A premarital agreement is a contract you execute with your prospective spouse which may contain clauses that regulate the pending marriage, contain language limiting the transfer of property in the event of a divorce, discuss alimony and other things the spouses may deem relevant.  The basic premise of these agreements is to have them drafted to limit the possibility of the agreement being set aside at some point in the future and to allow the division of property to be limited to the terms of the contract instead of the courts should the parties divorce.

One of the things that is absolutely necessary in effecting premarital agreements are full and complete disclosure of all assets, liabilities, sources of income, prospective sources of future income and any/all information that may be relevant to the person’s financial position.  The premise behind this requirement is rooted in the Family Code and basic contract law.  It boils down to an issue of fairness in that both parties should fully understand what rights they may be waiving in the others’ property that they otherwise would have an interest in.

It should follow that usually full disclosure takes time.  This is not something to be glossed over because if you are going to be making the investment in having your attorney draft a premarital agreement for you, you want to give it the best possible chance of surviving any future challenge to the agreement.  As a San Francisco Family Law Attorney with experience in drafting premarital agreements, feel free to contact me for further information on this topic.  Contact my San Francisco family law office or e-mail me at parks@parkslawgroup.com.

Jesse-JamesJesse James who is commonly known as the celebrity for his show “Monster Garage” recently went back to family court last week to determine if ex Janine Lindemulder was fit to share joint custody of their child Sunny.  Janine Lindemulder is a former pornstar who was just released from federal prison for tax evasion and is presently staying at a halfway house.  In his moving documents, Jesse raised concerns that Janine had recently married someone she met at her halfway house.  Janine’s new husband allegedly has a criminal past including multiple felonies.  James has also asked the court to conduct a review to determine if their daughter will be safe during any custody/time with Janine.

Surprisingly the Judge has temporarily granted Janine unsupervised visitation with the minor child for six hours every Sunday.  The matter will be reviewed again in sixty days.  Jesse James was granted full custody of the couple’s daughter while Janine was serving her six month prison term.

Assuming that Janine will want a change in custody which will likely be contested by Jesse James, it is likely that the court may order a child custody evaluation to determine what is in the child’s best interests and to address the concerns raised by Jesse James and the safety issues with Janine’s new husband.  The child custody evaluator in such proceedings is given considerable weight and their eventual recommendations often are adopted by the courts.  Jesse James is presently set to return to court on December 7, 2009.

Credit: AP

Credit: AP

There is an old saying that a bitter marriage leads to a bitter divorce.  Clearly if a couple cannot get along after saying “till death do us part” there is a great likelihood any divorce terms or child custody battles will be filled with disagreement and bitterness.  Just look at the Gosselin mess!

News comes from People Magazine that  Christie Brinkley and ex-husband Peter Cook are going back to court each requesting the other be put in jail.  It comes as no shock that along with jail time, Brinkley wants Cook to sell the boat the couple used during their marriage to help pay her legal fees.  Cook’s attorneys are claiming Brinkley refused to turn over their child’s passport which caused the child to miss a school trip to Israel, chaperoned by Cook.  Cook’s attorneys also believe Brinkley should be jailed, pay attorneys fees and be forced to attend anger management.

Since I’m not furnished with all the facts I can’t estimate how this will turn out, but my gut tells me the judge will be unhappy with both parties.  All of this arguing probably relates to accusations of breaching a marital settlement agreement.  Requesting jail though?  You better have a very good reason for that!  From a child’s perspective is it beneficial to have mom or dad jailed?  This is one thing the judge may have to look at.

Credit: Courtesy of T-Shirt Deli

Credit: Courtesy of T-Shirt Deli

According to the Texas Lawyer, a judge in Dallas has held that Texas’ constitutional ban violates the 14th Amendment.  Back in November 2005, voters approved the constitutional provision but the recent decision carves away at the ban.  Texas Constitutional Article 1, Section 32(a) which provides, “marriage in this state consists only of the union of one man and one woman” was held by Judge Tena Callahan to violate the 14th Amendment.  The particular case was a situation where the parties were legally married in another jurisdiction [one that presumably has permitted gay marriage] and were seeking to get divorced in Dallas County, Texas. 

With the ban on gay marriage in place, it would not be possible for the State of Texas to have recognized the gay couple had a valid marriage to begin with which is a necessary prerequisite to a divorce.  Here the Judge ruled “the [Texas] Court had jurisdiction to divorce parties who have been legally married in another jurisdiction and who meet the residency and other prerequisites required to file for divorce.” 

I would imagine an appeal would be underway and would not be surprised to see this issue taken to the State Supreme Court.  The reality is some couples who have registered as domestic partners or have participated in a valid gay marriage may be faced with tough choices if they had to move to a state that did not recognize either.  This area of the law is continually developing.   California of course recognizes domestic partnerships and the legal battle continues as to whether denying gay marriage here violates the Equal Protection Clause of the State Constitution. 

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