What law governs prenup agreements?

Experienced Bay Area Family Law attorneys will tell clients that premarital and preregistration agreements are recognized under California law (Fam C §1500) and are governed by the Uniform Premarital Agreement Act (Fam C §§1600–1617) (the Act), except to the extent California has modified the terms of the Act, and by Fam C §§1500–1503 (addressing both premarital and other marital property agreements). 

A premarital or preregistration agreement is defined as an agreement between prospective spouses or domestic partners made in contemplation of marriage or registration, to be effective on marriage or registration. Fam C §§1610(a), 1613. A premarital or preregistration agreement must be in writing and signed by both parties. It is enforceable without consideration. Fam C §1611. It may be amended or revoked after marriage or registration only by a written agreement signed by both parties. Fam C §1614.

 

Learn more about prenups here.

 

My ex has a new girlfriend and I don't want my kid to meet them, how do I handle that?

Recently separated and divorced families often struggle with the issue of a new significant other.  

Experienced Bay Area family law attorneys recommend to clients to work out a plan prior a conflict.  Here is some sample language to help smooth out the process: "neither parent will introduce our child to new significant others without prior notice of at least a week to the other parent. Both parents agree that they shall create a plan to determine (1) when our child will be introduced to new significant other, (2) where our child will be introduced (a park or restaurant can be easier), and (3) an appropriate time period in which our child can adjust prior to the new significant other sleeping over. 

Examples of Child Custody Schedules

Experienced Bay Area Family Law Attorneys will tell clients about the variety of custody schedules that can best suit your child. One schedule that I like is the 2-2-5-5 schedule.  Here are some advantages and disadvantages of that schedule. 

Advantages

•       Great for children under age 5 who have equally good attachment to both parents.

•       Okay for temperamentally even-keeled children between ages of 5 to 12.

•       Regularly recurring and consistent plan.

Disadvantages

•       Particularly for children under age 5, this plan may require the child to be away from the more involved parent for 5 days at a time.

•       If there is already a lot of conflict, the transitions between parents’ households are stressful particularly for immature children.

What changes to my estate plan can I not make during divorce?

You may not transfer, encumber, hypothecate, conceal, or in any way dispose of any property, real or personal, whether community, quasi-community, or separate, except in the usual course of business or for the necessities of life without consent of your spouse. 

You cannot create a “nonprobate transfer” or modify a “nonprobate transfer” in a manner that affects the disposition of property subject to the transfer without consent of your spouse.A “nonprobate transfer” includes, but is not limited to, revocable trusts, pension plans, employee benefit plans, IRAs, and life insurance. (Note: Pension plan beneficiaries are controlled by the Employee Retirement Income Security Act of 1974 (ERISA) (29 USC §§1001–1461), and the nonparticipant spouse is entitled to be the beneficiary under federal law.)

What is Moore Marsden and do I need it?

Experienced San Francisco Bay Area Family Law Attorneys will tell clients about reimbursement rights for property purchased prior to marriage with separate property funds.

For example, if one spouse owns a residence or other real estate as separate property before marriage, and then community funds are used to reduce the principle owed on the mortgage, then the community estate will acquire a pro-tanto interest in the property. This is commonly known as Moore/Marsden based on two cases in the 1980s.

Stated another way, Moore/Marsden Rule provides that when community property funds are used to reduce the principal balance on a loan used to acquire a separate property residence owned prior to marriage by one of the spouses, the community acquires an interest in that property.

A different approach has been used when community property is used to improve separate property. In family law, separate property funds that are contributed to a community property are entitled to reimbursement under Family Code 2640 (without interest or appreciation). Be careful because the statute limits reimbursement to the net value of the property at the time of division.  An additional wrinkle in Moore Marsden calculations can be a refinancing - so contact a family lawyer or Certified Divorce Financial Planner if you have questions about separate property reimbursement.  

Learn more about property division:

MY SPOUSE LIQUIDATED OUR ACCOUNT DURING OUR DIVORCE, CAN HE DO THAT?

WHAT IS COMMUNITY PROPERTY?