Common Family Law Myths


Common Family Law Myths

Debunking Family Law Myths:

Myth #1: Prenuptial Agreements are Difficult to Enforce
This is not true. Prenuptial agreements are generally favored. As long as the financials were disclosed in proper form and the requirements associated with drafting a proper prenuptial agreement, they are enforceable in court at a time of divorce.

Myth #2: Prenuptial Agreements must be signed 7 days prior to the wedding. The time for signing a prenuptial agreement is not associated with the date of the wedding. Seven days must go by between the time the prenuptial agreement is drafted and the time it is signed. This is so the parties have a fair opportunity to seek independent counsel and do not feel pressured to sign the moment it is prepared.

Myth #3: If I keep my own separate bank account it is then separate property. During the initial consultation with my clients I always hear the misconception that because they never opened up a joint bank account, or placed his/her name on their spouses credit cards those assets would be considered separate property. Separate property is all property acquired before marriage or by gift, bequest or devise, or after the date of separation. All else is community property. This would mean that the charge placed on the credit card during marriage, even if your name was not on the card, it is also considered your debt if it was made during marriage.

Myth #4: You can provide for child support and child custody in premarital agreements: False. Child Support and Child Custody are void in premarital agreements as public policy.

Myth #5: You cannot waive spousal support in a premarital agereement. False. If both parties have independant counsel spousal support can be waived. The provision must also not be unconscionable.

Myth #6: If I live with someone for 10 years or more without getting married then I have a common law marriage? False. Common law marriages do not exist in the State of California. At that time, you might have a claim for palimony which is based on contractural terms.

Myth #7: If the marriage is 10 years or longer a party would have to financially support the other until death or remarriage. False. This is not a per se rule in all cases. The courts look at the factors under Family Code Section 4230 to determine the amount of spousal support to be paid and for the lenght of time. If a party is no longer marketable then it could be possible that spousal support would be paid until death or remarriage. However, the public policy of the courts and the purpose of spousal support is to allow time for a party to become self sufficient

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