Prenups are rising in popularity, as couples marry later and come to the union with more assets.
really bad,” she says. Seven years into their marriage, Kara says she doesn’t feel the need for a prenup anymore. “If something happened, I think he would be entitled to his share of whatever we’ve built together. It’s taken me time mentally to adjust to being the one with more assets. But now that I have and I see what he has to done for all our family and for me and his constant service to others, now the financial things mean less to me.” “Rachel”—also a pseudonym—didn’t see a need for a prenup when she was about to say “I do” for the second time. Her first marriage lasted five years—“We had a troubled marriage almost from the start”—and although she had started a successful business during those years, the Marin County resident had no problem sharing the wealth. California is a community property state, and Rachel believes in the concept. “I felt he deserved his share,” she says. Even though that divorce was expensive, and Rachel earned more than her second husband-to-be, he was the one who insisted on a prenup. He did, however, waive any right to spousal support. “He wanted no part of my money,” she says. “It was nice at the time of the prenup, but it was not nice 11 years later,” which is when the marriage fell apart—he had become an alcoholic. After two years of mediation, “he then felt entitled,” she says. When she accidently used a joint account to pay a mortgage payment instead of her personal account, it created community property interest in their home, and Rachel had to either maintain his household at her level of living for the rest of his life or buy him out. She paid him a lump sum. While prenups are “presumptively valid” in the courts, a new
ruling in Orange County this past August—Last vs. Superior Court—may complicate things, Schoenberg says. The ruling states that unless the trial court finds in writing or on the record that the prenup meets certain family code requirements, it could be presumed to have not been executed voluntarily, and thus be unenforceable. “There’s kind of this one extra step,” she says, “but to be honest with you, if attorneys are doing their job right, it shouldn’t be hard to jump through that kind of new hoop.” Extra step or not, Debra’s a big fan of prenups and wouldn’t consider marrying again without one. She also advocates for them for all her female clients. Still, although she believes she was as prepared as a 30-something could be, she acknowledges that, like many spouses-to-be, she was a bit naïve and too focused on the romantic aspect of marrying. “I think I would have probably advocated more for myself in areas that he was drawing a hard line on. I wish I had been a little more informed,” she says. “At the time I decided I wanted to get a divorce, I do remember thinking, man I wish I had been much more thoroughly informed and really fought for what I wanted in the prenup.” Rachel has no desire to marry again but if she did, she still wouldn’t get a prenup. “Even after all I’d been through, I still wasn’t the one who wanted the prenup in my second marriage. I actually believe in community property law. Call me a cockeyed optimist, but I think if you go into marriage, and there’s reason you have to, it is about sharing 50-50 and I believe in that.” J
February 2024
NorthBaybiz 51
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