Posted by: Gerald Maggio
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.
To learn more about the Maggio Law Firm visit http://www.maggiolawfirm.com/.
Posted by: Gerald Maggio
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.
To learn more about the Maggio Law Firm visit Maggiolawfirm.com.
Posted by: Gerald Maggio
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.
Posted by: Gerald Maggio
California Family Code section 1615 addressed 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:
- The the party did not execute the agreement voluntarily
- 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:
- 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.
- 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.
- 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.
- 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
- Any other factors the court deems relevant.