Legal Question in Family Law in California

Re: Pre-nup - Adultery

You can have a pre-nup that provides non-punitive consequences for adultery, and I highly recommend that you do. You and your future spouse's right to have a marriage based on your own rules is protected by the Constitution.

I am astounded at how almost everyone gets married based upon the pre-nup the California legislature has already written for them.

Granted, the easy thing to do is to just let Big Brother take care of everything for you; just let Big Brother determine what the rules for your marriage should be. Well, I have shocking news for you and everyone else who reads this post: Big Brother does not care about you or your marriage. Big Brother has its own best interests at stake, not yours. Unfortunately, most people do not come to this realization until it is too late: when they are are served with a divorce petition.

I have yet to meet a single person who, once he or she was informed of the pre-nup already written for him or her, agrees that those terms are good, acceptable or even right. Even spouses who benefit from the California pre-written pre-nup are surprised at how much they are getting for doing what almost everyone considers wrong.

Let me tell you some of what Big Brother has in store for you: If you make more money than your spouse, if your spouse cheats on you and then divorces you so he or she can frolic with his or her lover(s), you will have to pay spousal support; If your spouse refuses to work during your marriage and you are the one who makes all the money and then your spouse decides to leave you, you will have to pay spousal support as well as give 1/2 of everything to that spouse; if your spouse goes out and incurs a large debt during your marriage and then decides to leave you, you will usually have to pay 1/2 of the debt your spouse incurred; if your spouse owes a large debt or judgment at the time you get married, your bank account in your sole name can be emptied out by your spouse's creditors, for the debt owed BEFORE the marriage, and even if your spouse objects! And the list goes on.

I cannot tell you how many people, at least hundreds, have sat in my office across from my desk and asked me, "Why? Why do I have to pay spousal support when my spouse is the one who cheated on me? Why do I have to pay my spouse's debt? Why do I have to pay so much in attorney fees? Why, why, why, oh why is this happening to me?" To which I respond: "Why? Why, why, oh why did you enter into marriage, one of the most important decisions in your life, without so much as consulting with an attorney about a pre-nup?"

With a well drafted pre-nup, you and your future spouse can specify the circumstances when spousal support will be made available, and specify the limits when it will not be made avalailable. With a well drafted pre-nup, you can prevent a creditor from taking away the assets of the non-debtor spouse. With a well drafted pre-nup you can limit the debts you will be made liable for.