You Might Not Actually Be Separated…

If you are legally separated from your spouse but are not living in different residences, then according to the Supreme Court of California, you should think again… because it turns out that you aren’t actually legally separated. This is a fairly recent ruling that should serve as a warning to anyone who is currently going through the divorce process.

The case involving the legal separation of Sheryl and Keith Davis was heard by the California Supreme Court after a lower court had ruled in favor of Sheryl Davis’ claim that they became separated when she notified her husband in 2006 that their marriage was over. However, the two continued to live in the same house until 2011, which was the time that Keith Davis claimed they technically separated.

 

A Court Ruling with a Big Impact

Between 2006 and 2011, the couple lived under the same roof, both caring for their children. They didn’t act like romantic partners but instead behaved more like roommates, even taking the children on separate vacations.

However, the court’s ruling makes it clear that the court is not in the business of determining what a “marriage” is supposed to look like. While some may consider the Davises’ behavior to be strange for a married couple, others may find it to be perfectly natural. Everyone has their own definition of what a healthy relationship is supposed to look like, as was clearly demonstrated by this couple’s individual takes on whether they were separated.

With the court’s ruling that a couple needs to be living apart separately in order to be legally separated, the court has effectively eliminated the need for judges to make these types of interpretations. Instead, if you want to be legally separated, one of you needs to move out of the house.

 

Why the Ruling Matters

When you get divorced, issues like spousal support and community property are decided. Any property that you acquired during the marriage, including homes, cars, assets, investments, and so on, is all community property that is likely to be divided fifty-fifty. The same is true for earnings from your job. However, once you separate, anything you buy or earn is yours exclusively. With that in mind, the legal separation date becomes incredibly important.

It’s also important to keep in mind that the amount of spousal support is determined, in part, by how long you have been married. If you become separated, remain living together, and then divorce five years later, the court will now view the time you were separated as part of the marriage. This time difference may entitle one spouse to more financial support.

 

Discuss Your Case with a California Divorce Lawyer

If you weren’t already aware of this ruling, you may need to make some immediate changes to your living situation if you are separated from your spouse but still living together. Anything that you have purchased or earned during this time—thinking it was your individual property—could be up for grabs in the eventual divorce. This makes it important to work with an experienced Rancho Cucamonga divorce lawyer.

To find out how this recent ruling could impact your marital situation or to discuss what to do next, call 909-466-7661 to schedule a free consultation with the Law Office of Laurence J. Brock. You can also reach us by completing the contact form below, and someone from our office will contact you to arrange a meeting.

The post You Might Not Actually Be Separated… appeared first on The Law Office of Laurence J. Brock.

Find Out if Your Prenuptial Agreement Is Enforceable

If you are getting a divorce and entered into a prenuptial agreement prior to getting married, you may be concerned that you will not get a large enough settlement. While this may be true, there is a possibility that your prenuptial agreement may be invalid.

California lawmakers passed the California Premarital Agreement Act to regulate prenuptial agreements for married couples in the state. If you drafted the agreement yourself, used a template online, or worked with an attorney unfamiliar with this law, the agreement, or portions of it, may not be enforceable. If so, this will place you in a better bargaining position.

 

Is Your Prenuptial Agreement Enforceable?

For any prenuptial agreement to be valid, it must meet the criteria established under the California Premarital Agreement Act and the updates to the law that were passed in 2002. This means that it must meet all of the following criteria:

• Be Voluntarily Entered Into – The agreement has to be signed without anyone being forced, under duress, or not having the mental capacity to understand what he or she is doing.
• Be Understandable to Both Parties – If one spouse doesn’t speak English very well, it must be translated into his or her native language prior to being signed.
• Full Disclosure Must Be Given – If one party holds back financial information or anything relevant to the agreement, it could be voided. An example would be finding out that your spouse had investments or property holdings you were unaware of.
• Legal Counsel Must Be Available or Waived – In California, both parties have the right to independent counsel. A waiver must be signed if someone doesn’t want an attorney. If you never had a lawyer or opportunity to retain one, the agreement won’t be enforceable.
• No Fraud Can Exist – If something was purposefully hidden or fraud contributed to the signing of the agreement, it would be invalid.
• Cannot Be Unconscionable – One-sided agreements may be construed as unconscionable, so if you think the agreement is unfair, the court may as well.
• Cannot Violate Public Policy – Your prenuptial agreement cannot violate state or federal law.

If you think that your prenuptial agreement does not meet these criteria, schedule a consultation with our office to go over your agreement in detail.

 

The Seven-Day Rule

Did you know that both parties have to wait seven days after receiving a prenuptial agreement to sign it? If either of you didn’t wait long enough, the agreement may not be valid.

 

Spousal Support Clauses Must Be Fair

Even if your agreement is enforceable holistically, any spousal support clauses must pass the fairness test. If a judge feels these clauses will not be fair when the contract is enforced, these provisions will be left out.

Keep in mind that it could have been fair when the agreement was signed, but if that was twenty years ago, the economy and cost of living have changed drastically, so any spousal support provisions will need to be updated accordingly.

 

What a Prenuptial Agreement Can’t Do

There are certain things that cannot be determined by a prenuptial agreement:

• Child support and custody
• Your share of an ERISA-governed employee benefit plan
• Penalize one spouse for fault

Prenuptial agreements trying to regulate child custody should be reviewed and can be fought in court.

 

You Have Options

If you feel that your prenuptial agreement is unfair or that you are not getting the divorce settlement you rightfully deserve, you should call the Law Office of Laurence J. Brock at 909-466-7661 or complete the form below.

We can review your agreement and let you know if it meets state law requirements while identifying any provisions that don’t. It may be possible for you to increase your divorce settlement by going to court and challenging it.

 

Share with Your Friends

If you know someone who is going through a divorce, share this post with them. You may prevent them from accepting the status quo and a settlement that is simply unfair.

The post Find Out if Your Prenuptial Agreement Is Enforceable appeared first on The Law Office of Laurence J. Brock.