We understands the importance of prenuptial agreements to many people who are contemplating marriage. Today, more than ever before, Californians are remarrying or marrying for the first time later in life when they already have considerable assets and debts, or children, to consider and plan for.
While the old view was that a premarital agreement suggested a lack of confidence that a marriage would succeed, today the law recognizes that people are more likely to marry, and that their marriage is actually supported and made more enduring, when they begin with a road-map for addressing property and finances – subjects that we all tend to feel uncomfortable talking about until decisions are made that often cannot be undone.
Ironically, for those couples that do divorce (including domestic partners who dissolve their RDP) without a prior written understanding of how property might be divided or confirmed, and income and support issues handled, judges and the law treat these individuals as if they knew every legal consequence of every transaction and decision to buy or sell property, how to hold legal title, or what happens when inheritance, earnings, and other monies are mixed together and commingled. Of course no one actually does, which results in unsettling surprises for many.
Prenuptial agreements are prudent and mature, and they help to begin marriage and domestic partnerships on a firm footing with each party understanding what many of their rights and obligations are, or how they may be affected or changed, by reason of the otherwise invisible legal consequences that flow from marriage. This allows for informed decision-making early on.
Do Premarital Agreements Work?
California marital property law creates a presumption that any property acquired by a married person between the date of marriage and the date of physical separation is community property, subject to certain exceptions. The community is an artificial entity (a legal fiction) created in law by which a husband and wife, or registered domestic partners, each may acquire a one-half interest in property acquired during the marital window.
Prenuptial agreements, also called antenuptial or premarital agreements, are contracts between the parties to modify or circumvent the community property laws of the state. Thus, the agreement may operate to create a separate interest in property acquired, income earned, and/or debts incurred during marriage that would otherwise be a joint asset or obligation. The agreement may also serve to identify separate property interests that exist at time of marriage.
Prenuptial agreements, when properly drafted and executed, will be enforced by California courts so long as the required conditions are met. They are not enforceable where:
It was not signed voluntarily (which requires more than mere consent)
The agreement was unconscionable when it was executed and, before execution of the agreement, all of the following applied to that party:
That party was not provided a fair, reasonable, and full disclosure of the property or financial obligations of the other party, did not voluntarily and expressly waive, in writing, any right to disclosure of the property or financial obligations of the other party beyond the disclosure provided, or that party did not have, or reasonably could not have had, an adequate knowledge of the property or financial obligations of the other party.
Family Code section 1615 essentially states that an agreement be found to be voluntary, the court must find each of the following:
The party against whom enforcement is sought was represented by independent legal counsel at the time of signing the agreement or, after being advised to seek independent legal counsel, expressly waived representation.
The party against whom enforcement is sought had not less than seven calendar days between the time that party was first presented with the agreement and advised to seek independent legal counsel and the time the agreement was signed.
The party against whom enforcement is sought, if unrepresented by legal counsel, was fully informed of the terms and basic effect of the agreement as well as the rights and obligations he or she was giving up by signing the agreement, and was proficient in the language in which the explanation of the party’s rights was conducted and in which the agreement was written.
Can Spousal Support Be Waived?
The issues of a waiver of child support and spousal support as part of a prenuptial agreement are treated separately in California Family Code §1612. A waiver of child support is not enforceable. Simply stated, whether a spousal support waiver will be enforced depends upon whether that party was represented by independent counsel at the time of the waiver. More importantly, courts will look to whether the agreement was (a) so unfair at the time it was signed as to have been “unconscionable” but also (b) whether the parties’ circumstances today are such that it would be unconscionable to enforce the waiver.
An agreement that seeks to waive or limit spousal support rights must be drafted with particular care to not only ensure that is fair at the time it is designed, but also to anticipate creatively how to increase the likelihood that it seems sufficiently fair years later. A prenuptial agreement is a complex legal document. Its negotiation and preparation must be left to a competent attorney with experience in drafting them.
Premarital agreements are complex documents that require specialized expertise. You must have a trained professional who is thoroughly familiar with them in order to have the expectations set forth in the agreement met. We have that knowledge. Moreover, only an independent attorney who represents only your interests in the negotiating of the agreement can tell you what really is or is not fair and appropriate, and what the language actually means!
Divorce Law Long Island – Jay Raxenberg
Findlaw Information Source
In November 2015, 57-year-old Denny Lovern was indicted on nine separate charges stemming from a DUI arrest by a grand jury in Arapahoe County. Generally, DUI cases do not go before the grand jury for a felony indictment, however prosecutors deemed that it was appropriate in this particular case due to Colorado’s relatively lenient laws regarding multiple DUI offenders.
No Felony DUIs
Lovern reportedly has 16 prior convictions for DUI, arising out of 20 different alcohol-related traffic citations. However, multiple DUIs are not classified as a felony no matter how many prior convictions you may have on your criminal record. This means that the maximum sentence for a standard DUI charge–even with multiple priors–would be one year in prison. For this reason, prosecutors often try to combine other felony charges with DUI in an attempt to secure more extended prison sentences.
In Lovern’s case, because the arrest occurred following an accident and because of his past record, prosecutors were able to convince the grand jury to indict on charges that included:
Calling for New DUI Laws
The prosecutor criticized DUI laws in Colorado for being “weak” due to the lack of felony charges, and states that the department plans to pursue additional felony charges in multiple DUI cases in the future, sending the cases to the grand jury. The prosecutor called for the legislature to pass more stringent laws for habitual DUI offenders.
Legislative bills regarding felony DUI laws have been introduced twice in two years in Colorado, but neither bill passed. Some opposers claimed that was not enough evidence that such a bill would actually increase safety on the streets. Instead, the opposers claimed that law enforcement officers should increase DUI arrest efforts such as roadblocks and saturation patrols. They stated the fear of getting stopped would deter drunk drivers without the need for stricter felony DUI laws. A third bill is planned to be on the table in January of 2017, which would allow for felony charges for a fourth lifetime DUI or for a third DUI within a five-year period of time. With an increased budget and alleged bipartisan support, legislators supporting the bill are more hopeful for success.
Even though Colorado does not yet have a felony DUI charge, every DUI case is still a serious matter. DUI convictions may mean substantial fines, time spent on probation, alcohol classes, and jail time. For this reason, you should always have the assistance of an experienced DUI defense attorney in your case.
Contact a DUI Defense Attorney in Denver for Help With Your Case Today
Tiftickjian Law Firm is really good in resolving cases like this – they are committed to helping individuals in and around Denver fight against DUI charges. They have an extensive understanding of how DUI laws in Colorado apply to each individual case and they strive to achieve the best possible outcome for every client. If you have been arrested on suspicion of DUI, contact their office today to talk about how we can help you.