Overturning a Pre-Nup

[mrskraft]

What is the name of your state? CA

I've been married 7 1/2 yrs and my husband filled for divorce. He's been cheating on me but in Ca. who cares right? He forced me to sign a pre-nup just before our wedding.
And I do mean forced. You see my kids & me moved in with him only a few months after we met and we were living there for over 2 yrs before we got married. We became completely dependent on him financially because he insisted on handling all the money. When he presented me with the pre-nup he told me if I didn't sign it he would throw us out and shoot my horse. I can guess what your thinking, but I was afraid and didn't know what else to do so I just did what he said.

Of course the whole marriage he was controlling and abusive. Physically and emotionally and I was too stupid to get out, but I'm out now and I want to know if there is any way too fight the pre-nup? The pre-nup said that he had $600,000 in assets that was his before the marriage and that there would be no alimony in the event of a divorce. Those assets were his house that I moved into with him. I later was added to that mortgage when he wanted to refinance and we used the equity to buy land. Then we sold that place for $775,000 and bought land and built a new place that is now worth around 1.5 million.

He's also stated in his divorce papers that everything that we purchased since we were married is HIS sole & seperate property. Even though we've been filling taxes together on everything.

He gave me money to leave but not enough to hire an attorney. All the ranch income he's controlled and my name is not on any of those accounts. But I do have an appointment with a self help attorney. It's a 2 hour drive away so I want to fill out whatever papers I need to in advance so I can be prepared.

Please, any advise would be greatly appreciated

 

[mistoffolees]

What is the name of your state? CA

I've been married 7 1/2 yrs and my husband filled for divorce. He's been cheating on me but in Ca. who cares right? He forced me to sign a pre-nup just before our wedding.
And I do mean forced. You see my kids & me moved in with him only a few months after we met and we were living there for over 2 yrs before we got married. We became completely dependent on him financially because he insisted on handling all the money. When he presented me with the pre-nup he told me if I didn't sign it he would throw us out and shoot my horse. I can guess what your thinking, but I was afraid and didn't know what else to do so I just did what he said.

Of course the whole marriage he was controlling and abusive. Physically and emotionally and I was too stupid to get out, but I'm out now and I want to know if there is any way too fight the pre-nup? The pre-nup said that he had $600,000 in assets that was his before the marriage and that there would be no alimony in the event of a divorce. Those assets were his house that I moved into with him. I later was added to that mortgage when he wanted to refinance and we used the equity to buy land. Then we sold that place for $775,000 and bought land and built a new place that is now worth around 1.5 million.

He's also stated in his divorce papers that everything that we purchased since we were married is HIS sole & seperate property. Even though we've been filling taxes together on everything.

He gave me money to leave but not enough to hire an attorney. All the ranch income he's controlled and my name is not on any of those accounts. But I do have an appointment with a self help attorney. It's a 2 hour drive away so I want to fill out whatever papers I need to in advance so I can be prepared.

Please, any advise would be greatly appreciated

First, he didn't force you do do anything. You made a number of life choices and allowed him to get his way. Ultimately, it was your choice. You need to get used to that.

You could, in theory, get a pre-nup overturned if you could prove that it was signed under duress. I don't think what you have could rise to that standard, although you should check with an attorney.

You are going to be entitled to half of any marital assets- any assets accumulated during the marriage as well as the increase in value of the home if it is considered marital property (there are various rules for this). After 7.5 years, you're probably not going to get spousal support, but the assets could be substantial if it's a sizeable ranch -even with the recent drop in real estate values in some areas. If that is correct, you might consider finding a way to hire an attorney to work with you rather than just self-help. Doing it yourself could be the most expensive mistake you've ever made.

Finally, the sooner you find a job and a way to support your self, the better off you'll be.

 

[mrskraft]

Thank you

And I do have a job and a nice rental now for the kids and me. The attorney's I spoke to all wanted a $7500 to $10,000 retainer. I wish I could find someone to take it on a contigency basis.

 

[deathbydiva]

The absolute first thing you have to do is STOP SEEING YOURSELF AS A VICTIM. It will do you no good in family court, and it will not help you secure your future and your children's. You are going to have to grow a brass set, and prepare (in a calm and classy manner) to take his butt to the cleaners.

Please keep this in mind: He's just a guy. He may have managed to inflict his will on you for most of the last decade, but he sits down on the toilet every morning and wipes snot on his own sleeves just like every other human. He is not supernatural, all-powerful or omniscient. In fact, in the grand scheme of things, he's not all that wealthy.

He did not force you to sign a prenup; you decided to do so based on consideration of all the factors involved. Whether it was the right decision or not is moot. The fact remains that you COULD HAVE packed your children and left. You may have been living in a box under an overpass, and I certainly understand why you didn't consider that a reasonable alternative, but it doesn't change the simple reality that you signed the prenup of your own free will. You need to avoid making statements like "he forced me to sign."

During the marriage, you were not stupid. You made the choice to stay despite the downsides. No one is ever "stuck" in a relationship; they look at the pros versus the cons, and make a decision on which one outweighs the other. Apparently, despite his being controlling and abusive, you opted for the relative security and luxury of staying with him rather than the uncertainty and possible poverty of leaving him. Again, it's understandable, but you have to face up to your own decisions, and forgive yourself for the times when you made the wrong ones.

The reason we like to see ourselves as victims who have no control over the events of our own lives: we are mentally absolving ourselves of responsibility for our own bad choices. IE, nothing bad that's happened was REALLY your fault, because it never would have happened if HE hadn't been so controlling/abusive/cheated etc. It's totally natural; we all do it at times and to some extent. If my boss just wasn't a jerk I'd perform better at work / if my landlord would be reasonable I wouldn't owe late fees / if my son would pick up after himself I wouldn't lose my temper with him.

Here's why you absolutely have to stop doing it right this minute: While you are a victim who is under someone else's control, YOU CAN'T CHANGE ANYTHING. You release yourself from responsibility (in your own head), but you also give up ALL control or say in your own life. You can't feel sorry for yourself as the victim of factors beyond your control, AND take the steering wheel and drive back out of this ditch. Somehow you have to make peace with what YOU contributed to creating this mess; then you will find the strength to say, "I may have goobered this up six ways from Sunday, but I will by God stop that and start doing whatever it takes to get my life back on track."

That's my philosophical pep talk. Now on to the specifics. I do NOT know California law, but it may be very similar to Texas, which is also a no fault/separate property state. If you were in Texas, then the 1.5 million home that you built together would be COMMUNITY property; it would not matter where the funds came from that contributed to it (with just a couple of exceptions, such as inheritance DURING the marriage). In Texas it also doesn't matter whose name is on what community property account. Any funds earned during the course of the marriage that are not specifically partitioned by a prenup would be considered community property, and you would be entitled to half.

There should not be any need for you to work with a self-help attorney. Find an attorney to whom you can give a reasonable, affordable initial retainer, and then the attorney can file a motion in court to have your attorney fees paid out of the community estate. You should have EVERY BIT as much right to have your attorney fees paid by the community estate as he does. DO NOT let your STBX give you legal advice, or accept anything he tells you as being the truth. He'll lie up hill and down dale to convince you that you have no rights, no resources and that you're lucky to get whatever he wants to give you.

If you have any problems locating an attorney who is willing to petition for his fees from the estate, then contact the county bar association for your county, and get them to help you find one. I doubt you'll have problems, though. In Texas, attorneys are more than happy to sign on for cases like this, because they know that they will get awarded the fees they need. In fact, if you go this route, it's a surer bet that YOUR attorney will get paid than HIS, because your attorney's fees would be court ordered. That's a very attractive scenario for lawyers.

A last piece of personal advice: Hire a male attorney, not a female. A lot of women hire a female because they mistakenly believe that a woman will have more natural understanding of where they're coming from. I have never found that to be the case, and whether it's PC or not, courts are still very much a boys' club. Also, since your STBX obviously has zero respect for women, he will probably respond to a female attorney with disdain and disregard. Find a male attorney who can match him dollar for dollar and play for play, and he'll sit up and pay attention.

 

[mistoffolees]

A last piece of personal advice: Hire a male attorney, not a female. A lot of women hire a female because they mistakenly believe that a woman will have more natural understanding of where they're coming from. I have never found that to be the case, and whether it's PC or not, courts are still very much a boys' club. Also, since your STBX obviously has zero respect for women, he will probably respond to a female attorney with disdain and disregard. Find a male attorney who can match him dollar for dollar and play for play, and he'll sit up and pay attention.

I agree with everything you wrote, but maybe not this part. I had a female attorney and she was just as able to go for the jugular as any male attorney I've seen. To some extent, it rattled my ex-wife to see this killer attorney when she expected this 'nice, old, gray-haired woman'. I would be more concerned with how comfortable you are working with the person and how well respected they are by the bench (mine was way up there in the boy's club). But you're right that hiring the most sympathetic, pampering lawyer-of either gender- wouldn't be a smart move.

 

[Ohiogal]

First, he didn't force you do do anything. You made a number of life choices and allowed him to get his way. Ultimately, it was your choice. You need to get used to that.

You could, in theory, get a pre-nup overturned if you could prove that it was signed under duress. I don't think what you have could rise to that standard, although you should check with an attorney.

You are going to be entitled to half of any marital assets- any assets accumulated during the marriage as well as the increase in value of the home if it is considered marital property (there are various rules for this). After 7.5 years, you're probably not going to get spousal support, but the assets could be substantial if it's a sizeable ranch -even with the recent drop in real estate values in some areas. If that is correct, you might consider finding a way to hire an attorney to work with you rather than just self-help. Doing it yourself could be the most expensive mistake you've ever made.

Finally, the sooner you find a job and a way to support your self, the better off you'll be.

The bolded is ONLY correct if she gets the pre nup thrown out. If the prenup stands, she is entitled to what is in the prenup. Since we dont' know what the prenup states exactly we can't advise her. She needs an attorney.

 

[mrskraft]

I thank you so very much for your time and attention you gave my situation. You are very thoughtful and kind. I will immediatly look into what you said about the attorney. And I will also try to prepare myself to approach this in as business like manner rather than the emotional nightmare it's been.

Again....Thanks!

 

[Zigner]

California requires that, for a prenup to be valid, both individuals must have their OWN attorney.

 

[Ohiogal]

I snipped your pep talk. NOT legally relevant. But maybe it will wake up the OP.

There should not be any need for you to work with a self-help attorney. Find an attorney to whom you can give a reasonable, affordable initial retainer, and then the attorney can file a motion in court to have your attorney fees paid out of the community estate.

Are you aware of how often that is ACTUALLY granted? Attorneys are. NOt very often.

You should have EVERY BIT as much right to have your attorney fees paid by the community estate as he does.

Which may not be much.

DO NOT let your STBX give you legal advice, or accept anything he tells you as being the truth. He'll lie up hill and down dale to convince you that you have no rights, no resources and that you're lucky to get whatever he wants to give you.

That part is true and often stated on this site.

If you have any problems locating an attorney who is willing to petition for his fees from the estate, then contact the county bar association for your county, and get them to help you find one. I doubt you'll have problems, though. In Texas, attorneys are more than happy to sign on for cases like this, because they know that they will get awarded the fees they need.

You doubt she'll have problems? I don't. Because there is no guarantee.

In fact, if you go this route, it's a surer bet that YOUR attorney will get paid than HIS, because your attorney's fees would be court ordered. That's a very attractive scenario for lawyers.

Quote percentages of how often that happens at the beginning of the case. Not that much.

A last piece of personal advice: Hire a male attorney, not a female.

And to think I welcomed you on the other thread. Give me a break. That is a bunch of sexist malarky. But great job at stating it.

A lot of women hire a female because they mistakenly believe that a woman will have more natural understanding of where they're coming from. I have never found that to be the case, and whether it's PC or not, courts are still very much a boys' club.

Says you. How many cases have you run in court? Oh yeah, you were a paralegal. I am an attorney that you just insulted. A female attorney at that.

Also, since your STBX obviously has zero respect for women, he will probably respond to a female attorney with disdain and disregard.

And? A good way to tick off the magistrates. Because believe it or not females are judges and magistrates now.

Find a male attorney who can match him dollar for dollar and play for play, and he'll sit up and pay attention.

If she can pay dollar for dollar no problem. But you are giving her false hope and a guarantee. You went too far.

 

[Ohiogal]

I agree with everything you wrote, but maybe not this part. I had a female attorney and she was just as able to go for the jugular as any male attorney I've seen. To some extent, it rattled my ex-wife to see this killer attorney when she expected this 'nice, old, gray-haired woman'. I would be more concerned with how comfortable you are working with the person and how well respected they are by the bench (mine was way up there in the boy's club). But you're right that hiring the most sympathetic, pampering lawyer-of either gender- wouldn't be a smart move.

Mistoffolees (almost called you Misty but didn't want to insult you) I like you even more after this.

 

[Zigner]

I will retract my earlier statement.
Apparently California doesn't REQUIRE an attorney to be used, however, their ARE specific requirements about time frames before someone signs and also notification of their right to review the document with an attorney.

 

[deathbydiva]

The bolded is ONLY correct if she gets the pre nup thrown out. If the prenup stands, she is entitled to what is in the prenup. Since we dont' know what the prenup states exactly we can't advise her. She needs an attorney.

I was going based on the information that she provided in her initial post, which was that the prenup specified $600,000 and the home he owned at the time of the marriage as his separate and partitioned property. If that information is accurate, then in Texas, anything ELSE would be community property (again, with a few exceptions).

With regard to the male/female attorney issue - I've seen female attorneys who could wipe the floor with their opposing counsel, believe me. I've represented myself in court before and cleaned opposing counsel's clock, and I am not an attorney LOL.

The problem is that most clients are not "in" enough with the courts to know the difference between the well-respected woman who can get the job done right, and the barracuda who is such a raging beotch that the courts AND opposing counsel tend to make jokes behind her back and refuse to take her seriously.

Also, these are two different scenarios: a man having a female attorney who can chew up his ex-wife and spit her out; versus a woman having a female attorney that her STBX will refuse to respect no matter how good she is. Some men simply need a man as an adversary to make them mind their manners.

Perhaps courts in other areas are less "boy's club" than our local ones are, so I should have stated that the courts that *I* have experience with tend to be a domain where the women who work their way in are few and far between.

 

[mistoffolees]

The bolded is ONLY correct if she gets the pre nup thrown out. If the prenup stands, she is entitled to what is in the prenup. Since we dont' know what the prenup states exactly we can't advise her. She needs an attorney.

Yes, correct. Sorry.

 

[Ohiogal]

I will retract my earlier statement.
Apparently California doesn't REQUIRE an attorney to be used, however, their ARE specific requirements about time frames before someone signs and also notification of their right to review the document with an attorney.

Here is the thing about prenups -- she needs an attorney to review it. Depending on how far ahead of the wedding she signed it, whether or not ALL current assets were disclosed at that time, how many assets there are now, and a variety of other things, the prenup could be void. NO ONE here will be able to tell her that.

OP, find an attorney that you can work with. If he/she is harsh with you but still communicates and appears to know their stuff and you are comfortable with them, hire them. Do NOT depend on attorney fees to be paid by your ex. Do NOT count on it. Ask for it, but don't rely on it.

The county bar should be able to refer you to a variety of people -- meet with them and ask them questions such as how many divorces have they handled with prenups? How many prenups have they been able to void? Have they been able to void portions of a pre nup? How much of a retainer do they need? Do they quarter bill? Minute bill? How much involvement do they expect from you?

 

[mistoffolees]

The problem is that most clients are not "in" enough with the courts to know the difference between the well-respected woman who can get the job done right, and the barracuda who is such a raging beotch that the courts AND opposing counsel tend to make jokes behind her back and refuse to take her seriously.

True. However, there are signs that even an outsider can look for. My attorney, for example, chaired the ABA Family Law Section. That was a pretty good sign.