Category Archives: Spousal support

Do prior acts of Domestic Violence Eliminate or Diminish the Obligation to pay Spousal Support?

Section 4336 (a) of the California Family Code provides that a court has jurisdiction to award permanent spousal support in long term marriages. As a rule of thumb, long term marriages are those which exceed 10 years. 

I was recently retained by a client who was married 16 years. Hence, that qualifies as a long term marriage. Her soon to be Ex-husband is asking for spousal support. Pursuant to section 4336 (a), she could be ordered to pay permanent spousal support because of the length of their marriage.

However, this woman conveyed to me a history of domestic violence. Said acts of violence, included, but were not limited to, her ex husband breaking her fingers, hitting her and leaving her black and blue, choking her, and punching holes in the wall when he was angry. Needless to say, these incidents left their toll on my client. She has suffered emotional distress, as well as physical abuse.

So, is there anything I can do to persuade a Judge not to award spousal support? Fortunately, the answer is Yes.

Although section 4336 subsection (a) does give California Judges the authority to award permanent spousal support in long term marriages, 4336 subsection (h) states that a history of domestic violence, and resulting emotional distress, shall be taken into account when making an award of spousal support. In other words, a court also has authority to deny spousal support in long term marriages when there is a history of domestic violence.

California Family Code section 4325 provides that when there is a conviction of domestic violence by one spouse against the other, within 5 years of filing for dissolution, there is a rebuttable presumption that the guilty spouse is not entitled to spousal support.

But what does a party do when there has not been a criminal conviction?  Fortunately, California Family code section 4320 ( I ) allows the court to deny an award of spousal support when there is documented evidence of spousal abuse. This section does not require a conviction. Though, of course, if there were a conviction, that would be helpful.

Therefore, when there has not been a conviction, the key is to have documented evidence of domestic violence. This evidence could consist of a number of things. Some examples would be  police reports, pictures, applications for restraining orders that were filed within the last five years, witness statements, and written declarations by the victim spouse.  There is no set definition for “documented evidence.” So anything that makes sense and adequately presents the evidence should suffice.

Should I get a Prenuptial Agreement before I get married in California?

When making this decision, it is important to have an understanding of what Prenuptial Agreements can and cannot include in California.

A prenuptial agreement is a contract between an engaged couple which takes effect when they get married. It is enforced if and when the parties divorce. It is generally a tool used by wealthy people who have assets, and who want certainty as to how their assets will be divided in the event that their marriage winds up in divorce. The parties can alter the general rules regarding spousal support and division of community property with this agreement.

In order to be enforceable, the party seeking to limit spousal support must fully disclose the Prenuptial agreement in Californiaextent of his or her assets and financial resources. There must be no coercion involved, and the other party must understand what s/he is signing and giving up. Along those lines, the party who is agreeing to limit or waive spousal support must have the agreement reviewed by his or her own independent counsel before signing it.  California law requires seven days between the time when the party, whose rights will be limited, is first presented with the agreement, and the time when s/he signs the agreement.

A prenuptial agreement must not be unconscionable at the time of enforcement. Since a parties financial circumstances may change during the course of his or her marriage, that makes it difficult to predict in advance whether or not the agreement will be legally enforced when the parties separate or divorce.

A prenuptial agreement cannot include issues regarding child support or child custody. It also cannot include agreements regarding obligations that arise during marriage, such as household chores, sexual relations or penalties for adultery.

It is advisable to be represented by counsel when entering into a prenuptial agreement, to ensure that you have compiled with all of the legal requirements. Otherwise, there is a good chance that the agreement may invalidated by the court when the parties get divorced.

 

What Are the Consequences of Not Having a Prenuptual Agreement?

Jessica Simpson was recently quoted as saying that her biggest money mistake was her first marriage to Nick Lachey.  She was spot on. In addition to her notoriety as an actress,

Jessica Simpson and Nick Lachey during 2005 MTV Video Music Awards - MTV ShowBox at American Airlines Arena in Miami, Florida, United States. (Photo by Michael Loccisano/FilmMagic)

Jessica Simpson and Nick Lachey during 2005 MTV Video Music Awards – MTV ShowBox at American Airlines Arena in Miami, Florida, United States. (Photo by Michael Loccisano/FilmMagic)as an acclaimed actress, Jessica has also become a fashion Icon. Today, her fashion empire is said to be worth close to $1 billion.

she has become a fashion Icon.

In contrast, her ex husband, Nick Lachey, never achieved the same level of fame that she did. Accordingly, when they split up, Jessica wound up paying.  Nick Lachey walked away with half of the value Jessica Simpson’s estate when their divorce became final, back in 2006.  At that time, the parties settled for about $2 million. Fortunately for Jessica, she made most of her fortune in the fashion industry after the parties split.

Before getting married, carefully weigh the economic consequences. Be very clear about what you may be giving up, before saying “I do.”  Under California law, one spouse could be giving up a lot for the other.

There are two solutions to avoid this outcome. The first, and most obvious, would be not to get married.

The second would be to get married, but to make sure to have an air tight prenuptual agreement. A well written prenuptual agreement can avoid harsh laws regarding spousal support and the division of community property.

The problem with a prenuptual agreement is that no one can predict the future.  No matter how carefully the agreement is drafted, things inevitably change over the course of a few years, including one’s financial situation. Accordingly,  at some future point when the parties split, the agreement may no longer be a true representation of the parties current financial situation.  Thus,  the agreement may be hard to enforce.