PREMARITAL LEGAL COUNSELING
My divorce clients have often commented on how easy and relatively
inexpensive it is to get married, and how difficult and relatively financially
costly it is to get divorced. It is a fact of life that about one-half of all
marriages end in divorce. Therefore, while no one gets married with the
expectation of getting divorced, everyone who gets married should know
how their marriage will effect their legal rights and responsibilities.
Unfortunately, few people obtain pre-marital legal counseling about their
separate property and community property rights, and about how their
actions during the marriage may effect those rights in ways that they may not
be aware of or even think possible.
Often, people who are interested in entering into Prenuptial Agreements
seek pre-marital legal counseling as part of the preparation of their
Prenuptial Agreement. But even if a couple has no interest in signing a
Prenuptial Agreement, I strongly believe they should obtain legal advice
concerning what their marital rights and responsibilities will be after their
wedding. It is with pleasure that I give legal counsel to couples who plan to
marry, not with the anticipation of their marriage ending, but to make sure
they both know how marriage will change their legal rights, and thereby
allow them to make sure that their true intentions will be put into effect. I
believe that such accurate and clear communication at the beginning of a
marriage fosters the open communication and common understanding that
allows marriages to flourish.
PRENUPTIAL AGREEMENTS
Often individuals who are planning to marry meet with me for legal
counseling to decide on whether to enter into a Prenuptial Agreement
before their marriage. In California, monies and property belonging to a
person prior to marriage, or inherited or given to just that person after
marriage, are that person’s separate property. In contrast, in California
monies and property earned by married individuals after marriage (and prior
to their marital separation) is the community property of the parties. It does
not matter if one party earns more than the other during marriage. All
earnings during the marriage prior to the separation go in essence into a
common pot of community property.
Some couples enter into Prenuptial Agreements to make clear in the
agreement what their premarital separate property in fact is, by itemizing that
property in detail, while still agreeing to be bound by the California
community property system. Other couples decide to opt out of the
California community property system by specifying in their Prenuptial
Agreement that all property earned by each party during the marriage shall
be his or her own separate property, and that there shall be no community
property created during the marriage. Still other couples enter into
Prenuptial Agreements that alter some of the rules of the community
property system, while still being bound by other of its rules.
The choice of what type of Prenuptial Agreement, if any, to enter into should
be made by a couple after much discussion and deliberation, and after
appropriate legal counseling concerning what the parties are trying to
accomplish, and whether the default rules which are in place under
California law after a couple marries, are in keeping with the couple’s
expectations and needs.
DISSOLUTION OF MARRIAGE
California is a no-fault divorce state, meaning that if one party desires to be
divorced and alleges “irreconcilable differences” which have led to “an
irremediable breakdown of the marital relationship”, the Court will grant the
divorce, even if the other party does not consent or want the divorce.
Because it is no-fault divorce, the Court is not concerned with why the
parties are divorcing and will not assess blame against either party as a
reason or ground for the divorce. The reasons why parties are divorcing
are also not relevant to the division of their marital community property and
debts. In general, California law requires the overall equal division between
the husband and the wife of their community property and debts, without
regard to who did what to whom which resulted in the breakup. Long gone
in California are the days when parties spent days in Court proving the
adultery or mental cruelty of the other party, so that they could be awarded
more than half of the marital property. No-fault divorce has greatly reduced
the rancor of divorce cases.
Along with the issue of marital status, the Court in a dissolution of marriage
action can decide issues of child custody and visitation, child support,
spousal support, division of community property and community property
obligations, restraining orders, and allocation of attorney fees.
I have represented parties in divorce actions for more than 22 years. I
represent both men and women, and truly enjoy helping my clients. My
clients are all reasonable people, because I will not represent someone who
is not reasonable, and because my clients like the way in which I try to settle
my cases by agreement if at all possible, and only resort to a Court fight if
there is no other alternative.
Going through a divorce can be an emotionally and financially draining
enormous life change. But it almost always is the beginning of a new and
happier life for those parties needing to end their marriages. Keeping that
in mind, I see my job as to help my clients bring order to the legal chaos in
their lives, so that they can begin their new lives as emotionally and
financially intact as possible. As in all my cases, I try to resolve divorce
cases by agreement, if at all possible. If the other party will not agree to a
reasonable settlement, I will vigorously and aggressively litigate the case in
Court, so that a just outcome can be reached.
LEGAL SEPARATION
Some individuals who separate from their spouse, for a number of reasons
do not want to obtain a Judgment of dissolution of marriage, but want more
than to just be physically separated. They therefore choose to obtain a
Judgment of legal separation from the Court. In this manner they are still
married, but have a judicial decree which makes it clear that they are legally
separated. Like a Judgment of dissolution of marriage, a Judgment of legal
separation is obtained on a no-fault basis, by alleging that the parties have
separated and have “irreconcilable differences.” The Court in a legal
separation action, can also decide all of the other issues that it can in a
dissolution of marriage action. That is, the Court can decide issues of child
custody and visitation, child support, spousal support, division of community
property and community property obligations, restraining orders, and
allocation of attorney fees. If a Judgment of legal separation decides all of
these issues, and one of the parties later decides he or she wants to be
divorced, that party would file a dissolution of marriage Petition to decide
the one remaining issue of the parties, that is, the termination of their marital
status.
Parties choose a legal separation Judgment rather than a dissolution of
marriage Judgment for a variety of reasons. Some parties are not totally
sure that their marriage cannot be saved, and want to see if they can resolve
their marital differences while having the protection of a Judgment making it
clear that they are legally separated. In other cases, one party, who for
health or other reasons cannot obtain his or her own medical insurance, is
covered by the medical insurance of their spouse, and if the parties were to
divorce, that medical insurance coverage would terminate.
If both parties have appeared in the action, they must agree that a Judgment
of legal separation be issued by the Court, or the Court will not order it. This
is in contrast to a dissolution of marriage action, where only one party need
desire their marital status to terminate.
In representing my clients, I make sure to discuss all the options available to
them, so they can be fully informed and make the best possible decisions in
their cases.
NULLITY OF MARRIAGE
In contrast to a Judgment of dissolution of marriage, after a Judgment of
nullity of marriage is obtained, it is as if the marriage never legally existed.
In contrast to a no-fault dissolution of marriage, to obtain a Judgment of
nullity of marriage in California, one must prove facts which show the
appropriate statutory grounds for obtaining such a Judgment. The most
common grounds proven is fraud which induced the other party to enter into
the marriage. Additional grounds for a Judgment of nullity of marriage
include incest, bigamy, force, physical incapacity to consummate the
marriage, unsound mind, and underage at the time of the marriage.
DISSOLUTION OF DOMESTIC PARTNERSHIPS
Commencing January 1, 2005 California registered domestic partners are
subject to California’s community property system and can have rights
almost identical to those of married couples, but for the fact that they are not
married. Unfortunately and inevitably, some of these domestic partnerships
will break up, and will have their partnerships end through Court filings and
Court proceedings similar to those of divorcing parties. I stand ready to
help such partners end their partnerships as quickly, easily and amicably as
possible.
PATERNITY ACTIONS
California couples having children while not married who do not
subsequently marry, are subject to the paternity laws of this state. A
paternity action involves Court proceedings that determine the paternity of
the father if that is an issue, and also decide child custody, visitation and
child support issues. Related issues concerning property and restraining
orders can also be decided by the Court. Paternity actions can be resolved
by agreement, and if they are, there is no need for anyone to go to Court.
As in all my cases, I try to resolve paternity cases by agreement, if at all
possible.
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question, you should make an appointment to meet with Mr. Falzone or consult with another
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