Marriage, Divorce, and Prenups

A few days after Christmas and one month before Valentine’s Day, the hotlines at family-law offices are ringing off the hook with unhappy couples screaming “I want out!”

Celebrity power couples who used to be the epitome of wedding bliss and fairytale romance are an upsetting attestation to the truth that when it comes to marriage, no couple is guaranteed to live happily ever after — from Heidi Klum and Seal who shared 6 years of marriage but annually made vow renewals, to Juanita Vanoy and Michael Jordan who spent 17 years of marriage and got reconciled on their first divorce filing, to Phyllis Raphael and Sumner Redstone who spent 52 years of marriage up to their senior years before announcing split.

Fact: There is a 62% rate of divorce in the US. Most of these divorces are filed in January.

What’s worse, divorce is not just painful but is also a costly process, especially for the one with the most money earned. While in most cases the woman gets away with the pricey divorce settlement (Juanita received $168 million from Michael Jordan), there were also cases when the woman (apparently more financially successful than her partner) has to shoulder the cost.

Britney Spears was ordered to shed $40,000 a month to her ex-husband Kevin Federline (whose occupation was listed as pizza delivery boy and dancer at the time of their marriage), Elizabeth Taylor paid $1 million to her 8^th husband Larry Fortensky (a construction worker), Jennifer Lopez paid $14 million to Chris Judd (her former backup dancer and choreographer), Rosanne Barr (who fired her attorney for suggesting pre-nup) paid her comic husband Tom Arnold $50 million, and Madonna shed $76 to $92 million lump sum to Guy Ritchie.

Nowadays, career women could both get emotionally and financially hurt in the divorce proceedings. Thus, the time has come for us to legally prepare for divorce before we get married. Ivana Trump advices that when it comes to this process, “Don’t get mad, get everything.”

Urbanette Magazine sat down with Atty. Michael Kelly, one of the finest family-law attorneys in the country, to talk about marriage, divorce, and pre-nuptial agreements.

Here are interesting facts we’ve discovered:

1. It’s best to get married in California and Texas.
2. January is the season of divorce.
3. Hormones affect pre-nups. Seriously.

Urbanette Magazine: Forty-two years of divorce and family law experience – wow! In your opinion, what states are the best and the worst for getting married?

Michael Kelly

Atty. Michael Kelly: California is the best state for getting married because it has done its best to level the playing field to ensure that spouses have equal opportunity to get divorce lawyers.  Texas may also be among the best because they allow jury trials for divorces which take all of the power away from the judge. In California, however, the judge has complete power and no jury.  Arkansas, Georgia, and Oregon are among the worst.  Their legislative record is far behind those in other states.

Urbanette: How are the laws on divorce and pre-nups in California different from other U.S. states?

Atty. Kelly: The Barry Bonds case was in California where Mr. Bonds’ wife signed a prenup getting into a private jet on the way to Las Vegas.   The Bonds case was determined by the California Supreme Court to be an acceptable prenuptial agreement.  Thereafter in response to that ruling, the legislature set out certain statutory rules causing a seven day cooling off period before a pre-nup is good plus statutory ordering the disclosure of assets and the approved signature by experienced lawyers regarding what rights a pre-nup gives away. Everyone should be sure to know that 99% of the time, the pre-nup favors the individual drawing it up. It primarily protects the person who already owns the business, the property, the apartment building, etc.  This could include pensions, spousal support, etc.

Urbanette: How about New York? Is it good to get married in The Empire State? What are the laws that couples should be particularly aware of (like no-fault cheating, prenup rules to follow, etc)?

Atty. Kelly: New York State is an Equitable Distribution state. The marital assets and debts of the parties (marital property) will be divided in an equitable fashion. This does not necessarily mean equal, however. What it does mean is that, based on the particular facts of the case, the assets and debts will be divided in a manner that fairly represents the party contributions to the marriage. For example, if assets were brought into the marriage, but have appreciated in value, the marital portion (the appreciation) would be subject to equitable distribution based on what contributions were made.

In no fault divorce a spouse can simply claim a marriage has broken down for at least six months before filing for divorce. Prior to New York’s adoption of no-fault divorce, a spouse was required to allege and prove, at trial, if necessary, grounds such as abandonment, adultery or cruel and inhuman treatment.

Advocates for victims of domestic violence have been won over by the no-fault law. They originally opposed it because they felt the history of abuse might not be factored into divorce settlements. But as it turned out, judges are much more likely to quickly award support and attorney fees that make it possible for women to leave an abusive home and get appropriate legal representation.

Though no fault streamlined the divorce process, the temporary support guidelines are messy. Some New York courts have ruled that New York’s no-fault divorce statute does not provide a defendant with a right to trial.  In doing so, the court ruled that a party is not entitled to challenge the other spouse’s allegation that the marriage has broken down.

I suspect that more courts will adopt the position that New York’s no fault divorce law does not require a showing of marital wrongdoing.   I think all that is necessary in order to make out a case for no fault divorce is a party’s sworn statement alleging that the marriage has indeed broken down.

Urbanette: You’ve been in the profession long enough to conclude that a great number of people are filing for divorce in January.  When did this trend start?

Atty. Kelly: For at least thirty years of my practice I have seen a reoccurring trend that January has always been one of the busiest months.  December has also been a busy month because you get many modifications of child access orders due to people wanting custody of children during the holidays.

Generally speaking, the advent of the New Year typically brings along New Year resolutions and a desire to start over and clean the slate.  Too often than not, that includes ditching your spouse and starting anew either alone or in a new relationship.

There are also tax benefits to filing in January. By waiting the whole year, you can claim your spouse’s end of the year bonuses.

Urbanette: So is January the best time of the year to file for divorce? What makes it beneficial for filing for divorce in January?

Atty. Kelly: Again, there are specific tax advantages to filing in January. If you file for divorce in January, you should file your tax return in December while still married because it allows you to claim all of your spouse’s assets. January is the best time to divorce, that way you do not endure another year full of holidays with the significant other that you are trying to leave. It gives you a new lease on life being the fact that it’s a New Year.

Urbanette: Divorce is considered as the most difficult times in the lives of once happily married couples. How can a divorce process be considered “painless” and “beneficial” to all parties involved?

 Atty. Kelly: The only divorces that are considered painless and beneficial are those where the people in general are in agreement on support, property division, child support, child sharing and child custody.  Other than that it is unfortunately too often than not, a rather painful process for both parties.  Divorce is used as either revenge, to inflict pain, attempt to financially destroy the other person, attempt to take away children, attempt to move to another state to cut the person out of their life.

There are of course exceptions, but often times divorce brings out the worst in people. My job is to help facilitate the process, and lessen the pain for everyone involved.

Urbanette: How can women protect themselves and their children during the divorce process?

Atty. Kelly: The best thing a woman can do for herself during a divorce is to get the right attorney. Check the attorney’s resume and make sure they practice what they preach. Do they write and or teach about the practice of family law? Are they on any legal and or divorce committees? They should be very well versed in the divorce process and the stator process.  The practice of family law should be a deeply engrained aspect of their life.  I also recommend going with a firm vs. a single attorney.  A firm is usually better equipped to handle all challenges destined to arise given the volatile nature of divorce and litigation as well as the actual physiology and physical stress separating causes. A firm can instantly respond to a myriad of problems including violence, threatened violence, child abduction, confrontations, bank account draining etc.  There is no way in this lifetime that a single practitioner can rapidly respond to all of these apprises.

Urbanette: Pre-nuptial agreement. What makes it a necessity these days?

Atty. Kelly: The reason prenuptial agreements is necessary these days is that there is still a 62% divorce rate.

Urbanette: Pre-nups versus perfect timing. Pre-nups forces the couple to talk about issues that may soon arise later in their married life (money management, estate planning, etc). The relationship may still be untested and talking about pre-nups can only make the couple stressful. Is there such a thing as “perfect timing” when it comes to pre-nups?

Atty. Kelly: There is an increase in certain hormones between six and eighteen months during a couple’s courtship and preparation into getting married.  When that hormonal release stops, the couple had better have developed a decent companionship relationship to make it work out.

If the relationship is for real, and both parties care about each other they will be able to move forward in love and understand it’s for both parties protection.  I suggest having the conversation sooner rather than later.  

Urbanette: Are there cases when pre-nups can be fought (like signed while the woman is pregnant, etc.)?

Atty. Kelly: Some people cleverly get married and cause a child to be born in hopes it is going to be a long-term relationship.  On the other side, the impregnating partner can think of it as a perfect way to get more control of their spouse.  When there is an expectation of a great deal of money being left it should certainly be kept separate because their parents are attempting to leave assets to their children and are not usually contemplating those children having to share those assets with the spouse that they haven’t know for a very long period of time.

Urbanette: Do you have tips for making a fair and lasting pre-marital agreement?

Atty. Kelly: The main thing that prenups do is make sure that the person marrying is doing so for love and not the gain of money or love of money. If you have the money, prepare a pre-nuptial. If you do not have the money, check and request because there is a time the pre-nup will stop being an order.

Atty. Michael Kelly is a frequent contributor to Sirius XM Radio, CBS Radio, The Huffington Post, as well as numerous NBC, ABC, CBS, FOX, and CW network affiliates. The Law Offices of Michael Kelly are located in Santa Monica, Beverly Hills, and Century City, CA. For more information, visit www.cfli.com.