by Attorney and Certified Family Law Specialist Raelynn Stattner
A wedding and marriage are exciting milestones in life. But many people on the precipice of these events do not consider the legal ramifications of their decisions. An experienced family law attorney can advise you as to options to protect yourself prior to and during your marriage.
You may be familiar with Pre-Nuptial Agreements or Pre-Marital Agreements. As the name suggests, this is a written Agreement entered into before marriage. It allows you and your soon-to-be-spouse to define your respective rights related to the management of property during marriage. It also allows you to specify spousal support and the division of property, should you find yourself facing a divorce or legal separation down the road.
Despite the familiarity of the term, California law has stringent and specific requirements you must follow to have a valid and enforceable Agreement. One such consideration includes whether the Agreement was entered into freely and voluntarily. Another consideration is whether the Agreement was unconscionable when you signed based on factors related to each party’s respective finances and disclosures of the same in the Agreement. There are also time limits you need to be aware of related to the wedding date and signing of an Agreement.
If you and your spouse want to waive or limit spousal support in your Pre-Martial Agreement, there are additional and very specific requirements. Such requirements include whether a party was represented by an attorney when the Agreement was signed and whether the provision is unconscionable at the time of divorce or legal separation.
You can avoid the pitfalls and mistakes many people make in entering into a Pre-Marital Agreement by consulting an attorney to guide you through the process.
Keep in mind, Pre-Martial Agreements are not just for the wealthy. Consider the plan for your financial future and begin protecting yourself as well as your soon-to-be-spouse now.
DUTIES BETWEEN SPOUSES AND THE POSSIBLE CONSEQUENCES FOR NOT COMPLYING
You may be unaware of the legal standard of duties which apply to you after you get married. California law “imposes a duty of the highest good faith and fair dealing on each spouse, and neither shall take unfair advantage of the other.” California Family Code section 721(b). The statute likens this duty to business partners who are not married and even refers to the Corporations Code to define those duties.
For example, if you receive a benefit from a transaction involving community property, you are required to account for such benefit and hold it as trustee for your spouse. California Family Code section 721(b)(3). To say the least, it is a high standard. Most people are unaware of the depth of these duties before saying “I do,” yet they will apply to you regardless.
It is important for you to educate yourself about fiduciary duty laws prior to marriage. An experienced family law attorney can advise you as to the duties, rights and obligations before you find yourself in an unfavorable position.
You may run into problems recovering your separate property due to commingling. For example, you receive a cash inheritance during marriage, which is your separate property. You deposit the funds into a joint, community account. You and your spouse also deposit each of your earnings during marriage from this account. You also pay community expenses from this account. Over time, your inheritance becomes more mixed with the community funds in the account.
In the event of a divorce or legal separation, the commingling of your inheritance makes it more difficult to recover this separate property. An experienced family law attorney can help you to protect assets and manage your finances in a manner that best suits your needs.
Of course, this barely skims the surface as to the list of issues you may face before and during marriage. Arming yourself with the knowledge of your rights and obligations is important to protecting yourself, your money, and your assets in the future. An experienced attorney can guide you through the dos and don’ts so you can make the best decisions for you and your family.