Celebrity Prenuptial Agreements: What Is Enforceable and What Is Not.

Posted June 26, 2015 in Family Law by Lonich and Patton.

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June 26, 2015
Celebrity Prenuptial Agreements: What Is Enforceable and What Is Not.
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When celebrity couples get married, celebrity news outlets and magazines are always quick to report on the details of the couples’ prenuptial agreements. More often than not, these reports feature prenuptial agreement clauses that are outlandish and extreme. To some, these celebrity prenuptial agreement clauses seem laughable and ridiculous, but for others, they are right on the money and reflect the types of items we desire in our own prenuptial agreements.  Regardless of which camp you belong to and the validity behind these reports, the clauses in celebrity prenuptial agreements do offer some points to think about. For purposes of this blog, the question is not whether the reports on these prenuptial clauses are true, the question here is whether California courts will actually enforce these types of clauses.

Before we dive into specific celebrity prenuptial clauses/provisions, let’s cover some important implications related prenuptial agreements should be covered:

1. California is a “no-fault” divorce state. Many recognize the phrase “no-fault divorce” by its legal version, “irreconcilable differences.”

2. California is a community property state, meaning that spouses share 50/50 interest in property acquired during their marriage.

3. Courts faced with a prenuptial agreement with unenforceable clauses/provisions will either invalidate the entire prenuptial agreement, or will enforce the valid portions and just sever or ignore the unenforceable parts. Couples can prevent the former from occurring by including a “severability clause” or provision in their prenuptial, which provides that the invalidity of one or more provisions shall not invalidate the remaining provisions and allows the remaining provisions to be severed and enforced according to their terms.

4. Despite California being a community property state, premarital agreements may validly preserve the separate property character of premarital assets and characterize income and property acquired after marriage.

5. In California, premarital agreements that include a waiver or limitation of post-dissolution of spousal support are not per se unenforceable, as long as it was “executed by intelligent, well-educated persons, each of whom appears to be self-sufficient in property and earning ability, and both of whom have the advice of counsel regarding their rights and obligations as marital partners at the time they execute the waiver … .”

Now that we have covered some important aspects of California law as it pertains to premarital agreements, let’s look at some of the most intriguing clauses/provisions of celebrity couples’ prenuptial agreements:

  • Justin Timberlake and Jessica Biel: The “Fidelity Clause,” which states that if Justin cheats, Jessica gets a payout of $500,000.

Enforceable?

In California, this provision is unenforceable as contrary to the public policy underlying no-fault dissolution laws to the extent it imposes a penalty on one of the parties for “fault” during marriage.

  • Facebook mogul, Mark Zuckerberg and wife, Priscilla Chan: The clause that requires Mark to totally unplug and spend quality (non-wired) time with Priscilla at least once a week.

Enforceable?

An article in the ABA Journal from June 2013, refers to this as a “Lifestyle Clause.” The article explains that while most of these types of provisions are unenforceable in court, they are still useful because they help couples discuss goals and make them more likely to stick.

  • Catherine Zeta-Jones and Michael Douglas: Provisions provide that Catherine gets $2.8 million for every year they were married. Plus, another $5 million if Michael cheats.

Enforceable?

The first part may be enforceable. The enforceability of the $2.8 million per year of marriage provision depends on how the court construes the payment amount and structure. CA courts have enforced agreements that include a payment of a specified sum to one spouse when the purpose of such payment was to ensure that, if one spouse died or the marriage was dissolved, the other would be no worse off than he/she would have been had he/she remained single (typically the woman).

The amount “per year” language is also indicative of a pre-determined spousal support amount. California does permit couples to set their own spousal support agreements so long as the amount paid is at or above the state guideline.

However, if the court construes the amount to be “promotive of dissolution” then it will not enforce it. The provision at issue is not technically one lump sum payment in the event of dissolution, but rather is a one lump sum with a total contingent on the number years married. Typically, this could be considered “promotive of dissolution” as it offers Catherine a huge sum of money for dissolution, but-for two things-

(1) Catherine is a high-paid Hollywood actress, making this total amount per year less inducing of dissolution, and

(2) Catherine only stands to gain a large sum of money per this provision because the marriage has lasted over a decade, making this provision arguably more promotive of marriage.

As for the $5 million payout if Michael cheats?

Similar to the “fidelity clause” of Justin Timberlake and Jessica Biel, this is unenforceable in California.

  • Khloe Kardashian and Lamar Odom: Provisions state that in the event of dissolution, Khloe is to receive $500,000 for every year they were married, $25,000 in general support, their house, a new luxury vehicle at the end of every lease cycle, $5,000 per month for shopping, $1,000 a month for beauty care, and Lakers tickets for Kardashian’s friends and family.

Enforceable?

While to some readers these provisions may seem exorbitant, these amounts may reflect Ms. Kardashian’s level of lifestyle during the marriage. CA law recognizes premarital agreements where couples reorder property rights to fit their needs and desires, and participate in realistic planning that takes account of the possibility of dissolution, including provisions for spousal support. Thus, Khloe and Lamar were within the law to contract these post-dissolution lifestyle maintenance amounts.

Today’s review of prenuptial agreements was just an exercise. It was by no means a full review of the law on California prenuptial agreements. Further, the celebrity prenuptial agreement clauses discussed today were only used to illustrate the point of enforceability. This blog does not purport to confirm or deny the existence of the above-mentioned clauses.

If you have any questions about premarital agreements, or any other issue, the Certified Family Law Specialists at Lonich & Patton have decades of experience handling complex family law matters. Please contact the Certified Family Law Specialists at Lonich & Patton for further information.  Please remember that each individual situation is unique and results discussed in this post are not a guarantee of future results.  While this post may include legal issues, it is not legal advice.  Use of this site does not create an attorney-client relationship.

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Trouble in Springfield: The Simpsons and Changing Family Structures

Posted June 22, 2015 in Family Law by Lonich and Patton.

The Simpsons has become a symbol of American Television with its hysterical spoofs of current events and iconic characters. After 26 seasons, The Simpsons will be addressing a new topic in its 27th season that has had a steady increase in American life- legal separation and divorce. Executive producer Al Jean told Variety that in its new season, Springfield’s supercouple would be splitting with the appearance of a surprising other woman. “In the premiere [of the 27th season], it’s discovered after all the years Homer has narcolepsy, and it’s an incredible strain on the marriage,” said Jean. “Homer and Marge legally separate, and Homer falls in love with his pharmacist, who’s voiced by [HBO’s Girls creator and star] Lena Dunham.”

The Simpsons separation is not unusual in modern society. In the United States alone, about 40 to 50 percent of married couples divorce and the divorce rate of subsequent marriages are even higher.  In the state of California, the divorce rate per year has grown to every 8 out of 1,000 couples divorcing.  Consequently, these rates have led to a change in the American “family values.”

There are many who still fight for the return of the “good old days” and the traditional two- parent household. However, recent research cast doubt as to whether most Americans agree that a healthy family must have the traditional two-parent household. The “reality is that we live in an era of change and controversy with respect to many kinds of values, including values about family life.” In a survey conducted by the Families and Work Institute, a nonprofit New York research group, only two percent of the women and one percent of the men questioned define family values as being about the traditional nuclear family. Additionally, nine out of ten women defined family values as loving, taking care of and supporting each other, knowing right from wrong and having good values, and nine out of ten said that society should value all kinds of families.

In its 27th season premiere, The Simpsons will reflect this indication of changing family values in American society as it is becoming more prevalent in today’s world. But let’s hope that Springfield’s favorite couple reunite.

If you have any questions about legal separation, divorce, or any other issue, the Certified Family Law Specialists at Lonich & Patton have decades of experience handling complex family law matters. Please contact the Certified Family Law Specialists at Lonich & Patton for further information.  Please remember that each individual situation is unique and results discussed in this post are not a guarantee of future results.  While this post may include legal issues, it is not legal advice.  Use of this site does not create an attorney-client relationship.

 

Source: http://www.cnn.com/2015/06/10/entertainment/homer-marge-split-simpsons-feat/index.html

Source: http://www.apa.org/topics/divorce/

Source: http://divorce-laws.insidegov.com/l/5/California

Source: Twila L. Perry, Family Values, Race, Feminism, and Public Policy, 36 Santa Clara L. Rev. 345 (1996).

*Since the writing of this post The Simpsons divorce rumors have been invalidated

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Common Fears about Divorce in California

Posted June 18, 2015 in Family Law by Jennifer Mispagel.

For the longest time, your spouse was your world. Whenever you had an exciting day, an interesting moment or fun experience you couldn’t wait to share it with them. They were your life, and they were enough.

Today, everything is different.

You and your significant other argue – constantly. It’s been like this for a while and it hasn’t been getting better. You wonder how and why it got to this point. Is it you or is it them? Wherever the problem is, it does not seem resolvable.

The decision to divorce can be one of the most difficult and emotional decisions to make. Before seeking a divorce, it is important to consider that there are many reasons to try and save a marriage, especially when there are children involved. Counseling and hard work can make a considerable difference, even if the circumstances seem bleak.

Unfortunately, often one or both parties see divorce as the only way to legally end a marriage which emotionally ended long ago. This is a personal decision for each party involved. Once the decision is made, each step afterwards may be clouded in mystery, especially if the divorce process is new.

Some of the most common questions regarding divorce are:

  • How do I find a lawyer that is right for me?
  • How much will it cost?
  • What steps need to be taken?
  • How do I begin the divorce process?
  • What should I expect as I go through this process?
  • Who gets the kids?
  • What am I legally entitled to get under California law?
  • Is divorce the same for a married same-sex couple?

If divorce is inevitable for your relationship, do not let fear and doubt paralyze you from making the best choice for you. Divorce is hard – emotionally, mentally, physically, spiritually, financially and socially.  It will impact each aspect of your life, from your immediate family to your extended family and friends. Seeking the advice of a professional may not only alleviate fears and doubts about the process, but will also educate you about the process so you can make better decisions for yourself and your family.

If you are considering divorce or have questions about divorce planning, please contact our California Certified Family Law Specialists (as certified by the State Bar of California Board of Legal Specialization). Our attorneys have decades of experience handling complex family law proceedings and offer a free consultation.

Please remember that each individual situation is unique and results discussed in this post are not a guarantee of future results.  While this post may include legal issues, it is not legal advice.  Use of this site does not create an attorney-client relationship.

Source: http://www.huffingtonpost.com/diane-l-danois-jd/mistakes-we-fear-well-mak_b_3721696.html

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Domestic Violence and The Rebuttable Presumption

Posted June 17, 2015 in Family Law by Michael Lonich.

Acts of domestic violence so often occur behind closed doors. Domestic violence has now been recognized as a “public policy issue with major implications for the health and safety of women and children.” Many surveys have projected domestic violence as the number one cause of injury to women in the United States. Unfortunately, the nature of the criminal justice system makes domestic violence cases harder to prosecute and history has shown that there has been little communication between the prosecutors, police, victim advocates, and the courts. Because of this lack of communication, “the chances are good that some of these problematic cases will slip between the cracks and that battering will continue, sometimes with tragic result.” For this reason, it is not surprising that many victims feel hopeless and decline to report incidents of domestic violence.

Given the faults of the criminal justice system, many victims find themselves without anywhere to turn. Unfortunately, the domestic violence continues and those with children may also suffer. Victims of domestic violence develop post-traumatic stress disorder, anxiety, traumatization, or suffer from some other psychological/physiological effect resulting from the abuse. These negative effects of abuse can cause the victim to experience a variety of symptoms that have a direct bearing on the capacity of her parenting. For example, victims may experience emotional numbness or withdrawal from their children, leaving the children to feel even more isolated in an already distressing situation.  Children may feel as though the victim parent does not care about them, when this may be far from the truth. Consequently, these negative effects of abuse compromises the victim’s parenting.

The question then becomes, what happens in child custody cases? The standard used by all family court judges, is the “best interest” of the child rule. However, deciding what is in the “best interest” of the child is often difficult depending on the particular set of circumstances. In a domestic violence situation, where the mother’s parenting was compromised due to years of abuse, but the father has shown that he is still a capable parent- who should be awarded custody? What is in the child’s best interest when an abusive father and an emotionally distant mother seek custody? “Taking custody away from an abused mother seems to penalize her for being the victim of domestic violence, and it discourages other mothers from seeking help or reporting domestic violence for fear of losing custody of their children.” Apart from the effect on the victims, awarding custody to the abusers also teaches children harmful lessons.

The California Legislature has recognized the potential problem that domestic violence can create in the family courts. To address this issue, the California Legislature drafted California Family Code § 3044. For traditional child custody cases, the court is to determine what is in the child’s “best interest” by considering several factors, such as the health, safety and welfare of the child, and the amount of contact that the child has with both parents. In domestic violence cases, the court must also consider any history of spousal abuse. Although the court is given discretion in how much weight they accord each factor, the factors are crucial in helping to guide judges on issues that they should consider in assessing a child’s best interest.

In addition to the factors, the California Legislature did specifically state that domestic violence is detrimental to the well-being of a child. This was codified in California Family Code § 3044. According to this section, if domestic violence is found to have occurred within the previous five years of the custody evaluation, then there is a rebuttable presumption that awarding custody to the abuser is detrimental to the “best interest” of that child. The court must also consider seven factors in determining whether the presumption has been overcome. These factors include, but are not limited to, whether the abuser is restrained by a protective order and has complied with its terms and conditions, whether the abuser has completed a program of alcohol or drug abuse counseling, and whether the abuser has committed any additional acts of domestic violence since the start of the custody case.

Additionally, under this section, a person is found to have perpetrated domestic violence when he or she either “intentionally or recklessly caused or attempted to cause bodily injury, or sexual assault, or to have placed a person in reasonable apprehension of imminent serious bodily injury to that person or to another. . .  .” It also includes behavior including, but not limited to, “threatening, striking, harassing, destroying personal property or disturbing the peace of another, for which a court may issue an ex parte order pursuant to § 6320 to protect the other party seeking custody of the child or to protect the child and the child’s siblings.”

With the rebuttable presumption, the hope is that victims will triumph in seeking custody of their children as they seek to regain control of their lives.

If you have any questions about this rebuttable presumption or any other issue, the Certified Family Law Specialists at Lonich & Patton have decades of experience handling complex family law matters. Please contact the Certified Family Law Specialists at Lonich & Patton for further information.  Please remember that each individual situation is unique and results discussed in this post are not a guarantee of future results.  While this post may include legal issues, it is not legal advice.  Use of this site does not create an attorney-client relationship.



Source:    MICHELE C. BLACK ET AL., THE NATIONAL INTIMATE PARTNER AND SEXUAL VIOLENCE SURVEY: 2010 SUMMARY REPORT 54 (2011), http://www.cdc.gov/violenceprevention/pdf/nisvs_report2010-a.pdf.

Source:    Patrick F. Fagan, Anna Dorminey, & Emily Hering, The Effects of Family Structure on Child Abuse, in CHILD ABUSE, FAMILY RIGHTS, AND THE CHILD PROTECTIVE SYSTEM: A CRITICAL ANALYSIS FROM LAW, ETHICS, AND CATHOLIC SOCIAL TEACHING 155, 171 (Stephen M. Krason ed., 2013).

Source:     Alytia A. Levendosky & Sandra A. Graham-Bermann, Behavioral Observations of Parenting in Battered Women, 14 J. FAM. PSYCHOL. 80, 81 (2000).

Source:     Cal. Fam. Code § 3020 (West 2000).

Source:     Megan Shipley, Note, Reviled Mothers: Custody Modification Cases Involving Domestic Violence, 86 Ind. L. J. 1587, 1589 (2011).

Source:     Symposium, Domestic Violence, Child Custody, and Child Protection: Understanding Judicial Resistance and Imagining the Solutions, 11 Am. U. J. Gender Soc. Pol’y & L. 657 (2003).

Source:     Cal. Fam. Code § 3011 (West 2013).

Source:     Cal. Fam. Code § 3044 (West)

 Source:     Amy B. Levin, Comment, Child Witnesses of Domestic Violence: How Should Judges Apply the Best Interest of the Child Standard in Custody and Visitation Cases Involving Domestic Violence?, 47 UCLA L. Rev. 813, 826 (2000).

 

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Mom and Dad Have Something to Tell You: Talking to Kids about Divorce

Posted June 8, 2015 in Family Law by Michael Lonich.

With forty to fifty percent of married couples proceeding in marriage dissolution, thousands of children experience the stress of divorce each year. While the adults are navigating their own emotions, children are also struggling with their own feelings. Many of these children get lost in the process as their parents often find it difficult to talk to them about divorce.

When parents decide to break the news to their children, it is important to leave any feelings of anger or blame out. Practicing the conversation may be helpful as to release any feelings of anger before talking with them. If possible, parents should also break the news together to avoid confusion. Telling children together also helps to preserve the child’s sense of trust in both parents.

The conversation should also be age appropriate. In other words, “[t]he discussion should fit the child’s age, maturity, and temperament.” It should also always include the following message: “What happened is between mom and dad and is not the child’s fault.” It is imperative to include this message as most children will feel that they are to blame for the separation, when this may be far from reality.

It is also vital to be prepared to handle children’s reactions to the news. For the children who become upset, parents can let them know that they care about these feelings and reassure them that their feelings are understandable. Some children may not react immediately. For these children, parents can let them know that this is also okay and that they will be there for them when they are ready to talk.

While there is no easy way for parents to break the news to their children, there are important things that both parents can do to help guide their children through this challenging time. The following is a list of helpful tips:

·      Be truthful and discuss changes with your children.

·      For younger children, have a simple and to-the-point conversation.

·      Remember to keep legal talk, heated discussions, and visible conflict away from the children.

·      It is important to keep each parent involved in the children’s lives.

·      Try to minimize any disruptions in their daily routines.

·      Restrict negative talk to private therapy sessions or conversations with friends outside of the home.

·      Encourage children to share their feelings.

·      Remind your children how much you love them.

·      Most importantly, support your child as he or she is navigating through the process.

The Certified Family Law Specialists at Lonich & Patton have decades of experience handling complex family law matters.  If you have any questions about helping your children through this process, please contact the Certified Family Law Specialists at Lonich & Patton for further information.  Please remember that each individual situation is unique and results discussed in this post are not a guarantee of future results.  While this post may include legal issues, it is not legal advice.  Use of this site does not create an attorney-client relationship.

 

Source: http://kidshealth.org/parent/positive/talk/help_child_divorce.html

Source: http://www.redlandsdailyfacts.com/social-affairs/20150530/the-ins-and-outs-of-talking-to-kids-about-divorce

Source: http://www.babycenter.com/0_how-to-tell-your-child-youre-getting-divorced_3657051.bc

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