disclosed asset to the
other side. In a famous 1996 case against non-disclosure, Marriage of Rossi, Denise
Rossi won $1.3 million in the California State Lottery. 11 days later, she filed for
divorce, from her 25-year marriage, never telling her husband. Judgment was
entered. 2 years later, her ex-husband discovered that his ex-wife had won the
lottery. (They always find out.) He filed a Motion and the judge gave the ENTIRE
$1.3 million dollar lottery winnings to the husband, since the wife had intentionally not
disclosed her winnings in the divorce proceedings.

Always disclose.

Attorney Time: 10 - 50 hours ($3000 - $15,000)
Costs of subpoenas, documents: $500 - $1500
Deposition costs: $2000 - $5000
Court Costs: $40 per motion
Time Factors: Discovery is perhaps the most tedious process in a divorce case. If you have little or no assets, there should be very little to work on. However, the more assets or debts you or spouse have, the more time we will need to obtain documents necessary to determine the value for settlement, and the more time we will need to review the received documents. If your spouse is uncooperative, we may need to file court motions in order to obtain necessary documents. The time it takes to complete discovery depends mostly on the cooperation of the parties and the availability of the documents.

STEP FIVE: REACHING AN AGREEMENT OR PREPARING FOR TRIAL
Purpose: To Get the Judgment Finalizing your Divorce Case

After disclosures have been completed, it is time to start negotiating settlement. For
example, who will keep the house? How much support will you pay? And for how
long? Who will have the children for Christmas or Hannukah this year?

Because both of you have completed full and thorough disclosures, you are both now
in a good position to discuss settlement. It is a good idea at this time to simultaneous
request the court for a trial date. I do this for my clients because with a looming trial
date, both parties are more eager to resolve the case. In addition, if settlement
discussions fall apart, there is already a trial date set in the future, so as not to delay the
dissolution. Other attorneys prefer not to do this, so they will have more time to
prepare for the trial.

If you reach an agreement, you can file a Stipulated Judgment, or a Marital Settlement
Agreement (MSA). The difference between both is that in addition to being attached to
the Judgment, the MSA is also a contract, and if either party breaches it, you have an
additional remedy – to sue for breach of contract.

Once the Judgment is stamped by the Judge, you should receive a Notice of Entry of
Judgment, which gives you a date of divorce. Only when this piece of paper has been
filed is your divorce final. Congratulations!

Of course, in divorce cases, nothing is final. You may always file for Modification,
but there are legal standards you must meet before the Judge will grant you one.
Please consult with a competent family attorney.

If case settles:
Attorney Time: 5 - 20 hours ($1500 - $6,000)
Time Factors: How cooperative are the parties?

If case goes to trial
Attorney Time: 50 - 200 hours ($15,000 - $60,000)
Time Factors: Trial is no joke. You will be paying for the attorney's time day in, day out. - this includes prep time, trial time, review time, prep time...round the clock. It is not unusual for an attorney to bill 10-15 hours a day for trial. My mentor once had a trial lasting 22 days. I think it helps to think of trial as an hourglass with your money as the sand...

In conclusion, a divorce case can run anywhere from $1820 (uncontested divorce) to hundreds of thousands of dollars. There's always Britney Spears, who paid over 1 million to her attorneys for her custody case, and Larry Birkhead, who paid over $600,000 to his attorney.

Yes, lawyers are expensive. But if you find the right one, they're worth it.

Tuesday, June 17, 2008

Same-Sex Marriage Day!!!

California felt like Las Vegas yesterday as hundreds of couples rush the alter to celebrate their new right!



However it pays to be careful, according to this article.

1. Such marriages might be annulled in just over four months. California voters might repeal marriages between people of the same sex on November 4th. There is a referendum on the ballot this general election in California to amend that state's constitution to define marriage as between one man and one woman. In a prior post, I explained why I think that this amendment won't pass, but it is possible that it will pass. If it does, it will probably void marriages between people of the same sex celebrated in California.

2. Most states will not recognize such marriages. Many states won't recognize a marriage between people of the same-sex. Forty-four states have either a law or a constitutional amendment (or both) that deny recognition to same-sex marriages from other jurisdictions. If you are a resident of California or Massachusetts, then your home state will recognize your marriage to a person of the same sex. For now at least, the same is true for New York, but that could change if an appellate court decision in a case called Martinez v. County of Monroe is overturned by the New York Court of Appeals. That is possible, but also not likely. (For a discussion of why, see my prior post.) If, however, you live in one of the forty-four states (including, for example, Pennsylvania, Ohio, Texas, Virginia, and Florida) that have laws and/or constitutional provisions that specifically deny recognition to same-sex marriages, your marriage will probably get little or no recognition or respect in your home state, which is what matters in terms of the various legal rights and benefits associated with marriage. If you live in a state that doesn't have such a law but also hasn't recognized same-sex marriage (such as New Mexico, Rhode Island, or Vermont), then the status of your marriage in your home state is at present uncertain. (For a map showing which states have such laws or amendments, see this. (PDF)

3. It might be difficult to get divorced if you don't live in California. Like it or not, about fifty percent of first time marriages end in divorce. A same-sex couple who gets married in California cannot, if they are residents of another state, go back to California to get a divorce. Most states are happy to have non-residents come there to get married, pay a fee for a marriage license, stay in their hotels, pay their caterers, and the like. But the situation is different with divorce. States require that one of the parties to a marriage be a resident in order for their courts to hear or grant a divorce. If a same-sex couple lives in a state that does not recognize marriage between people of the same sex, they may find that they cannot get divorced, not unless they take the extreme and perhaps expensive measure of establishing residence in another state that will recognize their relationship, at least for purposes of dissolving it. Some same-sex couples who have married in Massachusetts (or obtained a civil union in Vermont) and then want to end their relationship when they are residents of another state may find themselves without access to a court willing or able to issue them a divorce. It is a big legal mess, a kind of hellish legal purgatory, to be trapped in a marriage that you want to get out of but can't.

4. Such marriages won't qualify for any federal benefits. Many of the important legal rights, benefits, and duties of marriage flow from federal law, including those related to federal taxes, immigration and naturalization, social security, ERISA, and bankruptcy, to name just a few. Thanks to a federal law passed in 1996, known as the Defense of Marriage Act, same-sex marriages are simply not recognized under federal law.

There remain reasons -- including important personal and symbolic reasons -- to get married in California. But it is a mistake to embrace these reasons without thinking carefully about the serious legal and financial implications of getting married. Everyone has the right to marry. The Supreme Courts in California and Massachusetts have taken the bold step of saying that the right to marry includes the right to marry a person of the same sex. But just because you have the right to marry doesn't mean that you should exercise that right, at least not in California at this moment.

Monday, June 16, 2008

Should I get a Prenup, and When?



Today, I received a phone call from a client wanting a prenuptial agreement. His fiancee drafted a prenup, and gave it to him. He wants changes. His wedding is on Saturday. "It's too late," I told him.

California Family Code section 1615 (c)(2) clearly states that "It shall be deemed that a premarital agreement was not executed voluntarily unless the court finds in writing or on the record all of the following: THE PARTY AGAINST WHOM ENFORCEMENT IS SOUGHT HAD NOT LESS THAN SEVEN (7) CALENDAR DAYS BETWEEN TIME THE PARTY WAS FIRST PRESENTED WITH THE AGREEMENT AND ADVISED TO SEEK INDEPENDENT LEGAL COUNSEL AND THE TIME THE AGREEMENT WAS SIGNED.

Obviously, this can be interpreted in several ways. I tend to be very protective of my clients, so my policy is that the FINAL AGREEMENT must be presented and accepted as final by all parties, then a waiting period of 7 days, AND THEN signatures. The signature may even occur on the date of the wedding, but to be safe, I recommend one week. This means, you should leave yourself AT LEAST two (2) weeks prior to the wedding to have a finalized agreement.

THIS MEANS you need to hire an attorney AT LEAST 4 -6 weeks prior to your wedding, so the planning, drafting, and negotiating can take place.

If you are planning a wedding, you need to make your premarital agreement part of the process. It is THE TO-DO on your list of to-do's.

I turned down the prospective client. I told him that the prenup is no good. Beware of attorneys out there who will draft a prenup 5 days prior to the wedding. You may as well do it yourself on a piece of toilet paper, and then flush it.

If you want to learn more about premarital agreements, please read my highly-informative ARTICLE.

Tuesday, June 10, 2008

What Is An Annulment and How Do I Get One?

Britney Spears did it. Rene Zellweger did it. So did Nicky Hilton.


WHAT IS AN ANNULMENT AND HOW DO I GET ONE?

Whereas a divorce ends a marriage, an annulment declares that the marriage never existed. This means, if you had your marriage annuled, you can tell people you were never married without lying. Since there is no marriage, there is no community property, and no spousal support. This, of course, is very attractive to most people, and that is why I am constantly asked by clients to annul their marriage.

Unfortunately, it is not easy to get an annulment. Let's look at the difference between "void" and "voidable" marriages. "Void" marriages cannot exist. Examples include bigamy and incest. If you are already married, your second marriage is void. You cannot marry your brother.

Then there is a "voidable" marriage. These marriages are valid until annuled. These include:
Minority Of A Party: The party who commences the nullity proceeding (or on whose behalf it is commenced) was under the age of lawful consent (under age 18) and did not obtain the requisite parental/court consent unless, after attaining age 18, the party "freely cohabited with the other as husband and wife." [Ca Fam § 2210(a)];

Prior Existing Marriage Or Domestic Partnership: Either party was legally married to another or a member of another domestic partnership, but the subsequent marriage or domestic partnership is not illegal and void because within the § 2210(b)(1) & (3) "voidability" rule (former spouse/domestic partner absent for five years and not known to be living or generally reputed to be dead. [Ca Fam § 2210(b)];

Unsound Mind: Either party was of "unsound mind" (unable to understand the subject matter of the marriage/domestic partnership contract and obligations incident thereto) unless, "after coming to reason," he or she "freely cohabited with the other as husband and wife." [Ca Fam § 2210(c)];

Force: Either party's consent to the marriage or domestic partnership was obtained by "force," unless the coerced party thereafter "freely cohabited with the other" as husband and wife. [Ca Fam § 2210(e)];

Physical Incapacity: Either party was "physically incapable" of entering into the marriage state (unable to engage in normal copulation) and such incapacity continues and appears to be "incurable." [Ca Fam § 2210(f)];

Fraud: Either party's consent to the marriage or domestic partnership was obtained by "fraud," unless the defrauded party thereafter, and with full knowledge of the facts constituting the fraud, "freely cohabited with the other" as husband and wife. [Ca Fam § 2210(d)]

Most people wish to annul their marriage based on fraud. So what constitutes fraud?



The long-standing rule in California is that marriage can be annulled for fraud if the fraud relates to an issue that is "...vital to the marriage relationship". The fraud must go to the "heart or essence of the marital relationship." Some examples are:

1) A secret intention not to engage in a sexual relationship after marriage with the spouse;

2) A secret intention of one spouse never to live as husband and wife in same residence;

3) The concealment by a party at the marraige that she was pregnant by another person;

4) Concealment of sterility;

5) A secret intention to continue a romantic affair with a third person.

Basically, the fraud has to be related in some way to sexual or procreative aspects of the marriage.

Here is a frequently asked question: What if I discovered that he/she married me for a green card? Is that fraud sufficient?

The answer is NO, unless it was coupled with a fraud relating to the essence of the marriage.

So unless the fraud is related to sex or procreation, you cannot get an annulment. In other words, if you have had sex with your spouse, even if he/she only married you for a green card, the annulment will be denied. Even if he/she married you for "money", that fraud alone is not sufficient.

So what happens if your annulment is denied? If you request it, the case will then proceed in the alternative as a divorce.

Tuesday, June 3, 2008

Are you going through a divorce with children? Some tips.

I stumbled on this article the other day, published by the American Academy of Matrimonial Lawyers. It is worth reading.



Ten Tips for Divorcing Parents

Divorce is never easy on kids, but there are many ways parents can help lessen the impact of their break-up on their children:

1. Never disparage your former spouse in front of your children. Because children know they are "part mom" and "part dad", the criticism can batter the child's self-esteem.

2. Do not use your children as messengers between you and your former spouse. The less the children feel a part of the battle between their parents, the better.

3. Reassure your children that they are loved and that the divorce is not their fault. Many children assume that they are to blame for their parent's hostility.

4. Encourage your children to see your former spouse frequently. Do everything within your power to accommodate the visitation.

5. At every step during your divorce, remind yourself that your children's interests – not yours – are paramount, and act accordingly. Lavish them with love at each opportunity.

6. Your children may be tempted to act as your caretaker. Resist the temptation to let them. Let your peers, adult family members, and mental health professionals be your counselors and sounding board. Let your children be children.

7. If you have a drinking or drug problem, get counseling right away. An impairment inhibits your ability to reassure your children and give them the attention they need at this difficult time.

8. If you are the non-custodial parent, pay your child support. The loss of income facing many children after divorce puts them at a financial disadvantage that has a pervasive effect on the rest of their lives.

9. If you are the custodial parent and you are not receiving child support, do not tell your children. It feeds into the child's sense of abandonment and further erodes his or her stability.

10. If at all possible, do not uproot your children. Stability in their residence and school life helps buffer children from the trauma of their parent's divorce.