Prenups: Is It Absolutely Necessary to Involve Two Attorneys?

You’re in love and you know your love will last forever. Still, while you and your betrothed are optimistic, you are also practical. You want to make smart financial decisions now to ensure you are both protected and secure in the unfortunate circumstance that your marriage comes to an end sooner than you had hoped.

You’ve agreed to have a prenuptial agreement drawn up, and because you have discussed your financial situation and concerns with transparency and honesty, you’re considering working together with one lawyer who will draw up the documents. After all, why pay for two attorneys when the two of you are so aligned in your goals and intentions?

Not so fast! California couples who get divorced and expect the court to uphold a prenuptial agreement that was prepared by a single attorney may find themselves in for a rude awakening. Here’s what you need to know about the risks of hiring one California attorney to represent both of you when drawing up a prenuptial agreement.

Just Because You Can Doesn’t Mean You Should

To be clear, you certainly CAN have one attorney assisting both of you during the creation of a prenup, but no California divorce attorney would recommend it. There are several reasons for this and all of them are directly related to whether or not the agreement would be considered enforceable in a California divorce court.

Enforceability of California Prenuptial Agreements

The biggest issue for a couple who works with a single attorney to create a prenuptial agreement is that of enforceability. Will a California court find the agreement enforceable? While you may both be in agreement today about what is fair, after the ups and downs and difficult emotions that ultimately lead to a divorce, you may find yourself feeling not as agreeable in the future. Down the road, one or both partners might feel what they agreed to in the beginning is now unfair and one or both may contest the prenup. 

When concerns are brought before a judge who learns each partner did not have separate representation, it’s more likely than not that the judge will determine the agreement is unenforceable on that fact alone…and then you’re in for a long, drawn out litigation process (which is exactly what you wanted to avoid when you created the prenup, right?).

If there is only one attorney involved in the creation of a prenup, the presumption is that the agreement is invalid. That means the party who wants the prenup to be upheld will have the burden to prove the agreement is valid, and that means both people will have to spend time and money in court. You can see how ironic it is–a couple tries to save a few dollars now by hiring only one attorney to create a prenup only to spend much more time and money in court later.

California Divorce Courts Want to Make Sure Both Parties’ Interests are Considered

The court will have questions about any potential conflicts of interest that may have existed when the prenup was created:

Were there good faith disclosures exchanged between the parties when drafting the assets and debts list for each of them? Were copies of actual bank and investment statements exchanged between the parties or merely a list? Was there enough time for each party to meet with his/her individual attorney before negotiating the terms? If one person owned a business, was there an appraisal on that business before marriage or at least a reasonable estimate of value based on the exchange of copies of tax returns? Will there likely be a severe disparity in income after the separation? Was there an attempt to waive spousal support that could be determined to be “unconscionable” by the court at time of enforcement? Was there a 7-day waiting period between the time the final draft was received by the parties and the time the agreement was signed and notarized?  

These are just a few of the kinds of questions a judge might ask and consider when determining whether the prenuptial agreement is valid. 

If the Lawyer is on Both Sides Then Who is on Your Side?

The judge will want to ensure that one party did not exercise undue influence on the other party to get them to agree to the terms of the prenup. Of course, undue influence can occur even if each party has separate representation, but it’s far less likely. The entire purpose of having your own attorney is to make sure YOUR interests are represented. If your spouse were using coercion or pressuring you to get you to agree to the terms of a prenup, at least you would have a lawyer with whom you could discuss these issues confidentially, and they would then advocate on your behalf in a professional and effective way in discussions with your partner’s lawyer.

Even the most ethical and honest attorney would have difficulty navigating the nuance and complexities of drawing up a prenuptial agreement that serves both parties fairly. If an attorney represents a couple, then he doesn’t represent either individual. What I’ve always said about this is if an attorney is on both sides then no one is truly on YOUR side. If it’s important enough to you and your partner to have a prenuptial agreement, then it should be important to each of you that your individual interests are considered and negotiated.

Make Sure You Work with Two Experienced Attorneys to Avoid Other Prenup Pitfalls

Your attorney and your partner’s attorney should both be experienced in drafting and reviewing prenuptial agreements. Even with separate representation, you and your partner would also be wise to be aware of some of the common reasons a prenuptial agreement may be considered invalid by a California judge. For example:

  • The agreement must be signed by both parties and it must be clear neither party signed as a result of coercion or while under duress.
  • Both parties need to be clear that they had adequate time to review the agreement before signing, and in California that means a 7-day waiting period. I recommend you plan to have the agreement ready for review as far in advance as possible–prenups prepared a week before a wedding and signed too close to the day of the ceremony could be a red flag to the court that things were not on the up and up.
  • The document should not include agreements about alimony or spousal support that are not in accordance with California law, nor should it include anything about child support or custody for children born within the marriage. 

Two Last Points

California law does not require that signatures on a prenuptial agreement be notarized, but having them notarized is an additional assurance to a judge that both parties signed the document freely and willingly.

As I mentioned at the outset, you and your spouse are not required by California law to have separate representation, but it’s certainly advised. If you’re dead set on working with a single lawyer for the both of you, you’ll have to complete a document called a “Written Statement of Waiver.” Doing so does not ensure a judge will enforce the prenuptial agreement in the future, but having this signed document could help. Even so, most attorneys who do this kind of work all the time will discourage you from taking the risk of invalidity.

The Bottom Line

Working with your partner to create a prenuptial agreement is a smart and loving way to ensure both of you enter marriage with peace of mind, but trying to save a few dollars by not hiring independent attorneys to represent each of you is counterproductive in the long run. Of course, you hope you’ll never get divorced and that the prenup will never need to be looked at again, but should the worst come to pass, make sure you have an agreement that will be held up in court. I would love to help you and your soon-to-be spouse with your prenuptial (or post-marital) agreement. Please reach out to schedule a consultation with me to discuss your options and learn more about the process. 

Explore your no-court divorce options and the prenuptial process in Santa Rosa and Sonoma County and schedule a confidential consultation with divorce lawyer Jeanne Browne. With more than 30 years of experience helping couples divorce without court through mediation and collaborative practice, she will give you compassionate legal advice on your issues related to family law, divorce, and prenuptial/postnuptial agreements. Click here to schedule a meeting.

Please Note: Articles posted on this website are for general information purposes only and are not to be considered legal advice. Every situation is unique and we recommend you reach out for a private conversation about your specific circumstances and concerns by booking a consultation.

If You’re Saying “Never Again” to Marriage, Here’s Why You Should Consider Giving It a Second Chance

There’s an interesting and growing trend among the California divorced crowd, and one that makes me a bit sad. So many people who have been married and divorced are saying “I’ll never do THAT again!” A friend of mine who is in her 50s and single shared with me recently that she frequents several online groups and forums on the topic of 50+ dating and she’s astounded at the overwhelming anti-marriage sentiment expressed by many of the members. And it’s not just men–it’s women too. Clearly our society is plagued by many broken hearts afraid to love again.

With Valentine’s Day barely in the rearview mirror and talk of love and romance filling much of February, it seems the right time to talk about taking a second chance on love. As a hopeless romantic and steadfast optimist, I believe love is for everyone–as long as you keep your heart open to it.

As a divorce attorney in California for more than 30 years, I’ve heard it all. Here are three common refrains I hear from those who have loved and lost that love through divorce, and my thoughts about why you should consider giving marriage another shot. 

OBJECTION #1: “I never want to put up with a person like that again, and all men/women are the same.”

There are millions of single people in America, and your ex is only one of them. If you punish everyone for the behavior of your former spouse and assume they have all the same flaws, then you must think it’s fair for others to punish you for the sins of their ex and lump you in with everyone else. That doesn’t make any sense, does it? Perhaps you find yourself meeting or dating the same kind of person over and over. We certainly have types we’re attracted to, and any mental health professional will tell you we’re attracted to certain dysfunctions too. Does that mean you’re doomed to repeat your pattern and that if you take the leap into marriage again you’ll get divorced again? No way!

CONSIDER THIS: The good news is we can break our patterns. By doing some inner work, you can find out why you keep attracting and dating certain personality types that are not good long-term matches for you. There are many excellent books published on this topic that you might enjoy reading. You also might consider talking to a therapist to dig a little deeper into why you choose the partners you do–or why you’re afraid to connect with anyone at all. Turning to your pastor or religious leader could also be helpful, as could being contemplative in prayer. As much as you have logical reasons for wanting to avoid going through the same bad experience again, remember that love and heartache aren’t logical, and if you have wounds you can heal, you might be able to find joy in a relationship with a new person who is not your ex.

OBJECTION #2: “I’m not lonely and I don’t want to give up my freedom now that I’m single again.”

Especially if you’ve already raised your children, it might feel unbelievable to finally have your time to yourself and not have to report to anyone or negotiate and compromise about how you spend your evenings, weekends, and holidays. If you had a controlling or domineering spouse who always made you feel like none of your time or energy belonged to you and you alone, it probably feels amazing to have autonomy again, and it’s something you should probably experience for a while as you reacquaint yourself with who you are and what you enjoy. But does getting married really mean you have to give up your freedom? Well, that actually depends entirely on who you marry and the dynamic the two of you agree upon.

CONSIDER THIS: I admit it–I’m of the belief that human beings are divinely intended to couple up and that we are at our very best in a loving union with a supportive partner who shares our values and beliefs. All the good memories you will ever make will be sweeter if you share with someone you love. When you are sick or struggling, having a spouse who cares is the best medicine. Happily married people live longer, recover from serious health episodes more quickly, and generally experience more financial security. Studies show couples who marry are happier than those who just live together. There are lots of good reasons to give marriage a second chance–I talked about several of them in this post. It’s true you’ll have more freedom if you’re alone, but the trade-off for support, companionship, and true love is worth it if you choose the right person to marry.

OBJECTION #3: “I worked hard for what I have and I don’t want to lose half of it in a divorce.”

This is a big one. If you’ve already survived a divorce, you may have taken a big financial hit, and that can be really frustrating and discouraging. Going through a divorce is emotionally rough as it is, but it’s made worse by going through traditional divorce litigation where the judge makes the final decision about everything you and your spouse disagree on. Whether you were the breadwinner, a stay-at-home parent, or an equal income earner, you may feel that the court issued a judgment that wasn’t fair to you and that put you in financial straits. You may have been ordered to pay spousal or child support that was difficult for you to manage. You may have lost money or property to your ex that you felt rightly belonged to you. You may have had to give up part of your business or money from an inheritance or some of your retirement fund, and you may be justifiably bitter about it. I can understand why some people say they’ll never make themselves financially vulnerable like that again. But does getting married always mean putting yourself in financial jeopardy? With proper planning, it doesn’t mean that at all.

CONSIDER THIS: The longer I work with divorcing couples, the more I see the value in having a prenuptial agreement. The friend I mentioned earlier told me she used to think prenups were unromantic and almost an admission that a couple expects the marriage to fail; but as she has seen the fear and hesitation in the over-50 divorced crowd about marriage, she now realizes that a prenuptial agreement actually gives couples the emotional freedom to love again without worrying about one person taking advantage of the other financially. I was gratified to hear that she sees it the way I do–the peace of mind that comes with knowing you will not lose what you’ve worked so hard for gives couples (especially those in the later stages of life) a way to focus on the love and not worry about the money. 

My recommendation for all couples considering a second marriage is that they speak to an attorney about protecting their assets with a prenuptial agreement. I especially wish I could speak to more couples where one person wants to get married but their partner is afraid to because of the potential financial loss. So many fears would be put to rest if they understood how simple and straightforward it is to create an agreement that protects both parties. Getting a prenup is not unromantic. On the contrary, getting a prenup allows you to enjoy the romance and keep your hearts and minds trained on the future with optimism. My wish for you is that if you desire love and marriage, you will find it and enjoy it. I know from personal experience that it really can be sweeter the second time around.

Explore your no-court divorce options and the prenuptial process in Santa Rosa and Sonoma County and schedule a confidential consultation with divorce lawyer Jeanne Browne. With more than 30 years of experience helping couples divorce without court through mediation and collaborative practice, she will give you compassionate legal advice on your issues related to family law, divorce, and prenuptial/postnuptial agreements. Click here to schedule a meeting.

Please Note: Articles posted on this website are for general information purposes only and are not to be considered legal advice. Every situation is unique and we recommend you reach out for a private conversation about your specific circumstances and concerns by booking a consultation.

photo of young couple riding bikes and holding hands on the beach

Can I Waive Spousal Support in Our California Prenuptial Agreement?

Couples who are willing to start off their marriage with a prenuptial agreement are not people who expect to be divorced someday. Often they’re not even thinking that a prenuptial agreement helps them plan for the worst. This may surprise you, but many couples see entering into a prenuptial agreement as a gesture of love—a separation of finances from affection—a way of saying, “I choose you for you, and not for any financial gain or advantage.” 

At times, I have had couples come to me to create a prenuptial agreement with such open hearts and pure intentions that one or both parties have been eager to be generous as a gesture of pure intent. For example, the lesser-earning party may be willing to sign away the right to collect spousal support should the marriage end. I have seen this in situations where both parties earn a similar income and in situations where there is a great disparity in income and separate assets and property. 

I typically try to dissuade couples from including language that eliminates or limits the obligation of spousal support. The reason for this is that we really never know how a court will rule with regard to this issue, no matter how carefully we craft the agreement. The California divorce of Peter and Debra Last is one that illustrates why most attorneys are very hesitant to include such language. 

Instead of Spousal Support, They Agreed to Anniversary Payments 

When Peter and Debra married in 2002, they entered into a prenuptial agreement wherein Debra completely waived her right to spousal support should the marriage end. The agreement included a deal that many of us would find interesting. The equity Peter had in his separate property was made community property immediately, and then there was a payment schedule of sorts. Peter agreed to give Debra specified amounts of money as her separate property: $16,000 within three days of the marriage; $3,500 at the ends of years 7, 8, 9, and 10; and $4,500 at the ends of years 11, 12, 13, 14, and 15...for a total of $52,500. Quite the wedding and anniversary gifts! 

Debra Asked for Spousal Support Anyway

After 19 years of marriage, Debra filed for divorce and requested temporary spousal support, which she was granted. Even though Debra had waived her right to spousal support when they married, her attorney argued that the court should disregard that part of the prenuptial agreement because there was such a dramatic disparity in the parties’ incomes, then and now. California divorce courts strive to aid both parties in maintaining the status quo in terms of living conditions and standards until a divorce is final—and in this case, that meant ordering Peter to pay Debra $8,511 a month. 

Peter Pushed Back

Not surprisingly, Peter fought back. After all, he had what he assumed was an ironclad legal document, and he had paid Debra on their anniversaries as they had agreed. His position was that—by default—their prenuptial agreement should be considered inherently valid and enforceable. But it’s not that simple. The law rarely is.  

Peter’s attorney also argued that if Peter paid Debra $8,511 a month per the temporary order, and later the court determined Debra was not entitled to spousal support, it would be impossible for Peter to recover that money from Debra. The court determined that Debra would be able to repay Peter if she were required to, so the temporary order stood.  

The Prenuptial Agreement Was Not Assumed to be Enforceable

To make a long and complex story short, the court drew upon several cases to determine that a prenuptial agreement should be considered unenforceable unless certain legal standards are met. The burden of proof was on Peter to show that the agreement was enforceable, not on Debra to show that it wasn’t. Every American knows that when it comes to being accused of a crime, you are innocent until proven guilty—not the other way around. The same basic idea applies to a prenuptial agreement that is challenged by one party: it may well be considered unenforceable until proven enforceable. A prenuptial agreement that waives spousal support will always receive more scrutiny and therefore there will be an increased likelihood that a court will decide it’s unenforceable. 

As of this writing, the divorce between Peter and Debra Last has not yet been finalized, but the temporary spousal support order was held up in Debra’s favor.  

The Bottom Line

You’re free to enter into a prenuptial agreement that waives or limits spousal support, but you can’t rely on that spousal support clause to hold up. The case of Peter and Debra Last is just one of several California divorce cases that really encourage attorneys not to include such a clause because we just never know what a judge will do. What I tell my clients is yes, you can agree to limit spousal support, but you can’t depend on that agreement to protect your future liability for support. 

Again, no one gets married expecting to get divorced, and no one enters into a prenuptial agreement expecting to have to fight about it later. You may feel compelled to waive your right to spousal support as a sincere expression of your love and faith in your upcoming marriage, but think twice. I strongly recommend you hire an attorney who is very well versed in California divorce law and who can give you solid advice about how to craft the agreement. 

And should you find yourself in the unfortunate position of getting divorced, please consider either hiring a divorce mediator or a collaborative divorce team to help you navigate the situation. If you have a prenuptial agreement, it may be challenged...and even if it isn’t, you’ll still need compassionate legal support as you end that chapter of your life. 

Explore your no-court divorce options and the prenuptial process in Santa Rosa and Sonoma County and schedule a confidential consultation with divorce lawyer Jeanne Browne. With more than 30 years of experience helping couples divorce without court through mediation and collaborative practice, she will give you compassionate legal advice on your issues related to family law, divorce, and prenuptial/postnuptial agreements. Click here to schedule a meeting.  

Please Note: Articles posted on this website are for general information purposes only and are not to be considered legal advice. Every situation is unique and we recommend you reach out for a private conversation about your specific circumstances and concerns by booking a consultation. 

How Do California Divorce Courts Deal with Restricted Stock Units?

During a divorce, either you and your spouse will have to divide your assets or you will have to let a court decide how to divide them. The process can be confusing and seem complicated. Unless you have a prenuptial or postnuptial agreement that clearly specifies who gets what in a divorce, you’ll have to let a judge decide. 

You and your spouse may disagree about who is entitled to what, and you may disagree about whether certain property is community property or separate property. It’s not always as straightforward as you might think, and these distinctions are important because anything deemed community property gets divided between the parties (not necessarily 50/50 though). 

Understanding Community Property vs. Separate Property

In California, which is a community property state, the general rule is that any and all assets and property earned or acquired by either spouse during the marriage is considered equally owned by both spouses and is, therefore, community property

The other type of property is separate property, which refers to property acquired by one spouse either before the marriage or outside the marriage (for example, an inheritance or gift given specifically to one person might be considered separate property). It also includes property earned or acquired after final separation.

Stock Options and Restricted Stock Units – Who Gets Them?

One type of asset that can be confusing and that couples often and understandably disagree about is stock options. The reason I say potential confusion and conflict is understandable is because as of this writing, California does not have one standard formula for determining division of a specific type of stock option called restricted stock units or RSUs. 

Stock options give employees or other parties (such as consultants, contractors, and investors) the opportunity to purchase stock in a company at a point in the future at a pre-determined price. Stock options are a form of compensation, but divorce courts don’t necessarily treat them the same way they do regular income, salary, or bonuses. 

Restricted stock units (RSUs) are a specific kind of compensation where the employee does not purchase stock but instead is granted stock that vests (has value) later and after certain conditions are met, for example, after the person works a certain number of years. Sometimes RSUs are given to an employee as a way of motivating or incentivizing them to perform. Sometimes they’re given in lieu of a higher salary upfront if, say, the company is growing and wants to get top talent at a bargain price. 

Where the confusion often lies during a divorce is when one party is granted RSUs during the marriage but the RSUs don’t vest until after separation. In this case, the party who is the employee often feels entitled to 100% of the value of the RSUs—after all, it is only because they worked and met the requirements that the RSUs vested and have any value at all. However, the other party may feel entitled to part of the value in the same way they feel entitled to other earnings during the marriage—the RSUs were granted during the marriage, so aren’t they community property even if they vested after separation, or won’t vest until further down the road? 

If only it were as simple as one or the other! But the courts use their discretion in dividing RSUs just as they do with other disputed property--which is why you’re wise to have a prenuptial agreement when you marry and continue to update it when there are significant financial changes throughout your marriage (this is called a postnuptial agreement). 

Two Ways California Courts Might Look at Dividing RSUs

There are two California Appellate Cases that judges typically refer to for guidance in deciding how to divide RSUs in a divorce: Hug and Nelson

Under the Hug Rule, RSUs are thought of as deferred compensation, so the value is calculated with a formula that is based on the employee’s start date with the company.  

Under the Nelson Rule, RSUs are thought of as future incentive for performance, so the value is calculated with a formula based on the date the RSUs were granted to the employee (which could be on or near the start date but could also be at a much later time). 

Without getting into the nitty-gritty of the formulas, the point is that there is no ONE hard and fast rule that all courts use consistently in dividing the value of RSUs between divorcing parties.  

This is where a prenuptial or postnuptial agreement can save everyone a lot of time, expense, and aggravation. 

Also, be aware that there is other relevant case law, and laws do change, so in a mediation or collaborative divorce we hire neutral financial experts to analyze these assets and give us a formal report on the best method of division.  

You Don’t Have to Let the Courts Decide

If you don’t have a prenuptial or postnuptial agreement and you’re facing a divorce where there are potentially tricky aspects (like RSUs) that you don’t want a judge to decide, and if you and your soon-to-be ex-spouse can work civilly and cooperatively toward a compromise, I recommend you look into a mediated divorce or a collaborative divorce. With these out-of-court divorce options, the two of you will work with either a mediator or with a collaborative team to make decisions that both of you can live with. 

I find that with everything from complicated issues like RSUs to emotionally charged issues like child custody, couples who use mediation or a collaborative process are far happier with the outcomes. These processes keep the control within the couple and out of the hands of a judge who doesn’t know you and your history. You’re also likely to finalize your agreement more quickly and with less expense than when you go into the process as adversaries fighting for the lion’s share of property. 

Explore your no-court divorce options and the prenuptial process in Santa Rosa and Sonoma County and schedule a confidential consultation with divorce lawyer Jeanne Browne. With more than 30 years of experience helping couples divorce without court through mediation and collaborative practice, she will give you compassionate legal advice on your issues related to family law, divorce, and prenuptial/postnuptial agreements. Click here to schedule a meeting. 

Please Note: Articles posted on this website are for general information purposes only and are not to be considered legal advice. Every situation is unique and we recommend you reach out for a private conversation about your specific circumstances and concerns by booking a consultation. 

women looking at paperwork on desk

Why You Must Read Your Prenuptial/Postnuptial Agreement Carefully—No Matter How Much You Trust Your Attorney

Do you read every contract before you sign it? The whole thing? If you don’t, you’re not alone. It’s a pretty well-known fact that most people sign contracts without reading them carefully—or reading them at all. And this applies to ALL types of contracts, believe it or not!  

The website conducted an experiment to see how carefully people read online contracts. As part of the experiment, they asked survey respondents to go through an online transaction and then asked them if they had read the terms of service. An astounding 70% of people said they read the agreement, with 33% saying they “read it thoroughly.”  

But they knew that reading everything was probably the most boring thing ever, and that technical language was just too much! Besides, you must accept the terms for that new app—because if you don’t “accept,” then no app!    

In a somewhat unusual survey, it turns out 99% of the people agreed to the terms of service which included giving up the right to name their firstborn child, granting access to the airspace above their property for drone traffic, and allowing their mother to have full access to their internet browsing history! Now that’s funny, don’t you think? Unless, of course, you don’t care if your mom sees your personal information. 

Even if your comprehension skills are impressive, reading through a contract and all of its legal jargon can be daunting. Perhaps this is why some people prefer to pass along the responsibility of contract review to their attorneys. 

Is that a smart decision? Many of us were told by wise parents at a young age never to sign anything without reading every single word first. That’s still good advice. Even if your attorney prepares or reviews an agreement, it’s YOUR name at the bottom because YOU are the one on the hook for everything in that contract.    

When it comes to reviewing prenuptial and postnuptial agreements, we can learn quite a lesson from the McCourts. Who are they, you might ask? Well, here’s a brief summary regarding a prenuptial agreement that contained terms regarding ownership of the LA Dodgers. 

photo of Los Angeles Dodgers Stadium

The LA Dodgers Divorce 

You may remember a story in the news a few years back about the divorce between the owner (or owners?) of the Los Angeles Dodgers. Believe it or not, the question of ownership was hotly contested—because of their postnuptial agreement! Here’s what happened (and why you should care). 

Frank and Jamie McCourt were married in 1979 after meeting in college. They both created successful careers for themselves—Frank in real estate and Jamie in law. 

In 2004, Frank made a big purchase: $421 million for the Los Angeles Dodgers, the stadium, and the surrounding acreage in Chavez Ravine. Around this same time, the couple had been working with Frank’s attorney on estate planning and had been discussing the possibility of creating a postnuptial agreement. They had different motivations--Jamie had expressed concern about protecting their personal assets from business creditors while Frank was particularly concerned about protecting his interest in his newly acquired team and land. 

The couple asked their attorney to draw up a postnuptial agreement (or MPA – Marital Property Agreement). On March 31, 2004, the attorney presented six copies of the agreement, all of which Jamie signed. Frank signed only three copies that day, and then signed three copies two weeks later on April 14. (This is NEVER good practice to do, by the way--both parties should sign together.) 

Just five years later and after 30 years of marriage, Jamie filed for divorce in California. A trial was held to determine whether the postnuptial agreement would be enforced. The verdict: the agreement was unenforceable! 

Frank and Jamie both admitted in court that they hadn’t read the agreement carefully before signing, and both trusted the attorney had created the document according to their wishes.   

But it turns out the attorney had done something not just shady--but illegal—by making changes to the agreement after Jamie had already signed. The three copies Frank signed on April 14 were different from the original six copies Jamie had signed two weeks earlier. When Jamie signed, the agreement listed Frank’s separate property but did not include the Dodgers and the associated land on the list, but the last three copies signed by Frank included the team and land in the list of his separate property. If Jamie had signed that version of the agreement, she would have been agreeing to give up her stake in those assets and making Frank the sole owner—something she claimed she never would have done. 

In order for any contract--including a postnuptial agreement--to be enforceable, it must demonstrate that there has been a “meeting of the minds,” meaning both sides have the same understanding of what the agreement stipulates. The court determined in this case that there could not possibly have been a meeting of the minds when there were two different versions of the agreement. 

The McCourt divorce illustrates the importance of ensuring you’re working with a trustworthy lawyer (actually California requires two attorneys so that each person has independent representation) when putting together a prenuptial or postnuptial agreement, as well as emphasizes the wisdom of the advice to read everything before you sign. 

Incidentally, in case you’re wondering how things shook out for the McCourts, here’s how it ended. One year after the 2010 trial, the couple reached a settlement where Jamie agreed to take $131 million plus about $50 million in property. It probably seemed like a good deal to her at the time, as the Dodgers were in bankruptcy, and holding out for the value of the team to appreciate down the line would have been a gamble. 

The gamble would have paid off though. When Frank sold the Dodgers for $2.15 billion a few years later, Jamie must have tasted sour grapes because she attempted to have the settlement overturned. By then, however, it was too late. Her claims that Frank had misled her about the value of the team and the property were dismissed by the judge—who also ordered Jamie to pay $1.9 million in legal fees. 

There’s another lesson here too, then—a signed agreement is a signed agreement and courts don’t take kindly to what they perceive to be frivolous legal action. Jamie took the sure payout rather than gamble on the valuation of the team, and she lost that bet. But as they say, a bird in the hand is worth two in the bush. . .and if you get one bird, don’t ask a judge to give you two birds later! 

The Bottom Line 

A prenuptial or postnuptial agreement can save both parties unnecessary time, money, and stress, but care must be taken to review documents carefully. It is advisable for both parties to have their own attorneys if you want the agreement to actually have a chance of being enforceable by the court, and it is certainly recommended that both the attorneys and the parties review the agreements carefully prior to signing them. I mean, really, why spend all that time and money getting a premarital agreement if the court is going to just toss it in the trash? 

It is also worth noting that the existence of an agreement doesn’t necessarily mean you’ll avoid the courtroom if you get divorced. It should make the process much smoother and easier though, and for the few remaining issues that may need to be ironed out, you can work those out in mediation or through a collaborative divorce process. 

High profile divorces provide interesting and poignant illustrations of what can go wrong with a sloppily prepared prenuptial or postnuptial agreement, as well as if you have an unscrupulous attorney, but you don’t have to be rich or famous to learn from their mistakes. Let this story be a useful cautionary tale. 

If you would like to explore the possibility of creating a valid prenuptial or postnuptial agreement with an experienced, conscientious, and careful attorney, plan to schedule a consultation at least three months before your intended wedding date. Then put that original document in a safe place and take really good care of your relationship so you never have to look at it again.  

If you have questions, please give my office a call anytime to schedule an initial consultation.  

Oscar award

Chris Rock, Will Smith, the Oscars, and Lessons for Your Marriage 

I’m not one to pay attention to celebrity news, but this March it was impossible for all of us to avoid hearing about the Oscars and “the slap heard round the world.” While the incessant gossip around the event certainly wasn’t productive, it did bring a few topics into the spotlight that I think are worth brief attention. We can always learn from the experiences of others, and I believe there are some lessons to learn from the people involved in this high-profile incident. 

In Case You Missed It 

In the unlikely event you didn’t hear about it, here’s what happened. . . 

After Oscar emcee Chris Rock cracked a joke at the expense of Will Smith’s wife Jada, Will stormed onto the stage and smacked Chris right across the face. Chris tried to brush it off as Will walked back to his seat, but Will was clearly angry and continued to yell out while seated. To say it was shocking and awkward would be an understatement. You can read elsewhere for more details, I just wanted to comment on a couple of issues such as how trauma effects our relationships with each other, and how premarital agreement terms come up in celebrity divorces.    

What We Can Learn From Chris Rock—It's Probably Not What You Think 

After that night, a lot of conversation focused on how well Chris took the hit—physically and emotionally.  Clearly he was stunned, but he didn’t retaliate with his hands or with jokes (the latter of which would likely have been far more devastating to Will, as Chris is a skilled comedian, after all).  

Upon being struck, subtle body language cues (a step back, a clenched fist) indicated his instincts kicked in immediately as he prepared in case the confrontation escalated. Simultaneously, however, he maintained his composure and continued to handle himself with an impressive level of professionalism and grace. 

Many people commented that Chris reacted like a guy who has taken hits in the past. Turns out, Chris shared in multiple interviews that while growing up he was the victim of a lot of bullying, partly because he was small and partly because he was black. In one interview with Dana Carvey and David Spade, Chris told a story about a particularly humiliating experience he suffered at the hands of a bully at a party and how he retaliated by beating him severely. (This comment made me consider our culturally diverse society and how we treat others of another race, religion, or socio-economic status. Perhaps we all could benefit from training in diversity, equity and inclusion, and learning to avoid using unhealthy forms of anger.) 

Does Your Anger Scare You?  

Chris said he realized years later in therapy that from that moment forward, he was afraid to express his anger at all.  As a result of being “scared of [his] anger,” he “let the whole world walk over” him—including friends, family, and romantic partners. He talked about his low self-esteem on a podcast with Howard Stern. While he felt confident about himself professionally, in the personal realm he said, “I just feel not worthy of anyone’s attention, anyone’s love, any accolades, just anything.”   

This made me sad because I think it’s heartbreaking to hear a person express this kind of pain. It’s unfortunately predictable that unresolved hurt of this magnitude would manifest itself in unhealthy ways in a marriage. After all, we bring all of ourselves—good and bad—into a relationship. Chris admitted to struggling with an addiction to porn and being unfaithful in his marriage.  In his 2018 standup special, he talked about his shortcomings as a husband. “I didn’t listen. I wasn’t kind. I had an attitude. I thought, ‘I pay for everything, I can do what I want.’” (Maybe not the easiest type of person to be married to.) 

Perhaps, then, Chris wasn’t surprised when his wife filed for divorce after 18 years of marriage. Later, he seemed to show he had a clear understanding of his responsibility. He brought it on himself, he said, and “some of these lessons you’ve just got to learn...some man lessons.”  In his special, he also gave a simple but profound piece of advice: “You don’t wanna get divorced. You got somebody you love? Hold tight, commit.” (Good advice, Chris.) 

What can we learn from Chris Rock?  We learn that our unresolved childhood traumas can have a profoundly destructive effect on our interaction with others, and on our marriages. Seeking the help of professionals, and actually following their seasoned advice, brings the healthiest version of ourselves to all of our relationships, and also gives us the best possible chance at a happy, lasting marriage. 

The Rock Prenuptial Agreement – What’s a “Sunset” Clause?  

By the way, when Chris’s wife, Malaak Compton-Rock filed for divorce, she did so just after the “expiration date” of their prenuptial agreement. If you didn’t know, some premarital agreements contain an expiration date (or sunset clause), now you do! It's not very common, but in some situations, it makes sense. If this is something you or your partner want to include in a prenuptial agreement, you’ll want to seek out good advice from an experienced and trusted family attorney who will work to protect your interests.   

Ms. Compton-Rock waited to file for divorce until after the agreement had expired, giving her the highest possible payout from Chris’ net worth of $70 million. (What are your thoughts about that?)    

When consulting with clients regarding terms in a prenuptial agreements and concerns around validity, sometimes it makes sense to wait for a sunset clause to arrive rather than pay enormous amounts of attorney fees to fight over whether it was valid in the first place. But waiting could involve enduring an abusive relationship for an extended period of time. Tough choices for sure.  

Lesson: If you have a prenuptial agreement, it’s a good idea to review it every so often. If major changes take place for either of you financially, update the agreement. While you’re married, it can be changed and amended if both parties agree (called a Post-Nuptial Agreement). If your agreement has a sunset provision, make sure you keep an eye on your marriage and on the expiration date, and make changes as needed—to both! 

Lessons from Will and Jada Smith 

If we’re going to talk about the incident at the Oscars and lessons to learn about marriage, we may want to address the marriage between Will and Jada. They’ve spoken openly about their struggles with infidelity and an arrangement that can be politely described as unconventional. It’s not my place to diagnose the relationship or judge either of them, so in an attempt to avoid doing that, let me say that I have a great deal of compassion for the Smiths.  What happens inside a marriage should stay in the marriage as much as possible.   

For support and advice, consider working with a trusted professional counselor to protect your privacy and the privacy of others. Do your best to resist the urge to share intimate details with friends and family.  It’s hard for people who love you not to take sides and perhaps hold on to anger and resentment. For instance, if you have children, you know the other parent will be part of your children’s lives forever, so forgiveness works wonders for those ready to move forward. Unfortunately, other family members may not be ready to forgive yet, thus putting a strain on future family-focused events like graduations and weddings, etc.  

In summary, our lessons learned: 

  1. Best to hold your composure when confronted with an assault. 
  1. Learn to hold your marriage as priority and keep your private life as private as possible. 
  1. Prenuptial Agreements are protected confidential documents.  They are only exposed to public view when couples cannot reach an agreement out of court regarding how to enforce them.  
  1. It is best to use Collaborative Attorneys to prepare prenuptial or post-nuptial agreements or enforce them. Cooperation and sound legal counsel keep you out from under the public microscope.   

My wish for you is that you enjoy a fulfilling and happy marriage. I believe creating a prenuptial agreement can be a valuable tool in giving both you and your partner a solid start and peace of mind. Read more about prenuptial agreements here, and contact us if you would like to explore your options in a confidential consultation.  

How Do You Know If Your Prenuptial Agreement Is Valid? Here Are 7 Mistakes to Avoid When Preparing Yours.

prenuptial agreement is an extremely valuable contract intended to protect you should the unthinkable happen and your marriage ends in divorce. Nobody likes to think about divorce, especially when you’re planning a wedding. And while divorce rates have been steadily declining over the past several years, still far too many marriages come to an unpleasant end and spouses go their separate ways.  

If you’re marrying later in life, your chances of staying blissfully wed until death do you part are better now than they were...but with more life under your belt, you’re also probably entering into the relationship with more assets, debt, or both than you did the first time around. You may also have children to whom you want to leave property should divorce occur in your future.  

There are many good reasons to enter into marriage with a prenuptial agreement in place. There are also many mistakes couples must avoid in order to ensure your prenuptial agreement is valid and will protect you down the road. 

What can make a prenuptial agreement valid or invalid?

In the state of California, the Uniform Premarital Agreement Act clearly outlines the conditions that must be met for a prenuptial agreement to be valid, and what could cause it to be deemed invalid in court. 

First, allow me to state what is probably obvious about what must be true for a prenuptial agreement to be valid

  • It has to be an agreement—neither person can be forced, coerced, or tricked into signing it, and you must both sign it voluntarily, with both of your attorneys present. 
  • It has to be prenuptial—prepared and signed well before the actual wedding. 
  • It has to be fair—if a judge deems the terms to be such that one party will suffer great hardship while the other makes out like a bandit, the agreement can be thrown out. 

Can a prenuptial agreement be challenged during a divorce?

If it’s valid, it should NOT be easily challenged. That’s why it’s important you and your partner go through the process together with care and conscientiousness, and with the help of two qualified family law attorneys—one for each of you. (If you would like me to work with you in preparing your prenuptial agreement, keep in mind I can only represent one of you, but I will be happy to give you the names of other trusted attorneys who can represent your soon-to-be spouse. Contact me to discuss.)  

Now, let’s look at seven mistakes you must avoid to ensure your prenuptial agreement is valid. 

Mistake #1 - Asking your attorney friend to “just write something up.”

Prenuptial agreements are very specific types of contracts and California law mandates how they are written and executed. Unless your friend specializes in California family law, chances are very good any general-type contract he prepares for you is NOT going to protect you, and probably won’t even be considered a valid prenuptial agreement by the courts. 

Mistake #2 - Going online and getting a preprinted agreement so you can fill in the blanks.

As convenient (and cheap) as it may seem to try and do it yourself—or to use an online legal service—don't do it. A properly prepared prenuptial agreement requires you to involve qualified attorneys who know the financial details of both you and your soon-to-be spouse. A fill-in-the-blank form, even if there’s an online attorney somewhere supposedly double-checking things, just isn’t sufficient. You may think you’re saving money, but you’ll more than likely find out you paid for something not worth the paper it’s printed on—and when you do, it will be too late to do anything about it. 

Mistake #3 - Having only one attorney represent both of you.

California law is very clear on this point: each party must have his or her own independent counsel to represent them during the prenuptial agreement process. (Should one person absolutely refuse to have separate representation, that person must provide written acknowledgment stating s/he was advised to get a lawyer but willingly chose not to do so. I strongly recommend against taking this route. It not only fails to provide equal representation to both parties, but it opens up the entire agreement to scrutiny and possibly being deemed invalid by a judge in the future.) 

Mistake #4 - Waiving your right to spousal support.

You may not like the idea of collecting alimony, or may think it’s not applicable to your personal situation. But there is plenty of case law in California that shows an entire prenuptial agreement can be thrown out if a judge decides the spousal support portions are unfair. An agreement also can’t require anything in terms of spousal or child support that are outside the law. So no matter how generous or reasonable you are trying to be, don’t agree to something that’s going to cause the whole contract be deemed invalid by a judge in the future. 

Mistake #5 - Rushing through the process and signing at the last minute before the wedding.

You really do need to plan ahead. In California, there is a mandatory 7-day waiting period between when the “final draft” of the agreement is received, and when it can be signed. If you violate this waiting period, the agreement could be deemed invalid. In addition, it’s NOT a good idea to sign it too close to the wedding date. After a divorce, a judge could be persuaded that an agreement signed the night before or the morning of a wedding was signed under pressure or duress, and might therefore decide to invalidate the entire agreement.  

Mistake #6 - Preparing an agreement with incomplete financial information.

Maybe there are certain assets—or debts—you'd rather not tell your soon-to-be spouse about. Maybe you want to hide certain property or accounts because you want to keep them private. Perhaps you’re trying to avoid embarrassment by not disclosing you owe money to certain creditors. Or maybe you figure some small financial issues aren’t worth mentioning. The problem is that executing a prenuptial agreement with incomplete information, i.e., without a fair and full disclosure of your property and financial obligations, could invalidate the whole agreement based on allegations that you intentionally entered the agreement with the intent to defraud your future spouse. 

Mistake #7 - Signing the agreement after a few drinks.

Believe it or not, if one or both of you are highly intoxicated because of alcohol or drugs when you sign, a court may invalidate the agreement based on one or both parties having been unable to consent due to mental incapacitation. The same could be true if one or both parties are mentally incapacitated for other reasons—so getting your partner to sign while they’re medicated after surgery or an accident, for example, isn’t a great idea. 

The Bottom Line

If you work with qualified family law attorneys and avoid these mistakes while preparing your prenuptial agreement, you should feel confident it will protect both you and your partner. If you are ready to begin preparing your prenuptial agreement, get in touch. I love helping couples start marriage off on the right foot, with financial protection and peace of mind. 

Learn more about prenuptial agreements.