The economy is the strongest it has been in 30 years. "Dot-com" millionaires are born overnight. Unemployment is at an all time low. Every day we read new rags to riches stories in the daily paper. And, not surprisingly, the inquiries about prenuptial agreements, and lesser known postnuptial agreements are on the rise.

The calls come in to our office regularly. "Im getting married in 2 months, and want my fiancé to sign a prenuptial agreement". "My daughter is getting married in November, and he is going to sign an agreement, or there wont be a wedding" stated the gruff voice of a future mother-in-law on the other end of a recent call. And, of course, in between these calls are the panicked voices of those that have had the subject "sprung" upon them, only to learn about it three weeks before the walk down the aisle.

Prenuptial agreements are certainly an area fraught with emotional stress, and duress is one of the most critical issues that persons contemplating an agreement must consider. A word to the wise is to address the agreement well in advance of sending out any wedding invitations to avoid such a contention which, if sustained by a court, could invalidate the agreement in its entirety.

California subscribes to what is known as the Uniform Premarital Agreement Act. Under the Act, there are two requirements in order for a prenuptial agreement to be valid: It must be in writing and must be signed by both parties. The Act goes on to state, however, that an agreement may be set-aside if any of the following circumstances are present: 1) the agreement was not executed voluntarily; 2) it was unconscionable when entered into; 3) a party did not waive any disclosure of financial information, or could not have had adequate knowledge of the other parties financial obligations. Most of the cases in California that address the issue of setting aside such agreements, do so on the basis of non-voluntary execution or duress, such as a party being asked to execute an agreement shortly before a wedding and being given an ultimatum, or not being given adequate time to reflect upon the substance of the agreement with independent counsel. Other cases have invalidated such agreements where there has not been an adequate financial disclosure.

As yet unsettled in California, but pending before the California Supreme Court, is the issue of whether parties can not only contract concerning their future property rights, but also their rights to spousal support. In many states, parties can agree to waive spousal support in the future, but in California it was always considered that such a waiver was against public policy. The pending case of Marriage of Pendleton and Fireman will, hopefully, resolve said issue. The appellate court decision, previously addressed in an earlier version of this Update, did hold that consenting adults could contractually waive said rights in such an agreement. Whether it will be upheld by the Supreme Court is, as of yet, unknown.

Most persons considering such agreements are shocked to learn the fees which most family law specialists charge for preparing same. Because these agreements are frequently subjected to challenges years after they are executed, and because the attorneys involved in the negotiation of same are frequently called upon to testify in regard to same (and are sometimes the subject of malpractice suits where the agreements are set-aside), a significant premium is charged for the preparation of such agreements. Nonetheless, if properly drafted, the premium charged for such a document can be well worth the cost, particularly if there are significant assets to be protected. If the court upholds the decision in Pendleton, it is likely that such fees will increase even further. Because of the potential pitfalls associated with said agreements, many family law practitioners will not engage in the preparation of same.

A lesser known alternative to such agreements are post-nuptial agreements. These documents have the same force and effect as a prenuptial agreement, but they are executed after the parties are married, rather than before. Post-nuptial agreements are not nearly as common as prenuptial agreements. Nonetheless, there are those occasions when the parties determine that such an agreement may be in their best interests. These agreements are subject to the same requirements as pre-marital agreements. Of course, the risk one runs in not obtaining a premarital agreement, and hoping for a post-nuptial agreement, is that the parties will not reach agreement thereon after marriage. Nonetheless, from time-to-time individuals do feel that the execution of such agreements is appropriate, and there is no reason that they cannot be drafted. If you would like further information on either type of document, please contact our office, or review the information posted on our website at

Parties signing joint tax returns while married, where an audit concerning same arises thereafter, should be aware of federal legislation which has greatly expanded the circumstances under which a party can be held to be an "innocent spouse", and therefore exonerated from liability under such a tax return. As part of an ongoing effort to boost the image of the IRS and to require the IRS to treat taxpayers fairly, federal law now greatly expands the relief available to a party who unwittingly signed a joint return. Such relief is virtually automatic for a spouse engaged in a divorce. Of course, innocent spouse relief is not a panacea for the spouse who opts to use it. That spouse must immediately file a separate return and still declare his or her share of the income and deductions applicable to that tax year. Nonetheless, election of innocent spouse status can provide significant protection for a spouse who would face significant liability from a joint return, where the entire amount of said liability could be assessed against either spouse.

As part of the movement to address domestic violence, the legislature has recently enacted California Family Code Section 3044 which provides that there is a rebuttable presumption against ordering joint legal and physical custody of children where one of the parents has been the victim of domestic violence perpetrated by the other parent within five years preceding the court making such an order. The parent seeking to overcome that presumption in order to obtain joint custody must establish by a preponderance of the evidence (more likely than not) that it is in the childs best interest to be subject to a joint custody order. In said regard, the person seeking to overcome such presumption may have to show that he or she has completed a treatment program and parenting training in regard to same.

Media Notes:

For the past several years, the media has called upon Fred Silberberg as a resource for family law information. In the past, Fred had appeared in such print media as the Los Angeles Times, and USA Today . Fred had made several appearances as well on television including appearing on the KCAL-Channel 9 News and KCBS-Channel 2 News. In February, Fred appeared on Entertainment Tonight, commenting on the subject of celebrity divorces. In addition, Fred now has a monthly "op-ed" column appearing the last Thursday of every month in the Daily Journal, Californias legal newspaper and the official publication of the County of Los Angeles. The column is intended to be thought-provoking and controversial and the feedback on various columns indicates that it has been. Past pieces have addressed such issues as gay marriage, creditor protection for spouses, "open" adoption, and ending spousal support in California. If you would like reprints of any of these articles, they are available from our office.