What Is a Postnuptial Agreement and Why Should You Consider One?

While the idea of a prenuptial agreement may not have even been on your radar as you got engaged and started your life with your spouse, we all know that circumstances in life change through the years.

The family law attorneys at Azemika & Azemika have been providing expert service to Kern County for over 28 years. Our clients have peace of mind knowing that they are receiving knowledgeable representation at an affordable cost.

Today, we will discuss what a postnuptial agreement is and why you may want to consider one.

How Long Have Postnuptial Agreements Been Around?

Before the 1970s, postnuptial agreements were not usually enforceable. When a couple was married, for legal purposes they were considered a single person, and a single person can not enter into an agreement with themselves.  

However, as more couples began pursuing divorces and more states began establishing “no fault” divorces, postnuptial agreements became more extensively enforced.

Why Would Someone Need/Want a Postnuptial Agreement?

In the past, like prenups, postnuptial agreements tended to have a stigma attached to them. They have often been viewed as “encouraging” divorce. However, just because a couple is entering into a postnuptial agreement doesn’t automatically mean they are thinking about divorce.

Here are some reasons that a couple may enter into a postnuptial agreement:

  • To clarify what each party’s intentions are for the property they brought into the marriage.
  • If a spouse has children from a previous marriage/relationship and they want to make sure that particular assets get passed on to those children.
  • One spouse has been irresponsible financially or has gotten into legal trouble during the marriage.
  • If one spouse receives an inheritance, wins the lottery, or encounters another type of financial windfall.
  • If one spouse leaves their job to stay at home to care for their children, a postnuptial agreement can ensure that they will have the resources they need financially if the marriage were to end in divorce.

What Provisions Are Included in a Postnuptial Agreement?

Prenuptial and postnuptial agreements typically include the same types of provisions.   The primary difference is that a prenuptial agreement is entered into before a couple is married, and a postnuptial agreement is entered into after the couple is already legally married.

Typical items included in a postnuptial agreement are:

  • Protection from debts that your spouse has incurred
  • How mutual debt and assets will be divided
  • Provisions for children from prior marriages or relationships
  • Whether one spouse will pay spousal support and for how long the payments will continue
  • The ownership of businesses, property, family heirlooms, or inheritances
  • How assets will be handled in the event of the death of one of the spouses during the marriage

Postnuptial agreements can also include custody and child support if the marriage ends.  Sometimes, however, if the courts determine that the postnuptial agreement tries to restrict or limit child support or parenting time with children, they may not enforce that part of the agreement.

What Are the Different Types of Postnuptial Agreements?

There are three different types of postnuptial agreements in the United States.

Dividing assets and providing for spousal support – This is the most common type of postnuptial agreement.  It lays out how assets and debts will be split in the case of a divorce.  Spousal support is also addressed, as well as if one spouse waives spousal support in place of certain marital property.  This type of agreement includes property brought into the marriage by each spouse and any property acquired throughout the marriage.

A way for each spouse to waive spousal rights in the event of the death of their spouse – This type of agreement will supersede a will or state laws that give spouses certain property rights.  When signing this type of agreement, each spouse waives their rights to inherit property or other assets of the deceased spouse.

Provide a layout that can later be used as a separation agreement – This agreement spells out how custody, child support, and spousal support are to be handled and how the couple’s assets and debts will be divided.  This type of postnuptial agreement can be integrated into the divorce decree, limiting the time and cost of a divorce.

Let the Professionals Help You With Your Postnuptial Agreement!

Although no one wants to think of their marriage ending in divorce, a postnuptial agreement can help you avoid the burden and extra stress of hashing out the details in a very emotional and trying time in your life.

At Azemika & Azemika, we focus solely on family law so you can know, without a doubt, that your family law issues are in good hands.  Our clients can expect superior service from attorneys and staff that care about their needs.

Contact us now to schedule your consultation and see how Azemika & Azemika can help you!

How to Talk About a Prenup With Your Partner

When you get engaged, you’re not expecting or hoping that your marriage will end in divorce. You’re expecting happily ever after. But in reality, you know that some marriages do end in divorce.

There is a stigma attached to the idea of getting a prenuptial agreement (also known as a prenup). Many people see it as their partner not being “all in” on the relationship or that they are expecting the marriage to fail before it even begins. This can make it difficult to talk to your partner about it if you decide that a prenup is what you want.

At Azemika & Azemika, we have helped people navigate legal issues pertaining to family law in Kern County for over 28 years. Our practice focuses solely on family law, so you can be assured that we have the knowledge and experience needed to help you work through the process of any family law issue you are facing. 

Prenuptial agreements are a commonplace and wise way to ensure that in the event of a divorce, you and your partner’s assets are protected. Today, we’re going to take a look at the prenup discussion and address how best to approach the conversation with your partner.

Start the Prenup Conversation Early.

The sooner you bring up the conversation, the less pressure you will feel. Addressing the conversation shortly after your engagement can make your partner feel more relaxed and more willing to communicate with you.

Even better, if you address your desire for a prenup while you are still dating, you can use your partner’s reaction to decide how to handle the subject later in your relationship. Not only that, they will know your thoughts on the matter early enough to process the idea of a prenup. It is recommended that you have the conversation before your engagement if possible, so that it becomes less of a conversation of the trust between you and your partner as you become increasingly committed, and instead more of a conversation on the concept and benefits of the agreement.

Make Sure to Emphasize That There Are Benefits to Both of You.

If you point out the fact that a prenup can significantly benefit both of you, your partner may feel less intimidated by the idea.

Prenups can provide emotional and financial stability if your marriage ends in divorce. Since everything has already been planned, there is less fighting, less tension, and it allows both of you to move on with your lives with all the variables already considered.

Discuss and Decide the Terms Together.

If you go into the conversation with an agreement in hand, most likely, your partner will immediately become defensive. If your attorney has drawn up the contract, it will most likely have been drafted in your favor.  

Instead, look into hiring a mediator to write the prenup with your partner so that you both have input, and it will allow the two of you to discuss what expectations you each have for your marriage.

Be Upfront With What You Want.

If you want to draft a prenup without causing resentment from either party, you have to trust and communicate with each other openly.  

If you want something in the agreement, being open and honest with your partner will help them understand what is important to you. When you suggest a term of the agreement, especially one that you think will trigger your partner, make sure you take the time to help them understand why you want it. The more they understand your “why,” the better the conversation will go.

Listen to Your Partner.

There will be terms of the agreement on which you will both agree. But your partner will likely have some concerns that are different or even the complete opposite of yours. When this happens, be sure to listen to them with an open mind, and be sensitive to their needs and concerns.

Every disagreement that comes up allows the two of you to improve your relationship and understand each other better. This whole process isn’t to “win” or “be right.” It is a chance to strengthen your relationship and build a steady partnership for the union to come.

Make Sure You Leave Room for Change Through the Years.

A prenup should cover more than just what you have at the time of drafting the document. It should also consider things that haven’t happened yet.

Right now, you may not have much, but in the future, that could change. When the document is drafted, you could be running your own business while your partner has their own career. In the future, your partner may play a significant role in your business, or perhaps you or your partner steps back from their career to stay home and raise your children.

The possibility of all of this should be taken into account when drafting the prenup as well.

Need Help Talking About a Prenup With Your Partner? Call Azemika & Azemika.

A prenuptial agreement can help relieve undue stress during a difficult time in your life. Knowing that your assets are protected and that the solution has been laid out can help you move into your marriage with peace of mind.

Let the attorneys at Azemika & Azemika help you manage the process of drafting a fair agreement that will benefit you and your future spouse.  

Contact us today to schedule a consultation.

California Child Adoption Requirements

California Child Adoption Requirements

Adoption is a legal agreement under which the foster parents become personally liable concerning the child they adopt and gain all legal parental rights.

If you hope to achieve your parenting aspirations, it can be a great way to create or extend your family by bringing a child into your household and your heart. Indeed, each year in California, hundreds of thousands of successful adoption processes take place. In this way, many children who otherwise would not have their own families have become part of loving households. 

Their adoptive parents provide them with the treatment, security, and opportunity they need for safe personal development and growth.

Nevertheless, the process of child adoption in California can be life-changing, but also challenging and even confusing at times. It is also necessary for prospective adoptive parents to meet early on with a professional adoption attorney to know their options and better understand California child adoption laws.

Each state has its adoption process and laws, but the procedure will vary significantly for families in various states. As a native of California, you may want to consult with an adoption agency or adoption specialist who is very experienced with California child adoption requirements, its laws and policies. 

California Child Adoption Requirements and Laws

Adoption law comes under family law, which is regulated largely by individual states and differs greatly across the world.

The following are some significant factors in the adoption process and stepparent adoption in California:

1. Financial Status Requirements

Although you do not have to buy your own house to become an adoptive parent or reach a predetermined income standard, we have all heard the anecdotes of how much it takes to raise a child. 

Therefore, financial status, especially in single-parent adoptions, is often a concern. The court may require evidence that you can help and provide for the child as your benefits will come from employment, a pension, or disability compensation. 

A history of stable work can be seen by most courts not only as a symbol of financial security, but also as evidence of transparency and maturity. Outside the home, all members of a married pair or domestic partnership can work.

2.  Requirements for an International Adoption in California

As long as the adoption is finalized in a country of the Hague Convention, California will accept international adoption edicts issued under the laws of the United States and the country which authorized the adoption. In California, readoption is voluntary but may be necessary by the U.S. Homeland Security Agency. Readoption is the method of updating and legitimizing international recognition by a state court.

The procedure entails at least one in-home visit and filing the adoption appeal, the report of the interregional adoption court, financial records, the report of the home study, and the final order of adoption. 

A California birth certificate can be received by each California citizen who adopts internationally. Upon issuance of an adoption statement from the court or a readoption order, the state registration may create a new birth certificate.

3. Criminal Background Check

As part of adoption hearings, most states require a criminal background check. Minor violations, such as outstanding fines for parking, are generally of no significance. More serious allegations, however, may be a cause for worry and may affect adoption hearings. Of course, previous allegations of child abuse or neglect preclude an individual from being an adoptive parent.

4. Adopter’s age requirements

In the adoption process, always keep in mind that you should be at least ten years older than the child you are adopting. This age gap is part of adopting a child in California according to their child adoption laws.

5. Complete Home Study Examination

If you are planning to adopt a child in California, you must conduct a home study examination. This criterion for the adoption process and child adoption laws exists to show that you can provide the child with a secure, caring family and a peaceful environment. 

Also, the social worker appointed to your case will help you consider what sorts of choices could be better for your family, address your needs, and assist you in planning for the adoption process.

During the home study investigation, you will need to:

  • Submit your fingerprints
  • Subject to a physical test (A doctor’s note stating that you do not have any life-threatening or life-shortening diseases)
  • Attend lessons of an adoption school
  • Complete at least one separate social worker interview
  • A minimum of two trips to your home to see you and the child
  • Verification of working status and income.

Get Legal Assistance to Help You Meet California Child Adoption Requirements

Over the past 28 years, our partners at Azemika & Azemika have all successfully handled the most difficult and high asset family law cases in Kern County and we can help you, too. 
We are family law specialists and we understand that each case is as unique as the clients we represent. For comprehensive representation in the adoption process, contact us today.

TRIAL JUDGE WAS WRONG IN NOT GRANTING A CONTINUANCE OF HEARING IN A DOMESTIC VIOLENCE CASE

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A California Court of Appeals has ruled that a Trial Court was wrong, in a Domestic Violence Protection Act (“DVPA”) case, by refusing to grant a continuance to a Plaintiff who needed one to permit him to serve the opposing party and to give him time to recover from an unforeseen back surgery. In the case of J.M. v. W.T., Plaintiff, on January 8, 2019, filed a request for a DVPA protective order against Defendant. In a supporting declaration, Plaintiff asserted that between December 23, 2017, and March 17, 2018, Defendant committed several acts of domestic violence against Plaintiff (throwing a book at him, calling him offensive names over the phone, punching him with closed fist, biting him during sex, threatening to hurt his dog after the dog preferred Plaintiff to Defendant, and demanding entry to Plaintiff’s condo and then becoming physically out of control). Trial Court issued a Temporary Restraining Order pending the hearing and scheduled a hearing for January 29, 2019.

On January 24, 2019, Plaintiff submitted a written request for a continuance on California Judicial Council Form DV-115, explaining that he had been unable to serve Defendant with the necessary papers and that he was scheduled for spinal surgery on January 28, 2019, after which he would be unable to care for himself, stand or sit for a long period, or think clearly because of the medications. Neither party appeared at the January 29, 2019 hearing, and Trial Court denied the request for a continuance and dismissed the case, commenting that the incidents complained of happened almost a year ago.

Plaintiff appealed Trial Court’s decisions, and now a California Court of Appeals has reversed Trial Court’s decisions and remanded the case back to Trial Court with instructions. The Appellate Court has ruled that (1) under California Family Code Section 245(b), Trial Court must grant a continuance if a party shows good cause for one in writing or orally on the record; (2) the failure to serve the opposing party is grounds for a continuance; (3) here Plaintiff demonstrated good cause for a continuance on these facts; and (4) Trial Court abused its discretion by failing to grant a continuance. Therefore, the Appellate Court reversed Trial Court’s order denying a request for DVPA protective order and remanded the case back to Trial Court with directions to grant a continuance within 30 days of the case coming back to Trial Court.

HUSBAND LIVING IN FAMILY RESIDENCE AFTER SEPARATION OWES WIFE REASONABLE RENT BUT NOT INCREASE IN VALUE OF HOME

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A California Court of Appeals has ruled that Watts charges [a party having sole use of both parties’ community property asset, i.e., home, after separation can be charged for that party’s sole use, i.e., reasonable rental value of the home] may be ordered against Husband where Husband lived in his separate property house after the parties’ date of separation and Moore/Marsden formula gave the community a beneficial interest in the house because payments during the marriage were made with community property funds. In the case of In re Marriage of Mohler, Husband bought a house for $168,000, taking title in his sole name in February of 1995, prior to the parties’ marriage. Husband and Wife were married in September of 1998. They lived in the House until they separated on July 2, 2011. The payments on the House were made with community property funds [the parties’ earnings during the marriage] until that date. The principle reduction on the mortgage loan on the House was reduced during the parties’ marriage to the tune of $56,557. After they separated, Husband lived in the House and paid the house payments with his separate property funds [his earnings after the parties’ date of separation].

At trial in 2017, Trial Court valued the House at $530,000. The parties agreed that the Moore/Marsden formula [when community pays for one party’s separate property House during the marriage, the community gets reimbursed based on principle reduction of the loan on the House and appreciation in value of the house during the marriage] should be used to calculate the community property interest in the House acquired by making the mortgage payments. Using that formula, Trial Court calculated that the community property interest amounted to 33.66%, or $172,684 (appreciation value plus mortgage principle reduction). However, Wife argued that the community property interest must be increased to 64.9% to include the six (6) years that Husband lived in the House after the parties’ separation. In essence, Wife was arguing that she had to wait for six (6) years to receive her community property share in the House while Husband was solely enjoying the House and thus, her community property interest should be increased.

Trial Court agreed and re-calculated the community property interest under the Moore/Marsden formula at $332,944, which included Husband’s separate property payments of $52,482 [payments he made on the mortgage after the date of separation]. Husband appealed and now the California Court of Appeals has vacated Trial Court’s order and has remanded the case back to Trail Court with directions as to how to resolve the case.

The Appellate Court has ruled that (1) by making payments on Husband’s separate property House with community property funds [parties’ earnings during the marriage], the community acquired a beneficial interest in House the amount of which is calculated by the application of the Moore/Marsden formula;(2) the community ceases to acquire a beneficial interest in a spouse’s separate property when community property payments stop or date of separation occurs; (3) Trial Court erred by applying the Moore/Marsden formula beyond the date of separation after which Husband made house payments with his separate property [his earnings after the date of separation]; and (4) if any compensation is due to the community by reason of Husband’s living in the House after the parties’ separation, it must be calculated as Watts charges. According to the Appellate Court, “where, as here, the community does not own the property outright but instead maintains a beneficial partial interest in the property due to a Moore/Marsden calculation,” Watts charges may be applied. Therefore, the Appellate Court has remanded the case back to Trial Court for further proceedings in line with this opinion.