Articles in "Family Law"

Only Half of Marriages End In Death, What’s Your Plan If Yours Isn’t One of Them?

by Matthew Bromund

Principal Attorney
July 29th, 2014

Only Half of Marriages End In Death51% of all marriages end in the death of one or both spouses.  The remaining 49% end in divorce.  Married couples buy life insurance, draft wills and engage in estate planning to help prepare each other for the 51% likelihood that death will end their marriage.  No one thinks this is ‘unromantic’ or ‘pessimistic’.  Instead, people see it as an important part of being prudent and caring for each other.

What then makes preparing for the other possibility, divorce, so wrong?

In my opinion, preparing for the other possible outcome is rejected irrationally by most couples based upon the social expectation of a traditional Christian marriage.  I do not contend that this is based upon most couples actually being traditionally Christian in their religious views (we live in a VERY diverse society) nor do I contend that most couples actually intend to engage in what is now called a ‘covenant marriage‘; rather I believe our attitudes about marriage are so shaped by movies, magazines and hyper-romanticization that we don’t truly focus on the realities of our relationships until long after the wedding vows are made.

This tends to make marriages more difficult and divorces more expensive.  A pre-nuptial agreement can help make a marriage easier to manage and less painful to end.

First, how can it make a marriage easier to manage?  Understand that in California, all you are obligating yourself to when you marry someone is to give them mutual respect, fidelity and support.   Actual marriage tends to revolve around agreements on work, residence, sex, children, lifestyle and values.  California’s law has moved from offering a one-size-fits-all set of obligations based on strict Christian religious obligations to a one-size-fits-all set of amorphous and unenforceable obligations.  The practice of ‘mutual respect, fidelity and support’ has no touchstones of performance, no specific proof of acceptability and is absolutely unenforceable.  That’s ok, since ending the marriage merely requires the expression of another amorphous idea, ‘irreconcilable differences’.  These two sets of legal nonsense boil down to one reality:  marriage is the state of consenting to be identified as married and that state ends when either party no longer wishes to so consent.

Most likely, no couple ever existing has had that as the only obligation intended when they marry.  Instead, most every couple has a long list of obligations they intend to see performed through the marriage.  The most common of those relate to working, child-rearing, communication, and resource-pooling.  Oftentimes couples share a set of values and religious practices and they would like to see those values and practices reflected in their marriage.  California law takes no part in making those a part of your marriage.  Through a prenuptial agreement though, you can make it a part of your marriage.

(Sidenote:  I am not contending that California will ENFORCE those agreements or penalize a spouse who doesn’t perform.  It won’t.  Instead, I am contending that if you discuss it with your spouse before you marry, write it down and promise each other that you will live according to those commitments, your odds of having those commitments honored during your marriage improve substantially.) 

California Law permits a prenuptial agreement to cover the following topics:

CA FAM Code Sec. 1612.  (a) Parties to a premarital agreement may contract with respect to all of the following:

  1. The rights and obligations of each of the parties in any of the property of either or both of them whenever and wherever acquired or located.
  2. The right to buy, sell, use, transfer, exchange, abandon, lease, consume, expend, assign, create a security interest in, mortgage, encumber, dispose of, or otherwise manage and control property.
  3. The disposition of property upon separation, marital dissolution, death, or the occurrence or nonoccurrence of any other event.
  4. The making of a will, trust, or other arrangement to carry out the provisions of the agreement.
  5. The ownership rights in and disposition of the death benefit from a life insurance policy.
  6. The choice of law governing the construction of the agreement.
  7. Any other matter, including their personal rights and obligations, not in violation of public policy or a statute imposing a criminal penalty.

You will notice that the only topic invoked by divorce is the ‘disposition of property upon marital dissolution’.  Otherwise, the provisions of a prenuptial agreement are focused on providing a couple a framework for their marriage DURING the marriage.

Besides providing yourself a clearer understanding with your spouse on what your marriage means, why would you want to do a prenuptial agreement?  Quite simply, because it will work to inhibit the growth of irreconcilable differences.  After fifty years of ‘no fault’ divorce, the facts are clear about what causes divorce today.

Top Two Causes of Divorce in the First Five Years of Marriage: 

1. Lack of Understanding at the Outset about Expectations and Resources.

2. Disagreement over Finances or Stress Due to Financial Misunderstanding.

 

 Doing a prenuptial agreement eliminates the #1 cause of divorce in the first five years of marriage by  insuring the couple has a shared understanding of what their marriage will be about.  It also acts as a pretty good cure for the #2 cause since the couple will discuss, in detail, their finances and financial values in preparing a prenuptial agreement.  In my fifteen years of doing divorce work, I have seen these two causes provide the overwhelming majority of reasons for divorce in the first five years of marriage.  (Not adultery, domestic violence or addiction; those three cause substantial marital stress but tend not to result in a dissolution, at least not initially.)  For marriages that end after the first five years, we realize the more commonly understood benefit of a prenuptial agreement:  reduced legal costs and conflict.

When you have a dissolution proceeding, California WILL act to see the terms of a prenuptial agreement enforced if the agreement is fundamentally fair and provides guidance as to how the parties wanted to have their marital estate divided when they married.  This is the conventional wisdom on prenuptial agreements and it is pretty accurate.  Most of the cases I have seen involving a dissolution with a prenuptial agreement cost 80% less than an equivalent dissolution and are resolved within the mandatory six-month pendency period 98% of the time (versus about 65% of the time in non-pre-nuptial agreement dissolutions of marriages lasting more than five years).

Finally, I want to offer some guidance as to how to make a prenuptial agreement work for you in your marriage and, if you are one of the unlucky 49% whose marriage doesn’t end in death, after.

The Big Three For a Prenuptial Agreement that Works:

  1. Fundamental Fairness—No unconscionable terms, at least a seven day waiting period between the date the agreement was offered and the date it was signed, full disclosure of all the terms and their impact and the opportunity to have independent counsel for each party.
  2. Complete Identification of What Is and Is Not Separate Property both Now and Later.
  3. Limit, don’t eliminate, the obligation to pay spousal support; the California courts look much more favorably on limitations rather than waivers.

 

Let the Prenuptial Agreement show that you agree what is fair while you both love each other and see this process as a way of taking care of each other. The Bromund Law Group is happy to offer free prenuptial consultations and will prepare a prenuptial agreement for a flat fee of $250. 

As always, this blog post does not constitute specific legal advice for any case and it does not form an attorney-client relationship between the Bromund Law Group, its attorneys or associates, and any person.  Please contact us at 805.650.1100 for your free consultation (in either English or Spanish) and we will see if we can help you.  We are always happy to receive your referrals or comments.

In California, You Now Have a Spouse, Not a Husband or a Wife

by Matthew Bromund

Principal Attorney
July 26th, 2014

Marriage Equality

After years of litigation and voting, California’s three branches of government have united to rule that the California Constitution is wrong.  By signing SB 1306, Governor Jerry Brown ratified the actions of the State Assembly to enact the ruling of the California Supreme Court:  Marriage is now between two single people who consent to be married.  The Family Code will no longer reference “husbands” and “wives” but rather spouses.

This is a historic step that opens the door for couples of every sexual combination to be legally married.  Since the US Supreme Court’s ruling in June 2013 declaring that the trial verdict against the constitutional amendment stating that marriage was between one woman and one man could not remain a part of California’s constitution would stand, California has effectively been a state permitting same-sex marriage.  Today, however, the California Family Code formally recognizes that fact.  In bringing into alignment all three branches of government, this new law makes clear that two people can marry regardless of their sex.

It will be interesting to see if the availability of same-sex marriage produces a decline in civil unions (the mechanism created to permit same-sex couples the same benefits as a marriage without using the title ‘marriage’).  It will also be interesting to see if the predictions of Proposition 8′s supporters comes true and other groups, currently denied the state of marriage, petition to have their relationships recognized as marriages as well.

For now, it is a remarkable moment in history, when the Christian conception of marriage (one man/one woman/for life) is formally and finally divorced from the law in California.  I predict religious organizations of all types to now promote their definition of marriage as being one binding on the faithful while the law continues to move towards a more pragmatic recognition of family, however constituted, as being valid so long as it is based upon the consent of the adults involved.  In that way, I suspect the First Amendment’s guarantee of the free exercise of religion for all citizens to be more forcefully asserted by those whose own marriage traditions have long been treated as illegitimate in a Christian-dominated legislative arena.

As family law attorneys, what does this mean?

First and foremost, it means advising clients to do ever more work to insure that their expectations in a marriage are reflected in a prenuptial agreement.  Since California’s Family Code now has only three obligations provided for, by law, in the marriage:  mutual respect, fidelity and support (CA FAM Code Sec. 720) and a marriage can be dissolved on the basis of irreconcilable differences, a couple desiring any other vows or requirements should do so in a prenuptial agreement.  Many spiritual practices and religions have additional obligations, obligations that can only be legally enforced if the parties participate in a prenuptial agreement.

Second, it means that conventional dissolutions will soon be occurring for same sex couples.  In the past, these relationships have been spared the usual process of dissolution with all its standardized forms and formal processes, because the civil union body of law was not as cumbersome as the dissolution body of law.  I personally hope that more couples plan ahead and are prepared for the possibility of a dissolution when they first contract a marriage but that hope remains as intense for same sex couples as it is for opposite sex couples.

Third and finally, it means that we can all celebrate the resolution of a long-standing dispute in our society.  While the courts have been given the power, through practice, of telling us what our laws are and should be, there is something important for our democratic republic in seeing that the law is generated by our legislatures and enacted by the consent of our executives.  As long as the elected branches of government are not engaged in the process of drafting the laws and leaving it only to the courts to address, we lose an important part of our sovereignty.  Whether a specific citizen of California hails or hates this new provision of law, we can all now say that this IS the law, enacted by our government.

As always, if you or someone you love has need of assistance and guidance in family law matters in California, the Bromund Law Group is here to help.  We offer no cost consultations and provide comprehensive family law services in English and Spanish.  This blog is not intended to provide specific guidance in your case and is rather offered for general educational purposes.  Please do not rely on this blog for your case nor should you consider this entry to constitute the formation of an attorney-client relationship with the Bromund Law Group.  If you have questions, please call us at 805.650.1100. 

Juvenile Dependency Cases in Ventura County CAN Be Won!

by Matthew Bromund

Principal Attorney
May 30th, 2014

social worker“Open Up!  We are here from Child Protective Services and we need to speak with you.”

With that, the curtain rises on what is, for almost all families, a nightmare.  Beginning with that phrase, a parent has to defend their ability to be in their child’s life from a system that is geared to assume the worst.  As a society, we have adopted laws to protect children from abuse, to deliver them from evil inflicted upon them in their own homes and to reassure ourselves that we do not turn a blind eye to the neglect of young people’s welfare.  We have also empowered a system that, all too often, tears families apart and places vulnerable children into even greater danger.  How do we balance these risks?  In theory, we balance these in the juvenile dependency court.

Ideally, the system we create would be attentive to the specifics of each family’s reality and culture.  Ideally, the social workers vested with this power would have enough time and resources to see the truth and enough wisdom to use their power carefully.  Ideally, foster families would all be carefully screened for mental health and empathy in addition to having the resources and stability necessary to take in abused and neglected children.  But ours is not an ideal world.  We substitute ‘one-size-fits-all’ for a customized, individualized approach.  We overload caseworkers who, all too often, give in to bitterness and prejudice and take their authority to act as a license to decide who is ‘good enough’ to parent children.  We create such an overwhelming need for foster families that willingness overtakes qualification and sometimes children are delivered into far more dangerous situations than the ones they had at home.  At no point, do these failures of the system invalidate the good efforts and noble intentions of most of the people involved in the work of rescuing and protecting children.  The overwhelming majority of social workers and foster parents do what they do out of sincere love and care for young people.  There are dedicated volunteers to defend the rights of children to be free from abuse, and they do great work.  But the risks are real and the casualties of our system are substantial.

To try and limit those casualties, attorney as the Bromund Law Group take on the case of PARENTS in juvenile dependency proceedings.  Parents are the neglected parties in the juvenile dependency process, often going through the case alone or with very limited appointed legal assistance.  Cases always begin with allegations against one or both parents and it is their perspective that is most often dismissed or discounted.  Allegations aren’t the same as facts and more than a few times we have found that an allegation deemed credible by a social worker evaporated in the light of examination when we insisted upon facts being produced.  Even more importantly, when a family hits a difficult patch (job loss, divorce, chemical dependency), we work constructively with our clients to see that they obtain the support and guidance they need to become the parents their children deserve.  It is not easy work.  There are no guarantees.  But sometimes, with a client who knows how important it is to be there for their children, we prevail.

haiti-rfl-interview-4Just today, I saw a woman reunited with her child after a year of work in the juvenile dependency process.  When we started, her case seemed hopeless.  Her child’s father had a chemical dependency and had degenerated into being an absolute menace to her and her son.  The social worker was convinced that my client’s personal attachment to her son’s father would result in the child being subjected to real risk of abuse.  My client’s limited facility with English and non-existent network of family support meant that she was overwhelmed by the process she faced, alone.  We stepped in to defend her and her son’s right to be returned to his family.  Month after month we built a network of resources around her.  Month after month she met with the social worker, took on extra work to afford a safe place to stay, fought every day to put her son’s welfare first and demonstrate the kind of love only a parent can have for a child.  Today, because of her hard work and our clear understanding of what was really important in the case, her son comes home.  Never again will this family have to go into the dependency court and face the fear of being permanently divided from each other.

If you know someone who needs the kind of patient steady counsel and determined advocacy we provided here, please feel free to have them give us a call.  We cannot guarantee results but we can promise you we will use our best judgment and advocacy to make your family whole.  Juvenile dependency work is about the most terrifying thing any family can face; don’t face it alone.

Matthew Bromund of Bromund Law Group

Matthew Bromund
Principal Attorney

California First State to Sign a Bill to Protect Digital Reputation of Minors

by Lisa

March 21st, 2014

In today’s world, Digital Reputation and Digital Citizenship are hot topics.  How you act online can effect how the world views you.  The Internet acts as a pedestal upon which our reputation sits for possibly all the world to see.

A class with one laptop per child laptops

 

On Monday, March 03, 2014, Gov. Jerry Brown signed the “erase bill” (which will take effect January 2015) that will allow minors the opportunity to delete a post from social media to protect themselves.

 

You can read an article about it here click

 

Do you think that this right should be reserved for only minors?  What about those over 18?  Those with mental illness?  Should they be able to delete only their own posts or posts other people make about them?

 

If you have a question about this or another legal topic, please feel free to contact the Bromund Law Group at 805-650-1100.

Emotion in California Divorces

by Matthew Bromund

Principal Attorney
February 28th, 2014

divorce helper upset coupleOne of the great challenges in guiding clients through divorce is the issue of emotional conflict.  The law is great at handling the logical issues involved in resolving disputes; we have spent hundreds of years codifying and regularizing the process and paperwork of making apparent what needs to be addressed.  Unfortunately, marriage is an intimate relationship and the issues involved in resolving a dispute in a marriage are rarely logical.  Instead, those issues are almost always emotional and the law is horrible at handling emotional issues.  In fact, the law makes no allowance at all for the emotional side of a divorce, which is unfortunate since often the logical issues in a divorce can be resolved by applying two very simple rules, that no one needs a lawyer to identify (the link is to the California court’s guidance on this):

1) Take what you have, owe, and have earned a right to own and divide it in half; each of you keeps one of those two shares. 

2) Arrange your children’s lives in their best interests. 

The emotional issues in a divorce are not addressed at all by these hundreds of years of refinement, contemplation and legal evolution. In fact, our forebears had a legal system much more attuned to the emotional issues in earlier ages, what with ‘fault-based divorce’, punitive alimony and intensely adversarial litigation designed to make one party feel shame for the breaking of the marriage.  Of course, these procedures caused immense discomfort, both for lawyers and participants, and have been revised and distilled to take the emotional pain out of the courtroom.

Even worse, lawyers have been systematically taught to ignore emotion and leave that out of their analysis of a case.  We aren’t trained in these issues and thus we enter private practice most often underprepared to guide our clients.  This information is offered to guide anyone looking to hire an attorney to assist in a divorce to know what to look for in hiring an attorney.  Given that the logical issues in a divorce are straightforward, if the issues in your divorce are solely logical, you need not worry about hiring a lawyer who is sensitive to the emotional side of your case.  In fact, if the financial situation of your marriage is transparent (meaning everyone already knows what you have, what you owe and where it is) you may not even need a lawyer at all. On the other hand, if you need emotional guidance as well, consider hiring a lawyer like one at the Bromund Law Group; a lawyer who is sensitive to the emotional side of your case.

To assist our clients in this sphere, we focus on our client’s interests, and not just their positions.  What’s the difference between an interest and a position?

Your interests are those values and substantive elements of your life that are necessary to make your pursuit of happiness possible.  Your positions are those objectives that you perceive to be at stake in the current transaction.

  • In buying a car, for example, your interest is in obtaining safe transportation for a cost you can bear that satisfies your personal sense of style and makes a statement about who you want to be seen to be.
  • Your position might be that a Toyota Prius is the right car for you, provided it has less than 5,000 miles and costs less than $30,000.

In a divorce, your positions likely appear to be in conflict with your soon-to-be-ex.  You have to cut your wealth in half and find a way to get as much time as possible with your kids, minimizing your debts and maximizing your ability to take long-term security out of the end of your relationship.  Since anything you receive comes out of the limited pool of wealth that goes to your ex, the conflict in a divorce is hard-wired into the process.  Even worse, no one enters a marriage with an eye towards it ending; the end of the relationship ALWAYS involves some sort of betrayal of trust or breach of expectations.  These positions come with strong emotions and those emotions can blind a person to the existence of interests underneath these positions. 

Your interests, on the other hand, may frequently have overlaps with those of your soon-to-be-ex.  You both likely want to see the wealth consumed by the divorce process minimized.  You both likely want your children to come out of the process happy and free of emotional injury.  You both likely want to avoid losing valuable work time to court hearings.  Finally, you both want to see this process end without increasing your negative feelings toward one another.

The Bromund Law Group focuses on your interests, using that focus to guide you into possible agreements that maximize your ability to achieve those interests.  We listen actively and pay close attention to your experience with your spouse because that will allow us to recognize what interests your spouse appreciates.  After all, while everyone has the interests we described above, not everyone can see that these interests are more important than their positions, especially when the issue of emotional injury is foremost in someone’s perception.

How does this work?

Example:  You have decided to seek a divorce because your spouse won’t give up lying to you about his affairs outside of the marriage.  His infidelity have cost your family thousands of dollars, putting a huge financial strain on your family, and put you in a position of shame and danger since his behavior has become notorious in your community.

Positions:  (You)Anger due to his betrayal requiring that he be shamed, to punish him for your shaming and Penalties sufficient to make you feel financially safe secure; (Him) Embarassment resulting in anger towards you, Fear about losing access to his children and the respect they have offered him inside his family; (Both) Fear about the court process and the control over their family life they are about to lose to strangers in court.

Interests:  Division of assets and obligations that maximizes your abilities to live life independently; a relationship with your children that maintains the role of parent/child; emotional support to sustain you through the divorce.

Our approach?  We would give you a safe place to vent your upset over his conduct and, in due time, make clear to you what you need to realize that the court process will not give you.  We would then move into a negotiation process that would give you a safe space to build a life of self-sufficiency (sometimes involving obtaining court orders on support, possession of assets, and child custody) and insure a parenting dialogue that leaves your relationship issues to the side (parenting is a paramount value that cannot be addressed at the same time as the relationship damage).  Finally, if at all possible, we would set up a safe space for emotional healing be it either together or apart.  The court doesn’t carry any of this load so our ability to make this happen depends entirely on the willingness of you both to engage in the process; if he doesn’t want to jump in, then we will simply ensure you don’t go forward expecting him to change.

Our role is to advance your interests and not just your positions.  There are lawyers who will focus on your positions, and if what you want more than anything else is to inflict pain on your ex, we will recommend them to you.  Our focus is to make you capable of pursuing happiness and that doesn’t come through inflicting unnecessary pain.

If this approach appeals to you, feel free to call us or recommend your friends to us.  Our initial consultation is always free and, whenever possible, we charge a flat fee for our services.  Please call 805.650.1100 to begin your process today.

Matthew Bromund of Bromund Law Group

Matthew Bromund
Principal Attorney

This article contains information and opinions of a general nature and is not intended to provide legal advice for your specific situation.  If you currently have a matter pending, feel free to contact a competent legal professional to obtain advice specific to your needs.  The Bromund Law Group has attorneys licensed in the state of California but nothing in this article creates an attorney-client relationship with any person who reads this article or comments upon it.