Monday, April 14, 2008

Asset Protection in a Marriage

Dear Attorney: I just got married two months ago. I forgot to ask my husband to sign an agreement that doesn't allow him to ask me (if we divorce) for half of whatever I earn. I also do not feel that I should have to pay spousal support. I currently own nothing, but I will shortly because I am in the process of buying a house. I am the only person in the marriage who earns money, because my husband is a full-time student. Is there any way that I can still get something signed that will protect my assets? -- H.M. Dear H.M.: In California, when a couple files for divorce, there are certain rules the court must follow in resolving issues surrounding spousal support and division of property. These rules include the general principle that anything acquired during the marriage through time, effort or skill is community property and must be divided equally. However, the parties can agree at any time to settle their disputes in any way they believe is fair. It is only if the parties are unable to settle the terms of their divorce without the help of a judge that the court must apply California family law when making court orders. Sometimes a couple decides that they do not want the general principles of California family law to apply to them. Perhaps one party has a large estate, or sometimes they just think it is practical to keep their assets and their debts separate. Other times, one party has already experienced a bitter divorce and wants to avoid a costly legal battle by making sure as many terms as possible are agreed to beforehand. If they both desire, a couple may agree in advance how many things will be decided in the event they divorce. These agreements generally include how property is to be divided, how debts are to be divided, and the amount and duration of spousal support (if any). If the couple enters into such an agreement before marriage, it is called a prenuptial agreement. Moreover, these types of agreements may be entered into at any time. If a couple enters into such an arrangement after marriage it is called a post-marital agreement. If you desire to keep your property separate from your husband's, and if you do not want to pay your husband spousal support in the event you divorce, you need to have an agreement drawn up setting forth those terms. If your husband refuses to sign the agreement, then the general principles of family law will apply, including the rules concerning community property and spousal support. If your husband does sign the agreement, unless the agreement specifically states otherwise, the agreement will only be effective from the date the agreement was signed forward. So long as the agreement is properly drafted and signed by al the parties, the court will be bound by the terms of your agreement and not by the general rules of California family law. Even if your husband changes his mind during the divorce and decides to pursue spousal support and a community property claim, the court will be unable to make that award so long as the agreement is valid. For this reason it is important that you make sure you have the agreement drafted by a competent family law attorney. These types of agreements are tricky because the law in this area changes quickly. If the agreement is not drafted properly, it will not be enforceable in court, and the general rules of California laws will be applied. -- Famularo & Associates