How best to proceed ina Dissolution of Marriage case Where there is no Valid Marriage

[Zigner]

Look I have not seen with the exception of tranquility state a relevant response. My question is simple how can there be a putative marriage if either of them had unclean hands. Since putative is an action is equity. I may not be the brightest bulb in the tree but a contract must pass an objective test for it to be valid right?

Did you READ the statute?

 

[rfabiano1]

Yes did you read the appellate interpretation. English is my first language but typing is not. I also suck at spelling. But I was always good at math.

 

[tranquility]

Umm I was simply asking for proactive responses. Not in some way trying to prove myself or debate on a forum. Sheesh tough crowd. I already told my sister to get a lawyer. However the only thing I'm trying to do is better understand

The only proactive thing that can be done (Notwithstanding Silverplum's pointing out of the oxymoron.) is to get an attorney. This is not going to go away easy or cheap. Since you are no longer going to lie outright ("Prove yourself"? You've proved your ability completely.), I'll give you a couple of clues.

The difference between a contract and a prenuptial agreement is that a contract requires consideration. In the facts stated, there is none.

Now, as to the agreement.

Family Code Section 1612(c):

(c) Any provision in a premarital agreement regarding spousal
support, including, but not limited to, a waiver of it, is not
enforceable if the party against whom enforcement of the spousal
support provision is sought was not represented by independent
counsel at the time the agreement containing the provision was
signed, or if the provision regarding spousal support is
unconscionable at the time of enforcement. An otherwise unenforceable
provision in a premarital agreement regarding spousal support may
not become enforceable solely because the party against whom
enforcement is sought was represented by independent counsel.

From the prenuptial:

F. Each party has had the opportunity to retain their own lawyer and receive independent legal advice regarding the terms of this Agreement; both parties freely waive advice of independent counsel and enter this agreement with good faith and consideration.

Looks to me like someone took an agreement from the interwebs without understanding it. Also, all the proforma representations listed in the purported agreement were designed to comply with Family Code 1615:

1615. (a) A premarital agreement is not enforceable if the party
against whom enforcement is sought proves either of the following:
(1) That party did not execute the agreement voluntarily.
(2) The agreement was unconscionable when it was executed and,
before execution of the agreement, all of the following applied to
that party:
(A) That party was not provided a fair, reasonable, and full
disclosure of the property or financial obligations of the other
party.
(B) That party did not voluntarily and expressly waive, in
writing, any right to disclosure of the property or financial
obligations of the other party beyond the disclosure provided.
(C) That party did not have, or reasonably could not have had, an
adequate knowledge of the property or financial obligations of the
other party.
(b) An issue of unconscionability of a premarital agreement shall
be decided by the court as a matter of law.
(c) For the purposes of subdivision (a), it shall be deemed that a
premarital agreement was not executed voluntarily unless the court
finds in writing or on the record all of the following:
(1) The party against whom enforcement is sought was represented
by independent legal counsel at the time of signing the agreement or,
after being advised to seek independent legal counsel, expressly
waived, in a separate writing, representation by independent legal
counsel.
(2) The party against whom enforcement is sought had not less than
seven calendar days between the time that party was first presented
with the agreement and advised to seek independent legal counsel and
the time the agreement was signed.
(3) The party against whom enforcement is sought, if unrepresented
by legal counsel, was fully informed of the terms and basic effect
of the agreement as well as the rights and obligations he or she was
giving up by signing the agreement, and was proficient in the
language in which the explanation of the party's rights was conducted
and in which the agreement was written. The explanation of the
rights and obligations relinquished shall be memorialized in writing
and delivered to the party prior to signing the agreement. The
unrepresented party shall, on or before the signing of the premarital
agreement, execute a document declaring that he or she received the
information required by this paragraph and indicating who provided
that information.
(4) The agreement and the writings executed pursuant to paragraphs
(1) and (3) were not executed under duress, fraud, or undue
influence, and the parties did not lack capacity to enter into the
agreement.
(5) Any other factors the court deems relevant.

Now, I'd have to believe the separate, required, signed writings would have been mentioned BEFORE some folderol about "witnesses" or "etc". I'd also think there would have been mentioned the Husband was represented by an attorney before signing and not just that he had an opportunity to have obtained one. All that is a matter of law even before discussing the specific facts of this marriage. We have none of those. Why did they all get married and what did each hope to gain? What is really going on here?

But, the bottom line is sister should be worried. If she earns enough to have husband even contemplate 50% of property and $48k support a year, any moment, any thinking, any conversation, any clever case looking up, any stupid case looking up, is simply a waste of time and will cost more in the end. Attorney.

 

[DrbyDesign01]

The only proactive thing that can be done (Notwithstanding Silverplum's pointing out of the oxymoron.) is to get an attorney. This is not going to go away easy or cheap. Since you are no longer going to lie outright ("Prove yourself"? You've proved your ability completely.), I'll give you a couple of clues.

The difference between a contract and a prenuptial agreement is that a contract requires consideration. In the facts stated, there is none.

Now, as to the agreement.

Family Code Section 1612(c):

From the prenuptial:
Looks to me like someone took an agreement from the interwebs without understanding it. Also, all the proforma representations listed in the purported agreement were designed to comply with Family Code 1615:

Now, I'd have to believe the separate, required, signed writings would have been mentioned BEFORE some folderol about "witnesses" or "etc". I'd also think there would have been mentioned the Husband was represented by an attorney before signing and not just that he had an opportunity to have obtained one. All that is a matter of law even before discussing the specific facts of this marriage. We have none of those. Why did they all get married and what did each hope to gain? What is really going on here?

But, the bottom line is sister should be worried. If she earns enough to have husband even contemplate 50% of property and $48k support a year, any moment, any thinking, any conversation, any clever case looking up, any stupid case looking up, is simply a waste of time and will cost more in the end. Attorney.

FOR THE RECORD THIS IS MERELY ME TALKING ON THE INTERNET AND NOT LEGAL ADVICE!

Look I have read enough of this to kind of know whats going on. The fact is Tranquility your an idiot for playing here and researching this for this guy, Silverplum you have nothing relevant to say. As an Attorney I was researching this very scenario and came up with this board and felt I had to chime in. I am able to basically get a grip on this the prenuptial. However, I disagree with Tranquility it is valid if either party believed the agreement regardless of putative claims. Don't even start to say it was unconscionable as it clearly states it is not within the agreement. The language is clear enough that there is no disadvantage and the fact that both parties waive counsel is explicit enough to most courts. Basic rules of Estoppel. Here's what I'd do. I'd move to make the marriage a voidable one, if the guy responds the burden of proof is on him. This is a simple game of cat and mouse. Also, a very expensive one. Unclean Hands is actually retarded, but so retarded that I think a judge would entertain it here in California. Reason for this depends on the jurisdiction and the amount of money involved. If we are talking a short term marriage with no assets and the only issue is spousal support, id tell the OP don't worry about it. Highly unlikely he'll get anything. If he has income or doesn't have income they will impute it. All of this other conjecture is just that.
Also, OP stated he's self represented or maybe I am guessing. I'd just respond and say this and let me say this in layman so that OP and tranquility can understand:

1. File response and claim the marriage is voidable
2. Wait for a response.
3. Get a Damn Attorney
4. Stop reading cases that only partly have to do with your case.
5. Finish law school

He has to claim he is a putative spouse, don't make his case for him by trying to enforce the prenuptial agreement in your response. Your attorney would tell you the same thing.

 

[Silverplum]

FOR THE RECORD THIS IS MERELY ME TALKING ON THE INTERNET AND NOT LEGAL ADVICE!

Look I have read enough of this to kind of know whats going on. The fact is Tranquility your an idiot for playing here and researching this for this guy, Silverplum you have nothing relevant to say. As an Attorney I was researching this very scenario and came up with this board and felt I had to chime in. I am able to basically get a grip on this the prenuptial. However, I disagree with Tranquility it is valid if either party believed the agreement regardless of putative claims. Don't even start to say it was unconscionable as it clearly states it is not within the agreement. The language is clear enough that there is no disadvantage and the fact that both parties waive counsel is explicit enough to most courts. Basic rules of Estoppel. Here's what I'd do. I'd move to make the marriage a voidable one, if the guy responds the burden of proof is on him. This is a simple game of cat and mouse. Also, a very expensive one. Unclean Hands is actually retarded, but so retarded that I think a judge would entertain it here in California. Reason for this depends on the jurisdiction and the amount of money involved. If we are talking a short term marriage with no assets and the only issue is spousal support, id tell the OP don't worry about it. Highly unlikely he'll get anything. If he has income or doesn't have income they will impute it. All of this other conjecture is just that.
Also, OP stated he's self represented or maybe I am guessing.

Is reading not your Big Skill?

I'd just respond and say this and let me say this in layman so that OP and tranquility can understand:

1. File response and claim the marriage is voidable
2. Wait for a response.
3. Get a Damn Attorney
4. Stop reading cases that only partly have to do with your case.
5. Finish law school

He has to claim he is a putative spouse, don't make his case for him by trying to enforce the prenuptial agreement in your response. Your attorney would tell you the same thing.

Contact the moderators if you wish to claim to be an attorney here on FA.

How was that for something relevant?

Oh, and btw, I don't buy that you are an attorney. I don't even buy that you read the entire thread.

 

[DrbyDesign01]

The only proactive thing that can be done (Notwithstanding Silverplum's pointing out of the oxymoron.) is to get an attorney. This is not going to go away easy or cheap. Since you are no longer going to lie outright ("Prove yourself"? You've proved your ability completely.), I'll give you a couple of clues.

The difference between a contract and a prenuptial agreement is that a contract requires consideration. In the facts stated, there is none.

Now, as to the agreement.

Family Code Section 1612(c):

From the prenuptial:
Looks to me like someone took an agreement from the interwebs without understanding it. Also, all the proforma representations listed in the purported agreement were designed to comply with Family Code 1615:

Now, I'd have to believe the separate, required, signed writings would have been mentioned BEFORE some folderol about "witnesses" or "etc". I'd also think there would have been mentioned the Husband was represented by an attorney before signing and not just that he had an opportunity to have obtained one. All that is a matter of law even before discussing the specific facts of this marriage. We have none of those. Why did they all get married and what did each hope to gain? What is really going on here?

But, the bottom line is sister should be worried. If she earns enough to have husband even contemplate 50% of property and $48k support a year, any moment, any thinking, any conversation, any clever case looking up, any stupid case looking up, is simply a waste of time and will cost more in the end. Attorney.

I disagree the prenuptial is valid with or without a putative claim. This is a simple case that you guys are making much too hard. File a response and move to make the marriage voidable. Let him respond with a putative claim, then say well I'm glad you did that, here is my prenuptial agreement. No judge is going to invalidate it on an invalid marriage. Tranquility you are missing why the legislation was enacted.
This case is completely different. Putative is not valid when the prenuptial agreement even mentions it. Period end of story.