What To Expect When Hiring Us To Prepare Your PMA

What To Expect When Hiring Us To Prepare Your PMA

If you are reading this, my staff has already briefed you on our deadlines and pricing, and we have received your completed Premarital Intake Form and you are ready for your free 15-minute phone consult.  If you have NOT yet completed the Intake Form, please text us your email address and we will email it to you, along with pricing.

To maximize use of our time together, please review the information contained herein carefully prior to our call.  You can then use our call for follow-up questions.

Congratulations on your upcoming wedding!  We commend you on taking the leap of faith, and even though you are exploring the possibility of obtaining a prenuptial agreement, we hope that you ultimately view marriage as forever, and not use the concept of a “prenuptial agreement” as a “way out” in the future. (By the way, a PMA stands for “pre-marital agreement” or “pre-nuptial agreement”.  Nuptial is a Latin word (commonly used in Shakespeare) for wedding.

The divorce rate in our country is high.  It is “rumored” to be 1 of 2 couples, but as a divorce lawyer, I estimate the number is probably higher.

When Should You Start the PMA Process?

The sooner, the better.  Most people spend over a year planning their wedding.  Why would you spend any less on a PMA?  We recommend you start at least 3 months in advance of your wedding.  Please note that we cannot help you if your wedding is in less than 25 court days.  If your wedding is in less than 45 court days, we charge rush fees to deliver the first draft of the PMA within five (5) days.

However, the rush fee does NOT guarantee you will have a finished product.  Your fiance/fiancee will need his/her own attorney and whether or not your PMA will be completed on time, is dependent on their actions.

Allot plenty of time.

Why Should You Get A PMA?

Because the law already has a PMA for you.   Let me explain.  California has its own laws on marriage, such as community property and support.  As soon as you enter into a contract with your partner (wedding), the laws of California apply to you.

But the law is always fair right?  It’s the LAW.  Wrong.  “The law” is defined as “a body of rules of action or conduct prescribed by a controlling authority, and having binding legal force.”  Sure, things like MURDER (California Penal Code � 187. Murder), RAPE (California Penal Code � 261. Rape), and ASSAULT WITH A DEADLY WEAPON (California Penal Code 245) are illegal.  But did you know that in California, using your dog to pursue a bobcat is illegal?  That it is illegal to throw a frisbee on a beach without the lifeguard’s permission?

The last 2 are DUMB laws.  And personally, I think community property and spousal support are dumb laws as well.

Community property law is onerous to the in-spouse. (Only 9 states have this law – yep, California is a CP state).  If you do not have a PMA, it applies to you.

California is also one of the MOST expensive states to live in (if not the most!) and it also has one of the highest child and spousal support guidelines.

Sure, if you are the recipient spouse, CALIFORNIA’s laws are FAIR!  But if you are the payor, it is terribly unfair (in my opinion) and I would recommend you enter into your own PMA to craft the law so it is more FAIR to both. By the way, “fair” is my most HATED word in family law.  The word “fair” has absolutely no meaning to a family lawyer, because it’s incredibly subjective and if you are divorcing, obviously, NOTHING is fair.

I recommend that before you enter into marriage, you consult with an attorney as to what rights and obligations are conferred and imposed on you once you marry.  If you do NOT like the laws, you and your partner can CHANGE the laws by entering into your own contract before you marry.  This contract is your PMA.

The Risk of Marriage

Marriage is risky, EVEN if you have a prenuptial agreement.  As explained below, there are certain things PMA’s CANNOT govern (like child custody and support), and just because you have a PMA, doesn’t mean it will protect you against many issues related to a toxic, drawn-out divorce.

Also, just because you have a valid PMA does not mean it is guaranteed to be enforceable.  No lawyer who drafts PMA’s can ever guarantee that your PMA is definitely valid and enforceable.  In fact, ALL PMA’s can be upheld or set aside if it is later challenged by either party.  There are NO guarantees whatsoever.  However, if you and your fiance/fiancee both comply with the provisions of the California Uniform Premarital Agreement Act (California Family Code 1615 et seq), the PMA is likely to be upheld.

 You Should Always Get a PMA, but If Any Of These Factors Apply, You MUST

  1. This is not your first marriage.  Statistics show that in the U.S., 50% percent of first marriages, 67% of second, and 74% of third marriages end in divorce.
  2. You own property PRIOR to the marriage that isn’t paid off.
  3. You are an artist, musician, writer, or any other profession where intellectual property abounds.
  4. If you own your own business.  In a divorce, businesses are often valued for more than they can be sold for.  In fact, even if YOU are the business, and nobody will buy your business, it can still have a value.  Why does this matter?  It matters because in a divorce, you are paying for ALL of the attorneys, experts, forensics, and they are NOT cheap.  Typically, one side is paying one expert to value the business high.  For example, my solo law practice may be valued higher than 1 million dollars, even though I am the business, and there is no way I can fetch 1 million dollars for selling my business.  To counter the 1 million valuation, I would need to hire my own expert to value my business at 0.  Experts are expensive, and like attorneys, you are paying PER HOUR.  And this is how your simple divorce can amass $650,000 in attorneys’ and experts’ fees.
  5. Your fiance/fiancee does not plan to work.  California, of all the states, has one of the highest spousal support/child support obligations.  You can avoid paying guideline support, and instead negotiate your own.
  6. You have children from a prior marriage.  In a divorce, many hands are in your pot.  You will want to protect your children from a prior marriage.
  7. You or your fiance/fiancee have a lot of debt, or will be in a lot of debt.
  8. There is a great discrepancy between you and your spouse in terms of knowledge or possession of financial wealth.

Premarital Agreements Cannot Regulate Child Custody; Religion; or Personal Issues

Premarital agreements cannot regulate child custody. Custody decisions are based on what is in the “best interests of the children” at any given time. Though you two may reach an enforceable agreement, you may not completely deprive the Court of its decision-making power over custody.

Premarital agreements also cannot limit child support.

Premarital agreements cannot regulate a party’s right to religion, or a child’s religion. They may not cover a person’s habits, such as who cleans house, or who will take out the garbage. Nor came they punish someone for being unfaithful, contrary to what people may think.

You Will Negotiate Your Own PMA

Please familiarize yourself with my pricing and my services.  I do NOT negotiate PMA’s for you.  You and your fiance/fiancee will negotiate your own terms, and you will decide when the negotiations end.

How expensive your PMA will ultimately be will depend on how many edits/revisions you and your fiance/fiancee go through.  Please understand that any agreement can theoretically be improved upon, but that would involve additional time, money and emotional wear and tear with no guarantee of success.

I recommend that if you and your fiancee are far from agreement as to the terms of your PMA, you explore hiring a mediator to help you come to terms.

What I Do For You (Detailed In Our Fee Agreement)

After our call, you will be sent a fee agreement (which is a contract between you and me, just like a PMA is a contract between you and your spouse), which will spell out more details.

I am hired to do the following:

1. Advise and consult with you in relation to the preparation of a PMA, limited to a total time of 2 hours.  Additional time is thereafter billed at $500/hour.

2. I will prepare the initial draft of the PMA based solely on the intake form you provide, along with a detailed phone conversation prior to my drafting. I will prepare the PMA entirely based upon what you instruct me to prepare and will make no independent investigation of facts and circumstances.

3. Further revisions and edits are billed at $500/hour.

4.  Please note that I cannot help you if your wedding is less than 25 days away.  And if your wedding is less than 45 court days away, I charge a rush fee of $1,000 to provide the first draft within 5 business days.  HOWEVER, the rush fee does NOT guarantee completion of your PMA, and it does NOT guarantee you will have a finished product on time, because that depends on your fiance/fiancee and his or her attorney as well.

What I DO Not Do For You

  1.  I don’t negotiate PMA’s   You alone will negotiate the terms of your PMA with your fiance/fiancee. You alone will determine when negotiations will stop.
  2.  Execution of the PMA. I am not responsible for overseeing the proper execution of the PMA, unless you have purchased this service in advance. Please note that unless your PMA is properly executed, it will probably not be enforceable. I will provide you with specific instructions on how to properly execute your PMA. It is your responsibility to follow my instructions. If you wish to have a signing session, you agree to pay an additional fee.
  3. I don’t give tax advice.
  4. I don’t value you or your fiance/fiancee’s assets.
  5. I don’t maintain the effectiveness of your PMA.  I will give you instructions on avoiding co-mingling and keeping careful records.
  6. I don’t store your PMA. You will be given the original copy of your PMA. You will also be emailed a digital copy. You are responsible for keeping the original copy of your signed prenuptial agreement. Although I may also receive a copy, it is not my responsibility to store it for you, physically or digitally. I do not have an obligation to provide it to you in the future should you request it. To protect the privacy of my clients, my office has a 1-year file retention policy from conclusion of the matter. Your files are thereafter destroyed.
  7. I don’t litigate, unless hired by you specifically.  If I prepare your PMA, my sole function is transactional only, and does not include any representation in any litigation that may arise from the creation of any agreement, whether in court or elsewhere, unless we later agree to it.

Your Fiance/Fiancee Needs His/Her Own Attorney

They will need their own independent legal counsel.  There are absolutely no exceptions to this rule.

Signing the Agreement (Execution)

Please note that the flat fee I have quoted to you does NOT include execution of the PMA.  There is an extra fee for the signing session.

Please note for the agreement to be enforceable, the parties must understand, and enter voluntarily into the agreement.  The agreement must be notarized.

I recommend that we participate in a signing session.

If you decide to sign on your own, it is of utmost importance that you work with me to make sure I receive a fully signed agreement before you marry. I suggest that the agreement be executed with at least two (2) original signatures. You and your future spouse will keep the originals. Your future spouse’s attorney and I will keep copies. My office will also email you a digital copy for your records.

We Do Not Store PMA’s For Clients

Please note that although my office will receive a copy, you assume sole responsibility for storing your original and digital copy. My office has a 1-year file retention policy upon conclusion of your matter, and thereafter, your files will be destroyed. You are responsible for keeping your prenuptial agreement in a safe place. Please do not email us after 1 year for a copy of your prenuptial agreement; we will not have it in our possession.

Enforceability

Enforceability depends on the facts or laws that arise in the future. I do not guarantee that your PMA is enforceable. It is best to view the agreement as a document that can strengthen your bargaining position in the even of a divorce. At that time, you can determine whether it is applicable and enforceable.

Possible reasons the agreement may not be enforced:

1. It may not be enforced if you do not live in California.

2. The spousal support clause may not be enforceable even if you live in California because it is deemed “unconscionable” at the time of the divorce.

3. It may not be enforceable if California law changes.

4. It may not be enforceable if you do not keep your separate property separate.

5. It may not be enforceable if you enter into conflicting agreements in other states or countries.

6. It may not be enforceable if you not keep the agreement, and/or destroy it. You will be given the original copy. You will also be emailed a digital copy. You are responsible for keeping the original copy of your signed prenuptial agreement. Although I also receive a copy, it is not my responsibility to store it for you, physically or digitally. I do not have an obligation to provide it to you in the future should you request it. To protect the privacy of my clients, my office has a 1-year file retention policy. Your files are thereafter destroyed.

7. It may not be enforceable if your future spouse establishes that he/she was forced into signing the agreement or that he/she did not know what he/she was doing when he/she signed it.

8. It may not be enforceable if your future spouse claims he/she was not adequately represented by a competent and independent attorney.

9. It may not be enforceable if the California premarital agreement statute was not followed in that you did not provide a full disclosure of your assets and obligations.

10. It may not be enforceable if you do not comply with your obligations under the agreement.

11. It may not be enforceable if it is deemed to “promote” divorce.

12. It may not be enforceable if one of you sign it less than seven (7) days after the last draft or version is presented.

13. It may not be enforceable for other reasons we cannot anticipate.

Even though premarital agreements are often challenged and held to be unenforceable, many agreements are in fact enforced.

Thank you for your understanding and cooperation, and the opportunity to give you an overview of California premarital agreement law. We look forward to our free 15-minute call with you, and working with you.

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