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Prenuptial Problem

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Alicia20

Member
What is the name of your state (only U.S. law)?California

Got married 11/08, filed and served spouse 4/09 and took no further action unitl 7/10 by filing for non-contestant divorce. The home we live in is my own seperate property and deemed so in the prenupt. The prenuptial seperates everything (retirement, property.etc) except for earnings. The prenupt also states that there will be no alimony granted to either party. I earn twice as much as my spouse and no judgment are court dates are pending. Spouses new lawyer is stating that all money that I invested in home or retirement is partially my spouses and should recieve thier share of what was invested and accumalated interest untill the divorce is final. I've been contributing to my retirement accounts for over 20 years and have owned my home for the same time period.

-First of all is the lawyer right?

-So if our earnings are not seperate does that mean that my property, pension and 401k are truly in jeopardy?

-And if I have to pay, what time period will I be responsible for paying?

-Is there a formula for calculating these figures when you are already established
 


LdiJ

Senior Member
What is the name of your state (only U.S. law)?California

Got married 11/08, filed and served spouse 4/09 and took no further action unitl 7/10 by filing for non-contestant divorce. The home we live in is my own seperate property and deemed so in the prenupt. The prenuptial seperates everything (retirement, property.etc) except for earnings. The prenupt also states that there will be no alimony granted to either party. I earn twice as much as my spouse and no judgment are court dates are pending. Spouses new lawyer is stating that all money that I invested in home or retirement is partially my spouses and should recieve thier share of what was invested and accumalated interest untill the divorce is final. I've been contributing to my retirement accounts for over 20 years and have owned my home for the same time period.

-First of all is the lawyer right?

-So if our earnings are not seperate does that mean that my property, pension and 401k are truly in jeopardy?

-And if I have to pay, what time period will I be responsible for paying?

-Is there a formula for calculating these figures when you are already established
I think that we advised you previously that you really couldn't afford not to have an attorney.

Without having the prenup in front of us to review, its nearly impossible to give you any solid advice.

However, I will tell you worst case scenario...which would also be the same scenario if you had no prenup at all.

1) Any increase in the equity in your home between the date that you got married, and the date of your separation (usually its separation) could be deemed community property.

2) Any money you invested into your 401k during that same period could be deemed community property.

3) Any money contributed to savings or other investments during that same period could be community property.

4) You could be ordered to pay some VERY short term alimony. Think 9 months worth or less.

Your pension is likely irrelevant, because you didn't invest any of your earnings into your pension...at least I am assuming that you didn't. Normally one would not be investing into a pension and a 401k at the same time. Also, very little of your pension would vest during your brief marriage.

There is also a chance that you could be ordered to pay for his attorney.

Look, its this attorney's job to get whatever he can get for his client. He is also allowed to lie to you. He also wants to make sure that he gets paid, because he already knows his client cannot pay him, so that's going to make him work doubly hard to get something out of you.

You can easily figure out how much you invested in your 401k, savings and any other investment during your brief marriage.

You can also easily figure out how much of an increase there has been in the equity in your home.

Figure it out and add it up and divide by 2...apply some minimal interest to the amount and you will have some idea of your worst case scenario. (other than having to pay his attorney fees or short term alimony).

If the amount is as small as I think it could be, then you decide whether or not you are willing to settle. If the amount turns out to be significant, then I will tell you right now that you will NEED to get yourself an attorney.

His attorney is not going to give up unless he gets some money out of you. Since there honestly is a chance that you could be ordered to pay his legal fees, the longer and harder the attorney works, the more you can potentially be on the hook for. Therefore, if the amount is not substantial, settling might be the least risky option cost wise.

However, there is also the potential that his attorney will simply quit the case if you hire an attorney of your own...because there is less chance that he will get anything out of you and therefore less chance that he will get paid.
 

Alicia20

Member
Yes, I took your advice and hired an attorney, he will be trying to settle this next week. I just wanted to check with you guys to see what you thought. Right now the spouses attorney wants to change the seperation date from 4/09 to something more current. Hopefully tht date will stick and eerything will be weighed against that date.
 

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