If you know that divorce is inevitable or you have made up your mind to file for divorce, then you should hire a divorce attorney. You want an experienced legal professional in your corner, representing your interests and fighting for your financial future and maternal rights.
While your lawyer deals with the more complex legal issues related to your divorce you should help them by taking the actions necessary to protect your children, your finances, your home, and your other interests.
Here are some of the ways in which you can help your lawyer get you the best outcome:
1. Do not move out of your house
If you have children, you should stay in the family home. Leaving your children behind can harm your chances at custody. If you move out with your children, you can seriously disrupt their life, which can have a huge impact on their ability to learn and adjust.
The children should not be taken from the family home. Nor should they be taken across state lines. You should not allow your anger to get the better of you by disappearing with the kids. This is not a negotiating tactic. It is kidnapping. The family court will look unfavorably at such move, and this too can ruin your chances at custody.
If your marriage has reached such a low point that it is impossible for the two of you to occupy the same house, then you should ask your spouse to move out. This is the most reasonable solution if you are the primary carer giver for your children.
2. Demand shared custody
Assuming that your spouse is a good parent, then you should not try to restrict their access to the children. Family court judges in California tend to grant shared custody anyway—on the premise that kids have a right to have a relationship with both parents. The sooner you settle this matter the sooner you can work out a visitation schedule, which will give your kids stability.
3. Cancel joint credit cards
As you are getting ready to break up your household, you should suspend the further accumulation of debt. Cancelling any joint credit cards is one of the first things you should do after you have informed your spouse that you want a divorce.
California is a community property state. That means both assets and debt are equally divided. The last thing you want is for a spiteful spouse to run up thousands of dollars in credit card debt just to make your post-marital life a little harder.
4. Open an individual account
If you do not have a personal account, you should open one immediately. You should then remove half the money in your joint account. This should be done as a precaution. If you and your spouse come to some agreement on the amount of money that needs to be in the joint account to pay bills and so forth, then you can put back some of the money you removed.
5. Cut back on expenses
You are entering a new and unknown future. You should try to save as much money as you can. Even if you are confident of receiving spousal support, you should not leave the marriage without any money whatsoever.
6. Move important records elsewhere
Protect the personal papers and records that you need most. Birth certificates, pension papers, diplomas, passports, and other important document should be moved outside of the family home for safe keeping. You should also make copies of deeds, bank statements, tax returns, W2s, etc.
7. Secure your valuable personal property
You should also safeguard personal momentos, heirlooms, old books, precious collections, and other things that you hold dear. None of these items falls into the category of community property, so you can move them as you wish.
8. Keep a journal
Divorce can be a confusing and highly stressful time. The arguments, the meetings, the telephone calls, text messages, and social media posts with friends and family—these things can overwhelm you. To make sense of each day, you should record its events in a journal. You can also write down your personal observations and details of important conversations you had. Be sure to keep the journal in a secure location.
Taking these steps can greatly increase your chance of getting through the divorce with your children, your property, and your sanity.
What is a Prenup?
A prenuptial agreement (aka antenuptial, premarital agreement) is a contract between two spouses-to-be.
Why Should I Make a Prenuptial Agreement?
Prenups aren’t just for wealthy people. According to Rocketlawyer.com, a prenup can shield you from responsibility for your spouse’s debts and forestall arguments if you end up in divorce.
With a prenup, you can:
- Lay out how your assets are passed on
- Document the ownership of property
- Outline the separate property that each person brought to the marriage
- Decide the legal ownership of the property, assets and income that are gained in marriage .
- Decide how you and your spouse’s finances should be handled.
In the absence of a Prenup, if you divorce or one of you passes away, the distribution of your assets will be subject to the divorce and probate statutes where you live or where you were married.
Prenups in California are Sometimes Different from Marriage and Divorce laws
The laws in the Golden State oversee the respective rights and obligations of spouses. Nevertheless, some marital rights can be renegotiated and modified by an agreement. Spouses can decide in advance the terms of their property shares during marriage or, if it should come to it, divorce.
Terms can for the eventuality of the unfortunate death of a spouse can also be delineated in the contract.
Indeed, prenups in California are sometimes different from marriage and divorce laws. Agreed upon terms can differ from the default procedure under the state legislation.
How Can I Be Sure My Prenup is Valid?
For a prenuptial agreement to be valid:
- The agreement must be in writing,
- It needs to be signed by both parties
- The prenup is only valid after the wedding.
(For domestic partnerships, the date of registration is akin to the date of marriage, so your prenup would become valid on the registration date.)
If the marriage is annulled at some stage, your prenup might actually be impossible to enforce, or enforcement may only be possible to a minimal extent.
It is worth noting that due to the special, intimate kinship between husbands and wives, any prenups have the potential to raise the suspicion of undue influence. This presumption could be advantageous to either party who may later want to challenge the validity of the prenup in court.
The California Family Code states that the intimate, fiduciary connection between spouses “imposes a duty of the highest good faith and fair dealing on each spouse.”
Family court judges have the power to sanction any violation of fiduciary obligation by awarding the whole value of an undisclosed asset in a divorce to the spouse that was deceived about it.
The Limits of Prenups
There are several important limitations to the authority of prenups:
- The California Family Code provides that “[t]he right of a child to support may not be adversely affected by a premarital agreement.”
- A judge will only enforce clauses in the agreement that limit spousal support if the spouse whose rights have been diminished had the chance to retain their own legal representation at the time they signed.
- If the courts deem the waiver of spousal support unconscionable, they can decide not to uphold it and award support.
- Any agreement that obligates the future spouses to commit crimes or otherwise violate laws or public policy cannot be valid.
- Some life-style clauses, such as those curtailing visits from in-laws or dictating how often you have sex usually cannot be enforced by courts.
How to Make a Prenup Without a Lawyer
As with any contract, it is possible to create a prenuptial agreement without a lawyer. There are templates out there that you can use to get it done. What comes into question is whether or not you’re making a prenup that can be enforced under the laws of the jurisdiction you’re in.
The requirements of a contract are as follows:
- promises,
- consideration,
- and signature
- witness or notary in some states.
Nonetheless, understand that every jurisdiction has different statutory and case law related to what is and is not permissible in prenups, and only an experienced attorney would know and understand what these are to advise you.
