Articles tagged "dissolution"

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.

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.