Ques to attorneys:
My husband of 33 years confessed to having a 7 year long (perhaps more) affair with a prostitute, & its now ended (he says). How do I protect myself and my assets? We did not have a prenuptual agreement & we live in a community property state. We married "late" in life and have our own money, joint accounts (one "his" one mine). Do we need a post nuptual agreement or a marital agreement in order to legally keep my assests as mine, and his as his, and by mutual agreement we would then bypass the community property laws? What kind of agreement do we need, would it be recognized in CA if a separation or divorce occurs, and how many days from an attorney drafting this agreement do we need to wait to sign it (I believe in a prenup, parties have to wait 7 days). Thank you.
FYI: the cost of this "post" nuptual agreement BEGINS at $5000, PLUS there would be a separate consulting fee for an attorney to inform my WS of his rights in a community property state, and a separate consulting fee for a different attorney to make sure I understand it all too.
Attorney #1/Divorce & Separation specialist: Post nuptial agreements are generally disfavored by the courts, especially where problems have arisen afterwards. By law, anything acquired during the marriage is generally community property regardless of whose name is on it. The same is for earnings and bank accounts. But there are some exceptions. If you really want to preserve your separate property rights, then you probably need to file for a legal separation. Post nuptials ARE done and can be enforceable.
Attorney #2: Prenup/Post nup specialist: You will be ok either way, but you are the one who loses more without a prenup (we'll use prenup for lack of a better term), so if it were me and there is any chance you will ever divorce him (or vice versa), I would get it done while he is willing even if he doesn't pay for any of it. Consider what it would cost you to split all of your assets down the middle--though of course you get half of his assets too. What he did is NOT ok, but you have to protect yourself regardless of what happens in the future. Many attorneys will not be willing to do the prenup if it looks like separation or divorce is certain--in which case you would need a family law specialist (even though you don't have children).
I really do hope we can reconcile. However, it's difficult to get over the fact that he did this for 7 years with the skank, and did all kind of intimate sexual behaviors with her too.
We're starting couples counseling this week, he went to individual counseling today, my individual counseling appointment is next month, and we've both had marital counseling today from our parish pastor.
[This message edited by Hope2B at 9:02 PM, September 16th (Monday)]
Five grand!? The fuck do they write that shit on, vellum cured from the hide of sun-goats of the lost land of Aar, inked in the blood of disney pixies?
[This message edited by StillGoing at 9:28 PM, September 16th (Monday)]
The fuck do they write that shit on, vellum cured from the hide of sun-goats of the lost land of Aar, inked in the blood of disney pixies?
The one who puts it in writing that they will refund any consultation fees and represent you for free if they turn out to be wrong.
I like Attorney 2--I think he is pretty realistic and has given you good advice. The drawback is that he is not a family law specialist, but perhaps he would recommend one if you need one,
I remember reading lawyers don't like to do these in California for some reason...I can't remember the particulars. Google Post Nuptial AGreements and look on the American Academy of Matrimonial Lawyers website.
My atty said he would not think PN would be good in my situation since I am only in my 40s and potentially we could accumulate a lot more marital property/assets in the coming years of our marriage. Plus our kids are still quite young and I don't know if it would address CS issues.
He then tells me about a client that hired him to represent him in his "marital legal issues." In lieu of D, the couple separated and in an attempt to R, negotiated a Post Nupt against the advice of his attorney. Several months later, he gets together with his attorney and starts telling him about a woman he's seeing. His attorney is baffled...didn't he work things out with his wife? His client tells him "She never let me move back in and we're going to proceed with D." My attorney asks who is representing him. He says, "You are, of course." My attorney says, "Well, it appears as though your W did not negotiate in good faith. We should move to declare the PN void." His client says, "That is ok, just give her what she wants." Basically, the H - probably out of guilt for all of the acting out during the course of his M - let his W take him for one last financial ride totally in her favor.
It all depends on what you have and what you want to protect. Unless you have accumulated a lot of wealth and you are concerned about him depleting the marital estate if you stay together, my guess is that it probably is not necessary to have one. And really, if you are concerned about that, should you stay married to this person? (believe me, I am asking myself the same questions).
[This message edited by womaninflux at 7:46 AM, September 17th (Tuesday)]
It is doable. It's the route that I personally would go. They are getting more and more mainstream and there is now legal precedent for them in CA however both parties must be represented by a lawyer, even if all your WHs lawyer does is review the paperwork, make a tinker or two, and show up for the signing. Otherwise it can be successfully argued that it was signed under duress and deemed null and void. I personally, would also spring for someone to video the final signatures and meeting so that it could be shown in court, if necessary, that all parties showed up with legal representation and signed with no duress.
D-Day, June 10, 2012