What's the Difference Between Premarital Agreements, Marital Agreements, and Marital Settlement Agreements?

In California, there are three types of agreements that affect marital property - Premarital (Prenuptial) Agreements, Marital (Postnuptial) Agreements, and Marital Settlement Agreements. The main distinction between these three types of agreements is when the parties sign the documents.

California Family Code Section 1610(a) defines a Premarital Agreement as "an agreement between prospective spouses made in contemplation of marriage and to be effective upon marriage." A Prenuptial Agreement can affect the parties present and future rights and interest related to their upcoming marriage - both while they are alive and after they die. Even though a "prenup" has a broad range as to what interests it can affect, it can not adversely affect a child's right to support.

A Martial or Postnuptial Agreement is an agreement signed by husband and wife while they are married. Like the Premarital Agreement, a Marital Agreement can affect the parties future and present marital rights. It too can affect interests both before and after death.

Finally, a Marital Settlement Agreement is executed for divorce purposes and resolves the parties' disputes over marital property, rights and obligations.

California law imposes specific requirements that must be met in order for these agreements to be both valid and enforceable. As a result, many of these agreements have been challenged in court. To properly draft these agreements, the drafter should be aware of the relevant statutory authority and case law. Even if the agreement is drafted with care and deference to case law and statutory authority, there is no guarantee that the agreement will be "bullet proof." Please note that each of these agreement must meet other requirements that are not discussed in this article due to space constraints. It is encouraged that before you draft or sign any of the agreements discussed above, you retain competent legal counsel to increase the likelihood your agreement will be enforceable.

The information on this blog is not legal advice, nor is it intended to create an attorney-client relationship. Legal questions should be directed to a lawyer of your own choosing.

What to Look for When Hiring a Family Law Attorney

The choices are dizzying when trying to find a family law lawyer. When faced with family law issues, such as divorce, paternity, child custody or visitation, most people feel alone and confused. Should you call the lawyer whose picture is on the back of the bus? Or should you consult your local yellow pages? Maybe you should call the attorney that advertises on local sports talk radio? Or what about the attorney your friend recommended? Regardless of which attorney you call, you need to make sure you hire the right one for you.

You might be tempted to hire the lawyer that charges the lowest hourly or flat fee or you might hire the lawyer that offers a free initial consultation. Although cost is a very important factor you must consider, it is not the most important. The old maxim, "You get what you pay for," rings true when hiring a lawyer. What good is saving a few dollars at the beginning of your case if, in the long term, it ends up costing you more and your matter is not handled efficiently and competently? Or worse yet, your attorney does not keep you updated on your case or return your calls. Will you be able to reach the attorney's office when you call? Or will you be waiting days for a return call? Does the lawyer welcome email correspondence?

Your goal should be to hire a lawyer that you can trust and is compassionate about your situation yet aggressive and efficient in representing your interests in court. You deserve an attorney that will be there when you need him - an attorney you can trust.

Family law issues cause stress, your attorney should help relieve your stress - not add to it.

Can You Afford Not to Hire an Attorney for Your Divorce?

In recent years, there has been an upward trend of people representing themselves in their divorce cases. In 2000, more than 77% percent of litigants represented themselves in San Diego courts.

Although these people may seem to be saving money on attorney fees, many of them are left dazed and confused trying to finalize their divorce. Many people have no idea which documents to file or how to serve documents on their spouses to start the divorce process. If they manage to get past the initial hurdles, even more are left confused with trying to figure out how to finalize their divorce.

Unfortunately, the legal system was not designed as a "do it yourself" process. Instead, the family law courts require a variety of forms and documents depending on each individual circumstance.

Courts can not give litigants legal advice so they are left on their own trying to navigate a system with which they are not familiar. Many of the "Do-It-Yourself Litigants" become frustrated and may not actually finalize their divorce which can lead to both embarrassment and emotional scarring if one tries to remarry.

Every divorce has unique issues - whether there is community property that needs to be divided, who will have custody of the children, how much visitation time the noncustodial parent will have, and how much child support and spousal support needs to be paid. A divorce becomes even more complicated if there is a community business or there are issues of domestic violence.

Even if your divorce does not have any complicated issues, hiring a competent family law lawyer will pay for itself in the peace of mind it provides.

Feel free to contact the Law Offices of Scott D. Wu to assist you with your divorce case.