California Family Law Attorney
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June 14, 2010
  Is a PRENUPTIAL AGREEMENT signed without an attorney ENFORCEABLE?
Posted By Thurman Arnold

Q. Before my wife and I married, she convinced me to sign a Prenup prepared by her brother, who is a Los Angeles divorce attorney. It says that I waive any right to property acquired with her earnings. It also says I had the opportunity to get legal advice but was choosing not to. At the time I couldn't afford an attorney. Six years later, she says I have no rights to the house we bought together. A friend says that since I didn't have an attorney at the time I signed it, the agreement cannot be enforced. Is this true?

Rick, Pasadena, CA

Must an Attorney Advise Me Before I Sign a Premarital Agreement?

Whether or not a Prenup - formally known as a premarital agreement - gets enforced is highly fact specific, so it is impossible for me to answer your question except in general terms. I would need more information and to look at the document carefully. I can give you some useful pointers, however.

California has adopted the UPAA (The Uniform Premarital Act) as Family Code sections 1600-1617. Prior to its adoption prenups were viewed by courts with suspicion, and they were much harder to enforce. One reason was that as a matter of public policy it was believed that prenuptial agreements undermined marriage and so promoted divorce. Today they are viewed as supportive of the marriage institution, particularly in cases of second marriages where many people won't remarry without one. Although we speak in terms of marriage, the UPAA applies equally to registered domestic partnerships.

Still, they are viewed somewhat technically and to be enforceable they must meet the requirements of the statutes. Family Code section 1612 speaks to what rights are properly altered by a Prenup. Subsection (a)(1) and (3) deal with property interests. As a starting point, there is no question but that a premarital agreement can waive interests in real property like residences.

The critical family code section dealing with enforceability is section 1615. Anybody considering a Prenup, or questioning its validity, should scan this statute. The chief defense to a Prenup is that it was not executed voluntarily. If you can prove that, it will be treated as void. If the agreement was signed as result of duress, coercion or undue influence it will likely not be enforced. The lack of an independent attorney can result in a finding that the agreement was not entered voluntarily.

If one expects a premarital agreement to be enforceable, there is simply is no safe reason for dispensing with legal counsel. Prenups should only and always be drafted by qualified attorneys, and both parties must actually be advised about their legal effect, or they may not be worth the paper they are written on.

In all cases where my office drafts a premarital agreement, we will not proceed if the other party is unrepresented. In fact, where the other party lacks sufficient financial resources to do so, we insist that person select counsel and that our client pay for it. In my opinion it is a dangerous practice to deny a less financially empowered spouse or domestic partner the ability to access legal counsel in these situations.

Why Is Independent Counsel Important?

The importance of having independent counsel in these matters is evident from the language of FC section 1615:

"(a) A premarital agreement is not enforceable if the party against whom enforcement is sought proves either of the following:
* * *
(c) For the purposes of subdivision (a), it shall be deemed that a premarital agreement was not executed voluntarily unless the court finds in writing or on the record all of the following:

(1) 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, in a separate writing, representation by independent legal counsel.

(2) 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.

(3) 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. The explanation of the rights and obligations relinquished shall be memorialized in writing and delivered to the party prior to signing the agreement. The unrepresented party shall, on or before the signing of the premarital agreement, execute a document declaring that he or she received the information required by this paragraph and indicating who provided that information...."

Notice how these provisions are almost shouting 'independent legal counsel.' It is rare to see a phrase repeated so often within the same code section.

So examine whether your agreement, and the required separate writing, seem to address these requirements. Also, check to see whether the other conditions for enforceability are met. There may be other reasons why your Prenup will not be enforced, as where undue influence was exerted to obtain your signature (notice the seven day waiting period, which is intended to overcome the social pressures where a wedding date is looming). But you would be ill-advised to embark upon a challenge to the agreement without legal counsel this time around; don't compound the problem.

A final comment: Setting aside the prenuptial agreement may only have a limited affect upon the status of the house. For instance, the rules relating to transmutations and reimbursements still apply. I have written about those elsewhere in this Blog, but if the house was acquired by your wife as her separate property independently of the Prenup it remains her separate property even if the agreement is voided. However, if there was a mortgage and it was paid down with her earnings during marriage the cancellation of the Prenup may benefit you because the community will thereby gain a Moore Marsden reimbursement right in the principal pay down and appreciation.

Again, seek out an experienced family law attorney. And, I always urge that people consider mediating these types of family law disputes, or even mediating the provisions of the prenup prior to signing the final version.

For more articles about premarital agreements, visit us here!

And, please like us on FB if you found something useful here!

T.W. Arnold

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April 07, 2010
  How do I FIRE my ATTORNEY?
Posted By Thurman Arnold

Q. How do I fire my family law attorney?

You are free to discharge your attorney, and terminate his or her services, for any reason and at any time. Attorneys cannot require that you first pay off your bill, or that you reimburse them for expenses (including any costs associated with copying your file) before they will withdraw. In California this is accomplished with the Courts by both you and your attorney signing a Substitutions of Attorney which is then filed with the clerk of the Court where your case is pending. Simply download this form, fill it out, and take it to your attorney's office for their signature. Usually they will get it filed and send you a "conformed" copy (i.e., one that bears the filing stamp of the court).

If you do not have a pending case, you need simply write your lawyer an email or letter telling him to cease all efforts on your behalf.

She must return your entire file, except her notes, within 10 days of a written request. The California State Bar will discipline lawyers who fail or refuse to comply. She must also give you a final accounting on his bill within that time, and return all unused fees to you. Unless you have a true flat fee arrangement, she cannot keep the balance of your retainer and must turn over to you all unused funds within a reasonable time.

One important bit of advice, however: Be careful how you time firing your lawyer. He or she is "on the hook" insofar as the Court is concerned so long as they remain your attorney of record. There may be reasons why you should wait until after a hearing takes place before signing the Substitution.

In the event you choose not to sign a Substitution of Attorney - where for instance it is the attorney who is firing you - that attorney remains on the hook until an Order for Withdrawal is signed by a Judge, which can only occur after a Notice of Motion is filed by the attorney to be relieved as your counsel. The motion process takes at least 25 days and you are entitled to oppose it. The lawyer must provide a declaration stating that the attorney-client relationship is broken between you, but they are not required to say why (for instance, that you lied to them or were uncooperative). Unfortunately, however, I see many lawyers who sloppily do tell the court something that may hurt your case or the court's perception of you. Frankly, if they do that it may be grounds for a State Bar Complaint.

We offer Second Opinions and frank and discreet, expert advice, by telephone and video-conferencing and webcam!

Thurman W. Arnold III
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January 20, 2010
  What should I do before selecting a divorce attorney?
Posted By Thurman Arnold

Q. What should I ask a family law attorney to see if we are a good fit?

Before you step into a lawyers office, you should know something about them. Today this is easy. Go to the California State Bar website. Search the attorney's name. You will learn where they attended undergraduate school and law school; when they were admitted to the Bar, whether they belong to any Bar Sections and stay current with the law, and how long they've been practicing. Not all law schools are created equally.

You will learn whether they have been disciplined. Lawyers can be disciplined for a number of reasons; some go to the essence of that attorney's character and affect their reputation in the community, including with Judges before whom they appear.

Second, ask for a referral. Be sure the reporting person is reliable themselves, not over-conflicted, and that they have a basis for their opinion.

Referrals from long practising mental health professionals are an excellent recommendation.

Referrals from other lawyers is a very good way to choose a lawyer, and if you know an attorney run the names you are considering by him or her. AVVO rates lawyers in terms of client satisfaction, reputation, and achievement. Martindale Hubbel is another resource.

Web sites, like this one, are also a good place to start. They may tell you something about the attitude of the attorney and the style of their practice, or they may be a misleading billboard. Most attorney websites are put together by advertising firms and don't reflect the real personality of the lawyers. Many lawyers pay ghost writers to put up blogs or "articles" on their sites. They subscribe to "newsletters" that they appear to have, but have not, written.

Thurman Arnold has researched and written every word on this site (truly). We don't believe there is another family law website in the country that matches our commitment in making dissolution related information available to people for nothing.

Many lawyers will not charge for an initial consult. The Law Firm of Thurman Arnold III does not charge for initial consults, over the phone or in person, and we usually spend a half hour to an hour with clients when we first meet them. We want to know about you, and it is important that you get to know us.

Remember that lawyers are busy professionals, and time is their stock in trade. It isn't ethical for you to interview lawyers to gather free information or just to validate your opinions.

Asking the attorney their opinion on issues important to you at the initial meeting is not inappropriate or off limits in the slightest.

You are trying to determine several bits of information:

1) Is this attorney actually experienced in ways that are helpful to you?

Family law is complicated because it is not just the lawyer's experience with the law that is important, but it is also their familiarity with professional and life situations similar to your own.

2) What is the attorney's attitude about how divorces should be handled? Does she know how to listen?

Is that attitude consistent with your own goals? For instance, if you intend to lie to your spouse, hide assets, and if you care only about the outcome from your own perspective, you would need to hire a lawyer who tends to practice in a way that accomplishes that goal. If that is who you think you are, you want a divorce gunslinger.
But, beware, these lawyers will treat you the same way as you treat others.

If instead you are like most persons involved in the trauma of divorce, rational one day but distressed and confused and even nasty and reactive the next, you need someone compassionate and ethical to guide you. If you think that being ethical means being soft, examine what it is in your thinking that concludes that.

Conflict resolution is not the same as conflict avoidance. You do need to make sure that your lawyer has the background, ability, experience, and interest in you to manage your case. The best attorneys have some educational background in the family sciences or family studies, and regularly undertake family law continuing education. Such training reflects an unusual commitment to the craft that may distinguish them from the pack. The Law Firm of Thurman Arnold III actually lists our experience, training, and continuing education on this site to evaluate - we challenge other attorneys to do likewise.

3) You need to feel that you and the lawyer you hire are a good fit. If it reliably seems that the two of you can act as an empathetic team, and that you value the same things, you are on the right track.

Here's an article that gives additional pointers for selecting your family attorney.

T.W. Arnold
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January 17, 2010
  I have an attorney but what if I want a SECOND OPINION?
Posted By Thurman Arnold. Certified Family Law Specialist

Q. I am represented by an attorney. However, I don't have a lot of faith in him anymore and now trial is scheduled in four months. Am I being paranoid in wanting a second opinion about my divorce case?

Clara - Redding, CA

A. I understand, Clara. Dissolution proceedings generate great anxiety. The circumstances surrounding the breakup of relationships, division of property and debts, sharing of custody, fears about future economics, and being a stranger to a process that one can only marginally direct or control cause difficulties in evaluating the quality and value of advice that clients receive.

Please don't hesitate to seek a second or even a third opinion about your family law matter.

We all ought to have a healthy skepticism about what professionals tell us, particularly when the subject affects us in an intimate, immediate or lifetime basis. It is not uncommon to become suspicious of one's attorney, or to lose confidence. Indeed, a major tactic which parties use to manipulate each other in high conflict divorces involves promoting distrust of the other's lawyer; a second opinion may become useful in grounding you. Your fears may be well founded, or they may be caused by a lack of understanding (most often a result of poor communication skills on the part of an attorney, or a lack of apparent empathy for your plight). In either case with these warning signs evident and some time left to change horses if that is indeed what you conclude is necessary, failing to investigate this further right now is a recipe for disaster.

Lawyers are not all created equally; some are unquestionably smarter and more poised and articulate than others, and there is a huge variation in the level of skill and commitment that individuals possess or bring to any particular case or specialty topic.

Certified Family Law Specialists are highly likely to understand the legal complexities of modern divorce, and to be familiar and comfortable with current best practices in the mental health sciences as they relate to individual and family dynamics. Most attorneys lack sufficient interest to bother to undertake the fairly grueling training, education, and testing required for certification as a legal specialist. Although certification as a divorce expert does not guarantee the outcome you desire to achieve, it does stack the odds in your favor - hiring a specialist is more likely to pair you with an experienced legal professional who is at the top of the divorce lawyer bio-sphere. If your attorney is not certified, or even if he is and you sense that his advice is not efficient or it is not making sense to you (or others), it is no sin to discreetly step away, take some breaths, and get reliable and independent feedback.

If you are feeling uneasy about the quality of the legal representation you are receiving, don't ignore the signals. Given what is at stake, why not seek a second legal opinion from a qualified attorney? At worse you may find that your anxiety has been dispelled and that the real problem with you and your lawyer involves a lack of communication or a lack of understanding by one or both of you that can be remedied; at best you may avert a developing train crash before your life and finances are thoroughly wrecked.

We don't have crystal balls, but we all possess intuition and common sense. Use yours!

We offer Second Opinions and frank and discreet, expert advice, by telephone and video-conferencing and webcam!

Thurman W. Arnold III, C.F.L.S.

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