No one gets married thinking that it will end in divorce, but the unfortunate reality is that it does happen. When it does, couples who have a prenuptial agreement in place are far better off than those who do not. A prenuptial agreement may protect both parties in the event of a divorce and ensure that each person walks away with what they are entitled to.

What is a Prenuptial Agreement, and Why Might You Need One?

As the name implies, a prenuptial agreement is a contract signed by two people planning to marry. While some agreements may discuss rights and responsibilities during the marriage, they usually outline the division of assets if the marriage ends.

Having a prenup is advantageous for several reasons, such as:

• Ensuring that any inheritance you receive remains separate from your joint assets.
• Keeping certain financial accounts solely in your name, including any pensions or 401(k) accounts.
• Establishing clear expectations about future responsibilities as well as financial independence during the marriage.
• Providing peace of mind and ensuring your needs are met in the event of a divorce.

Myths About Prenuptial Agreements

There are several common misconceptions about prenuptial agreements. Discussing divorce before entering a marriage can create feelings of mistrust and insecurity within a relationship. If one spouse feels like they are signing away their rights, it can lead to resentment and conflict. Furthermore, one person may feel like their future spouse is more interested in protecting assets than building a relationship.  While the process requires couples to have potentially difficult conversations about their finances and expectations for the future, creating a prenuptial agreement can establish a solid foundation for a marriage.

Why Might a Prenuptial Agreement Not be Enforceable?

There are many different reasons why a prenuptial agreement may not be enforceable in California. While a couple can draft their own contract, California’s Uniform Premarital Agreement Act (UPAA) outlines what they need to include in an agreement. Failure to meet those requirements could invalidate the contract.

Furthermore, there are some items that can’t be in the agreement, including:

• Anything regarding child custody or support
• Illegal activity
• Non-financial demands of the spouse
• Any language that is considered unjust or exploitive

We Can Help Create Your Prenup

Creating a prenuptial agreement is a legally complex process. Our attorneys at Lonich Patton Ehrlich Policastri have experience crafting agreements that meet California’s legal requirements and will provide peace of mind for you and your future spouse.

If you live in San Jose or the greater Bay Area, call us at 408-553-0801 or fill out our contact form to request a free consultation.

Marriage is a thrilling time for any couple, as two people plan to embark on an exciting new chapter together. Getting married is a big step in a relationship, but it is also a life-changing and legally binding event that should be entered into thoughtfully and with all the facts available to you.

One important question to ask before getting married is whether you should create a prenuptial agreement. No couple wants to think about divorce prior to getting married, but prenuptial agreements can be beneficial in case of a split as a tool to help protect each person’s interests.

What is a prenuptial agreement?

A prenuptial agreement, or a “prenup,” is a legal document that outlines how assets and liabilities will be divided in a divorce. Many view prenups as negative, but they can be quite beneficial if executed correctly.

While some feel that a prenuptial agreement can take the romance out of the situation, indeed, it can be the opposite. It’s an opportunity for you and your spouse-to-be to outline your wishes on the financial aspects of a marriage without being in the midst of a possibly emotional divorce situation.

This can alleviate some of the financial strife of divorce by ensuring both parties are clear on how assets will be divided and cut down on legal fees from mediation if a couple cannot reach an agreement during divorce proceedings.

Why do I need a prenuptial agreement?

Typically prenuptial contracts have been thought of as something only the uber-wealthy need, but that’s not the case. Many modern couples can also benefit from having a prenuptial agreement.

Prenups help prevent disputes over property and assets during a divorce. This is especially important if either spouse comes into the marriage with significant assets, such as wealth, property, or a business.

Prenuptial agreements can also be used to outline child custody and support arrangements, protect spouses from debts that were held before the marriage, or protect inheritances for children from previous marriages.

What if I don’t have a prenup?

If there is no prior agreement in place in the case of a divorce, the state’s laws will determine how property is divided, utilizing the state’s standard property rights for married couples.

Typically this means that any assets accumulated during the marriage are to be divided equally, though the exact guidelines can vary from state to state.

Creating a prenup

It is important that you seek professional legal help when drafting a prenuptial agreement to ensure that an agreement will be considered valid if it should be reviewed in court.

A court will examine whether the agreement is unfair or made under coercion and can invalidate the agreement if it appears that either party entered the agreement under duress or undue pressure. Each party should have their own legal representation to ensure that their interests are represented fairly and communicated clearly. An experienced lawyer can also help guide you through the process to ensure that you have the proper documentation in place.

Get An Expert Team on Your Side

When it comes to family law and estate planning, experience matters. For decades, Lonich Patton Ehrlich Policastri has been helping individuals and families with complex family law and estate planning matters. We’re proud to serve the Bay Area and provide our clients with the highest level of legal care possible.

Click here or call 408-553-0801 to schedule a free consultation today.

In 2015, same-sex marriage was legalized federally in the United States, which meant that same-sex marriages were finally recognized in all states. This decision ensured that same-sex couples could receive the same benefits as heterosexual couples, including legal privileges such as medical insurance, tax benefits, and employee benefits for spouses.

Since the ruling, same-sex couples are navigating divorces for the first time as well. The process is the same in many ways, but there are some unique factors for same-sex couples considering a divorce.

What is spousal support, and how is it determined in a divorce?

Spousal support, also known as alimony, is a payment made from one spouse to another in the event of divorce within a marriage. The spousal support is typically awarded as part of a divorce settlement when one spouse can’t work or is unable to independently earn sufficient income to maintain a marital standard of living after a divorce.

In these cases, a court may award spousal support as a part of the divorce process. Spousal support is typically calculated taking into account a number of factors, including current income, earning potential, work or education experience of each spouse, custody of children, and more.

In a typical divorce, a judge will also look at the length of a marriage, whether there was a pre-nuptial agreement, and whether there was any shared property or assets between the couple.

Are there unique issues or considerations for same-sex divorces?

Although many aspects of divorce are the same for same-sex couples, there are some circumstances that could impact a same-sex spousal support agreement.

Same-sex couples may be more likely to have a less conventional situation when it comes to children. They may have adopted a child together or utilized a surrogate or an egg or sperm donor.

In these cases, the court may need to examine the situation to determine whether both parents have parental rights, and some have questioned whether primary custody typically could be awarded to a biological parent.

Determining the duration of a marriage can also be unique for same-sex marriages: This is because sometimes the relationship has lasted longer than is legally indicated, due to same-sex relationships only becoming formally recognized in the mid-2010s. A couple may have been in a domestic partnership or long-term relationship before that, but it wouldn’t necessarily be documented legally. In certain situations like this, courts may have the discretion to recognize longer relationships.

Shared property and assets can also be a question that comes up in divorce proceedings. There could be a question of how to properly divide assets if an asset was purchased before the marriage became recognized federally.

Since this is still a newer area of the law, many divorces are settled on a case-by-case basis. That’s why it can be important to make sure you have an experienced family law attorney to help you navigate the unique circumstances surrounding LGBTQ+ divorces.

To set up a consultation with one of Lonich Patton Ehrlich Policastri’s experienced California attorneys, click here or call (408) 553-0801.

A big question often arises in divorce settlements – who is responsible for the debt? It’s a complex question requiring a degree of nuance in determining. In particular, California divorces have unique circumstances relating to community property.

What is community property?

Community property is a critical concept to keep in mind when initiating the divorce process, especially in California, a community property state. Any income of either spouse and real or personal property acquired by either person during the marriage falls under community property – though this does not include gifts or inheritances.

This means that both spouses share equal ownership rights for any earned income or property – but beware that this means debt also falls under community property.

Who is responsible for any jointly accrued debt?

Under California community property law, any financial obligations incurred during your marriage become the responsibility of both spouses during a divorce. Premarital debts brought into the marriage could also become the responsibility of both parties.

There are, however, some exceptions to this. Separate property is acquired before entering the marriage and therefore does not become shared community property. This can be things like a house or vehicle owned before the marriage. As long as the funds for payments on this property come from a separate source and not from income generated during the marriage, the property remains separate.

If funds do become mixed, this is considered co-mingled property and can be tricky to sort out. This can happen in situations where an initial property was considered separate but was sold, and the funds were then used to buy another asset that was partially paid for with community income as well.

How can you protect yourself from liability?

For individuals who are considering nuptials but haven’t yet said “I do,” a pre-nuptial agreement is worth discussing. An agreement like this might outline that both spouses agree to treat their debts and income separately.

While no one wants to think about a future divorce as you plan a wedding, a pre-nuptial agreement can ensure you and your spouse-to-be are on the same page in the event something should happen down the road. This allows you to discuss with a level head, not in the event of a divorce when emotions are running high.

How can an attorney help?

Although community property can be a complicated matter, it doesn’t necessarily mean that you need to appear before a judge to sort out the property division. Often, attorneys can help a divorcing couple come to an agreement, though note that in California, a judge will still need to sign off on the final agreement with a court order to ensure its validity.

If you have questions regarding a division of debt in your divorce, call (408) 553-0801 or click here to schedule a free 30-minute Family Law or Estate Planning consultation. Lonich Patton Ehrlich Policastri’s experienced attorneys specialize in divorce and family law and can help with your divorce-related debt questions.  With over 100 years of combined experience, the Family Law group at LPEP can help you navigate even the most complex of family law and estate planning matters in California.

One of the most delicate situations caused by divorce is the awarding and collecting of spousal support payments. While the wage garnishment process attempts to alleviate the burden of collecting payments each month, there are situations in which people fall behind on their payments. Late alimony payments are stressful to deal with and it is important that you understand your rights in obtaining your spousal support in California.

While a significant “change in circumstances” can legally and temporarily give the spousal support payor the right to modify spousal support, there are serious consequences for neglecting to pay spousal support and judges typically favor the person receiving the support.

Delay Due to Financial Hardship

If your ex is falling behind on alimony payments, the first thing that you should do is try to understand why. It might be that your ex has suffered from a recent financial hardship such as the loss of a job, and you might want to take that into consideration before you let your frustration drive your decision-making. 

If this is the case, and you believe that they will likely find a job soon and continue to pay the alimony payments, then you might want to consider creating a written agreement that modifies or temporarily suspends the required spousal support payments until your ex has a new source of income. If you chose to do this, it is highly advised to hire a spousal support lawyer so that you know that your rights are protected and you will continue to receive your mandated spousal support once the financial hardship is remedied.

Late Payments Due to Neglect

While the wage garnishment process tries to alleviate the burden of collecting payments, people who are self-employed or unemployed are not subject to having their wages garnished to pay spousal support. In these circumstances, you can fight for your spousal support by placing pressure on your ex to either obtain a job that fits their experience and earning capacity or maintain their payment schedule.

The state of California offers support in the form of the Local Child Support Agency (LCSA) (known as DCSS in Santa Clara County) if the parties have children and the spousal support affects the children’s well-being. 

If the LCSA is not already involved in your spousal support, and you’re dealing with late alimony payments, then you should hire an attorney to help you in your fight to obtain your spousal support. You may have the following options:

• If your ex does not already have their wages garnished, then you can go to court to ask for an earnings assignment from the person’s employer.
• If you and your ex created an agreement that the payor would pay without a wage assignment, then you can ask the wage assignment to be reinstated.
• If your spouse owes you arrears (past due support), then you can ask a judge to adjust the earnings assignment so that the arrears are factored into the garnishment amount, and subject to 10 percent interest per year.
• If your ex has the financial means to meet the payment schedule and simply isn’t making payments, then you might want to go to court to have a judge intervene. Judges have the authority to use the full force of the law to enforce legally-binding alimony payments, and may hold the payor in contempt (fines or jail time) for not meeting their payments.

If the LCSA is already involved in your spousal support, then the organization can assist you with:

• Placing a lien on the payor’s bank accounts and real property
• Redirect a payor’s tax refunds or public benefits to help assist with the spousal payments
• Temporarily suspend a driver’s, business, or professional license

If you are facing difficulty with obtaining spousal support payments from your spouse in California, then it is strongly recommended to speak with a spousal support lawyer. LPEP specializes in divorce and family law and has the resources you need to help you obtain your owed alimony payments. Schedule a free consultation by clicking here or calling us at (408) 553-0801