wife and husband talking about divorce

Reducing Conflict in Separation: Preparation is Key

In California Family Law, Postnuptial Agreements, Prenuptial Agreements, Separation Agreements by Robert Toler0 Comments

Minimizing Conflict During a Separation

Divorce is not a fun topic, nor is it something that a happy couple spends much time contemplating. However, those of us who are familiar with the divorce process know that many of the contentious issues that arise can be minimized by taking the time to discuss the tough questions with your spouse prior to marriage. The same way we keep car insurance, earthquake insurance, and fire insurance policies in preparation for the worst, a discussion with your future spouse about what to do if the relationship ends has the potential to reduce conflict, and time and money spent, should that worst-case scenario occur.

Major concerns that arise for couples during a divorce often surround property division, spousal support, and if there are children, child support, and child custody. While it is extremely difficult to plan for the emotional choices related to children, most of us have at least an idea of what we would like to happen with our property, should a relationship end.

man and wife conflict during separation

How California Family Code Can Affect Your Separation

California is a community property state, which in essence means that any assets or debts acquired during a marriage are presumed to be the property of both parties, to be equally divided. Under California Family Code sections 760 and 770, community property includes salary, cars, credit card debt, furniture, and real property, but excludes inheritance or gifts to one party.

However, just because the law presumes that division should occur a certain way, does not mean that that is how the division has to or will occur, and people are always free to enter into agreements that are different than the presumption under the law. These agreements can be formalized prior to marriage (prenuptial agreements), or even during the marriage (postnuptial agreements). Common agreements that people enter into involve the characterization of salary earned or credit debt acquired during the marriage as the separate property of the person acquiring the asset or debt, as opposed to the presumed community property characterization.

Talk With Your Spouse

While you can never be prepared for everything, it is important to at least have a discussion with your future spouse about these issues, and ensure there is a clear understanding about what each person wants in the worst-case scenario. Take the time to specifically discuss any real property or vehicles owned by one or both of you, and what to do with your bank accounts, investment accounts, and retirement accounts. Perhaps even more importantly, take the time to discuss your debts, including student loans, personal loans, and credit cards, and how they should be assigned if you and your spouse separate. In essence, preparation is key.

Build Upon Your Partnership

People have told me that they would never want a prenuptial agreement, as they consider it tantamount to asking for the marriage to fail. Instead, I think of these agreements and discussions as an opportunity to build upon your partnership with your spouse. After all, the law views spouses as business partners, who owe one another fiduciary obligations, and successful businesspeople do not enter into a partnership without a contingency plan.

The attorneys at Modern Family Law are able and willing to assist with all aspects of your family law matter, whether those services are related to an uncontested divorce, mediation, document preparation, or full representation.

By: Hannah M. Nead, Esq.

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