International Travel and Child Custody – What You Should Know

Sometimes it seems that issues around child custody are needlessly complicated to understand. So when a parent who shares custody of a child wishes to travel internationally, he or she should be aware of the additional legal ramifications of taking that child out of the U.S.

In one respect, things are fairly straightforward, at least for residents of California. The state has no statutory prohibitions for international travel with a child, unlike state laws affecting a parent’s decision or desire to relocate with a child out of his or her county of residence to another part of California (or another state). However, other variables, such as travel restrictions in a court order, may impact travel plans.

To understand how child custody may affect international travel, let’s look at the situations (1) where there are no court orders and (2) where a child custody order is in place.

No court orders

If your child doesn’t already have a passport, federal law requires both parents to sign the passport application. To complete this process, both parents can appear in person to present the application or one parent can give the other parent a document of signed consent to indicate their agreement.

In cases where one parent objects to the other parent traveling out of the country with their child, obtaining a passport may prove difficult. Sometimes this may legal proceedings to establish each party’s rights—that is, to file a petition for custody orders.

Another reason why it is important to have the other parent’s consent, (or court orders establishing specific rights), is that various government agencies in the country you wish to visit may require a letter of consent signed by the other parent. This can also apply to customs and/or airline officials who ask to see a signed letter of consent before taking the child’s boarding pass.

A custody order in place

Some child custody orders may include provisions that prohibit or at least limit the extent of international travel with the child (this can apply to domestic travel restrictions as well). Even if there are no specific restrictions, it is a good rule of thumb to make every effort to get the consent of the other parent before making travel arrangements and to ensure that, unless the other parent is in total agreement, such travel does not conflict with either the other parent’s time with the child or with the child’s school attendance.
Even when a custody order is silent on the issue of travel with the child, you may still have to “jump through hoops” regarding, as stated above, passports, letters of consent, and so on. Again, my advice is to always obtain permission for your travel plans, in writing wherever possible.

Nightmare scenarios

What happens should you choose to disregard the other parent’s wishes and travel out of the country with your child without the consent of the other parent? Here are possible nightmarish consequences to consider:

• The other parent can file a police report with local law enforcement, charging you with parental kidnapping.
• The other parent can appeal to the U.S. Department of State and set proceedings in motion that charge you with federal parental child abduction.
• If a custody order exists, the court can deem your actions “contemptible,” laying the groundwork for additional penalties and fines on your part, as well as grounds for a change of custody.

Again, if you must travel to Mexico or elsewhere outside of the U.S. with a child, do everything in your power to get the other parent to consent. Once the other parent has consented, you can travel with the child worrying of facing the above-indicated civil and criminal penalties.

If for some reason you’re unable to obtain consent and still need to travel with your child, promptly consult a family law attorney to explore your other legal options.

Unclear as to your rights under a child custody order? The Law Offices of Ian S. Topf, APC offer free consultation in a variety of issues, ranging from family law, estate planning, bankruptcy, and DUIs and landlord/tenant disputes.

Is There Such a Thing as an Amicable Divorce?

By its very nature, a divorce proceeding is an adversarial event. But adversarial doesn’t have to be the same thing as bitter or filled with antagonism.

With the high cost of litigation—not to mention the potentially devastating emotional damage on spouses, partners, and their families—it makes sense for the parties involved to try and step back, look to the future and consider a time when all this will be behind them. Doing so may lead the parties to push aside their personal feelings about each other and come up with answers to the various issues raised by their impending dissolution.

Generally speaking, the less complicated the issues are, the more likely it is divorcing parties can reach an amicable resolution. By “less,” I mean situations where a marriage hasn’t lasted very long or involves no children and little property to divide. By comparison, marriages that have endured for several decades, involve numerous offspring, and include episodes of domestic
violence are far more difficult to end in anything like a friendly manner.

Based on my own experience as a family law attorney, I believe there is always hope for an amicable resolution. In one uplifting recent situation, a husband and wife with four children, huge disparities in income, and a mountain of debt, nonetheless succeeded in handling their divorce as cleanly and expeditiously as possible. Both partners were working professionals who still had feelings for each other but realized they could no longer live together. Upon deciding to separate for good, they entered discussions with a couple of key principles in mind:

• When dealing with children, try as hard as you can to set aside your personal feelings and do what’s best for them. For example, if your job compels you to travel frequently or work 60 hours or more a week, with little to no flexibility in your work schedule, you probably shouldn’t get stuck up on arguing for primary physical custody, knowing you likely won’t be available to attend to your children’s continuous physical well-being.
• While making arrangements to dissolve a marriage or partnership, understand this isn’t the end of the world. No matter how painful things are right now, there is light at the end of the tunnel and a time will come when you can put these troubling emotions behind you.

In the case I’m talking about, the two people were concerned about how quickly legal fees can escalate when negotiating a divorce. They wanted to minimize the costs involved and the traumatic effect divorce would have on their children. In the end, the husband willingly agreed to pay more in support, so his ex-wife could remain in their marital residence until their kids had graduated from high school.

It may not seem like it at the time but both parties in a divorce proceeding have a lot of control over how things work out. For one thing, consider the wisdom of arguing with your estranged spouse about who gets ownership of a $500 treadmill against the thousands of dollars in fees it will take to get things your way.

Divorce is never easy, but by keeping emotions under control and looking ahead to a brighter future, it needn’t become a permanently embittering experience.

Are you in need of legal counseling or have any questions about the above topic? The Law Offices of Ian S. Topf offer free consultation in a variety of issues, ranging from family law/divorce, bankruptcy, and estate planning to criminal/DUI matters and landlord/tenant disputes.

In Need of Estate Planning? Beware DIY Websites

At some point in our lives, many of us will need to create an estate plan to manage our assets—including property, financial holdings, personal belongings—not just for our lifetimes, but for our loved ones after we’re gone. For the most part, there are three types of trust you may want to consider in your estate planning:

• Living trust—A document concerning the management of your assets which can be amended or revoked at any time during your life.
• Testamentary trust—A document based on language in a will, covering the management and distribution of your assets.
• Irrevocable trust—A document with specific distribution provisions that cannot be revoked later on.<li>

The primary reason for a living trust is so you can manage and administer your assets both in life and death, without the intervention or supervision of a court of law. While a living trust in and of itself won’t eliminate estate taxes, it’s the best way to avoid the expensive, time-consuming (and often emotionally traumatic) process of probate.

DIY Websites May Fall Short

Because of the multitude of do-it-yourself (DIY) legal websites available these days, it’s tempting to consider this inexpensive alternative to hiring an attorney or law service that specializes in this area. We urge people to be very cautious when contemplating cheapening out on estate planning.

As we’ve noted in a previous blog post about DIY legal websites, by using such a site, you may fall short of your estate planning goals. Why?

• Documents provided on these sites may or may not have been prepared by a qualified California attorney.
• Since California law is subject to change from time to time, these documents may not have been sufficiently updated to meet current legal requirements.
• Most of these sites don’t offer advice on what documents you need to complete your estate planning goals.</li>

Yes, many DIY legal sites are less expensive than hiring an attorney or even a low-cost service. But remember—you usually get what you pay for.

The vast majority of inquiries for estate planning services with our office start with the request for a will. However, a will serves primarily for use in probate (e.g. guardianship, simple distribution of assets). When you have a will without a trust, your instructions on how to settle your estate has to be approved by a court. The executor of your estate must submit the will to
the court and have it officially recognized before your last wishes can be carried out.

Living trusts and wills can complement each other, such as when a living trust is drafted together with what’s commonly called a “pour-over will.” Such a will is designed to protect any assets which were either forgotten when creating a living trust or left out for some reason. The pour-over will ensures that these assets become part of the living trust upon the individual’s death. It “pours over” all assets that failed to be originally placed in the trust and which now can be distributed as originally intended in the trust.

In California, people who want to pass real estate on to their beneficiaries should look into getting a living trust. Currently, if the value of all the property of your estate is less than $150,000, simplified probate procedures, and/or affidavits to collect your assets without any court proceedings may be available to your beneficiaries. However, if you believe your estate will be
more than that threshold at your death, or if you want to try to ensure your estate passes to your beneficiaries as smoothly as possible, you should contact an estate planning attorney about obtaining a trust.

Have questions or need assistance with your estate plan? The Law Offices of Ian S. Topf offer free consultation in a variety of issues, ranging from family law, estate planning, bankruptcy, DUIs and landlord/tenant disputes.

Is It Time to Modify Spousal or Partner Support?

With the holiday season upon us, people often find themselves in a financial crunch, (buying gifts, hosting visiting family members, etc…). The burden of these additional holiday expenses can be especially challenging if you’re either paying spousal,/partner support or even receiving such payments yourself.

That’s why it’s not unusual at this time of year for people to reach out to a family law attorney with this critical question: Is a modification in the amount I’m receiving (or paying) warranted?

The short answer is: It depends. That’s because there are factors involved in the process of modifying such a court order.

In California, spousal/partner support orders are generally modifiable as long as the order is in place, unless there’s specific wording in the order that makes it non-modifiable. So long as your order is modifiable, you must then ask yourself if has there been “a material change in circumstances” since the last support order.

In determining whether a spousal/partner support order should be changed, the court must use objective facts to make subjective decisions such as is the support order enough (or too much) and should the support order continue to exist.

A couple of examples of facts the court might consider include:

• Has the supporting (i.e. paying) party experienced a substantial change in expenses beyond his or her control? (e.g. A significant increase in mortgage expenses due to unilateral changes from their mortgage lender.)
• The supported party suffers a major physical disability, affecting his or her ability to make money, again through no fault of their own.

In such cases, the court will re-examine the factors considered in the original court order and determine the possibility of modifying the amount of spousal/partner support.

There are some misconceptions about how spousal/partner support modifications work. A client recently told me, “I was married for 15 years and I’ve been paying spousal support for more than eight years. Isn’t there a rule I should only have to pay for half the length of the marriage/partnership?”

No such rule exists. In fact, the longer the duration of a marriage, the more likely it is the court will extend or allow a support order to go, possibly indefinitely.

Another misconception is that a change in income by either party, in itself, is grounds for a modification of spousal/partner support, (“she is now making way more money than when we were last in court” or “I no longer receive overtime, as I did when the court awarded him spousal support”). Upon addressing this change in a request for modification, the court re-examines ALL of the factors (including additional expenses that a party may now incur that they didn’t before).

When you’re a party in a support matter, you can request the other party’s relevant financial information, regardless of how much time has passed since the court last made orders. In California, there is a form entitled “Request for Production of an Income and Expense Declaration Form After Judgment.” Once a year, you are entitled to mail this form to the other party, at which time they have 30 days to complete and return the form (along with a copy of their most recent tax returns). A failure to comply with this request may expose the other party to fines and/or other penalties.

Such a relatively simple and low-cost effort can shed light on your ability to seek a modification of your spousal support order, providing you helpful information to either support such a request or, in the alternative, to convince you that now is not the time to file.

Spousal support modifications can be a tricky business. To make sure you’re proceeding in the right way, either as the person making payments or the person receiving them, you should seek out professional advice. Find out more about how we can help you determine if a modification is warranted and pursue that modification in court by reaching out to The Law Offices of Ian S. Topf. Free consultation is offered in a variety of issues, ranging from family law/divorce, bankruptcy, and estate planning.

What does “No-Fault Divorce” Mean?

In the old days, when a husband or wife wanted to get a divorce, they had to give a reason for this momentous decision or prove why their spouse’s actions (such as adultery, abuse, abandonment, or extreme cruelty) made the marriage no longer possible. This approach to dissolving a marriage frequently led to the types of “ugly” divorces we’ve heard so much about.

In the “no-fault divorce” State of California, that’s all a thing of the past. When one spouse or domestic partner decides the marriage or domestic partnership is over, all they have to do is check a box marked “Irreconcilable differences” and legal proceedings get underway. Under California state law, publicly airing out the bad behavior that may have contributed to the end of the marriage/partnership is no longer necessary. Whatever reason lies behind the dissolution is, in essence, irrelevant to terminating the marriage/partnership.

I still get plenty of clients who come to my office and want to tell me the reasons they feel their marriage/partnership is over. And while it’s good to understand why a person has arrived at such an important, life-changing decision, in the eyes of the law it generally doesn’t matter. In California, the only obligation the person requesting dissolution of marriage/partnership has is that he or she must swear, under penalty of perjury, that the marriage is over. As noted in California Family Code Section 2310(a), you must declare that “irreconcilable differences have led to the irremediable breakdown of the marriage.”

Exceptions that affect the process

But even though the Court isn’t concerned with the specific reasons why you’re filing for divorce/dissolution of domestic partnership, certain exceptions can affect the subsequent process. For example, Family Code Section 3044 sets out a presumption against sole or joint custody of a
child for someone found by a Court to have committed domestic violence against the other party or the child(ren) in the last five (5) years.

Domestic violence can also be a factor in the division of property during a divorce/dissolution of partnership proceeding, with the victim of violence potentially being given more than the traditional 50 percent split of community property.

Another question I usually get is how long my divorce/dissolution of domestic partnership will take. Whether there can be an amicable settlement or there are contested matters, in California, there is a six-month waiting period before the Court will terminate the couple’s marital/partnership status. But even with this mandatory waiting period, two parties in a dissolution action can move forward with all the necessary paperwork and processed by the
Court prior to the end of the six-month waiting period, and while the marriage/partnership will be deemed terminated at the six-month mark, other issues (e.g. child custody, support, property/debt division) can be ordered as promptly as when the Judge signs the Judgment of Dissolution. In other words, important matters don’t have to get put on hold during this
mandatory waiting period.

In general, I believe the “no-fault” provision is a good thing. Two people who no longer wish to remain married shouldn’t be forced to stay together. And requiring that some definitive act or event must occur to justify the divorce (as was necessary in the past) only causes more emotional pain for everyone involved (including children whose own future personal relationships may be
influenced by what they witness from their parents) – a situation that does no one any good.

Are you in need of legal counseling or have any questions about the above topic? The Law Offices of Ian S. Topf offer free consultation on a variety of issues, ranging from family law/divorce, bankruptcy, and estate planning to criminal/DUI matters and landlord/tenant disputes.

Elements of an Effective Parenting Plan

Whenever a divorce proceeding takes place and children are involved, issues of child custody and visitation inevitably arise. The goal for everyone involved should be to design a custody and visitation arrangement (also called a “parenting plan”) that effectively addresses the health, education, and well-being of the children.

Typically, parenting plans are organized into two components:

Legal custody: This refers to which parent is responsible for making key decisions affecting the child’s daily life, most often those involving education, religious practice, medical needs, and extracurricular activities. As with physical custody, legal custody can also be either sole or joint,
though joint legal custody entitles each parent to participate in decisions about their children’s lives (even if they don’t agree on all of these decisions). In California, the presumption is that both parties can share legal custody, with exceptions where circumstances dictate that one parent should have sole legal custody—as in situations involving domestic violence, abuse, and abandonment.

Physical custody: This relates specifically to where children live and how best to organize their activities. With sole or primary custody, the child lives with one parent most of the time and visits the other parent. With joint custody, a child lives with both parents. In either case, certain questions need to be answered, including: Where should children live during the week and on weekends? Which parent is in charge of the children and at which times? How do children get from one parent to the other?

Physical custody also addresses the issue of each parent’s visitation rights. In my experience, visitation rights can be anything from “no rights” to having the children half (50%) of the time. Additionally, a parent can receive rights to supervised visitation, which generally involves the presence of a third party who monitors a parent’s time with his or her child; although the parties
may agree to have a parent supervise the other parent, especially when it is in the child’s best interest, such as when a parent has previously had little to no contact with the child, to ease the previously-absent parent into the child’s life. Factors determining the need for supervised visitation may include, but are not limited to:

-The child’s relationship to the parent
-Any history of domestic abuse
-A parent’s detrimental conduct (e.g. alcohol or drug abuse)

I believe that generally when it comes to determining these concerns, parents are uniquely positioned to make the best judgment call. In the vast majority of cases, parents have greater personal knowledge of what’s best for their children. By contrast, other participants in a court proceeding—such as lawyers, judges, and other mediators—generally know much less about the
children’s own personal past, present, and future needs.

When parents are sincerely motivated to do what’s best for their children, the results are generally very favorable. Parents know their strengths and limitations best. If they focus on the kids, they can (and should) be able to work things out between themselves.

If this isn’t possible, it’s time to consult a family law attorney and get assistance in creating a workable parenting plan for the future.

Are you in need of legal counseling or have any questions about the above topic? The Law Offices of Ian S. Topf offer a free consultation on a variety of issues, ranging from family law/divorce, bankruptcy, estate planning to criminal/DUI matters, and landlord/tenant disputes.

Is Getting a Premarital Agreement a Good Idea?

A premarital agreement (more commonly known as a “prenup”) can be helpful for two parties anticipating marriage in the near future. This document, which must be committed to paper and signed by both parties, is meant to offset some of the issues partners may face should they later
end up in divorce or legal separation.

What’s addressed in a pre-nup and what’s left out

Most issues that can come up during divorce or legal separation can be addressed in a premarital agreement, including spousal support (how much, how long, etc.); the characterization of property (separate or community); property division; and debt characterization and division. In other words, the premarital agreement is useful for covering most of the key areas of potential
dispute should the parties decide to separate.

What the premarital agreement doesn’t address is anything relating to the children of a marriage or domestic partnership. As the courts have determined, the best interests of children can’t be anticipated at the outset of a marriage. All issues relating to children’s needs must be addressed at the time those needs arise.

The terms of a premarital agreement may be altered during marriage if one party or the other does something contrary to its original terms—for example, the husband brings a house into the marriage but later deeds the property over to his wife or arrange for joint ownership. In legal terms, this is called a “transmutation of asset.” Any deliberate changes to the agreement must be
outlined in a written agreement signed by both parties (e.g. amendment or post-nuptial agreement).

What to do before seeing an attorney

Of course, talking about the possibility that your upcoming marriage might fail isn’t a pleasant topic. But if you and your spouse/partner decide a premarital agreement is a good idea, don’t wait until you’re in the attorney’s office to start discussing details.

I can’t emphasize this strongly enough. Not only will discussions between you and your partner save money in attorney’s fees, it’s far preferable to iron out any differences ahead of time. This way, when you do meet with a lawyer, you both come in knowing (or at least having a good idea) about how you see the terms of this proposed prenup.

However, keep this in mind – while a premarital agreement is generally enforceable by law, it is not absolute. Courts can disregard a prenup for a variety of reasons. But it is valuable, nevertheless, because when a divorce or legal separation becomes necessary, this document serves as evidence that both parties anticipated and agreed upon certain terms before the
marriage took place. In most courts of law, a prenup will be given the same consideration as any other evidence submitted in a divorce proceeding.

A final important tip: Don’t make an appointment to initially consult an attorney on a prenup a couple of days before the wedding. Most premarital agreements take anywhere from two weeks to several months to prepare, negotiate, revise and then execute and sign. And the law has a built-in, seven-day required window between the time the prenup is presented to each party and the time the agreement is signed. Waiting until the last minute to address this topic will only delay your happy event.

Is a prenup right for you? The Law Offices of Ian S. Topf offer free consultation in a variety of issues, ranging from family law, estate planning, bankruptcy, DUIs and landlord/tenant disputes.

What a Prenuptial Agreement Can and Cannot Do

A pre-nuptial agreement (also called a “prenup”) is a legal contract between two people who intend to get married. This document defines each party’s respective rights and obligations, should the marriage eventually go down the path of divorce or legal separation.

Can be used as evidence in a court of law

In California, prenups are governed by rules outlined in the Uniform Premarital Agreement Act. Such an agreement can be drafted to address present and future property rights, as well as either party’s future entitlement to spousal support and (in a very limited sense) issues relating to any
children the couple might have.

In a court of law, the prenuptial agreement represents a contract that may be enforceable or, at the least, used as evidence of what each party intended at the time they got married. While the court may find a reason to invalidate a part or parts of the prenup, the document can still be used as evidence of each individual’s prior intentions.

To make the prenup more enforceable, it must (a) be drafted under the rules of the Uniform Act and (b) include a stipulation that, at the time of creating the agreement, each party receives a full financial disclosure from the other party—including a complete list of assets, debts, and respective incomes. Each party must then be allowed seven days to review the document before signing it, during which they can, and should, seek the advice of an attorney if they don’t already have one.

Make the best decision for your future

What can be included in a prenup:

• Under California law, almost anything acquired during the marriage, be it income, property, or debts, is presumed to be community property. This means either party is entitled to half of the assets or responsible for half of the debts, regardless of who acquired them. In some cases, a prenup can alter that presumption—not only by defining assets coming into the marriage as the separate property of the person bringing them into the relationship but also by identifying a person’s acquisitions during the marriage (wages, bank accounts, etc.) as being in that party’s separate property.
  
• Both parties may agree on either a waiver of spousal support or other limitations on one
  person’s entitlement to spousal support—that is, the maximum amount of support
  allowed or the maximum duration of payments of spousal support allowed.
  
• The parties may agree on other terms of support that courts don’t usually consider, such
  as a child’s eventual college expenses. The prenup can stipulate that one party will
  assume the burden of paying those expenses, an issue usually beyond the court’s
  jurisdiction.

What cannot be included in a prenup:

• Any terms deemed “unconscionable”—for example, a plastic surgeon earning $500,000 a year is unlikely to be permitted to insist on a waiver of spousal support from his fiancé, a teacher in the public school system, who earns vastly less.

• Provisions pertaining to child custody, visitation, and child support terms are not allowed in this document.
• A prenup cannot include terms of “punishment,” such as “If he cheats on me, I get damages of $50,000.”

Should couples intending to get married have a pre-nuptial agreement? The answer varies depending on the individual circumstances, but I believe it’s always a good idea to know what you’re bringing into the marriage and what you’d like to have, should the marriage come to an end. Whatever the case, enlist the services of an experienced attorney to make sure you arrive at
the best decision about your future.

Getting married or just have any questions regarding the above topic? The Law Offices of Ian S. Topf offers a free consultation on a variety of issues, ranging from family law, bankruptcy, debt collection defense, estate planning, criminal defense, DUIs, and general civil matters.

The Pros and Cons of Alternate Dispute Resolutions

Taking your case to court can be costly and time-consuming. In my opinion, it should only happen when there’s no other way for the disputing parties to reach some middle ground. That’s why it’s good to know about other options, such as negotiated settlements, also known in legal circles as Alternate Dispute Resolutions (ADRs).

Each type of negotiated settlement comes with advantages and disadvantages. Here’s how different ADRs stack up:

Settlement Conference

Generally involves the individuals in dispute and their representatives meeting together in-person, over the phone or online, and attempting to resolve the issue themselves.

PRO: Doesn’t require a third-party who’s unfamiliar with the individuals involved or the particulars of their dispute.

CON: No guarantee a settlement conference will work, since the reason parties are in litigation in the first place is because they couldn’t resolve the issue.

Mediation

This type of negotiation includes a professional mediator hired by both sides to try to assist the parties in reaching an agreement. The mediator may or may not be a lawyer, but is almost always trained (and often certified) in mediation techniques. He or she usually has knowledge of the applicable law.

PRO: When both parties are at a standstill, getting a knowledgeable outsider’s perspective can be very helpful. Also, it’s also a good way to see if your position has what’s called “legal standing”—that is, if it’s reasonable and has a decent chance of prevailing.

CON: Hiring a skilled mediator adds to legal expenses, since this individual can charge as much or more than your own attorney does. (The cost is generally split between both parties.) It’s still cheaper than taking a case to court.

Arbitration

This type of proceeding is less formal than a trial but more formal than mediation. The arbitrator, (an individual or multi-person arbitration panel), is a neutral third-party. Both sides in the dispute decide beforehand whether the arbitrator’s decision will be binding or non-binding. (In my experience, binding arbitration is a useful option when a settlement conference or mediation is unsuccessful.)

PRO: Encourages cooperation and a non-hostile approach toward resolving an issue. Also, it’s cheaper and faster than litigation. The rules of evidence and procedure are simpler than those in a court of law. And arbitration proceedings are typically confidential, saving both sides any potential embarrassment or the release of private information.

CON: Costs can add up when choosing both an arbitrator and a venue for the negotiated settlement. If both parties determine the decision will be binding, it’s very difficult to appeal or “vacate” the decision at a later time.

If you’re involved in a legal issue, talk to your lawyer about seeking an alternative dispute resolution that’s suits your specific situation.

Are you in need of legal counseling? The Law Offices of Ian S. Topf offer free consultation in a variety of issues, ranging from bankruptcy, family law and estate planning to traffic violations and landlord/tenant disputes.

Protect Your Assets by Keeping Records

When two people fall in love and decide to get married, they don’t want to consider the possibility that at some time in the future they may no longer feel the same way about each other – and that the experience of separation and divorce might turn ugly over issues of community assets and debt obligations.

Sadly, as we all know, this scenario happens all too frequently. But while divorce is an unhappy topic to consider before such a happy occasion as marriage, I believe it’s vitally important to do so. A well-considered and expertly crafted pre-nuptial agreement can set out rights and responsibilities, address issues of property characterization, and minimize the potential legal
costs involved in a lengthy and contentious divorce.

Division is right down the middle

Here’s a common problem I see in my practice: A client comes in who’s been married for 10+ years but doesn’t have a prenup. This person is very unhappy at the prospect of having to divide practically everything he or she owns 50-50 – as generally is required by California community property law. Why? Because, the client says that they came into the marriage with substantial assets acquired well before anyone said, “I do.”

Since California is a community property state, we start with the assumption that, when it comes to property that has been acquired in the course of a marriage, (that is, all the assets as well as debt obligations), the division almost every time will be right down the middle.

A possible exception occurs in cases where domestic violence is involved. If the court determines that one person has been severely injured and is leaving the marriage with substantially diminished capacity to acquire new assets and income, he or she may be entitled to more than a 50-50 division of assets and debts.

The importance of “tracing”

But what about assets and debts acquired either before the marriage or after separation? The key to asserting one’s exclusive rights to property acquired before marriage or after separation is through what’s known as “tracing.” If you can trace the timing of the acquisition of an asset to a date either prior to the marriage or after you and your spouse/partner separated, the court will, in
most cases, take this as proof of separate property belonging to the person who acquired it. The same principle applies to assignment of debt in the divorce.

But tracing depends on accurate documentation – and that’s where many of us fall short. As in the long-term marriage I mentioned above, it’s easy to lose track of any documents you might have concerning the acquisition of assets 10, 15, or 20 years ago. Unless you can produce such documentation, it will be very difficult to establish that any specific asset should be deemed your
separate property.

Things get further complicated when you have to reach out for assistance with documents. Many institutions like banks, expunge records after five years or more. So when it comes to obtaining financial and investment information from long ago, unless you’ve kept good records on your own, you may be out of luck.

I can’t stress this strongly enough. Print out your important documents, (bank statements, credit card statements, etc.), and keep them locked away. You never know when a particular document will prove useful in court.

How can you attempt to avoid all this drama and turmoil? Look into having a pre-marital agreement, even if it casts a momentary shadow over your upcoming wedding celebrations. It’s by far the best way for both parties in a marriage to identify and protect their separate assets and minimize the possibility of being liable for the other’s pre-marital debt obligations, if things take a turn for the worse somewhere down the road.

Is a prenup right for you or just have any questions regarding the above topic? The Law Offices of Ian S. Topf offer free consultation in a variety of issues, ranging from family law, estate planning, bankruptcy, and DUIs and landlord/tenant disputes.