When the Honeymoon’s Over, Can You Contest a Prenup?

December 27, 2019 Judy Burger

Two and a half years after their lavish wedding ceremony and reception, Mark and Cindy were ready to call it quits. Their marriage seemed headed for a quick dissolution, in part because they had signed a prenup. They had signed their premarital agreement because Cindy brought more separate assets into the marriage, along with a higher salary than Mark’s. Over the course of even a couple of years, a couple’s financial situation and feelings about property may change. However, can you contest a prenup with a marriage ends? That’s what we’re going to explore in this article.

What’s a Prenup?

It’s a legal contract that is signed before a couple weds. The terms of a prenuptial agreement, which is also called a premarital agreement, relate to how each person’s property will be treated during a divorce or if one party dies. The agreement becomes effective only when the couple is married.

In California, the Uniform Premarital Agreement Act (UPAA) states that the parties to a prenup may agree to any of the following:

Rights and obligations regarding property;
The right to manage and control property;
How to dispose of the property under certain circumstances, including divorce;
Estate planning that carries out the terms of the prenup;
Disposition of life insurance proceeds; and
Any matter that does not violate public policy or statutes imposing criminal penalties.

Some provisions should not appear in a premarital agreement. In fact, they could give you the opening you need to contest your prenup agreement.

To Contest a Prenup …

The UPAA includes specific reasons a premarital agreement, or certain parts of it, might be unenforceable:

Child support cannot be adversely affected by your prenup. Any language absolving your soon-to-be-ex-spouse of his or her child support obligations may be contested.
Spousal support provisions may spell trouble also. One party might contest the prenuptial agreement if the party waiving spousal support was not represented by an attorney. Also, the spousal support provisions may be unenforceable at the time you attempt to enforce the premarital agreement.

Other reasons your prenup may be unenforceable under UPAA include:

You were coerced or forced to sign the agreement.
The other party did not provide complete financial disclosures before you signed.
You lacked the capacity to understand the consequences of the agreement.
Less than seven calendar days elapsed between the time you were given the agreement to review and the date the agreement was signed.
You were not represented by separate legal counsel.

Discuss your options with a California divorce attorney between doing anything. In some cases, the marriage itself may be void or annulled. If so, the prenuptial agreement may be unenforceable.

It Can Be Difficult to Contest a Prenup, but Not Impossible

Judy Burger is a California Certified Family Law Specialist, and founder of the Law Offices of Judy L. Burger. Please call our offices at 415-293-8314 to set up an appointment with one of our attorneys. We assist clients along the Northern to Central California Coast.

California Divorce, Child Custody

How to Handle Holidays in Your Parenting Plan

December 20, 2019 Judy Burger

Every year, Jessie’s parents fought over where she would spend Thanksgiving. Ethan had the opposite problem – both his parents preferred to spend holidays on exotic (and childless) vacations. Sheila hated talking to her ex-husband about the kids’ holidays, so she unhappily capitulated year after year. If you are in the process of getting divorced, know that it’s best to handle holidays in your parenting plan and not on a holiday-to-holiday basis.

Two Major Topics, Many Choices

Parents must complete a parenting plan before finalizing their divorce. In a California divorce, parenting plans cover two major areas:

Time-Share – how the children’s time will be split between parents; and
Decision making – how decisions about the children’s health, education, and welfare will be handled by the parents.

That sounds fairly easy – until you think of how many topics fall under each major area. For example, Time-Share involves a child’s regular schedule as well as how their time will be spent during holidays.

Scheduling Holiday Time

Trying to decide where your kids will spend Christmas and their birthdays can be stressful. Both parents may want the same days and times. Flexibility and spontaneity work sometimes, but the best time to plan your holidays is when you’re preparing your parenting plan.

In fact, parents prepare and attach a form titled “Children’s Holiday Schedule Attachment” to their parenting plan before submitting it for court approval. The form includes major holidays, as well as:

Lincoln’s Birthday (February 12),
President’s Day,
Spring Break (first and second halves),
Columbus Day,
Halloween,
Veterans Day (November 11),
Thanksgiving weekend,
December/January School Break, and
Birthdays, including child, mom, and dad.

Other options include:

Times. For example, the child may be with the mom from 8 pm Christmas Eve until noon Christmas Day.
Every Year. For instance, the child may spend Thanksgiving with Dad every year instead of alternating with Mom.
Even-Numbered/Odd-Numbered Years. Mom may have the kids on Christmas on even-numbered years, with Dad taking them on odd-numbered years. So, Dad would have them in 2019 and Mom in 2020.

According to the form, the child’s holiday schedule takes priority over the normal parenting schedule. For example, Dad may have the kids every weekend. However, if Christmas falls on Sunday, and it is Mom’s year according to the holiday schedule, then the kids go with Mom.

Scheduling Holidays in Your Parenting Plan Doesn’t Have to Be A Hassle

Do your homework when preparing your plans. If disagreements arise later, know that help is available from the courts if necessary.

Please call us at (415) 293-8314 to schedule a confidential appointment with one of our attorneys. Ms. Burger is a California Certified Family Law Specialist and founder of the Law Offices of Judy L. Burger. We assist clients in California’s Northern to Central Coast, including San Francisco, Beverly Hills, Gold River, Santa Barbara, Ventura/Oxnard, and surrounding communities.

California Divorce, Legal Separation, Property Division, Property Division, Spousal Support

Why Preliminary Financial Disclosures Are Important

December 13, 2019 Judy Burger

The typical divorce case involves many issues, including child custody, spousal support, and property division. Transparency is key to fairly resolving these issues, especially when it comes to dividing a couple’s marital assets and debts. In a community property state like California, debts and assets acquired after marriage usually belong to both parties. That’s why the preliminary financial disclosures are important – it’s hard to divide property when you don’t know it exists.

What are preliminary financial disclosures?

The divorce action starts when one person files a petition to dissolve the marriage. At the same time, or within 60 days, the petitioner serves the preliminary financial disclosures on the other party. If the other party responds to the petition, he or she must also serve preliminary financial disclosures on the petitioner.

Several documents make up the disclosure packet:

Declaration of Disclosure,
Income and Expense Declaration,
Schedule or Assets and Debts OR a Property Declaration, and
Declaration Regarding Service of Declaration of Disclosure.

Courts generally do not grant divorces if the parties have not submitted their financial disclosure forms.

What happens if the preliminary financial disclosures are wrong?

It’s entirely possible one party could omit assets from the disclosures accidentally. It’s also possible that the assets are being hidden to avoid sharing them with the other party.

If disclosures are incomplete or wrong, the simple answer is that the property will not be divided evenly. One party may not receive everything they deserve. The court may approve the property settlement without learning of the hidden property.

Accidental omissions on the preliminary financial disclosures may be easy to fix. However, deliberately concealing assets can lead to penalties. For example, a court may award 100% of a community property asset to the innocent party instead of only 50%.

Make Sure Your Property Is Disclosed and Divided Properly

Talk to an experienced California divorce attorney today. Please call us at (415) 293-8314 to schedule a confidential appointment with one of our attorneys.

Please call us at 415-293-8314 to discuss your case. The attorneys at the Law Offices of Judy L. Burger assist clients with divorce matters in San Francisco, Beverly Hills, Marin County, Santa Barbara, Ventura/Oxnard, San Jose, Gold River (Sacramento), and surrounding communities.

Annulment

Should I Request an Annulment?

December 6, 2019 Judy Burger

We all know that marriages just don’t work out sometimes. But sometimes it’s obvious to observers or to one or both parties to a marriage that the marriage should not have taken place at all. When ending a marriage, you have some options: divorce, legal separation, and annulment. However, annulment may be the choice most shrouded in mystery. How many people have you known who actually annulled a marriage? It’s best to understand the process before answering the question, “Should I request an annulment?”

What Is Annulment?

When the legality of a marriage is at question, one party may ask a court for an annulment. If the court grants the annulment, then it’s as if the marriage never existed.

Always talk to an attorney for seeking an annulment. If you have children or own property, you may need to address legal obligations and assert legal rights.

Am I Eligible to Request an Annulment?

You must have a legal reason for having a marriage annulled. Can you answer “yes” to any of the following questions:

Did you marry a close relative or someone who is already married? Then your marriage was never valid. Talk to an attorney about severing any ties between you and the other party to your marriage.
Were you or your spouse under age 18? Young people can be impulsive. Under California law, you can annul a marriage when one or both parties are underage.
Were you and your spouse of sound mind when you married? Both parties must understand the consequences of a wedding ceremony. A party of unsound mind lacks the ability – or the capacity – to be married. A court may grant an annulment in these situations.
Did your current spouse lie to get you to marry? An unscrupulous person may lie about important issues in the lead up to the ceremony. The innocent spouse can request an annulment when fraud is present.
Was the marriage voluntary on your part? It’s possible to be forced into a marriage against your will. If this is the case, you may be able to request that the marriage be annulled.
Is your partner unable to consummate the marriage? No matter the reason, a court may consider this grounds for an annulment.

If you have found yourself in one of the situations mentioned above, then having your marriage annulled may be an option.

Should You Request an Annulment?

It depends completely on your situation and your goals.

The attorneys at the Law Offices of Judy L. Burger are experienced at all phases of divorce, legal separation, and annulment. Call us at 415-293-8314 to schedule a private appointment or visit our website. We maintain offices in San Francisco, Beverly Hills, Marin County, Santa Barbara, Ventura/Oxnard, San Jose, Gold River (Sacramento), and surrounding communities.