What can and can't be protected by a prenup?

In California, a prenup can define what is considered separate property and what is community property (marital property) during marriage, in the event of a divorce, and upon death. It can specify the choice of law that will apply if you divorce and address how funds will be used during the marriage, such as payments from community funds towards someone's separate property residence. You can also place limits on spousal support within a prenup. Additionally, a prenup can outline how assets will be distributed upon death, if you wish to change the default legal provisions. 

A prenup cannot include anything illegal or unenforceable, such as decisions regarding child custody, child support, or the impact of infidelity.

Who usually needs a prenup?

Everyone. But most of the prenups I work on are for people who are inheriting significant assets, own businesses, or are in their second marriage. One person having significant debt is another reason that parties choose to have a prenup.

Even if you are marrying someone more wealthy than yourself, a prenup can offer significant benefits by clearly defining financial expectations and responsibilities. For example, a prenup can specify that a house acquired before marriage remains separate property, but any increase in its value during the marriage is considered marital or community property. This is different from the law - in a generous way - but can honor the parties commitment to the wealth created during marriage. 

A prenup helps protect both parties by outlining the division of assets and debts, ensuring financial matters are handled fairly and transparently, such as distinguishing between separate and community property. An agreement can prevent misunderstandings and legal disputes, providing peace of mind and stability for both partners throughout the marriage and in the event of a divorce​​.

In simple terms, what exactly is a prenup? 

A prenuptial agreement, or prenup, is a legal contract that a couple enters into before getting married. It outlines how their assets and debts will be divided and specifies financial responsibilities during the marriage, such as who pays for what. A prenup can address scenarios in the event of a divorce, including support payments from a higher earner to a lower earner. It also considers life changes, such as unemployment or disability, and how these would be managed financially. Additionally, a prenup can include provisions related to inheritances and properties acquired before or during the marriage. This agreement ensures clarity and fairness, helping to prevent potential conflicts and lengthy legal battles in the future.

Conflict and Custody

Custody battles are often intense and emotionally draining, not just for the parents but for the children caught in the middle. Recently, I had the profound experience of hearing grown children share their journey through years of custody litigation, reflecting on how it shaped their lives from childhood into adulthood. Their stories were a powerful reminder of the long-term consequences of these legal battles.

One of the most striking aspects of their narratives was the extended period of conflict they endured. These children spent many years in litigation, speaking with numerous professionals, and navigating a tumultuous family environment. Listening to their painful experiences highlighted a critical issue: the aftermath of custody disputes can leave lasting scars.

A particularly poignant moment was when they shared how silenced they felt once the court proceedings ended. Often, once the legal system moves on, these children are left to cope with the fallout on their own. Without follow-up or continued support, they can feel abandoned and unheard. This sense of abandonment can profoundly affect their emotional well-being and development.

It's easy for us as legal and mental health professionals to lose sight of the long-term impacts of our work. We might not stay connected with the families we assist, and thus we rarely see the full trajectory of the children's lives. Questions linger: Did our interventions truly serve their best interests? What happened to them after the legal dust settled?

The children I listened to revealed that, despite the conflict, they didn't harbor negative feelings toward their parents. They recognized that both parents acted out of love and a belief in what was best for them. This realization was heartening and highlighted the resilience of these children. However, it also underscored the importance of effective communication and support during and after legal proceedings.

One key takeaway from their stories was the critical role of mental health professionals. These children benefited immensely from having therapists who provided consistent support and helped them process their experiences. Yet, many children in similar situations don't have access to such resources. As professionals, advocating for ongoing mental health support for children involved in custody disputes should be a priority.

Another significant issue raised was the trust—or lack thereof—that these children had in adults during the process. They often didn't know who to trust, as they were shuffled between meetings with therapists, judges, and other professionals without clear explanations or consistent follow-up. This lack of transparency and continuity can damage their ability to trust adults and authority figures long-term.

Reflecting on these stories, it's clear that our approach to custody cases needs to prioritize the children's voices and experiences continually. Ensuring they have access to mental health support, providing clear communication about legal processes, and maintaining follow-up can help mitigate some of the long-term negative impacts.

In conclusion, custody battles can profoundly affect children, and it's our responsibility as professionals to minimize these impacts. By listening to the children's perspectives, advocating for their mental health, and prioritizing their best interests, we can make a positive difference in their lives. The stories of these grown children are a testament to the resilience of the human spirit and a call to action for all of us involved in family law and child advocacy.

What should you include in your parenting plan?


WHAT TO INCLUDE IN YOUR PARENTING PLAN

 

 

PARENTING RESPONSIBILITIES:

 

  • Basic Time Share Schedule:

    • Pick Up/Drop off – times and locations

    • Responsibilities when child is in residential parents* care (*Residential parent is the parent with whom the child(ren) is spending the night.)

    • Telephone contact between child(ren) and non-residential parent: frequency, duration, times for calls, privacy?

    • How will you deal with changes in the regular schedule?

    • Day to day decisions

 

  • Holidays and School Vacations (excluding Summer)

    • Consider how holidays have been celebrated historically in your family

    • What traditions can be kept in place?

    • What new traditions would you like to create together or separately?

    • What will be most important to your child(ren) regarding holidays?

    • Is it most important to divide holidays and school vacations equally or to ensure that you are with your children on the holidays that hold the most significance for you?

    • How do you want to handle three-day weekends (holidays and school in-service days)?

 

  • Summer Vacation:

    • How do you want to plan together for summer activities.  When will you meet to discuss, who is responsible for doing research to find activities, etc.

    • Will you keep the regular time-share schedule, or modify it for the summer.

    • If both parents are working, how will you manage getting the child(ren) to and from activities.

    • How much contiguous time do you each want to have with the child(ren)? Should there be a limit on the amount of time one parent can travel with the children?

    • How will you handle communication and planning about the summer plans?

 

 

  • Extracurricular and Social Activities:

    • How will you decide what activities you child(ren) will be involved in?

    • How do you each want to participate in your child’s activities?

    • How will you handle transportation?

    • How will you manage birthday parties?

    • Will the regular schedule be altered on the birthday of the child(ren) or  parents, or Mother’s/Father’s Day?

 

  • Child Care:

    • What childcare arrangements do you anticipate you will need?

    • Will you share childcare arrangements?

    • How will you select childcare?

    • If the residential parent is unable to be with the child(ren) on his or her time, do you want to agree that the other parent will be offered first opportunity to provide child care, or will you each independently arrange for child care arrangements?


  • Child/ren’s Budget

• What are the child/ren’s expenses?

• How will you pay for these expenses?

• How will you determine the tax exemption each year?

• Medical Insurance: Which parent will be providing the medical insurance

coverage?

• How will the insurance premium be divided?

• How will you divide the out-of-pocket portion not covered by the insurance

Company?

• How will you divide non-emergency, uncovered medical expenses?

• Does that consent need to be in writing?

*  If one parent pays more than their share of an expense, how soon should it be reimbursed?

• Do you want to exchange proof of payments before reimbursements are

made?

 

  • Contact with Significant Others:

    • How do you think your child(ren) will react to a new person in your life?

    • How do you define significant relationship?

    • How will you communicate with each other about new relationships?

    • Do you have any worries about how new relationships may impact your child(ren)?  If yes, what are your concerns?

 

  • Education:

    • How will you make decisions about where your child attends school?

    • How will you coordinate/monitor your child’s schoolwork?

    • How do you each want to be involved in your child’s education/school?

    • What are your thoughts about your child’s educational needs?

    • If you have differing ideas about education, how will you resolve your differences?

 

  • Health Care Issues:

    • How do you anticipate making major medical decisions concerning your child(ren)?  Have you generally agreed in the past?

    • How do you want to decide about which medical professionals will work with your child?

    • How will you handle routine medical appointments?

    • How is the best way for both parents to be informed about the medical appointments or medical care provided to your child(ren).

    • How do you want to handle emergency situations.

 

  • Mental Health Care Issues:

    • How do you want to make decisions regarding mental health care?

 

  • Religion and Cultural Heritage

    • Are there special rites/cultural heritage traditions you would like to pass on to your child(ren)?

    • How will you make decisions related to your child’s involvement with religious activities or cultural events?

 

  • Travel Issues:

    • Who will keep your child’s passport?

    • How will you communicate and what information will you share regarding travel plans, with the child(ren) and without the child(ren).

 

CHANGING NEEDS OF THE CHILD(REN)

  • Ongoing Communication:

    • Regular, scheduled meetings?

    • Periodic review of parenting plan?

    • Best way to communicate: in person, telephone, e-mail