When a Billion Dollar Divorce Settlement is Not Enough

Posted by: Gerald A. Maggio, Esq.

Top-Orange-County-divorce-attorneys; The Maggio Law FirmIt was considered to be the divorce of the century, involving Oklahoma oil magnate, Harold Hamm, and his ex-wife, Sue Ann Hamm (Arnall), once a lawyer for her husband’s company prior to her marriage to him. Sue Ann Hamm was awarded assets and cash totalling over a billion dollars. However, by her estimation, the award was not an equitable one, considering Harold Hamm’s $18 billion increased income over their 26-year marriage.

The main issue is when the active portion (increases) of the income began – before or during their marriage. Arnall asserts they happened during the marriage. Hamm suggests they happened before the marriage. Arnall, also an economist by training, intends to appeal, a process that may take up to two years to be resolved. Hamm ended up keeping close to 94 percent of the estimated $18 billion in income derived from Continental shares. The trial judge referred to the shares as separate property. When the divorce trial was in progress Hamm’s Continental was valued at about $18 billion. Since that time period, share prices have fallen due to plummeting oil prices globally.

The complicating factor in this expensive and high profile divorce is that the Hamms did not have a prenuptial agreement. No matter what the law of the resident state suggests, not having a prenuptial agreement makes things far more difficult to resolve for both parties. In Oklahoma for instance, the law states that enhanced premarital property value be divided equitably in the face of a divorce if the enhanced value was the result of either spouses skills and/or efforts during their marriage.

No matter what he said/she said, this settlement was far more protracted than it needed to be. In the presence of a prenuptial agreement, unless it was signed under duress or false information was given which did not allow for an informed decision, this divorce settlement and award may have gone in an entirely different direction. Now, the process of extended litigation is painful and expensive, no matter how much money is at stake.

The trouble with the legal system when it comes to divorces is that it is set up to be an adversarial process in which someone wins and someone loses and both pay a hefty fee to hash things out. It ostensibly addresses a wrong done against a spouse. Nowadays, despite prenuptial agreements and mediation, this mindset still prevails. Couples who are able to set aside their issues and work toward a common goal by attempting mediation often fare better when the process is concluded. However, it is far better to have a prenuptial agreement.

Why Prenuptial Agreements Are Not Only for the Wealthy

Posted by: Gerald A. Maggio, Esq.

Prenuptial agreements Orange County; The Maggio Law FirmPrenuptial agreements, also known as premarital agreements, are excellent ways to settle property issues in the instance that a marriage falls apart. The mess of deciding who is entitled to what becomes easier, as it’s already been decided before the two partners decided to end their marriage.

Both parties can otherwise be fighting for their rights to property, but with a prenuptial agreement, this scenario is usually a lot different. Even with the benefits of prenup known, people are still a little unclear on how obtaining a prenup will benefit them.

Naturally, they think that such agreements are only for people with wealth.  This is a misconception.  The reasons listed here debunk this and many other myths that have formed over the years about prenups:

1.     Prenups are Only Reserved for the Wealthy

Let’s get this one out of the way. Every marriage isn’t perfect, there are flaws, and when those become too much to bear, people separate. The legal fees incurred during the divorce proceedings are yet another problem especially for the ordinary couple.  With a prenup in hand, everything is there in writing. Hence, if you own a lot of real estate or run a successful business and divorce rears its ugly head, you will be glad that you and your partner signed a prenup.

2.     Prenups are Only Valuable if the Relationship Ends

Business-minded folks who regularly invest in property could benefit from a prenup in many ways. First, the majority of the estate will stay with you. Second, your partner won’t be able to cut you out of your own property. Third, your children from a previous marriage (if you have any) can remain financially secured.

3.     Prenups Send Negative Signals to Your Partner

You may have a lot of money saved, while your partner might not. So, why take a chance with losing half of it if the marriage crumbles. You don’t have to spring the prenup on them, but get them to gradually agree by stating some facts. Remember that signing a prenup isn’t forecasting the end of the marriage, it is merely clarifying the rights of the parties concerning property and support issues.

4.     Prenups Won’t Uphold in Court

This can occasionally be true is the legal requirements of such agreements in your state have not been met.  For example, California law requires that the parties have their own independent attorneys to draft, review, and counsel them concerning such agreements.  Also, the party who is presented with such agreement must have had at least 7 days from presentment of it before signing it.  A prenuptial agreement presented the day before the wedding is simply not going to be enforceable in California.  A prenuptial agreement drafted with the assistance of an attorney who understands the legal requirements is much more likely to be upheld in court. Prenups aren’t Expensive

The bottom line is that divorce costs more than getting a prenuptial agreement. Getting a prenuptial agreement isn’t expensive and in the future can save you from a lot of trouble, because it is a one-time cost that’s sure to save you a lot of money if your marriage ends.

6 Reasons Why Couples Should Get a Prenuptial Agreement

Posted by: Gerald A. Maggio, Esq.

Top Orange County divorce lawyers; The Maggio Law FirmCouples in the process of getting divorced have to deal with a multitude of issues, with financial assets being one of them. The dispute over financial assets, apart from the custody of children, is the main reason why finalizing the end of a marriage takes a long time. Although no one likes the idea of a divorce, a newly-engaged couple should get a prenuptial agreement drawn up before tying the knot.

“Why get a prenuptial agreement, because we are so in love?”

In the United States, at least 50% of marriages end up in divorce. Being optimistic about your impending nuptials is great, but the “if” factor of things not turning out as planned is there. Why not talk with your partner and come to a mutual and logical understanding of why you both should consider signing the prenuptial agreement. Here are reasons why couples should get a prenup:

  1. Wealthy Partner- if one partner is wealthier than the other one, insisting on a prenup is your right, as marriages can be unpredictable and it will give you the peace of mind that your significant other is not after your money.
  2. Big Earner- You both work, but you earn more money than your partner. If the marriage collapses, one party would have to pay huge amounts in alimony. Signing a prenup can limit the amount of alimony a partner would have to pay.
  3. Second Marriage- If you remarry or have kids from your previous marriage, you want to ensure that, after your death, money is distributed evenly amongst all your immediate family members. Getting your partner to sign a prenup provides you with that assurance.
  4. Huge Debt- If you are being hitched to someone that you know has a huge debt or loan on their shoulders that they haven’t paid, you may want to persuade them to sign a prenuptial agreement. If you marry them without signing a prenup, you would be equal partners in paying the debt.
  5. Business Owner- If you are an owner of a successful business and you didn’t have your partner sign a prenup, the end of the marriage could mean that your partner could wind up owning a part of your business.
  6. Not Wealthy- A prenuptial agreement doesn’t just benefit the wealthy partner, but the partner not so well off can also benefit from it. In the instance that the marriage ends, a prenup signed before the marriage can protect the financially weaker partner, as the division of assets and spousal support were pre-determined.

Prenuptial agreement is a valuable piece of document to have before you say, “I do,” to each other. The agreement doesn’t mean that you forecast the doom of your marriage. Instead, it serves as a fair division of assets, if your marriage crumbles.

Couples deciding to walk down the aisle should contact us to get more information on prenuptial agreement laws in California.

How to Protect A Family Business From Divorce With Prenuptial Agreements

Posted by: Gerald A. Maggio, Esq.

Top Orange County divorce lawyers; The Maggio Law FirmSmall businesses in America account for a substantial amount of the workforce and businesses in the U.S. economy.  Many small businesses are family-owned, with many owned together by married spouses with other family members.

When the primary owners of a family business go through a divorce, the implications can be tremendous.  Therefore, with so much at stake with a family business, couples who co-own a business should consider a prenuptial agreement (premarital agreement).  Such an agreement can identify which property should be considered a spouse’s separate property and which should be counted as marital property, or it can deem that the other spouse will have no interest in the family business under any circumstance.

Furthermore, if one or both spouses have an ownership interest in a larger family business that would be viewed as marital property subject to division in divorce, a prenuptial agreement – and thus subject to property division in a divorce – a prenuptial agreement can give guidance on how it should be divided in the event of divorce, when it can be sold or one spouse bought out, and under what circumstances.

In other words, a prenuptial agreement can help protect the interests of the family business which can become caught in the middle of divorce proceedings, so that the family business does not experience negative ramifications simply because of a pending divorce, such as a rushed sale of the business or, worse, the closing of the business.

Divorce is a complicated and emotional process, and when a family business is involved, the process is substantially more emotional and complicated.  Use of prenuptial agreements is one tool to help avoid future pain and problems that might occur in the event of a future divorce. A family law attorney can help you in that regard, for the sake of you, your family and your family business.

For further information or to schedule a consultation with Orange County divorce attorney Gerald Maggio of The Maggio Law Firm, please call (949) 553-0304 or visit www.maggiolawfirm.com.  The Maggio Law Firm is an experienced divorce and family law firm serving the Orange County and Riverside areas and neighboring counties, serving clients with legal issues including divorce, legal separation, prenuptial agreements, divorce mediation, and other family law issues.

Prenups Are Important With the Spring Wedding Season Ahead Announces Attorney

Posted by: Gerald Maggio

Top Orange County divorce lawyers; The Maggio Law FirmRiverside, Calif. – With the biggest wedding months of the year coming up, it is wise to get finances and important decisions spelled out in a prenuptial agreement.

Some couples cringe at the word prenup, but an individual really needs to have the division of assets and debts defined should death or divorce ever happen. The prenup, also known as the premarital agreement, will describe how particular assets such as a home, business, or property will be owned. With couples who are getting married for the second time or more, or getting married at an older age, separate investments or business assets might want to be safeguarded from the new spouse.

“The prenuptial is a really honest conversation about how finances, assets and a spouse’s well-being will be accommodated during and after the marriage,” said Riverside County prenuptial agreement attorney Gerald Maggio. “The agreement is like an insurance policy and is in place to protect both spouses.”

Each party gets seven days to review the prenuptial agreement before signing it and is recommended to have their own attorney represent them. Also, if one individual does not speak English as a primary language, the prenup should be translated to ensure it is understood and agreed to. The American Academy of Matrimonial Lawyers reported 73 percent of divorce lawyers had an increase in demand for prenuptial agreements during the last five years. The rise can be attributed to kids growing up in divorced households and the engaged couple wanting to make sure everything is in writing.

Every 10 years, married couples should review the prenuptial to see that it is still relevant. Sometimes post-nuptial agreements long after the marriage occurred can be helpful if one individual starts a company or makes investments that should be separated from the marital property. The same is true if a large inheritance is about to happen. Sometimes couples who have grown apart will use the postnup to reconcile with specific conditions or they will agree to postpone a divorce until the kids go to college or another big event occurs.

“We help show engaged couples all their rights and responsibilities for the marriage,” Maggio said. “So many people find it to be a beneficial experience and document that is there only if they need it.”

The Maggio Law Firm listens to their client’s needs and will go after their best interests. They will help the engaged couple toward their exciting future together with the best preparation and planning.  For more information or to schedule a consultation with Orange County divorce lawyer Gerald Maggio, contact The Maggio Law Firm by calling (949) 553-0304 or visiting http://www.maggiolawfirm.com/.

California Prenups Can Cement Your Relationship

Posted by: Gerald Maggio

Top Orange County divorce lawyers; The Maggio Law Firm

The latest soap opera features a couple contemplating signing a prenuptial agreement. He feels it’s not very romantic.

It’s true; there’s a great deal of debate over the necessity of having a prenuptial agreement in place prior to getting married. If there were ever any questions about whether or not it was really the right thing to do, one could ask Angelina Jolie and Brad Pitt for their experiences with a prenuptial, which isn’t to say that prenuptials are only for wealthy people, because that isn’t the case.

“One of the most prevalent myths about prenuptials is that they ‘are’ only for the wealthy and that those who don’t have much don’t need an agreement. While you might not have that much money to go around, having an open and honest talk about how each of you handles finances before you’re married will make sure there are no surprises later,” explained Gerald A. Maggio, an Orange County divorce attorney.

Also, who knows what the fates will deal out? One of the spouses may acquire more money in the future through a business venture or an artistic talent. Knowing how to handle the business division now, in advance of any possible divorce is a good move.

Many people also think that prenuptials are only designed to protect the spouse that has the most money and take it away from the one who doesn’t have much. “The truth of the matter is that prenuptial agreements are supposed to be created to protect ‘both’ spouses. It should go without saying that any prenuptial that is one-sided will not likely be enforceable in court,” Maggio indicated. The whole idea behind these agreements is that they are fair. In order for a prenuptial agreement to be enforceable, signing it must be voluntary and thus, the agreement can’t be unfair when it is signed.

As for the romance of the situation, it’s better to discuss touchy things like money before marriage rather than find out later that neither party likes how the other one spends and handles money. While this may not be a great deal of fun, working toward a common goal often cements a relationship into a viable working partnership; a partnership where both are clear about their financial goals.

For some reason, people seem to think that they must deal with every possible issue that might come up in a divorce later. “This isn’t the case. In fact, prenuptials may be as complex or as simple as the parties wish. They are private contracts and therefore they can have just about anything in them. As an example, if one party only wants to protect just their pre-marital property that may be written into the contract,” commented Maggio.

The toughest thing for couples to understand seems to be the myth that if they just live together, the live-in doesn’t have any claim on the other’s property or income. Think again, the one with the income and assets could be risking them by living together without being married. “No doubt the word ‘palimony’ comes to mind and while difficult to prove, it has been done and people still try this route to claim support after a breakup,” Maggio said. The bottom line here is if people choose to live together without getting married, it’s a smart idea to have a cohabitation agreement.

Gerald A. Maggio is senior partner of The Maggio Law Firm, Inc., an Orange County and Riverside Divorce and Family Law firm headquartered in Irvine, California.  The Maggio Law Firm is experienced in all aspects of divorce and family law matters, including child custody, child support, spousal support, complicated high asset marital property cases, and domestic partnerships.

For more information or to schedule a consultation with Orange County divorce lawyer Gerald Maggio, contact The Maggio Law Firm by calling (949) 553-0304 or visiting http://www.maggiolawfirm.com/.

To Prenup or Not to Prenup – That Is the Question

Posted by: Gerald Maggio

Top Orange County divorce attorneys; The Maggio Law Firm

Considering a prenuptial agreement prior to marriage and feel it shows a lack of trust? On the contrary, it’s a smart move.

These days, more and more Americans are opting to have a prenuptial agreement drafted prior to marriage. “Premarital agreements, also known as prenuptial agreements, are a smart move to protect your assets going into the marriage,” said Gerald A. Maggio, of the Maggio Law Firm in Irvine, California.

Once upon a time these agreements were regarded as a lack of trust in the other party, regarding the upcoming marriage. Nowadays, those about to be married, particularly those who are older or on second marriages, realize the value of having a premarital agreement in place should anything go sour later. In addition, prenups are for the protection of both spouses, not just the one with the most money.

Are prenups “unromantic?” “Perhaps in some respects they are, but not signing one in the State of California means the marriage would then be governed by a convoluted set of rules known as the California Family Code. What all this legal jargon boils down to is that either the people planning on getting married choose their own rules to live by, or live by the rules of the State. Most people prefer living by their own rules,” added Maggio.

Of interest is the fact that Jewish marriages have traditionally called for a prenup called a Ketubah. It is considered the whole foundation of marriage in the Jewish culture. The Catholic Church also has a similar idea, called a “Prenup Dialogue” as part of their marriage preparation courses called Pre-Cana. The bottom line here is that prenups prepare people for the marital journey ahead of them. “Talking about money ahead of time may save heartache later,” explained Maggio.

While it might cause a few moments of utter stress as the negotiations for a prenup get started, the whole process may result in a surprising turn of events. It may actually strengthen a relationship in that both sides need to be brutally honest and open about how they handle money and plan for the future. Knowing the rules going into the marriage is far better than being surprised later by rules no one was aware of and disagrees with as well. This only makes good common sense.

“When in doubt, make certain to have a consultation with an expert family law attorney who will outline what is required for a prenup in the State of California and how the prenup may be affected by California community property law,” suggested Gerald A. Maggio, of the Maggio Law Firm in Irvine, California.

For more information or to schedule a consultation with Orange County divorce lawyer Gerald Maggio, contact The Maggio Law Firm by calling (949) 553-0304 or visiting Maggiolawfirm.com.

The Top 4 Reasons Why You Need a California Prenuptial Agreement!

Posted by: Gerald Maggio

Top Orange County divorce attorneys; The Maggio Law Firm

There are many good reasons why you should get a prenuptial agreement in California, but here are the top four:

1. You protect your assets earned prior to marriage.

2. You are able to take control over your destiny, rather than leaving it up to the Court to determine.

3. You are able to enter marriage with clarity and understanding with your spouse.

4. Most current divorce statistics indicate that approximately 50% of all marriages end in divorce. Subsequent marriages have a significantly greater chance of ending in divorce.

The bottom line is that you can be smart and pragmatic in facing reality, protecting your assets and taking control of your life, wile also facing an open discussion and agreement with your fiancee that may even strengthen your relationship so you can focus on romance and love, not money.

For more information or to schedule a consultation, contact Orange County divorce attorney Gerald Maggio of The Maggio Law Firm, by visiting www.maggiolawfirm.com or calling (949) 553-0304.

How Enforceable are California Prenuptial Agreements?

Posted by: Gerald Maggio

Top Orange County divorce lawyers; The Maggio Law Firm

Most California prenuptial agreements are enforceable, as long as certain requirements are met.  California Family Code section 1615 addresses the enforceability of premarital agreements and states that:

a. A Premarital agreement is not enforceable if the party against whom enforcement is sought proves either of the following:

  1. The the party did not execute the agreement voluntarily
  2. The agreement was unconscionable when it was executed and, before execution of the agreement, all of the following applied to the party:
  • The party was not provided a fair, reasonable and full disclosure of the property or financial obligations of the other party
  • The party did not voluntarily and expressly waive, in writing, any right to disclosure of the property or financial obligations of the other party beyond the disclosure provided
  • The party did not have, or reasonably could not have had, an adequate knowledge of the property or financial obligations of the other party.

b. An issue of unconscionability of a premarital agreement shall be decided by the Court as a matter of law.

c. For the purposes of subdivision, 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:

  1. The party against whom the enforcement is sought was represented by an independent legal counsel at the time of signing the agreement or, after being advised to seek independent legal counsel, expressly waived, in a separate writing, representation by independent legal counsel.
  2. The party against whom enforcement is sought has not less than 7 calendar days between the time the party was first presented with the agreement and advised to seek independent legal counsel and the time the agreement was signed.
  3. The party against whom enforcement is sought, if unrepresented by legal counsel, was fully informed of the terms and basic effect of the agreement as well as the rights and obligations he or she was giving up by signing the agreement, and was proficient in the language in which the explanation of the party’s rights was conducted and in which the agreement was written. The explanation of the rights and obligations relinquished shall be memorialized in writing and delivered to the party prior to signing the agreement. The unrepresented party shall, on or before the signing of the premarital agreement, execute a document declaring that he or she received the information required by the paragraph and indicating who provided that information.
  4. The agreement and the writings executed pursuant to paragraphs (1) and (3) were net executed under duress, fraud or undue influence, and the parties did not lack capacity to enter into the agreement
  5. Any other factors the court deems relevant.

For more information or to schedule a consultation, contact Orange County divorce attorney Gerald Maggio of The Maggio Law Firm, by visiting www.maggiolawfirm.com or calling (949) 553-0304.