Would you be insulted if you were asked to sign a pre-nup?

[threebyfate]

In the case of Pendleton v. Fineman, S.Ct. Cali. 8/21/00, the Supreme Court of California held that the validity of waivers of spousal support in prenuptial agreements was left to the courts by the legislature and, furthermore, that such agreements are not automatically void as against public policy. The bottom line is that waivers of spousal support are legal in California; however, they are closely reviewed by the courts to ensure that neither side obtained an unfair advantage over the other. If you desire additional assurance that your agreement will be enforced by the courts on the issue alimony in California, we recommend that both parties have the agreement reviewed by separate attorneys prior to signing.

Thanks carhill.

[Green]

I'm not a lawyer but yeah I knew you could use a pre-nup to avoid alimony. But in a 25 year marriage you'd probably need a post nup because a lot of the assets would get split.

[carhill]

I should cite the entire page, for relevance. The 'unfair advantage' pertains to the methodology by which the prenuptial agreement was drafted and proffered, hence the standard recommendation for both parties to be represented by counsel. If no unfair advantage can be substantiated, the court can hold the agreement to be legal and enforceable. This would provide one methodology for agreeing in advance to waive spousal support. My lawyer covered some of this stuff while we were planning Plan B.

 

The key, IMO, is to strategically invest up front to minimize financial pain for both parties at the back end. One big financial pain is lawyer and court fees

[Star Gazer]

TBF, with all due respect, you don't understand the meaning of unconscionability in contract. In the context of a prenup, it's determined as of the time the contract was entered into, NOT at the time of divorce.

 

The agreement was "unconscionable" when it was executed and the party seeking to avoid the agreement:

was not provided fair and reasonable disclosure of the other party's property or debts;

did not waiving in writing the right to proper financial disclosure; and

did not have, or could not have had, an adequate knowledge of the other party's property or debts separate and apart from disclosure made by this other party at the time the agreement was made.

 

So in your incomplete hypothetical, the only way a prenup denying alimony would be deemed unconscionable would be if the same contract said that the wife would not work for 25 years and would only pop out babies, and would be solely dependent on husband's income. There, it would be unfair and one-sided, ab initio.

[threebyfate]

I'm not a lawyer but yeah I knew you could use a pre-nup to avoid alimony. But in a 25 year marriage you'd probably need a post nup because a lot of the assets would get split.

But you can't use a prenup to avoid alimony.

[Star Gazer]

I should cite the entire page, for relevance. The 'unfair advantage' pertains to the methodology by which the prenuptial agreement was drafted and proffered, hence the standard recommendation for both parties to be represented by counsel.

 

Exactly right, again, Carhill!

[threebyfate]

I should cite the entire page, for relevance. The 'unfair advantage' pertains to the methodology by which the prenuptial agreement was drafted and proffered, hence the standard recommendation for both parties to be represented by counsel. If no unfair advantage can be substantiated, the court can hold the agreement to be legal and enforceable. This would provide one methodology for agreeing in advance to waive spousal support. My lawyer covered some of this stuff while we were planning Plan B.

 

The key, IMO, is to strategically invest up front to minimize financial pain for both parties at the back end. One big financial pain is lawyer and court fees

In the example I gave, there's no way anyone can avoid paying alimony.

[Star Gazer]

In California, and most other jurisdictions in the US, you absolutely, 100% CAN use a prenup to avoid alimony.

[Star Gazer]

In the example I gave, there's no way anyone can avoid paying alimony.

 

Yes, there is. Please stop analyzing legal principles you don't completely understand.

[threebyfate]

Unconscionable is the key word for all prenups. Any prenup can be overturned if it's viewed as unconscionable by the courts.

 

There are so many urban myths about what a prenup can and can't do.

[carhill]

Very true. Anything can happen, which is why competent legal counsel is crucial. Courts rule improperly and make mistakes. It's a process, hopefully one which doesn't rule our existence. That, to me, would be insulting

[Star Gazer]

Unconscionable is the key word for all prenups. Any prenup can be overturned if it's viewed as unconscionable by the courts.

 

The same is true with ANY contract.

 

But to say - as you did - that a prenup can never be used to avoid alimony is just 100% incorrect. Prenups are used all the time to avoid alimony - quite successfully.

 

There are so many urban myths about what a prenup can and can't do.

 

Very true. Hence why anyone interested in one, and the pros and cons of one, should see the advice of an attorney.

[threebyfate]

But to say - as you did - that a prenup can never be used to avoid alimony is just 100% incorrect. Prenups are used all the time to avoid alimony - quite successfully.

Neither is 100% correct. You cannot use it to avoid alimony if it's unconscionable, regardless of waiver.

Very true. Hence why anyone interested in one, and the pros and cons of one, should see the advice of an attorney.

Qualified attorney, might be a more appropriate term.

[Star Gazer]

Neither is 100% correct.

 

Wrong again. What I said IS correct.

 

 

Qualified attorney, might be a more appropriate term.

 

Might be, but an attorney is better than a layperson!

[threebyfate]

Wrong again. What I said IS correct.

Wrong again.

Might be, but an attorney is better than a layperson!

I disagree.

[SadandConfusedWA]

 

Might be, but an attorney is better than a layperson!

 

Hehehe this is brilliant!

[Star Gazer]

Wrong again.

 

You said, AND I QUOTE, "You can't use it to get out of alimony."

 

I said that is wrong. It is wrong. Period. Even Carhill proved that to you.

 

I disagree.

 

OF COURSE you do. You're unique! And you know more than experienced attorneys do!

[ADF]

Magical love? Please.

 

Signing a prenup is one of the smartest things anyone can do, and I'll tell you why. When it comes to divorce, what people fear is getting the bad end of a settlment. Well, that can happen. But the real damage, the real thing that wrecks people, isn't the result, but the process. No matter how fair or equitable a judgement is, getting there is a freakin' nightmare of stress, rage, and resentment. With a prennup, you can bypass 90% of it. I've worked in family law for a while, and have yet to meet anyone who hasn't regretted NOT signing a prenup.

[threebyfate]

You said, AND I QUOTE, "You can't use it to get out of alimony."

 

I said that is wrong. It is wrong. Period. Even Carhill proved that to you.

I stated why I said that, in an unconscionable scenario.

 

OF COURSE you do. You're unique! And you know more than experienced attorneys do!

I'm comfortable that my hands on experience with pre and post nups, is greater than some lawyers, particularly those who don't practice family law. I also feel that carhill, who is also a layman, has more knowledge than lawyers who don't practice family law.

[Star Gazer]

I stated why I said that, in an unconscionable scenario.

 

Nice try. You said that AFTER the the quote I posted.

 

I'm comfortable that my hands on experience with pre and post nups, is greater than some lawyers, particularly those who don't practice family law. I also feel that carhill, who is also a layman, has more knowledge than lawyers who don't practice family law.

 

Okkkkkaaaaaay, whatever you say, ALWAYS THE EXPERT!!! :lmao:

 

Then again, you do have more experience getting divorced than I do.

[threebyfate]

Nice try. You said that AFTER the the quote I posted.

I gave you my reasoning. Anything that you assume from it, is by your own recognizance.

Okkkkkaaaaaay, whatever you say, ALWAYS THE EXPERT!!! :lmao:

 

Then again, you do have more experience getting divorced than I do.

Never said I was the expert, just a layman who's had some hands on experience.

 

And yes, not only do I have more divorce experience, I actually have marriage experience.

[Star Gazer]

And yes, not only do I have more divorce experience, I actually have marriage experience.

 

Unfortunately for this thread, neither have anything to do with the practice of law and how courts, time and time again, will adjudicate cases. Oh well!

 

Have a nice night, TBF!

[threebyfate]

Unfortunately for this thread, neither have anything to do with the practice of law and how courts, time and time again, will adjudicate cases. Oh well!

 

Have a nice night, TBF!

Glad to see that court experience with employment law, trumps hands on experience with pre and post nups.

 

Hope you have a great evening too. I know I am and will.

[Taramere]

This deserves a bump and an extension:

It is indeed hilarious to observe how the *very same* posters (i can name them) who are perfectly capable of rationally discussing a controversial subject and accepting the need of a pre-nup (i.e. a situation what benefits them and provides "peace of mind") in spite of the inevitable touchiness of the subject, instantly switch their approach on a dime and resort to emotional blackmail and crazy assumptions when the subjects changes to a situation that is irrelevant to them (although it would provide "peace of mind" to another person).

 

Nice work (but don't insult our intelligence by believing that we won't notice...)

 

Bit of a difference between asking for a paternity test and asking for a prenup. However you were to word a request for consent to a paternity test, there's an implication in such a request that the W may have cheated. You can't really get around a request like that causing offence unless the wife has behaved in a manner that gives her husband reasonable grounds for doubting paternity. A generally suspicious nature, on the part of the husband, that has no reasonable basis in his wife's behaviour, doesn't seem like reasonable grounds.

 

Prenups simply acknowledge that marriages don't always last. Individual clauses within them may well cause offence, but the acknowledgement that not ever marriage lasts is not, in itself, a slur on the character of either party to the planned marriage.

 

I should cite the entire page, for relevance. The 'unfair advantage' pertains to the methodology by which the prenuptial agreement was drafted and proffered, hence the standard recommendation for both parties to be represented by counsel. If no unfair advantage can be substantiated, the court can hold the agreement to be legal and enforceable. This would provide one methodology for agreeing in advance to waive spousal support. My lawyer covered some of this stuff while we were planning Plan B.

 

As you say, unless there was undue influence by one party - which resulted in the other being pressurised into signing the prenup contract against their will (pressure that entails something more than simply saying "I won't marry you if you don't sign"), or the party arguing against its terms didn't receive the benefit of legal advice before signing, then the court won't intervene lightly in a private agreement between parties.

 

It will in cases where the contract has resulted in a manifest injustice. for instance, if one party had been left in a state of poverty, a clause depriving them of any financial assistance from the other would probably be overturned regardless of whether legal advice had been dispensed at the time of the agreement being signed. Maybe applicable if there had been an unforeseen change in the couple's circumstances - for instance, if the party disadvantaged by the agreement had developed serious health problems during the marriage.

 

Also if there are any children of the marriage, the court is far more likely to intervene in a prenup....as it also will if either party failed to make a full and accurate disclosure of their assets before the prenup was signed.

 

It's generally pretty hard to imagine any lawyer advising someone to sign a prenup that deprived them of rights to alimony that they would otherwise have a legal entitlement to. Why would anyone advise someone to sign away their legal rights, unless they're going to be very nicely compensated for doing so?

[carhill]

Prenups are business contracts. It's called negotiation. Alimony is one of many little parts of the negotiation, as is how future children will be handled. A good lawyer knows how to *negotiate*. If all parties are amenable and disclosed, there should be insult perceived nor injustice inferred. Penalties for enforcement action can be attached, if a party agrees to the contract and later reneges on their agreement. Lots of stuff can go on. The key is a meeting of the minds, much like we learned in MC. Compromise; bend. Nothing in life is absolute, except death. Everything else is negotiable.