Your thoughts on Pre-Nups?

[Day_Walker]

Actually the matter is the same because the court used the same analysis whether the custody provision violates public policy, and if the provision was per se invalid. The court held it was not, that is what the case reflects.

 

For the sake of argument, lets just say the case represented a different matter, Fam. Code Section 1612(a)(7) still allows the parties to enter into any provision that doesnt violate public policy or isnt a matter in which a criminal penalty can be imposed. As there is no express prohibition that a child custody provision cannot be included in a premarital agreement by the family code, the provision would be valid until a reviewing court said that the specific provision violated public policy.

[avman]

No it's not the same at all. That's a private agreement about who has custody in the matter of insemination/egg donors. Not who gets custody between two valid parents.

 

I'm telling you that it isn't enforceable to try to decide a matter of custody in advance through a prenuptial agreement. Custody issues are ALWAYS subject to change by the court based on the individual circumstances, the needs of the children, and the particular situation of the parties involved. It is about the best interest of the children. And they can ALWAYS be changed at a later date.

 

Lets stick with California code. Family code 3020 states:

(a) The Legislature finds and declares that it is the public

policy of this state to assure that the health, safety, and welfare

of children shall be the court's primary concern in determining the

best interest of children when making any orders regarding the

physical or legal custody or visitation of children.

 

So here we have your public policy statement right in black and white. It is public policy that the best interest of the children is paramount. Period. No prenuptial agreement stands a chance to override it.

[DN]

Let's assume for a moment that there was a jurisdiction where pre-nups were allowed to attempt to pre-determine child custody, visitation, child support and so on. When it came to a divorce the relative positions of the parents would almost certainly have changed to the point that any competent lawyer could overturn it based on best interests of the children. I don't think a judge would enforce a pre-nup that gave custody to a parent who turned out to be a pedophile or alcoholic or drug addict living on the streets. Nor would they if the parent who was supposed to have primary custody was found to be incapable of looking after children. They would be unlikely to refuse to increase agreed child support if one parent had created or inherited a great deal (or even a modest amount) of wealth. Since these scenarios or even less dramatic ones happen very often, a pre-nup that did try to determine these issues would be nugatory in practice anyway.

[Day_Walker]

The case deals with custody which was analyzed in the context of would such a provision violate public policy.

 

I havent refuted that public policy statement in fact I have supported that. What I have said is that public policy doesnt expressly exclude a custody provision in an agreement, which is supported by Dunkin.

 

Dunkin did not invalidate the custody provision and it was analyzed on the same public policy grounds of "best interests of the child"

 

There is a nuance here that you seem to be missing, Fam. Code 1612 would only invalidate a child custody provision IF that provision violated public policy (i.e. not in the best interests of the child). That means the court would have to analyze the custody provision at issue to determine if it violated public policy. That is completely different from your argument that public policy violates ALL child custody provisions.

 

I never said that a premarital agreement can override public policy in fact if you look at my posts I clearly state that a provision in a premarital agreement inserted pursuant to 1612(a)(7) would have to not violate public policy to be valid.

 

In short you think that public policy excludes all custody provisions and im saying that is determined on a case by case basis.

[Day_Walker]

That is why I have said it is a case by case determination. The custody provision isnt automatically invalid, however if there was a custody provision and based upon the facts that the child's interests would be better served for some different custody arrangement then judge could make that determination and invalidate the custody provision on public policy grounds.

[avman]

Well Day Walker it makes no sense to put a provision in a prenup that isn't enforceable and is subject to revision by the courts anyway. It only gives a false sense of security to one or both parties. Worse in some states putting something like that in can be grounds to throw out the entire prenup, not just the clause(s) the court finds problematic. It is my argument that all child custody provisions in an prenup are non-enforceable. Because the only time you'd have to enforce it is if both parties don't want to live up to it. In that case whatever is in the prenup is worthless because whoever doesn't want to follow it simply argues it is not in the best interest of the children. In that case you have a regular ole custody battle just as if their was no provision for it at all.

 

You can argue all you like that an artificial insemination case is identical to a prenuptial agreement but it simply isn't. I argue best interest standards in court regularly and I can have any sort of contractual arrangement between people thrown out without even breaking a sweat if it's not in the best interest of a child.

[Day_Walker]

A custody provision makes a lot of sense actually because it shows the court that when the parties were thinking rationally what they would agree to. That will give the judge some idea of what the parties were willing to do when they didnt dislike eachother. A court has the power to review all provisions in contracts and invalidate them, that is why the court is there to ensure that the parties have created a lawful agreement. If arguments can be made that doesnt make agreements worthless, it is up to the court to determine the strength of those arguments and if those arguments are even valid. Also the premarital agreement could be written in a way to discourage the parties from taking the matter to court, by not including an attorney fees clause by stating that each of the parties has to bear their own attorneys fees.

 

The case I cited does not have to deal with a premarital agreement, the reviewing court was looking at a specific provision, which was a child custody provision, the court then analyzed that the provision at issue did not violate public policy (i.e. in the best interests of the child). The agreements can be different but the court used a public policy analysis to determine that the provision was in the best interests of the child.

 

I have no doubts that arguments can be made but it will be up to the judge to determine what is in the best interests of the child after examining the specific provision at issue and the credibility or bias of all witnesses who stated that the custody provision was or was not in the best interests of the child.

 

 

As for throwing out the entire agreement itself because of single provision, that is unlikely because an agreement, failing to enforce an entire agreement is based on a completely different standard than violation of public policy and the agreement would have a severability clause, that would allow the court only to sever the problematic provision rather than the whole agreement.

[greywolf]

I'm not sure how something that could so easily be thrown out could be considered enforceable. If a judge decides to go by what's on the agreement about children, that is still the judge deciding that it is in the best interests of the children.

[tattoobunnie]

A pre-nup is a go. While he sees them as exit strategies, he tells me it makes sense considering on paper, it's a valley of a difference. I'm only going to just have it stipulate and protect two of my companies, and set up a trust. Everything else is good to go.

 

I'm in the middle of so many things, planning a wedding, family reunion, a fundraiser event, or a so it definitely is on the bottom of the list! Thanks everyone for your opinions and advice.

[Day_Walker]

I'm not sure how something that could so easily be thrown out could be considered enforceable. If a judge decides to go by what's on the agreement about children, that is still the judge deciding that it is in the best interests of the children.

 

Of course the provision still has to be in the best interests of the child the dispute seems to be whether such a provision in automatically unenforceable or if the provision is allowed but subject to review by a judge, like every other provision in the agreement.

[avman]

A pre-nup is a go. While he sees them as exit strategies, he tells me it makes sense considering on paper, it's a valley of a difference. I'm only going to just have it stipulate and protect two of my companies, and set up a trust. Everything else is good to go.

 

I'm in the middle of so many things, planning a wedding, family reunion, a fundraiser event, or a so it definitely is on the bottom of the list! Thanks everyone for your opinions and advice.

 

Thats great tattoobunnie. Make sure he has it reviewed by an attorney so that it will be enforceable if the worst happens. If he doesn't get legal advice he can claim coercion or a whole lot of other things later on.

 

Lets all hope you'll never need it.

[tattoobunnie]

If he doesn't get legal advice he can claim coercion or a whole lot of other things later on.

 

Wow...totally didn't know that part. While he's been really lax as I've been trying to get him to find a lawyer for business purposes, I will be sure to let him know that.

[FarthestEdge]

In any event, it's just fair that each of you have a lawyer review it prior to signing. Your lawyer can really only represent ONE of you, so you each need indepenant legal advice.

 

It's not a huge deal, and he can sign a waiver saying he was offered the opportunity and declined, but personally, it's a good faith gesture to say "I want you to fully understand what you are signing, from someone other than MY lawyer"

[avman]

It's not a huge deal, and he can sign a waiver saying he was offered the opportunity and declined, but personally, it's a good faith gesture to say "I want you to fully understand what you are signing, from someone other than MY lawyer"

 

Yeah I'd still make sure he actually get his own lawyer and has it reviewed. Then there's no chance of him later saying "Oh I didn't know what I was signing. I was pressured into it. I would have been embarassed if I said no." Or any of the other excuses used to defeat a prenup. He should totally understand the provisions and be ok with them.

[Day_Walker]

I agree with the others talk to an attorney because some states that follow the Uniform Premarital Agreement Act, which require that specific events take place or the premarital agreement can be easily invalidated. There are two that come to mind, independent counsel and there is a time period that a person must have in order to review the agreement.

[Losingitagain]

100% of people get married thinking its forever. 50% end up in divorce. I saw an earlier post saying its like getting insurance, a good phrase comes to mind for this situation: Hope for the best, prepare for the worst.

[OptomisticGirl]

100% of people do not get married thinking its forever, I certainly didn't.

[Fudgie]

I am not married but I think if I were to get married now, I would go into it thinking that I would strive for it to last "forever" (as in, until I pass away or he does) IF and ONLY IF: a) We both work to keep each other happy on all levels and satisfy each other. If something is missing, work more on it or get some help. Promise to listen to each others' needs and b) There is no abuse (verbal, sexual, physical), adultery, untreated drug addiction, or serious crime convictions.

 

You can't just get married and let yourself "go". You have to keep working on your marriage. You have to be aware of the signs of infidelity.

 

And absolutely, I would not marry unless I have a pre-nup. I would get a lawyer and have my partner have a lawyer too. That way there can be no claim of "coercion".