California Premarital Agreements: Your Marital Insurance Policy 

Premarital agreements (also known as prenuptial agreements or “prenup” for short) are “agreement(s) between prospective spouses made in contemplation of marriage and to be effective upon marriage.” See California Family Code §1610. In layman’s terms, a premarital agreement should be viewed as a contract between the parties that dictates each spouse’s property rights and responsibilities in case of dissolution. In our first Harris Pallaschke Law Firm blog post, we wanted to take some time to provide more information about the extent and limits on California prenuptial agreements.

 What is Required for a Premarital Agreement in California? 

The California Family Code states that “a premarital agreement shall be in writing and signed by both parties.” See California Family Code §1611. In actuality, premarital agreements require much more than a simple signed writing in order to be protected from attack in the case of dissolution. Additional considerations a party contemplating a premarital agreement should consider include:

  • The party against whom enforcement is sought must provide “fair, reasonable, and full disclosure of the property or financial obligations of the other party.”See California Family Code §1615(A). At Harris Pallaschke Law Firm, we ensure that both parties to a premarital agreement have complied with this requirement by outlining all assets and debts the parties have before drafting the agreement.
  • A party signing a premarital agreement should be represented by independent counsel. If the party signing the agreement does not wish to retain counsel, he or she must waive this requirement in a separate, signed writing. See California Family Code §1615(c)(1).
  • A party signing a premarital agreement must be given at least seven days to review the premarital agreement and seek the advice of independent legal counsel. See California Family Code §1615(c)(2). If you are contemplating a premarital agreement, we recommend drafting and finalizing your premarital agreements at or around the time you send out a “save the date” for your wedding.

What Terms Can a Premarital Agreement Cover?

Premarital agreements in California allow great latitude for the parties to determine what assets will or will not be covered by the premarital agreement. Ordinarily, premarital agreements dictate how the court should view community property in case of dissolution. If you own assets such as a home, business, stocks, etc., a premarital agreement can outline exactly how these assets should be divided in case of dissolution. See California Family Code §1612(a)(1). Even then, there are a number of caveats to this general rule.

  • Parties cannot contract to pay zero child support in a premarital agreement. See California Family Code §1612(b).
  • Parties to a premarital agreement cannot agree to waive spousal support unless represented by independent legal counsel. Even then, an agreement to waive spousal support will not be enforceable if the court deems this waiver as unconscionable at the time of enforcement. See California Family Code §1612(c).

Can a Premarital Agreement be Revoked? 

A premarital agreement provides each party peace of mind to determine division of assets upon dissolution. Even then, a premarital agreement is not irrevocable. A premarital agreement can be amended or revoked through a written agreement signed by both spouses. See California Family Code §1614.

Do I need to Hire a Family Law Attorney to Draft my Premarital Agreement? 

Premarital agreements require substantive and procedural hurdles that family law attorneys are prepared to accommodate. If you are serious about a premarital agreement, we recommend enlisting the help from an experienced family law attorney to ensure your premarital agreement protects the assets you want protected in case of dissolution. Harris Pallaschke Law Firm has the experience and expertise to draft fair, reasonable, and enforceable premarital agreements. Harris Pallaschke Law Firm can provide full service representation, from your free initial consultation to drafting, negotiating, and signing of your agreement.

Disclaimer:

This article is not legal advice and is not intended to apply to your specific situation. Every family law case has different facts which may affect the ultimate outcome of your case. This article does not create an attorney-client relationship between the Harris Pallaschke Law Firm, APC. and the reader. If you have additional questions, please schedule a free consultation to speak with one of our experienced family law attorneys.

 

Child Support Modification Under California Law

At Harris Pallaschke Law Firm our attorneys possess the knowledge and experience to help individuals navigate the complicated world of child support in California. Whether you are an individual paying more than your fair share in monthly child support, or a person trying to ensure that one parent meets his or her obligation to provide for your child, Harris Pallaschke Law Firm is here to zealously advocate for your rights. In this installment, we will answer some common questions potential clients have regarding child support.

“How do I modify my child support order?”

  • The California Family Code states that a child support order “may be modified or terminated at any time as the court deems to be necessary.” California Family Code Section 3651(a). Admittedly, this makes child support modifications sound straightforward. However, multiple family law decisions have clarified the intention of the California legislature. In order to modify child support, a party must introduce admissible evidence of changed circumstances as a predicate for modification of a child support order. See In re Marriage of Sheraton, 92 Cal. App. 4th 269, 298 (2001); see also In re Marriage of Brinkman, 111 Cal. App 4th 1281, 1292 (2003).

“What qualifies as a change of circumstances?”

  • Ordinarily, a factual change of circumstances is required for an order modifying child support. Some of these circumstances include (but are not limited to):
    • Increase in payor parent’s income available for child support;
    • Increase in payee parent’s income available for child support;
    • Decrease in payee parent’s income available for child support;
    • Decrease in payor parent’s income available for child support; and
    • Increase or decrease in either parent’s timeshare with the minor child(ren).
  • There are a number of other circumstances which may warrant a modification of child support. However, the most common situations which warrant a modification of child support deal with either parent’s change of income or change of timeshare with the child. See In re Marriage of Leonard, 119 Cal. App. 4th 546, 556 (2004); citing to Cal. Practice Guide, Family Law.

“My child’s mother/father has to prove to the court that the amount of child support received is insufficient.”

  • Put simply, this is not true. The burden of proof to establish that changed circumstances warrant a downward adjustment in child support rests with the supporting spouse.” See In re Marriage of Stephenson, 39 Cal. App. 4th 71, 77 (1995).

“Can I ask the court to reconsider a child support order if I do not think it is fair?” 

  • The stakes are high when a party seeks to modify child support. A trial court’s award concerning child support is reviewed for abuse of discretion. In re Marriage of Cheriton, 92 Cal. App. 4th 269, 282 (2001). Likewise, a determination regarding a request for modification of a child support order will be affirmed unless the trial court abused its discretion, and will be reversed only if prejudicial error is found from examining the record. In re Marriage of Drake, 53 Cal. App. 4th 1139 (1997).
  • This means that child support orders are extremely difficult to modify without showing a change of circumstances. It is always wise to consult with an experienced family law attorney to discuss your rights and options with regard to child support. Call Harris Pallaschke Law Firm today to schedule your complimentary consultation to discuss your case with one of our family law attorneys.

Disclaimer:

This article is not legal advice and is not intended to apply to your specific situation. Every family law case has different facts which may affect the ultimate outcome of your case. This article does not create an attorney-client relationship between the Harris Pallaschke Law Firm, APC. and the reader. If you have additional questions, please schedule a free consultation to speak with one of our experienced family law attorneys.