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The power of a Family Court Judge – Prenuptial, postnuptial,and marital settlement agreements

San Diego Divorce and Family Law Attorney, Paul Staley, released a new YouTube video for people who are curious if: Prenuptial, postnuptial, and marital settlement agreements

San Diego Divorce Lawyer  Paul Staley answers FAQ’s hat about,prenuptial, postnuptial, and marital settlement agreements. Please call our San Diego Office at 619-235-4095

Transcript of Paul’s Video

We’re going to talk a little bit about prenuptial agreements, postnuptial agreements, and marital settlement agreements. I’ll start with the marital settlement agreements because they’re the easiest to talk about. Marital settlement agreements are agreements that are entered into by a husband and wife were getting divorced. Typically, the marital settlement agreement will dispose of any of the issues that exist. In other words, division of property and debts, custody and visitation orders, child and spousal support orders, everything in the universe that this divorce lives in gets delineated in a marital settlement. And even though this is an agreement that gets entered into by the husband and my wife and there is a presumption that they are in a confidential relationship, marital settlement agreements are universally deemed to be enforceable. There has to be some really, really bad stuff going on to be able to unwind a marital settlement agreement. I’m not saying that it doesn’t happen because I’ve unwound a few myself.

But let’s move on to the least likely to be enforced and that’s the prenuptial agreement. Prenuptial agreements are actually pretty rare, at least I very seldom seen them. Prenuptial agreements are the most difficult to enforce. There is a laundry list of statutory requirements in order for a Prenuptial agreement to be –add just at threshold– enforceable. They have to have — typically if it’s going be enforceable, both the husband and the wife –or the bride and the groom –prior to the ceremony– they are each going to have to be represented by different attorneys. If you’ve got one attorney drafting this –hopeless– I hope his malpractice premiums are paid. If you cut each party with an attorney okay… Then we look at what was the agreement drafted and signed sufficiently long enough time before the wedding? The “Oh… by the way…” we’re on the way walking down the aisle: “Oh honey please will you sign this?” Isn’t going to fly. There are minimum statutory requirements so that there hasn’t been an unfair surprise –no one’s been taken advantage of. And then when you actually get to the point where, of course, the couple is splitting — otherwise no one cares about the terms of the prenup, then you you’ve gotta look at what’s enforceable now. They might have looked brilliant at the time that this was drafted but yet, when the parties get to the point where they’re actually divorcing, the court could very easily say: ” that was then and this is now.” These people are living in a different world, and their lives are completely different, and it would be just completely unfair for me to enforce this agreement.” So, prenuptials have to be very carefully drafted, and as my favorite mentor told me when I asked him how much I should charge to do one — his answer was: “whatever the deductible is on your malpractice premium.” Because, if any one ever wants to enforce this, they’re going to come looking for you. So, I’m not a big fan of prenuptial agreements. Sometimes they can be appropriate, and sometimes both the husband and wife really want this agreement and they both have things that they — they’ve got interests they want to protect– that’s the ideal prenuptial agreement. We’ve got two people who may be on relatively equal financial footing — that’s even better.

Now, a postnuptial agreement is entered into by the husband and wife after the wedding. Could be hours, it could be days, months or years — I suppose decades. After the ceremony they enter into an agreement that spells out what’s going to happen with their property, or about support; you name the issue to be specified in the agreement. And they can say: “This agreement is going to control, if, God forbid, we ever do split up.” And those agreements are pretty tough to enforce too Mostly because they’ve been entered into at a time when the husband and wife aren’t actually contemplating splitting up. See, when they are entering into a marital settlement agreement, everybody knows they’re done and they’re looking forward. A postnuptial agreement assumes that they actually planned to stay together for a while –indefinitely. Any yet, they’re husband and wife, they’re in a confidential relationship. If there’s any concession made by one to the other, there’s a presumption that it’s a result of undue influence. So, there are all kinds of problems that come up trying to enforce a postnuptial agreement that you wouldn’t encounter –for example–when you’re enforcing a marital settlement agreement. So that’s a little bit about the three different kinds of marital agreements. We talked about prenuptial agreements, postnuptial and marital settlement agreements.

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