Working with divorce every day, I am very aware of the financial struggles that couples face at the end of marriage.  None of these issues are strawberries and ice cream, but the one area that causes more heads to explode than any other is without a doubt, the area of spousal support.  Spousal support (also called alimony in some States) is the payment that the higher earning spouse typically makes to the lower earning spouse after a separation or divorce.

Rather than go through a lengthy explanation of support law in California, I thought I would dedicate this post to a brief discussion of perspective.  Higher earning spouses always want to know why the heck they have to pay.  So here’s a primer for you.

The historical concept of marriage is that two people come together to form one financial unit.  When that happens, a division of labor is generally efficient.  One person does laundry, the other dishes.  More traditionally, one takes care of children while the other takes care of money.  Or perhaps one plugs away at their small business while the other stops working to manage construction on a house.

Either way, the upshot is that typically, one spouse is advancing their career and saving money while the other is not.  This works just fine so long as the family unit remains intact. Without the rules we have in place for division of community property and payment of spousal support, non-working spouses could be left without anything to live on after divorce.

California wants to protect the non-working spouse so that the welfare system doesn’t have to feed those people.  On the other hand, public policy also detests abuse and does not want to overpay recipient spouses.  For this reason judge’s have quite a lot of discretion to limit support when appropriate.

The point is, California has rules in place that are intended to protect both parties in a marriage. Both sides typically think the rules are unfair when they’re being enforced, but the legislature hasn’t come up with anything better.

If you are concerned about the payment of spousal support in your marriage, the best way to minimize it is to have signed a valid premarital agreement (prenup).  Postmarital agreements can also be effective in this area.  Absent those documents, however,  support is virtually guaranteed when there are disparate incomes.

Since my last post, I’ve had several questions about the timing specifics for California premarital agreements.  Here are several key California prenup timing rules to keep in mind.  First, California law requires that seven days pass between the time you are first presented with a premarital agreement, and the time you sign it.  This is rather cleverly called the “Seven-Day Rule.”  Here’s a link to California Family Code Section 1615 in case you want to actually read the law.

You may have noticed that this rule is anything but crystal clear.  Some lawyers believe the rule means that seven days must pass between the time you deliver the final draft of your agreement, and the time you sign that draft.   Other lawyers believe the provision means you must wait seven days between the first time you discuss a prenup with your fiancé, and the time you sign the final draft.   You and your California prenup lawyer should discuss this issue if you have any questions.  If you’re concerned about enforcement, you should probably take the most conservative approach, and wait seven days between delivery of the final draft to your fiancé, and signing of the agreement.

Another timing consideration is whether you should sign on your wedding day.  Rather than give a direct answer to that, allow me ask another a question: who really wants to think about a contract on their wedding day?  Nobody, and for good reason.  You can’t possibly consider all the ramifications of signing a premarital agreement when you’re about to walk down the aisle.  Trust me: sign before your wedding day.  The earlier before the wedding the better.

Closely related to the signing on your wedding day issue, is the question of when you should start discussing the agreement with your fiancé.  The rule here is to bring up the agreement before the wedding invitations go out.  You want to avoid the presumption that your fiancé had no choice but to sign and marry you since Aunt Flo had already bought her plane ticket.

You should also keep in mind that your lawyers are going to need some time to draft a solid agreement, and additional time to negotiate the wording of various provisions.  Depending on the complexity of your assets, this can take months.   A good rule of thumb is to call your lawyer before the invites go out, and if you can’t do that, then no later than four months before your wedding date.

Take a look at this NYTimes article about the necessity of holding money talks before marriage. Here’s an excerpt:

Divorce tends to be emotionally gut-wrenching for the people who go through it (not to mention those around them). But most couples don’t realize that divorce can also be among the most ruinous financial moves anyone can make…

The risk that any marriage will end in divorce is about 45 percent, according to David Popenoe, a professor of sociology emeritus at Rutgers University. The chances fall to about 40 percent for first marriages and decline further for college-educated couples, people from intact families and couples who share the same religion.

The article goes on to list several discussions that couples need to have before getting married if they want to avoid the statistics above.

Probably the first question people ask about premarital agreements (also called prenuptial agreements, or “prenups”), is “when should we start planning?” I’m sure you can guess the answer: start planning as early as possible.

There are two main reasons to get started negotiating your premarital agreement early.   First, if it ever comes to enforcement, courts want to see that all the parties involved had plenty of time to consider what they were getting into, and that they got into it voluntarily. That means no signing on your wedding day. When California courts invalidate prenups, they often do so because one party either didn’t know what they were getting into (for instance, they didn’t have a lawyer), or they signed the agreement under unfair pressure – for example, they didn’t have enough time to fully consider the agreement. Give your fiancé enough time to fully discuss the agreement with his lawyer, and you avoid both of these problems.

Second, allowing for plenty of time is the more graceful approach to a difficult topic. A prenup can make your marriage stronger if you approach it gently. This means not dumping the idea on your fiancé two weeks before the wedding. There is no better way to terrify your fiancé than demanding he sign an agreement when the invitations have already gone out. Imagine: grandma has already booked her ticket, the cake is already mostly baked, and the dress is just back from the tailor. You come home one night, and drop a prenup in his lap. What do you imagine is going to happen? It’s not pretty – that’s not the kind of pressure to place on your future partner. Trust me, give him time. Bring the topic up slowly. Discuss it in terms of what’s fair and supports your relationship. You’re entering a life-long partnership here. Treat it respectfully.

A good California prenup lawyer can guide you around all these issues. Some lawyers can even draft a document in just a couple of days, but that’s not a situation you want to find yourself in. The longer you wait to get started, the weaker your agreement will likely be. Take the time and do it right.