Show Topic: Prenuptial Agreements
This show aired on May 7, 2017, and was hosted by attorney David Enevoldsen. Topics included prenuptial agreements, many of the common objections to prenuptial agreements, whether or not a prenuptial agreement dooms your marriage before the marriage has begun, and how a prenuptial agreement can protect you and your spouse during marriage.
Headlines
Headlines on this show looked at Charles Rogers and how he was convicted of forgery for faking divorce documents to preserve a relationship with his mistress, and the controversy over DaddyOFive, a Youtuber that published abuse he was perpetuating on his children, and the subsequent involvement of the Courts and Child Protective Services.
Did You Know
This show’s Did You Know looked at research by Rassim Khelifa on a behavior in female dragonflies that involved feigning death to avoid sex. This was extrapolated into other studies on humans and libido.
Transcript
Announcer: Family law report is hosted by Family Law Guys, an Arizona family law firm. Family Law Report is dedicated to confronting difficult issues related to marriage, divorce and children. This can range everywhere from addressing the legalities and controversies of topics like gay marriage to current problems in the divorce system, to simply providing tips to those getting married or going through a divorce or custody fight. Tune in every Sunday to Family Law Report at noon, here on KFNX. If you want to know more or to schedule an appointment with David or another one of the Family Law Guys attorneys, call 480-565-8680, that’s 480-565-8680.
Announcer: The discussions and information provided in family law report are intended to be in general in nature and are not directed for any individual circumstances. No attorney client relationship is being formed through this program. If you need legal advice, your particular circumstances can vary from what is presented here and you should seek the advice of an attorney licensed to practice in your state.
Announcer: Welcome to the Family law report, the show that explores issues related to marriage, divorce and children. Hosted by David Enevoldsen a practicing family law attorney in Arizona. Now here’s your host.
David: Hello, everybody welcome to Family Law Report. I’m your host David Enevoldsen here with you every Sunday at noon on Independent Talk 1100 KFNX. Here on family law report we talk about all the current topics of family law and that can range from anything that’s happening in the political arena to just basics about divorce or custody matters like, how do you get through a divorce or how do you get through a case that you’re working on. I am a practicing family law attorney and when I say family law I mean, anything related to marriage, divorce, fights over custody of children, child support, grandparents rights, prenups, anything of that nature. I’m a partner at a law firm called Family Law Guys, that’s an Arizona firm that focuses primarily on helping divorcing parents avoid getting screwed out of time with their children.
We have offices here in the Phoenix area and while we don’t practice outside of Arizona, if you want to call us and schedule an appointment to talk about your case, you can do so by calling 480-565-8680 or you can check us out on our website www.familylawguys.com.
Today’s show, we’re gonna be talking about something that I think is possibly very controversial, at least in my experience, prenuptial agreements, and every time I bring that up I get some very visceral reactions from people in one direction or the other, there are people with very strong feelings about it. So we’ll get into that in just a bit.
I am joined today by my co-host Shelly Rosas. Shelly works for the same firm as myself, Family Law Guys, so we aren’t just guys, we also have a female presence there as well. Thanks for joining me, Shelly.
Shelley: Good morning.
David: Before we get into the prenup topic, we’re gonna hit our headlines for what’s been going on in the press recently. First off, there’s an article about a fellow named Charles Rogers who is a governmental official, so to speak. He is a member of a village council in Northport, Michigan and he was married and he had mistress in London. Well, the mistress apparently was going to leave him, so Rogers decided to manufacture divorce documents to keep this mistress on the line. So he creates the documents, forges signatures on them, then takes a snapshot of it with his phone, sends that to the mistress in London saying, “Hey look. I’ve gotten this divorce so everything’s cool, so we can continue to have an affair.”
Well, of course he hadn’t had the divorce yet. It hadn’t actually gone through. So the mistress ends up reaching out to the wife, who then in turn reaches out to the police, and then he gets arrested and he was charged criminally and that proceeded on to charges for … He ended up taking a plea for forgery and he’s now serving a 90 day jail sentence. As far as I know, he hasn’t been taken off of the village council there in Northport, Michigan. I thought this was really interesting story just because, number one, you’ve got this somewhat arguably corrupt official that’s trying to preserve this mistress relationship while he’s married, and is going to pretty great lengths to do that. I also think it’s interesting because the affair situation is such as high stressor, and one of the major things we see that pops into the divorce realm.
When people come in we there’s a number of really common problems we see. They’re saying, “I’m ready for divorce.” One of the major ones is, things like, somebody’s having an affair, or there’s an unhappiness about sexual compatibility or something. Then because of that somebody reached out to somebody else. That can be a major stressor. So here we’ve got another one of these somewhat public officials, well he is a public official. I’m not sure that he’s a public figure per say, because it sounds like it’s a small town, but it is something in the press. Where you’ve got someone going through some of the same basic problems we see in all of these other divorce cases. I didn’t hear if Rogers’ wife had filed for divorce. I’m assuming there’s something negative looming on the horizon for him, but it was an interesting article nonetheless.
Also in the press, there’s been quite a bit of buzz around a YouTuber who’s got the name DaddyOFive. If you’re not familiar with him, and I wasn’t until I saw all the press around it. DaddyOFive is a YouTube channel, had over 750,000 subscribers. The whole idea behind the posts are, it’s this family, in a blended family type situation. They are promoting what they call just daily videos of their life-what they’re saying are just typical videos. There is a father there, Mike Martin is his name. He’s got his son Cody and his daughter Emma who are from a different relationship. He’s married to Heather, and Heather has three of her own kids from a different relationship, and they all live together.
So each of these videos, as I understand they were coming out on at least a daily basis, or roughly daily basis. In a bunch of these videos there were all sorts of pranks, is what they labeled them. The pranks seemed to just get more and more excessive and more and more disturbing. I watched a number of these videos. A lot of them are targeted at Mike’s son Cody. There’s a large number of them, and when he does pranks they’re really extreme things. There’s stuff like … The two parents, Mike and Heather will come in and they’ll manufacture this situation like that there’s some problem. They’ll create a mess. Then they would bring Cody in and then start screaming at him about how he came in and did this problem while the kid is like crying and screaming saying, “I didn’t this”, and they’re just yelling at him that he was bad and did this horrible thing.
There’s another one where the dad comes in and just starts screaming at Cody about the fact that he hadn’t done something related to school work, which in the video it didn’t even seem like there was any indication he hadn’t done this thing. So he comes in and he just starts screaming. He’s like, “Oh so you’d rather just play games on your Xbox than to do your homework. Well fine you wanna play games?” Then he runs out, and then he comes back with a hammer and just starts smashing the kid’s Xbox in front of him. The kid is like curled up on the bed screaming. He’s crying. Then the dad walks out. The older son walks in and starts kinda laughing at him and making fun of him about the Xbox. Meanwhile this child is huddled in the corner crying on the bed.
Then the dad walks in and say, “Oh look here’s your real Xbox. We smashed a different one.” Then he walks in with it. Stuff like that … There’s another scene where the dad is encouraging the kids to hit each other in this game where they’re supposed to smack each other in the face. There’s a scene with the sister Emma. Emma who is this young girl. She’s supposed to get smacked in the face at this one point, and the dad says, “You’re not supposed to hit girls. Except this is your sister, and she doesn’t count.” Then the first kid ends up smacking Emma, and she starts crying, and everybody’s just kind of thinks this is really funny.
There’s scenes where the dad encourages the older child to do this flip of Cody who ends up face planting into the ground, and then starts crying. There are scenes where the dad is hitting and shoving Cody. It’s over the top crazy. I was really disturbed when I watching through all this stuff.
Shelley: And my first question to you was, “Isn’t anybody doing anything about this?”
David: Yeah, well it was kind of amazing to me that nothing had happened. I had never seen it. So I think maybe part of the problem was that there wasn’t attention on it. So my understanding is that there was some investigation by their equivalent of Child Protective Services. I think that’s what they call it there. We call it DCS, the Department of Child Safety. In whatever state this was, it was Child Protective Services I believe. So apparently Child Protective Services didn’t know about this video, or these series of videos, and all this stuff that was happening on here. Which again, if you watch is really disturbing. I was kind of appalled. So they came out, and said everything was okay.
So there was some criticisms. Then Mike and Heather, the parents in the situation just kept coming out publicly saying, “Well the Child Protective Services has looked into it. Everything’s fine. We’re amping things up for the camera.” Although it’s pretty clear if you watch the videos. Some of it looks fake, but then there’s other scenes where the kid is clearly in distress. There’s even a scene-I just forgot about this one. There’s one scene where the kid is huddled in the bathtub screaming and crying saying, “Why do you do this to me? You all hate me. Nobody here loves me.” Then the dad keeps saying, “Yeah I love you”, and then Heather the wife, not Cody’s mom, says something along the lines of, “I don’t like you cause you’re bad.”
So it’s just really over the top stuff. So apparently there was a fellow, another YouTuber who watched all of this and compiled a whole bunch of these really abusive scenes in his video. He put out this pretty scathing criticism of what was going on, and that blew it up, because he had a lot of followers. So they came back and they started getting … All of a sudden all sorts of people were attacking Mike and Heather, these two parents. They came out and just, very insincerely apologized, and in the apology video they have, they basically just blame this other YouTuber DeFranco for making the criticisms in the first place. They say basically this is all his fault.
Shelley: That’s such a typical pattern.
David: Right. It’s just very … We know it’s the normal DV situation. So where this all has culminated is Emma and Cody’s mother, who is the biological mother of Emma and Cody, who are the two kids that Mike brought into the situation. She just came in and posted her own YouTube video basically saying … She’s sitting there with her attorney. It’s not a very eloquent video. They’ve come in and they apparently file a motion for some sort of emergency custody order.
Shelley: I was just gonna say that’s …
David: And they got those two kids away, and so apparently that matter’s pending. Child Protective Services has now jumped in. Everything on Mike and Heather’s YouTube Channel has been taken down, except for single video in which they come out and apologize. So all of this has been hitting the press. It’s clearly at least improving because people now know what’s going on. Alright we’re gonna take a quick break. I’m attorney David Enevoldsen joined by co-host Shelley Rosas. When we come back we’re gonna talk about our, “Did Ya Know?” Then we will hit prenuptial agreements. You wanna call in and ask any questions you can do so at 602-277 KFNX You’re tuned into Family Law Report, on Independent Talk 1100 KFNX.
David: Welcome back to the Family Law Report. I’m David Enevoldsen your host, attorney with the Family Law Guys, an Arizona law firm. Here with you every Sunday at noon on Independent Talk 1100 KFNX. Joined today by my co-host Shelley Rosas who works for the same firm. If you want to reach out and schedule and appointment with either of us or anybody from our firm, you can do so by calling 480-565-8680. Or you can check us out on our website at www.familylawguys.com. If you are listening and you want to call in and ask any questions or share thoughts, you can do so by calling 602-277-KFNX. We’re gonna be talking today about prenups, and we’ll do that right after our “Did Ya Know?”
Did Ya Know, is the section of the show where we talk about some sort of family law trivia, or little known piece of information. It could be a relic from the past. It could be something statistical. It could be some random thing that nobody really knows about the present. Today we’re talking about something that Shelley found. It was, I thought a very interesting article about dragonflies. Bare with me. I’m sure you’re gonna ask what the heck dragonflies have to do with family law. Well, apparently there is an article in the Journal of Ecology. There was research by a fellow named Rassim Khelifa, and he discovered this behavior in female dragonflies in which the females would, if being pursued by a male, who is presumably copulate with the female. She would dive to the ground, flip over, and then just sit there motionless until the male went away.
Shelley: She’s faking her death.
David: She was faking her death. This is what they found.
Shelley: To avoid sex.
David: She was faking her death, to avoid having to copulate with this male dragonfly. So the researcher starts looking into it. He starts specifically studying this particular behavior. He notices that it increases with more male competition. So the more males that were around there trying to get onto the female dragonflies, the more likely they were to take this dive and fake their deaths. They also discovered that if the males and females encountered each other in the air. That is to say that the male catches the female, in all of the situations they were looking at, where the male caught up to the female, they would copulate. That was if the female didn’t do this. Of the times that the female did take the dive, and she fakes her own death, 77.7% of those were successful in avoiding the male. So by faking her death, a lot of the time they were successfully able to avoid having to have sex.
Now I think we both thought this was in interesting story. Obviously dragonflies are not family law, but it’ sort of a stereotype that we always have about-there’s the so called sex starved, or sex hungry male who’s trying to hook up with the female who doesn’t wanna put out, so to speak. I hear that all the time.
Shelley: I was just gonna say, we see these people in our office regularly.
David: Yeah and I’ve actually had people say things to me. I’m not kidding about this. I’ve had women tell me, “Oh I actually pretended to be asleep to avoid having to sleep with my significant other, spouse, whatever.” I’ve especially heard comments like that where women fake things to avoid having to have sex with guys.
Shelley: Not just guys, their husbands.
David: Well, yeah. Either long term relationships or husbands, or anything of that nature.
Shelley: Well when they’re in our office it’s usually for their divorce.
David: Yeah it is. My point is, I’m speaking anecdotally about relationships in general, specifically long term relationships. So that took me into looking at a couple of other things. So the Did Ya Know? Component of this spins out of this, “Did ya know that female dragonflies fake their own deaths to avoid having to have sex with the males?” That story took me into another realm of things though. I looked at a couple of other studies. First off there’s a whatsyourprice.com, did a survey in 2014, and I guess they’ve done a bunch of other, the same, basic survey. Where they looked at the top 10 reasons for relationship beak-ups, and the top two of those were cheating and bad sex. So that tells me this is already one of the major, and we know this experientially, that one of the major problems you have in break-ups is people saying, “I’m not getting enough sex. I’m not getting good sex.” Or, “Oh my significant other went out and had an affair with someone”, which all seems intertwined in my mind.
With that backdrop now, then I looked at a couple of other studies. Now first off there’s a German study in the Journal of Human Nature, by researchers from Hamburg Eppendorf University Hospital. They looked at 530 men and women about relationships. They specifically asked some questions about sex and tenderness and kind of the way that they’re looking at all of this. They found that in 60% of 30 year old women, wanted to have sex at the start of a relationship, and then within four years that number drops to 50%. Then after 20 years it dropped to 20%. In other words they were finding this trend that, at the very beginning of a relationship the woman was wanting to have sex, way more regularly. Then as time goes on their sex drive, their libido in essence was dropping pretty significantly to only 20% after a 20 year relationship.
Interestingly … well not really interestingly. I guess not surprisingly the same study focused on tenderness. They asked questions about what a woman was wanting in terms of tenderness, and 90% of women fixated on this as something that they were wanting in any phase of the relationship. 25% of the men in the relationship over 10 years said that they were focused on tenderness. So tenderness was a major focal point for women. This sounds just like the stereotype I think we all have in our heads. This is exactly the dynamic I always imagined. So, 90% of the women were fixated on tenderness. After 10 years 25% of men cared about tenderness.
Now another study that I looked at which I thought also fed into this whole equation. There’s a study called, “Sexuality and Affection Among Elderly German Men and Women in Long Term Relationships: The Results of a Perspective Population Based Study From 2014”. Plus One is the name of the Journal. They took a longitudinal study that looked at three different measurement points between 1993 to ’95, ’97 to ’98, and 2004 to 2006. So they’re looking at these long term relationships and kind of plucking out information from major points throughout the relationship. Specifically they were looking at subjects that were 63, 67, and 74.
What they were finding is that in the early years-I thought this data was really interesting. Women were reporting on sexual satisfaction in their relationships. Consistently women in the early years were reporting that they were far more sexually satisfied than their male counterparts in each of these relationships. However, if you look at the chart it converges. So as time goes on, by the time they reach about 74 years of age, it’s almost at the same level. So that is to say that earlier at around 63 years of age women were way more sexually satisfied, meaning that they were getting enough, or that they were content with what they were getting, men were not. Then by 67 the women felt less satisfied, the men felt more satisfied, and by the time they got to 74 it was almost the same. They were sharing the level of sexual satisfaction they had in the relationships.
So now putting all of this together, if you can put all of this together. If this is kind of drawing some conclusions from these particular studies. It seems to me that number one, you’ve got, I guess in earlier years in a human being’s life, generally speaking. Of course there are always exceptions to this. This is looking at macro-level data, but earlier in the years seems like men do indeed seem to have more drive if the relationship has been going for a while. Now if you’re at the beginning of the relationship it seems that the woman is also going to have a comparable level sex drive. Then once the relationship goes on and past that honeymoon period, it seems to me that this data is indicating that female drive is going to drop off, male drive is going to increase, but the woman is wanting more tenderness. Then the guys isn’t reciprocating that.
So you’re seeing this very stereotypical strife that’s gonna pop up, which leads into the break-ups that we see very often. Then over time when you get up there in years, at some point, if you have a long term enough relationship, it seems like it’s not going to matter. Somewhere in I guess your 70’s, seems like it’s a little while. Everything starts to stabilize.
Shelley: That’s a long ways off isn’t it David?
David: It is a long ways off. I guess unless you’re in your 70’s. Then somewhere along the line it’s going to stabilize though, and it sounds like if you look at this longitudinal study, over time it’s gonna converge anyway. So I guess if you can hang on long enough.
Shelley: If you can live through it.
David: That also I think means that if you’re in a very stereotypical type of situation, of course I’m extrapolating and making my own conclusion here. I guess you wanna be very fixated on catering to the other person, what they’re specifically needing. So I guess the guy stereotypically is going to want more of the sexual needs, versus the woman. Sounds like a walking stereotype in my head-wants the tenderness component of this, and I hear this all the time, “He doesn’t pay attention to me. He doesn’t romance me. I would sleep with him more if he did all these things that he’s not doing, that he did when we first started going out.”
Shelley: Those are the same women though, that I often see very one sided relationships.
David: What do you mean by that?
Shelley: They’re far more demanding, have higher expectations, more expectations, more needy I guess. There needs to be some balance.
David: Well there does need to be balance.
Shelley: I see those women that are complaining like that, and sometimes I feel sorry for the other side I guess.
David: I’ve seen that in both situations.
Shelley: I’ve seen it go the other way too.
David: That’s kind of the underscore of a relationship, is you have to acknowledge that both sides has got some sort of needs. Whatever those needs are.
Shelley: Both people need to matter, but if your wife is faking her death that’s a problem.
David: Although we had the headline article earlier about the village council member who was faking divorce documents in order to have a mistress. So obviously there’s things of that nature. All right we’re gonna take another quick break. I’m attorney David Enevoldsen joined by co-host Shelley Rosas. If you want to call in and ask any questions you can do so at 602-277-KFNX. When we come back we’re gonna talk about prenuptial agreements. You are turned into Family Law Report on Independent Talk 1100 KFNX.
Speaker 5: Family law report is hosted by Family Law Guys, an Arizona family law firm. Family Law Report is dedicated to confronting difficult issues related to marriage, divorce and children. This can range everywhere from addressing the legalities and controversies of topics like gay marriage to current problems in the divorce system, to simply providing tips to those getting married or going through a divorce or custody fight. Tune in every Sunday to Family Law Report at noon, here on KFNX. If you want to know more or to schedule an appointment with David or another one of the Family Law Guys attorneys, call 480-565-8680, that’s 480-565-8680.
David: Welcome back to the Family Law Report. I’m David Enolvodsen your host, attorney with the Family Law Guys, an Arizona law firm here with you every Sunday at noon on Independent Talk 1100 KFNX. I’m joined today by my co-host Shelley Rosas. She works for the same firm as myself. You want to reach out and schedule an appointment with either of us, or someone from our firm, FamilY Law Guys, you can do so at 480-565-8680. Or you can check us out on our website at www.familylawguys.com. If you’re listening and you want to call in ask any questions or share thoughts, you can do so by calling 602-277-KFNX.
Today we are talking about prenuptial agreements. I think this is a pretty controversial topic because every time I bring it up I get some extraordinarily heated comments back.
Shelley: So do I being single. When you go out on a date and the the conversation, if it ever comes up, which is usually does because of my job. Yeah, passionate responses from the other side.
David: Well just foundational thing. Then we’ll talk about the controversy around them. If you don’t know what a prenup is, it’s essentially a contract that you and your perspective spouse would sign and enter into. That would modify the normal rules that would apply if you were to go and get a divorce or acquire property, or deal with any of the stuff that would happen by default if you get married. The major things we typically see them revolving around is changing the way the property’s acquired. What happens to that, cause normally we’re a community property state, but you an alter that scheme. Or if you have issues about spousal maintenance, aka alimony, coming into a divorce type situation. You can alter what happens there.
It’s sort of like a will in that, if you’re familiar with wills, in that you have the normal law, here’s what happens by default, but you enter into a contract that kind of modifies the normal scheme. A will isn’t a contract, but it’s an analogy that makes sense in my head as a lawyer. Anyway, you’re trying to alter the normal property schemes coming in. Now the controversy about this, like I said I get extremely emotional reactions when I bring them up from both men and women. My experience is more women seem to hate them. I’m just saying this anecdotally. I don’t have any data to score this. Personally I’ve noticed a lot more women seem to hate them than men, but I’ve certainly seen men hate them too.
Shelley: Oh absolutely.
David: I know Shelley was telling me earlier, she’s had experience with men who reacted very viscerally to the idea of a prenuptial agreement. One of the major objections we hear is sort of the conventional idea that you are dooming the marriage before its began. You’re sitting there, you’re contemplating divorce. You’re saying, “All right let’s map out what’s going to happen when our relationship that we’re about to jump into that’s supposed to be forever, ends.” So there’s this idea that you’re manifesting in essence. That you’re planting the seed of destruction, and that you’re putting this idea out there that you’re going to end your marriage right up at the front end of it.
Shelley: I see it the complete opposite. I see it as you’re mapping out the success of your marriage, because you’re contemplating all the issues that could arise along the way. You’re discussing them, you’re working them out, and you’re coming to some agreement. So you’re going into your marriage blind. You know how things will go. You’ve already made your agreements to the major financial factors, the things you came into the marriage with. I see it as map to success. So I look at it as the opposite of what David just explained.
David: I generally do too. Let’s explore some of that. So, one of the things. That I found personally as an attorney working on prenuptial agreements is that it forces you to talk about some things that you might not otherwise talk about. When you’re putting together the prenuptial you go through things like-you get into a lot of detail about your finances. Who’s gonna pay for what. Who has what. Who’s got what assets or obligations when you’re walking into this. When we go into a divorce, I have many times had someone come to me and say, “Hey we’ve talked about the divorce. We’ve got an agreement. Everything’s great. We’re just gonna make this quick and easy. We just wanna sign our documents and be done.” Then when we actually start to process everything, when we put pen to paper, and we start to outline the specifics of what’s going on, all of a sudden you realize that the two parties really didn’t have an agreement.
They had some vague idea of what they wanted in their heads, but then when you start to wine it out on paper it creates this huge conflict. So all of a sudden this thing that they supposedly agreed on blows up tenfold. All of a sudden they’re arguing over the nitpicky stuff. A similar event in my experience happens when you’re getting married. That is to say that very often people will say, “Oh we’re gonna get married.” They’re fixated on how they’re feeling, and they say on a very general level, “Here’s what we’re gonna do with finances”, but when they don’t actually put pen to paper and say, “Here’s all the specifics about what we’re gonna do.” Of course as lawyers we’re overly meticulous and go through a million different things when we’re looking at that, but when we start to really dive into it I’ve seen a lot of things pop up. In fact we’ve seen a lot of strife pop up in the process of creating a prenup just because all of a sudden you start talking about these details that people didn’t really think through all the way.
What’s gonna really specifically happen with money? Whose accounts are you gonna start drawing from? I’ve even seen situations where there were emotional things that people weren’t really projecting out to the forefront, that someone was sitting on, that the other party didn’t know about, that all of a sudden blows up in the process of generating this prenup. That had you not known about, would’ve just been this weird seed that somebody was sitting there suppressing. For example, I’ve had situations where someone comes in and says, “Well I gave up my whole career to come move over to Arizona to live with you, and like shack up with you, and I feel like I’m giving up all this stuff and I should be compensated for that if all of a sudden we’re in a divorce.” When the other party didn’t even view it that way.
They didn’t say, “Oh you’re giving up all this stuff”, they just had this completely different mindset about what was happening, that they were excited to jump in. So I’ve seen little weird nuggets like that pop up in the process of generating the prenup. So in a sense, going through the process of generating a prenup forces you to talk about things, in my mind at least, that you would not have otherwise been talking about, that could create strife. We talked about a few minutes ago how sexuality is a common stressor. Another super common stressor is finances. In fact if I go back to that list I was talking about earlier, the whatsyourprice.com, finances is number four on that list in terms of things that cause relationship breakups.
Shelley: I would guess that to be number one, but …
David: I think these rotate. That was one particular study. I saw a couple of different ones, and it was the same basic stuff, just shifted around. So, finances is one, sexuality is one, cheating is one. Anything of these things kind of revolve around-the point in my mind that’s relevant for our purposes is that finances is a huge stressor in relationships potentially. People can get really upset. I hear constantly, “Wife, husband spends way too much, and just does it out of control. Thinks we’re just made of money, and I’m trying to bring in money, control finances, and they’re just not on the same page”, or “They’re taking my money. We don’t have enough money generally and it’s creating stress in the relationship.” Like finances is a big factor.
So dealing with all of this on the front end, in my mind, is a super positive thing. It’s uncomfortable, but if you can kind of get through that, and force yourself to really put down on a paper who’s going what, who has what, what’s going on, you’ve eliminated a lot of that because you’ve talked through it. You’ve figured out exactly where everybody stands. Another concept, totally separate from this, that has always struck me with respect to prenuptial agreements, is that it seems a lot to me like insurance. So let’s say that you are indeed in part planning out what would happen in the event of a divorce.
Well it’s kind of like insurance. I don’t go out and buy car insurance because it’s my intention to go crash my car into another car, or get into some massive car accident. I don’t get health insurance because I’m expecting to have some catastrophic event where I destroy my arm or some really serious thing happens. In the same sense, to the extent that we’re talking about divorce planning within the realm of prenups, I don’t think you’re saying, “I want to get a divorce”, which is the conventional problem that I think people have with prenups in the first place. They think you’re saying, “I’m mapping out and manifesting a divorce.” I don’t think that’s true anymore than you’re manifesting a car accident when you get car insurance or getting MS when you’re getting health insurance or something extreme like that.
One other thing that I think people often don’t consider with respect to prenups is that the prenup can actually help you during a marriage to protect either of the spouses. Let me explain that. This is one that most people I don’t think, think of. One of the common things you deal with in addressing a prenup is you will compartmentalize all property. So that is to say normally what happens … Let me back up a step, make this a little more clear. We’re a community property state. Arizona’s a community property state. So typically once you get married, things you acquire, with a few exceptions are deemed community property. That is to say that both spouses have an equal share in whatever’s coming in during the marriage.
Shelley: Which is really hard for people to understand. Like, “It’s my income.” No, it’s our income.
David: Oh yeah. Actually this is worth elaborating a little bit about. So I’m gonna take a little detour before I get to my main point here. One of the things that we see very frequently, I see this, I’m assuming you see the same thing. People will come in and think, “Okay just because I’ve titled something in a certain way it remains only mine.” So for example, bank accounts are a really common one. “I’ve kept my own bank account, she’s kept her own bank account. Her name’s not on mine, and vice versa. Therefore whatever’s in my bank account is mine.” That’s not how the law works in Arizona.
Shelley: No. The car is in my name. It’s mine.
David: It does not matter.
Shelley: Right. No, it’s our car.
David: Right. So when you’re looking at that situation, when you dump money into this, whoever it’s titled in if it was acquired during marriage, it’s joint. Even in some situations when you have have, say a house that was acquired before marriage, and it’s technically separate property, but you have a mortgage on it, you acquire a paycheck during the marriage. That’s a community asset, that paycheck, because you acquired it during the marriage. Now you’re taking this community money, paying down the mortgage which is a separate asset, and you’re dumping community funds into this separate property. So even in that situation, even if it’s titled in the name of one other party, you can still have problems in terms of the other party having an interest if you haven’t otherwise compartmentalized this out with a prenup.
Same thing with businesses. You can have a business that was acquired before the marriage, and then we shift into the marriage, and then you start contributing community labor and community funds into this business. Now all of a sudden there’s an interest in it. Gonna finish this thought in just a sec. We’re gonna go and take another quick break. I am attorney David Enevoldsen, joined by co-host Shelley Rosas. When we come back we’re gonna talk more about prenuptial agreements. If you wanna call in and ask any questions you can do so at 602-277-KFNX. You are tuned into Family Law Report on Independent Talk 1100 KFNX.
Speaker 5: Family law report is hosted by Family Law Guys, an Arizona family law firm. Family Law Report is dedicated to confronting difficult issues related to marriage, divorce and children. This can range everywhere from addressing the legalities and controversies of topics like gay marriage to current problems in the divorce system, to simply providing tips to those getting married or going through a divorce or custody fight. Tune in every Sunday to Family Law Report at noon, here on KFNX. If you want to know more or to schedule an appointment with David or another one of the Family Law Guys attorneys, call 480-565-8680, that’s 480-565-8680.
David: Welcome back to Family Law Report. I am your host David Enevoldsen, attorney with the Family Law Guys, an Arizona law firm. Here with you every Sunday at noon on Independent Talk 1100 KFNX. Joined today by my co-host Shelley Rosas who works for my firm as well. If you’d like to reach out and schedule an appointment with either of us, or someone from our firm, FamilY Law Guys, you can do so by calling 480-565-8680. Or you can check us out on our website at www.familylawguys.com. If you are listening and you want to call in ask any questions or share thoughts, you can do so at 602-277-KFNX. We’ve been talking about prenuptial agreements. Now right before we went to break I was talking about the default system that you have when you get married, and the fact that we’re a community property state.
Typically when you acquire property, regardless of how it’s actually titled, you’re gonna end up with some sort of a community interest usually. It’s a little more complex than that, but the basic idea is, even if it’s just in your name, if you’re married under Arizona law, your spouse is gonna get some interest in the stuff. I made a comment earlier about the fact that even if you’re not doing actual divorce planning, what you can be doing by way of a prenup can actually protect your spouse in the marriage. What I mean by that is that typically one of the most common things that you will run into with a prenuptial agreement, is that you will alter that normal community property system.
That is to say that instead of it being that there is just a flat community interest anytime you acquire something during marriage. You can say if one of the spouses is acquiring something, if I get my paycheck for example and I dump it into my separate account, that’s just mine. It’s separate property. We’re compartmentalizing out the property. We can pool it into a joint account. We can still pay off bills. We can agree that one person is gonna pay a certain bill, and the other one is gonna pay something else. We can make an agreement however, that everything I have, my house, my business, my whatever that I bring into the equation is gonna remain mine, and the same for you.
The reason I fell that’s important during marriage is that if you have a creditor that come after you. Let’s say you have a business. I’m running a business and I marry my wife or husband if that’s the case. If I get married, we enter a prenup, now all of a sudden we’re compartmentalizing out our assets. Anytime you have in a community property state, a lawsuit against one person, and you know that person is married, or even if you don’t know that person is married. You just don’t know. It’s pretty standard to add in the spouse of that person that is the defendant as one of the defendants that’s listed. In fact I would argue that it’s probably malpractice not to list the spouse if you’re engaged in a civil law suit.
So if you run out and you’ve got a civil suit for whatever, and somebody sues you, and they’re attacking you, by having the prenup in place, if you’ve properly created the prenup. If you’ve properly perfected it by filing a notice with the County Recorders Office, all stuff that an attorney should be able to handle, then you have told the world, and you have protected your spouse, insulated your spouse in that law suit. So all of a sudden your spouse is no longer a target, because all of the property that you guys have been acquiring by way of marriage is just one of the other of you. Same thing goes in reverse. So if somebody is attacking your spouse you’re protected.
So there is a situation where in my mind, you’re protecting your spouse, and potentially both of you by having a prenup in place, and you’re not even talking about divorce.
Shelley: Right, and the same with protecting what you come into the marriage with. There’s another protection for you and your spouse, and I just think it takes fear and anxiety out of the marriage of wondering what could happen. I don’t know. I see it as so much more of a protection.
David: Another thing that prenups very frequently do is deal with alimony, aka spousal maintenance. We call it spousal maintenance in Arizona, but the colloquial term, and I know some other states refer to it as alimony. You can control what happens with alimony. You can limit it, you can eliminate it altogether. You can say, “Here’s what it’s gonna be.” You can predefine it. So you can say, “Nobody is entitled to spousal maintenance at all if we get a divorce.” Or one particular party is entitled to spousal maintenance if we get a divorce, but it can’t be more than “X”. You can say, so and so is entitled to spousal maintenance if we get a divorce, and here’s how it’s going to look. Any of those things are possible. The one exception to that in the way the Arizona statutes is written is that if one of the spouses is gonna be on public assistance after the divorce, but you have waived it, the court has the right to come in and override that provision.
Generally speaking you have the ability to just do whatever you want to with spousal maintenance by way of the agreement. Now that is not a problem. You will run into a problem if you’re dealing with child issues. So a lot of people want to throw in stuff about, “I’m not going to pay child support. Or parenting time is going to look like, such and such.” You actually can’t do that. The court always retains jurisdiction to rule over child issues, especially if you don’t even have children at the time you’re creating the prenup. You can’t go in and predefine what’s going to happen, because you don’t know what’s in the best interest of your child at the time. Your child doesn’t even exist. That to me is actually a dangerous provision, because if we start throwing in a bunch of child issues, that the court is otherwise going to have jurisdiction over, I think you start to jeopardize the actual prenup agreement itself.
Shelley: Yeah, I do too.
David: Because you start throwing in stuff that doesn’t make sense. Another one that I don’t think is safe to put in there is, and there’s a touchy area of this, because a lot of times people will throw in provisions about if other party cheats I will get X amount of dollars. I don’t think that’s technically improper. I think you can put those in. I start to get uneasy about putting that kind of provision in, because if you take it to the more extreme perspective, and I’ve actually had people ask me to do stuff like this. Going back to our sex starved guys, I’ve had situations where a guy has come in and said, “Okay I want in the prenup a provision that says, ‘Wife is supposed to have sex with me on X-Y-X basis’ I should have sex at least once a week.”
Shelley: Can you believe people ask for this in a contract?
David: This screams problematic to me. First of all you can enter into a contract for sex. That would be prostitution in a sense, which is not legal. That’s a felony. You can’t do that. Also it strikes me that you running into implications of almost slavery in essence. It’s not slavery exactly, but you’re running into a contract that would try to compel performance of a sexual act, which just really gets under my skin. That idea of putting that in there really bothers me.
Shelley: It might really bother the other party, which goes back to where you said it forces people to talk about what their expectations are going into the marriage, and could serve these parties well in that maybe they never get married. So they don’t have to go through the divorce.
David: More importantly, if you’re getting a divorce, and you’re fighting this out in court, and a judge looks at it and says, “Wow that’s a ridiculous provision. This whole prenup is a joke. I’m throwing it out.” Which we’ve seen some situations like that. Then you’ve just negated the entire point of having the prenup in the first place. So by throwing in this provision about sexuality or whatever crazy thing you have in there, you’ve nuked your whole prenup. So when you start getting outside of the purely financial stuff, I start getting really uneasy. If you start throwing in particularly situations about sexuality or dating or something like that.
Again if you get away from the actual contract for sex, I don’t know that it’s technically wrong. I don’t think there’s a problem. I haven’t personally run into a problem where you say if somebody’s cheating, the way we’re dividing up the structure changes in X-Y-Z way. In fact to me that particular division can almost create another pressure, a counterpressure to divorce. For example, I’ve seen some movie stars will put into their famous prenups, things like if the other party cheats on me, then I’m going to get an extra hundred thousand dollars or something like that.
Now all of a sudden, roll forward 15 years into the marriage, honeymoon period is over, everybody’s kinda dulled out. The two parties are in heavy strife, and then one of these movie stars has an opportunity to go have an affair with another person. If in the back of their head they’re thinking, “Okay well, things are really going well on the marriage front”, and they otherwise would be like, “Let’s do this”, but if they stop and go, “Oh wait, I forgot there’s this prenup with the provision hanging over my head that if I get caught, I’m gonna be paying all this extra money.” That creates a problem, and that in my mind would sort of chill it.
So that’s another reason that the prenup could potentially be cutting against the idea of divorce. Couple more quick things I wanna hit, cause we’re running low on time here. If you have a prenup there’s certain things you can challenge it with if you coming back to court later. Number one, you have to have this in writing. It has to be signed by both parties. That’s not he case with all contracts in the universe. Sometimes you can have an oral contract and that’s valid. With prenups that’s not the case. You expressly have to have it in writing, and you expressly have to have both parties signing off on it. Additionally somebody can come back and challenge it if the contract was not, so to speak, entered voluntarily.
That can mean there was some sort of coercion. Coercion can look like a couple of different things. The typical example in my head is, parties have spent a ton of money on the marriage, they’re at the courthouse steps, everybody has flown in from out of town. They’ve spent tens of thousands of dollars on getting the place set up, and then all of a sudden somebody runs up and says, “Here sign this or it’s off.”
Shelley: Sign here.
David: That would be coercion. The other major thing that you have to have is complete disclosure of financial obligations and assets. So if you haven’t disclosed everything, which is why we usually attach the full disclosures, credit reports, and that sort of thing to the back of the prenup when you’re going in. So there are things you can come back and challenge with, stuff like that. That can nullify the prenup later, but having a prenup goes a long way in simplifying all the fight that comes down at the end of the road if you are in a divorce situation. As I said there are situations in which it can protect you when you’re not even talking about divorce.
All right, we’re about out of time here. That’s all we’ve got for today’s show. You’ve been listening to Family Law Report. I’m your host David Enevoldsen. I’ve been joined by my co-host Shelley Rosas who works for the same firm as myself, Family Law Guys. We have been talking about prenuptial agreements. I hope you join us again next week on Sunday at noon for more of the latest on Family Law, here on Independent Talk 1100 KFNX.
Speaker 5: Family law report is hosted by Family Law Guys, an Arizona family law firm. Family Law Report is dedicated to confronting difficult issues related to marriage, divorce and children. This can range everywhere from addressing the legalities and controversies of topics like gay marriage to current problems in the divorce system, to simply providing tips to those getting married or going through a divorce or custody fight. Tune in every Sunday to Family Law Report at noon, here on KFNX. If you want to know more or to schedule an appointment with David or another one of the Family Law Guys attorneys, call 480-565-8680, that’s 480-565-8680.