Of my friends who have made good livings over the years, I’m probably the most financially secure. I’ve invested well. But more importantly, I’ve never been married. Unlike so many of my peers, I’ve never been “halved” in a marital dissolution. But this doesn’t mean I don’t have experience with the topic. It seems that now, in my forties, I’m witnessing as many of my buddies grinding through tough breakups as I watched strippers grind on those same guys during perfunctory lap dances at bachelor parties in our twenties and thirties. Most of these friends look to me for advice, and I do my best to offer it. But I’ve realized that I could be a better friend—and satisfy my own curiosity—if I sought out answers from an expert. So I recently sat down with a prominent divorce attorney who’s represented high-profile clients in the Los Angeles area for more than 40 years. Rick (not his real name) walked me through many lessons that can be learned from the drama and pain he encounters daily.
If a man is getting married, what should he be thinking about?
The first thing is how compatible their value systems are. The second thing is, what does he have to protect and would a premarital agreement work for them? In a premarital agreement, we can figure out the ‘what if’ and how it would work.
If you want to cap spousal support at a certain amount because your career has already been built up, you can do that. Let’s say you take a ball player who has a $10 million contract, and he got that contract because of his years of training and playing. That career has to be protected financially from the standpoint of earning power. Sponsorship income can be carved out, because that’s really for past services. If you have a career that precedes the marriage, you could be contributing your separate-property career to a community-property bank account, and that’s not something you necessarily want to do.
“There is no contract that has been rewritten by the courts more than premarital agreements.”
What if a guy has a small business, and his spouse doesn’t have anything?
The person would want to protect that asset. If there were a prenup, his interest in the business could remain separate, but the salary he takes out of the business can be community property. So, if the business is sold down-the-line, that doesn’t become community property, including the increased value of the business. You’ll have a valuation of assets that were acquired before marriage and it will be disclosed and there will be wording that protects separate property.
Can people get around a prenup during a divorce?
A judge can throw out a premarital agreement if it is “unfair” at the time of enforcement; or, if the disclosures were not correct; or, if it were instituted under duress; or, if one person lacked capacity when they entered the agreement. Let’s say the woman had six children at the time of enforcement, but the premarital agreement had a waiver of spousal support. I think a judge could throw out that waiver. There is no contract that has been rewritten by the courts more than premarital agreements.
This makes me wonder what I should do if I were going to live with someone, as I have in the past and could conceivably do again. Should I have something in writing with them?
I think that’s very important but many people can’t get themselves to propose that type of an agreement because they are saying to the person they want to live with, “Let’s live together to see how we get along,” without any promises.
“Anyone can sue for anything. There’s always someone out there who’s going to take the case. You’re really better off having an agreement.”
What could happen if I didn’t have a pre-cohabitation agreement, or whatever it’s called?
If she gets sick, you’re putting yourself in jeopardy because she’s not working; or if she lost her job and you’re taking care of her. Those are the kinds of things that can be very harmful, economically. She could have potential rights of a quasi-contractual relationship, based on promises and how you held yourself out to the public. If there were letters at Valentine’s Day or Christmas or birthdays, saying “I’ll always care for you and I will love you forever…” and you were providing her with important things like cars or anything that puts you together contractually; then chances are you would be approached to give her money to get reestablished. It’s a risk issue. Anyone can sue for anything. There’s always someone out there who is going to take her case. It’s the cost of a potential loss and the cost of legal fees. So you’re better off settling. You’re really better off having an agreement.”
If someone wants out of his marriage, what should he do?
He should see a divorce lawyer, right away. The first thing we would do is create a binder of all assets and liabilities and all income and the sources of the assets, whether they were separate or community; whether or not there was deferred income, so we would get an understanding of what child support would be and what spousal support would be. Child support is pretty easy, because there’s a computer program that tells you what a judge is going to be looking at. With no children, it’s usually easier, especially if it’s a longer-term marriage, say 12 years [shorter marriages usually pay support for a set amount of time; if it’s longer term, it can go on indefinitely].
If a man is leaving his wife for someone else, does that change anything?
It will change the anger level. It will not change the law. However, if he has given community property to that person, that community property can be clawed back.
Should a man tell his wife that he’s leaving her for someone else?
I would wait to determine whether or not it was necessary to tell her. But I wouldn’t lie to her if she said, “I know there was someone else in your life.” I would be very careful about how I would respond to those questions. He should keep things as calm as possible and not aggravate the situation.
“In my 38-year-marriage, I’ve learned what not to do.”
In addition to wanting to lessen the aggravation, a big concern for most entering a divorce process is limiting their legal bills. What advice could you give someone on how they can keep their costs down?
By being organized. They have to fill out a form of their expenses, and the lawyer needs to back it up. I have had people show up with a grocery bag full of receipts and expected me to figure it out. That just costs a lot of money to unravel. And secondly, by being in communication with your attorney and not being an absent client. It’s impossible to represent an empty chair.
Many of my friends have complained about their divorce attorneys. What are the signs that you aren’t being represented well?
How well your attorney listens to you is number one. I’ve seen lawyers take conference calls while with a client or multitask: Write emails, text, et cetera. It’s very obvious when they have their mind on other things instead of being there for a client. If the attorney is too busy to put the time into their case, then it is time to leave. And it is better to leave sooner than later. Also, many lawyers love to write self-serving inflammatory letters [to the other side]. They do it for control and to create situations that will generate more fees. There are people out there who are just nasty, and they think that’s how the game should be played.
What have you learned as a divorce attorney that you’ve brought into your 38-year marriage?
Well, I’ve learned what not to do. If you can get the point across that I’m not right, necessarily, and you’re not right, necessarily, then we can discuss things and get to the middle and try and work things out so it’s not a burr-under-the-saddle kind of situation. Some of the smallest things can be blown out of proportion and make things uncomfortable.
That is the best guidance Rick gave me. Maybe if more people could simply do a little more to not let marital problems explode, they wouldn’t have to go through all of this costly unpleasantness. Still, I think I’ll take a wide berth of it all and remain unmarried.
Follow Gavin Polone on Twitter: @gavinpolone