There is a rumor that embattled former senator and presidential contender John Edwards is going to marry his one-time mistress, Rielle Hunter.  Edwards is accused of conspiring to violate campaign finance laws by using approximately $1 million from campaign donors to cover up his affair and the child he fathered with Rielle Hunter.  If Edwards does marry Hunter, she would not be required to testify against him at the trial if she did not want to, and some theorists believe this is the only reason he wants to marry Ms. Hunter.  This is due to the testimonial privilege between spouses.  If this matter were a divorce, however, the privilege against spouses testifying against each other would not apply.

The spousal testimonial privilege can be a very powerful bar to testimony.  The privilege has two parts.  There is a privilege not to testify against one’s spouse and a privilege not to be called as a witness against one’s spouse.  A married person has a privilege not to testify against his or her spouse in any proceeding.  Additionally, a married person whose spouse is a party to the case has a privilege not to be called as a witness by an adverse party without the prior express consent of the spouse having the privilege.

The spousal testimonial privilege does not apply in divorce cases.  Spouses are often at odds regarding the way child custody and visitation should be decided or how assets
should be divided.  Anything a spouse says can be used against them in Court when disputing these issues.  One spouse admitting to hiding assets in a Swiss bank account, for example, cannot claim a privilege against having his wife testify against him when she wants to be compensated for losing access to the money.  People are wise not to say anything around their spouses that could later open the door to an unfavorable court action.

There are multiple ways that a spouse can communicate with their other half – in person, on the phone, email, text messages, etc.  During the family law litigation process, all
of these forms of communication and more can be discovered and used as evidence at trial.  Either spouse can get on the stand and state word for word what her spouse told her through any form of communication.  The other spouse is powerless to keep her quiet.

It is incredibly important to have excellent legal counsel to manage not only the formal process of a divorce, but also the communication between the parties.  In the Bay Area, a person is wise to engage the best San Francisco divorce lawyer available to help navigate these dangerous waters.

Some couples sign premarital agreements that include terms they know aren’t enforceable.  They do this because they wish to memorialize agreements in writing, whether or not California courts will uphold those agreements.

Other couples care mostly about protecting assets in case of a future breakup, and so enforcement is a top priority.

Either way, couples should consider the three prenup enforcement basics.  First, both parties absolutely must be represented by an attorney (even if one of the parties is an attorney themselves).  The case law has been quite clear on this score: when one party doesn’t know what they’re getting into, the prenup can be overturned.  Don’t risk it.  Get counsel.

Second, give the process time.  You must wait 7 days between delivering the final draft of your agreement to your fiancé, and the signing of that that draft.  Also, it’s best to begin negotiations before the wedding invitations go out.

Third, full disclosure of your financial picture is vital.  When in doubt, over disclose.  Each of you needs to know what you’re getting into if you want your agreement to be fair and enforceable.

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.