Pre-Divorce & Pre-Marital Planning | Silva & Associates

Whether you are entering a marriage or see yourself heading toward divorce, you need a plan.

If you are getting married but are worried about how best to protect the assets you already have or the assets you expect to have, our pre-divorce & marital planning services can help you understand your rights and obligations, and develop a plan to protect those assets.

If you are contemplating marriage but want to discuss a pre-nuptial or pre-marital agreement, we can meet with you to ensure you understand your options, rights, and responsibilities before preparing or signing such an agreement. We do not draft premarital or pre-nuptial agreements, but we can meet with you to review these documents and put together a strategy. We can also talk to you about common questions you may have, including:

  • Am I waiving my rights to support?
  • Is the property division fair?
  • What if I want to change some terms after the documents are signed?

If you think a divorce may be inevitable, we can help you plan and put together an exit strategy that puts you in the best possible position before you file for divorce. Developing a strategy for the divorce process is as important as finding the right attorney to assist you in making sure your rights are protected. There are a number of questions you may have to consider before you file for divorce, including:

  • How do I tell my children?
  • How much will I have to pay or how much will I receive for child support and spousal support?
  • How will the divorce affect my health insurance?
  • What do I do about joint bank accounts, joint credits, and life insurance policies?
  • How can I make sure all assets are identified and what information can I gather beforehand to make this easier?
  • What are the tax implications of filing for divorce?
  • What is the best way to go forward with the divorce?
  • What is the difference between mediation, a collaborative approach, and a traditional divorce with attorneys?
  • Do I need an attorney?

How to Prepare for Your First Meeting

Planning for a divorce and planning for marriage require similar documents and approaches. Below is a simple outline for what you should bring to make the first meeting as productive as possible.

  • Make a list of specific concerns you have so we can address them
  • bring a copy of any agreements you and your spouse, or soon-to-be spouse have made
  • bring a list or documents showing any assets of concern to you or your spouse
  • an idea of your income and your spouse/soon-to-be spouse’s income
Do I need an attorney to get divorced?

You don’t need an attorney to get divorced in California, but it’s advisable to have one. Having a lawyer can give you a sense of security that you won’t be taken advantage of. Getting a divorce involves many factors other than just appearing in court. There are financial matters, property division, retirement accounts and other holdings, and sometimes children that must be addressed, so it’s always recommended to have a licensed, professional lawyer representing your interests in court.

How do I protect my assets if I am getting married?

If you have considerable assets that you’re seeking to protect as you head into a marriage, consider a prenuptial agreement, or “prenup.” Although once looked upon negatively, pre-nuptial agreements have become commonplace in today’s world. A prenuptial agreement is a written contract entered into by two people prior to marriage or a civil union that enables them to determine what happens when their marriage eventually ends, either by death or divorce. The agreement can address a few issues – like child support, spousal support, retirement accounts, property ownership and savings – or it can specifically address only a few important items.

Do I need a prenuptial agreement?

You don’t need a prenuptial agreement, but if you are entering a marriage with significant assets that you want to protect, it is highly advisable. Having a prenuptial agreement can keep the court from deciding what happens to your property obtained during your marriage. You can also protect yourself against your spouse’s debts with a prenuptial agreement. Without a prenuptial agreement, creditors can go after your marital property even if only one spouse is the debtor. A prenup helps limit your debt liability.

Am I waiving my rights to spousal support if I sign a prenuptial agreement?

In California, it depends. The state’s Uniform Premarital Agreement Act governs prenuptial agreements and will allow a spouse to waive their rights to spousal support in a few instances. It is the duty of the court to determine if the provision isn’t unconscionable.

Is property division fair with a prenuptial agreement?

It depends on your agreement. If you are considering a prenuptial agreement prior to your marriage, it’s best to consult with an attorney. Having an attorney review and make recommendations based on their experience can ensure that you receive a fair shake in court. If you and your spouse or domestic partner own significant assets, it’s highly advisable to have an attorney representing your interests.

Can I change the terms of a prenuptial agreement after the documents are signed?

Yes. In most cases, you can modify an existing prenuptial agreement at any time. However, a prenuptial agreement must be signed by both you and your former spouse or domestic partner, so both parties will need to sign off on any changes made.

How much will I receive for spousal support?

Spousal support in California is presumptively 40 percent of his or her net monthly income, reduced by one-half of the receive spouse or domestic partner’s net monthly income. Spousal support for short-term marriages less than 10 year will last for half the length of the marriage, as defined as the time between the date of marriage and the date of separation. Longer-term marriages are different and can be awarded for an indefinite period.

How much will I have to pay for spousal support?

There are some general guidelines for spousal support in California. The paying spouse or domestic partner’s support is 40 percent of their net monthly income, presumptively, reduced by one-half of the receiving spouse or domestic partner’s net monthly income. For shorter marriages less than 10 years, support should last for half the length of the marriage from the date of marriage to the date of separation. Marriages that were for a longer time frame are handled differently and can be assigned for an indefinite amount of time.

How much will I receive for child support?

There are a few things taken into consideration when determining child support in California, like the income of each parent, how much time each parent spends with the child(ren), and if there are any tax deductions available for either parent. Under state law, the court will use “net disposable income” figures from each parent to determine the amount. Net disposable income is the parent’s net income after state and federal taxes, Social Security, health care and fixed union fees are calculated. If child support is involved in the divorce, then spousal support is calculated after the child support is determined.

How much will I have to pay for child support?

How much you pay monthly for child support will depend on a few factors: Each parent’s income, the amount of time each parent spends with the child(ren), and any tax deductions that might be available. The court uses net disposable income to calculate how much is owed. Net disposable income is the net income after taxes (state and federal), Social Security deductions, health care costs and fixed union fees. If child support is needed, spousal support is calculated after the amount for child support is determined.

How can I make sure all assets are identified?

Having an attorney can help you ensure all assets are identified. Community property is defined as all property, real or personal, wherever situated, acquired by a married person during the marriage while living in the state of California. Separate property is any property acquired separately before the marriage or after separation. In California, community property is divided equally, while each spouse keeps his or her separate property. Experienced divorce attorneys possess a variety of skills to help uncover hidden assets.

How long does the divorce process take in California?

Each divorce is unique. Some divorces are straightforward and move along smoothly. Others take considerably more time. It all depends on specific issues like property, finances and children, and how long it takes to come to an agreement with your former spouse or domestic partner. If you can work with your former partner on some things, it can go quickly. More contentious divorces can drag on for years. Under California law, you must wait 6 months from the time the papers are filed until your divorce is finalized.