Spousal Support & Post-marital Agreement

[mrkismet]

What is the name of your state? California (Bay Area)

Greetings All,

First, I'm so glad I found this web site- I hope someone here can help me out...

A little bg info: I'm going through what they call in California, a "dissolution" aka divorce. We've been legally married 2 1/2 years, but we were separated after 1 1/2 years (also a matter of contention). I digress... Four months into the marriage we signed a Post-marital Agreement which included a waiver of spousal support forever. Now my better-half is trying to get spousal support by stating that the "provisions in post-nuptial agreements providing for a waiver of spousal support are void as a matter of law". Her attourneys are basing this on Family Code 1620 (originally codified as civil code 159, i think) and the CA supreme court in Pereira vs. Pereira (1909!!). Also, Dexter vs. Dexter (1954) 42 Cal 2d 36, Boland vs. Boland (1935) 7 Cal. App. 2d 401, Brown vs. Brown (1927) 83 CA 74, Lane vs. Lane (1926) 78 Cal. App. 326. Anyway, I digress again..

My question: What can I do to have the agreement upheld?

I need help!! I can not afford 40-50% of my salary going to pay her alimony (which she'll just use for shopping!).

Frustrated and losing faith fast.

 

[I AM ALWAYS LIABLE]

My response:

First, the bad news. Basically, your post-nuptial agreement isn't worth the paper it's written on. Marital agreements historically have been subject to several public policy restraints: i.e., the agreement is unenforceable to the extent it "promotes dissolution," waives or limits child or spousal support, impinges on the court's exercise of jurisdiction to adjudicate child support or child custody, "alters legal relations" incident to marriage, or provides for "fault"-based penalties at marriage dissolution. [See generally, Ca Fam § 1620; Pereira v. Pereira (1909) 156 Cal. 1, 4-5, 103 P 488, 490; Diosdado v. Diosdado (2002) 97 Cal.App.4th 470, 471-474, 118 Cal.Rptr.2d 494, 495-497]

Now, the good news. You have a short term marriage. She's bound to get spousal support for about 6 months, TOPS, and then it's all over.

The facts and the equities in one case may call for no spousal support, or for very short-term support for the purpose of financially assisting one spouse in the transition to single status or until the proceeds from an ordered property division or sale can be received . . . At the other end of the spectrum are cases where the purpose of spousal support is to provide financial assistance to the supported spouse until the death of one of the spouses because . . . the supported spouse is not able to generate income from employment or assets, or, in any event, an amount of income sufficient to provide for his or her reasonable living expenses . . . In between are the myriad of factual circumstances which the trial court must consider in making its order for purposes which vary from case to case . . . [e.g., fixed-term support to enable supported spouse to obtain or complete an education, to stay home to care for young children, or to become self-supporting within a reasonable time] . . .

In other words, the purpose of spousal support cannot be defined by the Legislature; it is a determination to be made by the trial court in each case before it, based upon the facts and equities of that case, weighing each of the circumstances or guidelines specified by the Legislature in [Ca Fam § 4320], which are applicable to that case, as well as those specified by appropriate appellate case law . . . The issue of spousal support, including its purpose, is one which is truly personal to the parties." [Marriage of Smith, supra, 225 Cal.App.3d at 480-481, 274 Cal.Rptr. at 916-917 (brackets added); see also Marriage of Plescia (1997) 59 Cal.App.4th 252, 258, 69 Cal.Rptr.2d 120, 124--purpose of permanent spousal support is "to make an equitable apportionment between the parties"; Marriage of Cheriton, supra, 92 Cal.App.4th at 312, 111 Cal.Rptr.2d at 788--"Given the variety of purposes to be served by spousal support, it follows that the trial court must be invested with broad discretion in fashioning such awards"]

The length of the parties' marriage bears both on the "need" for support (whether it should be ordered) and on the amount and duration. The longer a spouse has been out of the job market on account of the marriage, the stronger the case for granting support; by the same token, a relatively short marriage can, depending on the other § 4320 factors and the "totality of the circumstances," offset alleged "need" and justify a lower level of support and/or a shorter support term. [Marriage of Bukaty (1986) 180 Cal.App.3d 143, 150, 225 Cal.Rptr. 492, 497; Marriage of Huntington (1992) 10 Cal.App.4th 1513, 1520-1521, 14 Cal.Rptr.2d 1, 5]

Moreover, duration of the marriage has particular significance on the issue of retention of jurisdiction to extend spousal support in the future. At least one court is of the view that "Richmond orders" are the "most appropriate form" of spousal support awards in all cases except: (i) where spousal support either is not ordered or is ordered for a fixed term of short duration; (ii) in the "most lengthy marriages" where circumstances truly justify "permanent" spousal support; or (iii) where the supported spouse does not possess the capacity to become self-sufficient (e.g., health or age complications). [Marriage of Prietsch & Calhoun, supra, 190 Cal.App.3d at 666, 235 Cal.Rptr. at 597; also see Marriage of Stallworth (1987) 192 Cal.App.3d 742, 755, 237 Cal.Rptr. 829, 838 (citing with approval policy preference expressed in Prietsch & Calhoun)]

By the same token, the trial court's refusal to grant an obligor spouse's request for a "Richmond order" under circumstances warranting a reservation of jurisdiction is not an abuse of discretion. [Marriage of Stallworth, supra, 192 Cal.App.3d at 755, 237 Cal.Rptr. at 838]

IAAL

 

[mrkismet]

Hey, thanks IAAL.

Your quick reply is much appreciate, even if it is sorta bad news. What good is a pre/post-nuptial agreement then? Moreover, what good is any contract if it cannot be enforced? This is just my opinion, but it seems like the Courts are sex-biased when it comes to divorce. Guilty until proven innocent Just rhetorical question out of frustration. *sigh*

Actually, I think of myself as a honest and honorable man. If I felt that my wife (ex-wife?) deserved support I would give it to her willingly. But she does not. The reason we are dissolving the marriage is because it has become clear she only married my to obtain a greencard (she is not a u.s. citizen). She commited D.V. against me on May 14th of this year, and she was arrested. I got a E.P.O against her which forced her to move out. Dissolution followed. Now she's trying her hardest to make life difficult for me, financially speaking, out of spite. She doesn't need the money. I believe that she is cohabitating with a b.f. who pays her bills.

I just wish I could prove fraud somehow and have the marriage annulled.

Justice is a dream

 

[mrkismet]

Hey, what about CA Family Code §§850-853, in which Marital Agreements are specifically authorized by California law? And Family Code §§1500-1503?

These codes state that a couple can manage their finances according to their preferences, rather than by the automatic operation of law.

In fact, in the recent Bonds case recent (April, 1999) the Prenuptial Agreement of well known baseball player Barry Bonds was upheld out by the California Supreme (after being held invalid by a lower court because his Swedish wife was at such a disadvantage.)

Anyone have anything to say about this info as it pertains to upholding my post-marital agreement regarding the waiver of spousal support?

 

[I AM ALWAYS LIABLE]

The Voice of Conservatism

Hey, what about CA Family Code §§850-853, in which Marital Agreements are specifically authorized by California law? And Family Code §§1500-1503?

These codes state that a couple can manage their finances according to their preferences, rather than by the automatic operation of law.

In fact, in the recent Bonds case recent (April, 1999) the Prenuptial Agreement of well known baseball player Barry Bonds was upheld out by the California Supreme (after being held invalid by a lower court because his Swedish wife was at such a disadvantage.)

Anyone have anything to say about this info as it pertains to upholding my post-marital agreement regarding the waiver of spousal support?

My response:

You're mixing apples and oranges. Don't confuse the legitimacy of a "PRE-nuptial" agreement with a "POST-nuptial" agreement.

Two adults are free to make a contract BEFORE they are married concerning their conduct and rights PRIOR to being married. But, once they're married, and in the absence of an agreement that isn't against public policy, then the California marital laws kick into play - - which are against "POST-nuptial" agreements.

IAAL

 

[mrkismet]

Okay, how about this then...

CA Family Code Sec.

4336(a) Except on written agreement of the parties to the contrary or a court order terminating spousal support, the court retains jurisdiction indefinitely in a proceeding for dissolution of marriage or for legal separation of the parties where the marriage is of long duration.

-AND-

4337. Except as otherwise agreed by the parties in writing, the obligation of a party under an order for the support of the other party terminates upon the death of either party or the remarriage of the other party.

Or am I grasping at straws here? In F.C. Sec 4320, it states there are several factors to be considered.. what if I simply can't afford to pay support (as I'm obligated to pay my creditors first)?

Thanks again, IAAL.

 

[I AM ALWAYS LIABLE]

My response:

Yes, you're grasping at straws. These are two of the laws concerning "marital settlement agreements" that a judge will incorporate into the final order (or decree) of dissolution, and then sign.

The judge always retains jurisdiction until such time as all of the "promises" have been fulfilled.

Sorry pal, but the reality is that your "post-nuptial" ("anti-nuptial") agreement isn't worth anything. Only a "PRE"-nuptial agreement is considered by the courts and, for the most part, even these are disfavored by the California courts.

Sorry.

IAAL

 

[mrkismet]

Thanks

Okay. It's starting to sink in.

I must learn to adapt to the world that I live in. The reality, as it is becoming clear to me, is that justice is not a matter of logic, but a matter of law. The lawmakers stand with their backs to the sun, and see only their shadows, and their shadows are the laws. And what is the sun to them but a caster of shadows?

Thanks again, IAAL. I have a hearing on Friday. I'll let you know what happens.

 

[I AM ALWAYS LIABLE]

My response:

Fortunately, you had a "short term marriage". So, she'll be real lucky if she gets any support - - providing she's not a cripple, or that she's unable to be gainfully employed. However, if she does obtain an award, it will be small, and short-lived.

Okay, let me know how it goes.

Good luck.

IAAL

 

[mrkismet]

HELP!

Hey IAAL.. I just received the tentative ruling...

VERY BAD NEWS!

The ruling is that I must pay _40%_ of my net income for spousal support and it doesn't say when it will end! It just says that the supported party must in good faith try to get a better job, or something like that.

This ruling despite documented evidence of d.v. on her part, marital miscoduct on her part, proof of intent not to seek support, a short term marriage, evidence that she's cohabitating with a member of the opposite sex (her bf) who support her, prior financial obligations which make support an impossibility and a very well worded rebuttal on the anachronistic and paternalistic nature of Family Code Sec 1620...!?

I have opposed the ruling and will appear in court tomorrow morning. What do I do?!

Scared out of my mind I'll go bankrupt.

 

[mrkismet]

Judged by a Computer!!

Well, I had my hearing this morning.. all 10 minutes of it. The judge let me say a few things, but I didn't get a chance to articulate all of my arguments. What is this, drive-through hearings, or something?

On top of that, it was a default judgement! Why did I bother to even show up?! They just plugged my income into a computer and it spit out how much support I am obliged to pay. I was judged by a damn computer! No consideration whatsoever of my circumstances! No sympathy! Just because I am a hard worker with a good job, and my better half is too lazy to work, I am forced to fund her adventures in shopping and travel? What is wrong with this picture!?

Sheesh. I'm moving to another country.

 

[mrkismet]

Appeal?

Hey all,

Someone at my workplace mentioned that I can appeal the deciscion and that during the appeal process, I do _not_ have to pay support.

Does anyone know if this is true or bogus?

If true, can anyone give me a brief rundown on the necessary steps?

Thanks!

Down but not out.

 

[mrkismet]

Please read

Hey All, can someone familiar with California civil law please answer me this-

Is it normal after a dissolution of a marriage of only 2.5 years to award the wife support equal to about 45% of my net income?

Or did I get screwed and should I appeal?

Thanks!

 

[monnickasmommy]

YOU SHOULD appeal..