Cohabitants Beware

Cohabitants Beware

Married couples are not the only ones beholden to a contract. Since 1976, people living together in California may be subject to paying the other support and to dividing pooled assets after a cohabitation relationship goes sour.

Before 1976, the only people on the hook for paying alimony and dividing pooled assets were married couples going through a divorce. After the Marvin case, things changed.

Lee Marvin was a famous actor in Hollywood circa the 1960s and 1970s. After his divorce from Betty, Lee began dating and living with Michelle. Even though Lee and Michelle never married, they entered into a verbal agreement that they would live together, combine their efforts, and earnings and that they would share equally in all property that accumulated during their relationship, whether obtained individually or through a concerted effort. They held themselves out to their community and friends as a married couple, and Michelle gave up her career as an entertainer and singer to be a homemaker, housekeeper, cook, and companion. In return, Lee agreed to provide for all of her financial support and needs for the rest of her life. When their relationship went south, Michelle expected Lee to hold up his end of the bargain. When he didn’t, she sued him.

As California is not a common law state, and financial rights like alimony and community property division were traditionally reserved for married couples only, Lee’s attorneys were not concerned. Indeed, Lee won at the trial court level. But, Michelle appealed. Eventually, the California Supreme Court determined that the verbal contract between Lee and Michelle was valid, and Michelle won.

What this means to legions of people cohabitating in California, regardless of whether they have a romantic or sexual relationship, is cohabitators beware. Before you hand your apartment keys over to your friend or lover, it is good practice to make sure you understand what you could be facing down the road. We suggest you consult with an attorney if any of these situations apply to you and a significant other:

  • You are thinking about moving in together;
  • You start pooling your assets;
  • You start sharing the mortgage, rent, utilities, groceries;
  • You start having children together…

Don’t get caught up in a financial twist by accident.

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“We Want Prenup, Yeah! It’s Something That You *May* Need to Have”

“We Want Prenup, Yeah! It’s Something That You *May* Need to Have”

Kanye West and Jamie Foxx were on to something with their 2005 hit song “Gold Digger,” ever-so-subtly advising their listeners to get prenuptial agreements. But, if you are looking for a prenuptial agreement that will stand the test of time, you may want to fill in those lyrics with some legal advice. Now, with COVID forcing many couples to delay their weddings, you have that much more time to thoroughly vet those prenup terms.

But first, a little story. One day in court, an attorney was overheard telling his business client, who was getting married for the fourth time, that he should let him prepare a “fill-in-the-blank prenup” for him. The attorney went on to joke that, every time his client got (re)married, he could just change the name in the prenup. If only they were that easy…

Unfortunately, or rather, fortunately, prenuptial agreements do not work that way. Prenups require more reasoned negotiations than Kanye and Jamie may have led you to believe. Parties to a prenuptial agreement can contract with respect to any of the following:

  • Their rights and obligations with respect to property, wherever it is located;
  • The right to buy, sell, use, transfer, exchange, lease, etc. any property;
  • The disposition of property upon separation, divorce, death, or other specified events;
  • The making of a will, trust, or other arrangements to carry out the provisions of the agreement;
  • The ownership rights in and disposition of the death benefit from a life insurance policy;
  • Agreements regarding spousal support or waivers of spousal support so long as the party taking the detriment was represented by counsel;
  • Any other matter, including their personal rights and obligations, not in violation of public policy or criminal laws. (Child support, for example, cannot be waived in a prenuptial agreement.)

Understandably, it takes some time to fully understand the extent of the rights one may be giving up or altering in a prenuptial contract. To ensure parties have some time to let the terms of their prenuptial agreement sink in, California Family Code 1615 now requires a 7-day “cooling off” period for all prenuptial agreements prepared after January 1, 2020. Thus, regardless of whether a party is represented or not, a prenuptial agreement will be invalid if the 7 day “cooling off” period is not honored. Even so, if a court senses that a contract was executed too hastily, under duress, fraud, undue influence, or lack of capacity or competence at the time the agreement was signed, the contract could be invalidated, and your pre-marital negotiations could be all for naught.

There are numerous other intricacies and formalities required to drawing up a valid prenuptial agreement, and we suggest you and your soon-to-be-spouse retain counsel to be fully informed.

Do you still plan on saying your happily-ever-after vows? We at Mendes Weed will enthusiastically raise a glass to you and yours and hope you never have to pull that prenuptial contract out of the filing cabinet.

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Walnut Creek Main Office

1990 N. California BLVd.
Suite 1020
Walnut Creek, CA 94596

(925) 390-3222

San Francisco Office

95 Third Street
2nd Floor
San Francisco, CA 94103

(628) 216-5558

Oakland Office

66 Franklin Street
Suite 300
Oakland, CA 94607

(510) 822-2770

San Jose Office

3031 Tisch Way
110 Plaza West
San Jose, CA 94607

(408) 707-1667

How to Protect Separate Property in the Event of a Divorce

How to Protect Separate Property in the Event of a Divorce

When you are in a state of bliss during a pending or current marriage, the last matter you may be contemplating is what might happen to your separate property in the event of a divorce.

The best way to avoid any confusion regarding separate property is to be aware of the conditions surrounding the separate property and to act prior to a potential divorce.

Defining Separate Property

Separate property can include cars, homes, boats or RVs, jewelry, stocks, bonds, gifts, inheritance, or other. This property has been acquired by one spouse with his or her own funds or through a gift or inheritance either before the marriage or after the date of separation and not commingled with marital funds.

Separate property can also include gifts by a third party during a marriage or money received by one spouse for pain and suffering from a personal injury lawsuit.

Once the property has been commingled, the property is no longer considered separate, and California courts may decide to distribute the property equally between the spouses.

How Can I Protect My Separate Property in the Event of a Divorce?

Consider establishing a pre-nuptial or post-nuptial agreement.  A lawyer who specializes in pre-nuptial or post-nuptial agreements can help you draft an agreement that protects you and your assets or advise you about one that you might be asked to sign.  For tips on whether you need a pre-nuptial agreement, read our blog, Deciding Whether a Prenuptial Agreement is Right for You and Your Partner.

Keep separate accounts.  In the event one spouse has received money or inheritance, that property would still be considered separate property as long as the funds are deposited in a separate account.

Contact Mendes Weed, LLP for Help with Your Divorce

Mendes, Law PC is able to help you with matters pertaining to your divorce. Located in Walnut Creek, we serve clients in the surrounding areas including Danville and Alamo. Contact us for more information.

Disclaimer: The tips and materials provided in this email are for informational purposes only, offered as public service. No information in this email should be considered legal advice or used as a substitute for legal advice. For legal advice, you should contact an attorney directly.

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Walnut Creek Main Office

1990 N. California BLVd.
Suite 1020
Walnut Creek, CA 94596

(925) 390-3222

San Francisco Office

95 Third Street
2nd Floor
San Francisco, CA 94103

(628) 216-5558

Oakland Office

66 Franklin Street
Suite 300
Oakland, CA 94607

(510) 822-2770

San Jose Office

3031 Tisch Way
110 Plaza West
San Jose, CA 94607

(408) 707-1667

Deciding if a Pre-Marital Agreement is Right for You and Your Partner

Deciding if a Pre-Marital Agreement is Right for You and Your Partner

Getting married and planning for your future with your life partner is an exciting and romantic time. Planning for your future with a pre-marital agreement, while not as exciting and romantic, is something that you should consider equally important.

What is a Pre-Marital Agreement and Why Would I Consider One?

A pre-marital agreement is a legal document signed prior to marriage that establishes the assets, property, and or financial rights of a couple in the event of a divorce. Done properly, with the advice and guidance of a lawyer, a pre-marital agreement assures that each party leaves a marriage with the assets he or she entered the marriage.

People who sign a pre-marital agreement understand that the property and finances they own prior to getting married will be theirs in the event of a divorce. Similar to a business deal, a pre-marital agreement secures each partner’s current assets will not be divided or split if the marriage is terminated.

While a pre-marital agreement causes many to feel insecure or to doubt that a marriage might not work out, it also provides relief.  If you and your partner are open and aware of the future of your assets, you eliminate one of the biggest arguments in a marriage: finances.

In the event your marriage ends in divorce, you also eliminate the need to haggle over finances and who owns what, since you already considered that prior to your marriage. Another benefit is that it is easier to discuss these subjects when you are in love and working together as a team, rather than when you are frustrated with each other and going through the divorce process.

What to Include in a Pre-Marital Agreement?

While the law dictates what can and cannot be included in a pre-marital agreement, it is in your best interest to contact an attorney who specializes in pre-marital agreements.

Here are some common subject matters you may want to include in your pre-marital agreement:

  • Family property
  • Considerations for existing children from previous marriages
  • Retirement benefits
  • Property division to the surviving spouse
  • Financial decisions regarding purchases
  • Investments
  • Management of financial spending, including credit cards and bills
  • Allocation of support in the event of a divorce
  • Savings
  • Agreements pertaining to debt

 Consider Hiring an Attorney for Help with a Pre-Marital Agreement

While a pre-marital agreement may not be the right answer for everyone, it might be something to consider.  If you have questions or concerns, want a lawyer to look over your existing pre-marital agreement, or just want more information, visit our website.  Or feel free to contact us.

Mendes Weed, LLP, Walnut Creek

If you or anyone you know needs help with family law, divorce, custody, civil harassment, restraining orders, or premarital agreements, we may be able to help. Contact our office today for your pre-marital and other family law needs. We have offices in Walnut Creek, Sacramento, and San Francisco.

SuperLawyers-RisingStars
Best of the East Bay Attorneys
Lisa Janine MendesReviewsout of 5 reviews
Walnut Creek Chanber of Commerce logo
Christina Weed - Taxation Law Specialist
lawyers of distinction badge 2020

Walnut Creek Main Office

1990 N. California BLVd.
Suite 1020
Walnut Creek, CA 94596

(925) 390-3222

San Francisco Office

95 Third Street
2nd Floor
San Francisco, CA 94103

(628) 216-5558

Oakland Office

66 Franklin Street
Suite 300
Oakland, CA 94607

(510) 822-2770

San Jose Office

3031 Tisch Way
110 Plaza West
San Jose, CA 94607

(408) 707-1667