Under the laws of California all property acquired during the marriage is presumed to be part of the marital estate and is to be equally divided at the time of divorce or legal separation. Two people may enter into a contract before or during marriage altering the rights that each party will have to the property that they bring into the marriage, and/or acquire during the marriage. They may also agree to the amount of spousal support owed to the other in the event of divorce, and their respective inheritance rights.
Q: What is a “pre-nup”?
A: A pre-nup (or pre-marital agreement) is a legal contract changing or clarifying the parties’ rights and responsibilities during their marriage, and in the event that the marriage ends in separation, divorce or death. Drafting a proper pre-marital agreement requires a specialized understanding of the complex laws of California. To ensure the pre-marital agreement will be upheld in the future, preparation and finalization of a pre-marital agreement should be completed well in advance of the parties’ wedding.
Q: Do both parties to a pre-marital agreement need a lawyer?
A: There are some pre-marital agreements that are only valid if each party has his or her own independent attorney. In other cases, participation of attorneys in negotiating a pre-marital agreement is not required, but it is always a good idea. If both parties have independent attorneys the agreement is more likely to reflect the parties’ intentions and be upheld by the court. Attorneys can assure that the agreement is prepared correctly and can explain how the agreement changes the parties’ rights and responsibilities. As set forth above, drafting a valid pre-marital agreement requires a specialized understanding of the complex laws of California.
Q: After my husband and I separated, he moved out-of-state and left me and the children in California (where we resided throughout our marriage). He recently filed a motion for custody and visitation in another state. Is there anything I can do to keep this matter in California?
A: The state that has jurisdiction (the authority to hear matters and issue orders) regarding custody and visitation is the “home state.” The “home state” is the place where the children primarily resided for at least six consecutive months prior to the initial custody proceedings.
Q: My spouse was physically abusive during our marriage. Will that impact the custody orders?
A: When it is shown that one party has committed domestic violence against the other party or their children within the past five years, there is a presumption that it is detrimental to the children for the perpetrator to have either sole or joint physical or legal custody. In other words, the non-violent spouse will likely have sole custody unless the person who is deemed to have committed the violence can demonstrate that it is in the children’s best interests to have joint custody.