Fellow family law blogger, Jeff Lalloway, of the California Divorce and Family Law blog was quoted in a recent article in the Daily Pilot of Newport Beach, California, about prenuptial agreements. Here is his post on the topic:
Love and security … on the dotted line
*As the popularity of prenuptial agreements grows, couples are tailoring them to fit their specific needs.
By Dave Brooks, Daily Pilot
It’s something all couples need to talk about, although Tuesday might not be the most opportune time.
"I wouldn’t suggest giving a prenuptial agreement to your significant other on Valentine’s Day," joked Irvine attorney Jeffrey Lalloway, who said he and other legal professionals are seeing a jump in requests for the premarital contracts.
Once the domain of millionaires and movie stars, prenuptial agreements are becoming increasingly popular for ordinary Americans about to tie the knot. Generally signed before a marriage to divide up an individual’s assets in the event of a divorce, legal experts argue that prenuptial agreements are now one more component of financial planning.
"People in their 20s are starting to look at them," Lalloway said. "Young people understand that it could save them a lot of money in the long run."
Nearly 12,000 Orange County couples divorced in 2003, according to figures from the Judicial Council of California. Divorce is a lot easier — and less costly — for both sides if everything is out on the table in advance, Newport Beach divorce attorney and author Violet Woodhouse said.
"As prenuptial agreements become more commonplace, they are becoming more diversified and tailored to meet a couple’s unique needs," she said in a recent e-mail interview. Besides handling divorce, the contracts can be used to disperse assets after one spouse’s death or create guidelines to divide debt and retirement benefits.
The documents are most effective at placing value on spousal duties that don’t generate income, Woodhouse said. What is the value of one parent’s career who gives up his or her job to raise children, or another spouse who put his or her career on hold to support the other through college?
"One of the most valuable benefits of a prenuptial agreement is that it initiates conversation and provides a platform for the discussion of many critical and important issues," Woodhouse said.
For many, though, it can drive a wedge into a relationship.
The prenuptial agreement may seem fair in the early stage of a relationship, marriage counselor Gayle Cleigh said, "But very often, women in particular say, ‘Gee, I was really happy when we married, and I didn’t look at what I was signing and now it looks like I’m going to end up with nothing.’"
Even worse, the one with the most assets can use their financial leverage over the other during arguments, creating an unhealthy balance that hurts relationships.
"Unfortunately, it always sets some seeds of discomfort unless both people have equal assets," Cleigh said.
Prenuptial agreements don’t always hold up in court. In July 2004, an appeals court threw out a prenuptial agreement signed by Newport Beach millionaire Warren Rosendale, who left his wife of 10 years after she was badly disfigured in a car accident. A justice with the state 4th District Court of Appeal said Rosendale treated his wife like a "disposable spouse" who was "cast off" without support "once she had become damaged."
It’s often the high-profile cases that give prenuptial agreements a bad name, Lalloway said.
"That’s why you have to be really delicate when bringing it up," he said. "But it’s important to talk about it before you get the lawyers involved. You’re not only commingling your life, you’re commingling your finances. You wouldn’t go into business with anyone without a written agreement."
Rules for drafting a prenuptial agreement
In August 2000, the California Supreme Court upheld a premarital agreement between baseball player Barry Bonds and his wife Sun Bonds. In that case, Sun Bonds said she didn’t understand what she was doing when she signed the agreement and could barely speak English.
Since that ruling, lawmakers have set more clear-cut standards about what can be agreed to before marriage.
Here are the five basic rules to drafting a prenuptial agreement:
* Prenuptial agreements must be signed well before the wedding takes place.
* Each spouse must hire a lawyer to review the document.
* When signing a prenuptial agreement, both sides must disclose all their assets, debts and earnings.
* The agreement must be fair — although people often disagree about that standard — and cannot leave one spouse impoverished if a divorce takes place.
* Prenuptial agreements cannot determine future child support amounts in the event of a divorce. Child support payments are determined using a formula that calculates wage and need.