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.

Social media accounts like Twitter and Facebook are beginning to take their place in the pantheon of highly contested properties for divorcing couples in California. As we all know, couples dissolving their marriages divide a wide range of assets already – everything from cars and homes to stock options, businesses and artwork. The unavoidable fact is that social media accounts are property, and as the value of such property increases, so too will the litigation surrounding them.

In California, absent a prenup, any asset acquired during marriage is considered community property and must be divided evenly between divorcing spouses. Any property acquired before marriage, after the date of separation, or through gift or bequest (meaning inheritance) is considered separate property and immune from division. There are of course exceptions to these rules, but that’s a good overview.

By this definition, social media accounts created during marriage will almost certainly be characterized as community property. Accounts created prior to marriage may also be defined as community property in part, depending on whether the value increased during the marriage, and whether the personal effort of either spouse contributed to that increase (which of course it would have).

The terms of service of the various social media companies also play a role in defining whether an account is considered property and subject to division. Twitter, for example, defines the content which users create as the property of the user. Twitter sees the content as separate from the account services themselves which Twitter provides. Arguably, the right to access the account and manipulate the content is a kind of property as well.

The content within the accounts, and the right to access the accounts both increasingly have economic value, and couples understandably want to add all value to the marital asset division calculus.

The big hurdle, of course, is valuing the accounts. Valuation has always been more of an art than a science. This is even more the case when it comes to untested intellectual property assets like social media accounts. Some parties are looking to the actual business flowing from the accounts as a benchmark for determining value. Others are more inclined to take a multiple of earnings – the challenge being that earnings are just beginning to manifest for these assets.

This area of property division is new, but it’s heating up. Asset division provides many challenges to divorcing couples. Careful attention needs to be paid to properly value and divide IP, particularly this distinctly tricky type of IP. A person seeking to divide a social media account, just like any asset, is well advised to seek the counsel of an experienced California family law attorney.

Our office practices family law in San Francisco and the Bay Area. As a result, we work on the forefront of many of these issues. If you have questions, feel free to give us a call.

Many people fear that drafting a prenup means that they are admitting their marriage will end before it has even begun. The fact is (and please forgive my being a trifle morbid here) that all marriages end – if not in divorce, then in death. For this reason, the California state legislature (and every other state in the Union for that matter) has helpfully crafted a default (read “generic”) plan for you in case you die without an estate plan, or divorce without a prenup. So the question you should really be asking yourself, is not whether a prenup means your marriage will end, but whether the government’s generic plan is the right plan for you.

A prenup, like an estate plan, is nothing more than a document allowing you to take control over your property. Most people believe they are better suited to decide how their property should pass at death than the government, and the same logic often applies to divorce. Many couples also find that defining their expectations before marriage helps minimize conflict later.

If you have a prenup or are planning to have one, then you have already determined that the cookie-cutter government plan is not right for you and your family. Chances are that the government plan for how your property should be divided at death will not meet your standards either.

So with those preliminary points out of the way, let’s turn to the meat of this posting: the intersection of the two documents.

It is important for married couples and registered domestic partners to make sure that their estate plans and their premarital agreements are not in conflict. It is not uncommon for estate planning attorneys who do not have experience with family law to narrowly focus on issues such as minimizing “death taxes” at the exclusion of other previous intentions of their clients. A common mistake is for an estate planning attorney to re-title property for the sake of the estate plan, but in contravention of the premarital agreement. This can have the unfortunate effect of negating the premarital agreement entirely, and you can imagine the negative impact that might have.

Another example is that many clients on a second marriage want to ensure that their property will pass to their children from the first marriage, and not to the new spouse’s family. This is possible, but the estate plan and the prenup need to work in conjunction with one another to be effective. One document cannot do the job if the other is not in agreement.

For these reasons, it is extremely important that your attorney have an understanding of both estate planning and family law. The law around property varies greatly depending on the context and circumstances. Failure to have an attorney review your unique situation from a global perspective can have serious unintended and very expensive consequences.

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.

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.