Not necessarily. While no attorney can guarantee the enforceability of a prenuptial agreement (aka premarital agreement), it is usually changes in the law or the circumstances that might cause a prenuptial agreement to be ruled invalid, void voidable, or unenforceable based on factors such as failure to disclose, fraud, duress, unconscionability, or mistake. While changes in the law cannot be predicted, avoiding application of factors such as fraud, duress, failure to adequately disclose assets, or entering into the agreement resulting from a mistake, can be avoided by both parties being represented by separate counsel in the transaction. This includes an attorney who drafts the prenuptial agreement and another attorney, hired by the other party, to review the agreement and explain its terms and the ramifications of its terms to the fiancée.

Possible reasons a prenuptial agreement may not be enforced:

1. One or more of the parties does not live in California at time of divorce or death, and the laws of the other state or country do not recognize premarital agreements.

2. A spousal support limitation or waiver may not be enforceable if it is deemed unconscionable at the time of the divorce.

3. California law changes.

4. Parties enter into conflicting agreement in other states or countries.

5. Party amends the agreement after marriage.

6. Parties fail to keep a signed original of the agreement.

7. The other party establishes that he or she was forced into signing the agreement or that he or she did not know what he or she signing.

8. One or both parties failed to perform all terms and conditions of the prenuptial agreement on his or her part to be performed.

9. The court finds that the parties were in a “confidential relationship” under California law and/or owed fiduciary duties to each other at the time the premarital agreement was made, and one of the parties breached that duty.

10. The court finds that the other party was not adequately represented by a competent and an independent attorney.

11. The California premarital agreement statute was not followed.

12. The party against whom enforcement is sought did not have sufficient time to negotiate the agreement or obtain independent counsel.

13. The agreement is signed under duress.

14. There was a failure to provide a proper disclosure of assets, debts income, expenses, and opportunities before the agreement was signed, or a failure to properly waive those obligations.

15. The court finds that the agreement is promotive of divorce.

16. Changes to the law occur after the premarital agreement was made, which make the agreement unenforceable.

17. Putting title to property in joint names or the other party’s name (real estate, vehicles, or life insurance).

18. Drafting an estate plan that is inconsistent with the premarital agreement.

I’m asked this question at least once every single day. My answer is always the same: (1) There’s no such thing as “the average divorce”; and (2) It depends. The only lawyer who can predict for you what your divorce will cost is someone who possesses the gift of clairvoyance. The good news is that the cost of any divorce depends almost entirely on the level of conflict or cooperation between the divorcing parties; i.e. the cost of your divorce is within yours and your spouse’s control.

Let’s start with what we do know. The filing fee for a Petition for Dissolution, as of January 1, 2015 is $435. Likewise, the responding party’s first appearance, i.e. first document filed with the court, usually his or her Response to the Petition, will also cost $435. If any motions are filed during the pendency of the case, each motion has a filing fee of $60, plus a mandatory fee as an advance for the court reporter’s services of $30. Thus, any time a motion is filed, $90 is paid with it. Other costs may include (depending entirely on the specific facts and circumstances of your case) a Custody Evaluation, the appointment of Minor’s Counsel, the hiring of forensic accountants, property appraisers, etc. But, we’re getting ahead of ourselves.

The real cost of any divorce is time. Your lawyer charges for his or her time. How much time is spent getting your matter to judgment is where the gift of clairvoyance comes into play. The more conflict between the parties, the more time is spent on your case and therefore the more fees that are generated.

Best case scenario: There’s no conflict. You and your spouse agree on everything. After the Petition for Dissolution is filed and responded to, the parties exchange their required financial disclosures, a settlement agreement is easily reached, the attorney prepares the stipulated judgment and judgment forms, everyone signs, the judgment package is submitted to the court. Poof! My best guesstimate of the cost of this perfect divorce is about $3000 – including filing fees and attorney time. This, of course, depends in part on what your attorney’s hourly rate is.

Worst case scenario: Not only is there conflict regarding division of assets and debts, but also with custody issues related to minor children. A custody evaluation might be ordered by the court or agreed to by the parties. The parties and their counsel spend months (maybe even years) attempting to settle. There may be multiple motions filed in the interim for temporary orders regarding spousal or child support and regarding custody. The case may end up going to trial, if the parties, in the end, cannot reach an agreement. A case like this can cost anywhere from $50,000 to $100s of thousands of dollars.

Then there’s the somewhere-in-between-case. The parties agree on some issues, but not on others. After much back and forth, they finally reach an agreement regarding division of assets, debts, custody, and/or support. Let’s call this one a $15,000 – $25,000 case. Again, as always, this depends in part on what your attorney’s hourly rate is and how much time was spent on the “back and forth”.

So now you’re thinking, what if we handle the divorce on our own, without an attorney? Personally, I have been retained by many divorcing parties, after they went to a paralegal, or We The People, or Legal Grind, or similar non lawyer document preparation companies. While this may work for some people, I’ve found over the years, that often the person providing the legal assistance does not know California Family Law and mistakes are made. After mistakes are made and money has been spent on these services, the client then seeks out the assistance of an attorney to fix the mistakes and move the case towards judgment.

Here’s my favorite example – client hires me 5 years after he believed he was divorced. He used a document preparation service and was assisted by someone who identified herself as a paralegal. This person had no idea what documents were needed to get the matter to judgment. My client had no idea that the paralegal was doing anything wrong. She eventually prepared a stipulated judgment and then FORGED IT, and told my client he was divorced. The “ex” wife then moved back to her home country and eventually remarried thinking she was divorced. It was not until she tried to come back to the United States and obtain a green card that she found out she and my client were never divorced. Client reported to me having spent at least $1500 on the paralegal. He then had to hire a lawyer (me) to fix it, 5 years later. This was and could have been a simple dissolution. The original divorce case could have been completed by an attorney, properly, the first time, and cost the client thousands less than it ultimately cost him.

Property settlements, support and child custody disputes can be very complicated. A lawyer can tell you how a judge may divide your property and help you put your property settlement agreement into writing. A lawyer can help you understand your rights and duties concerning your children. A lawyer can assist you if an unexpected problem comes up. And a lawyer can advise you on how much money, if any, you should pay or receive for spousal or child support.

Bottom line. How much does it cost to get a divorce? It depends.

Tips for How to Keep Your Costs Low

1. Know What You’re Agreeing To The real cost of divorce can come from not understanding the financial consequences of a settlement. Tax consequences, underperforming investments, depreciating assets and a budget that cannot withstand the pressures of inflation will cause people to literally go bankrupt as a result of divorce.

2. Act Fast The number one factor for cost in a divorce is how long the case lasts. The more time a lawyer works on the divorce, the more costly it becomes. Coming to agreements and keeping down the fighting helps.

3. Play Nice Coming to an agreement with your ex will help you move your divorce along faster, but that will also mean lower costs associated with attorney’s fees. While nobody wants to go through a divorce, if you are going to have your marriage break up, it’s best that it be amicable if possible. The more you and your spouse can work out on your own, the cheaper the divorce will be.

4. Sign a Prenuptial Agreement While you may not be able to go back in time and get a prenuptial agreement, it is still the best way to keep costs down when it comes to divorce. It’s not very romantic, but it’s sensible. You wouldn’t enter a business partnership without a written agreement, so why do people enter a marriage without one?

If you are seeking a divorce, you may be temped to file for divorce on your own using court provided documents or information from a book or website. While a do-it-yourself divorce may be acceptable in some istuations, most people should consider hiring a divorce lawyer to repsernt their interests. How do you choose the right divorce lawyer for you and your family? Here are some steps you can take.

Meet with more than one prosective divorce lawyer and interview them as you would intereview anyone you would hire.

If you do not feel that you like or connect with the divorce lawyer, cross him/her off your list. You will need to work with this person on a matter that is very important in your life. You do not want to work on your life with someone you don’t like or have a bad feeling toward. Go with your instincts. When contacting your prosective divorce lawyer, ask if he or she knows the opposing counsel. You don’t want to hire a divorce lawyer who has a relationhsip with your opponent. You want to hire someone that has no ties or connections whatsoever (other than a professional relationship) and represent you blindfolded and without prejudice.

If the prospective divorce lawyer does not clearly explain his/her fees, cross him/her off your list

If the divorce lawyer does not clearly explain what his/her fees are, when fees are charged, how and when you must pay fees, and what happens to any money you have paid in advance if you decide to part ways, cross that divorce lawyer off your list. You don’t want to add a dispute with your divorce lawyer to your life during this stressful time.

Be prepared with a list of questions when interviewing a prospective divorce lawyer

Be as specific as possible. If you are spoken to in a condescending manner, or made to feel foolish for any question you ask, cross that divorce lawyer off your list. Every client deserves to be treated with courtesy and respect. You need to feel that your divorce lawyer is on your side. The last thing you need is to be insulted, berated or made to feel stupid by someone who is supposed to be supporting you. At the same time however, understand that your divorce lawyer is just that; your divorce lawyer. Your divorce lawyer is not a family therapist, not your psychologist or marriage counselor.

If the divorce lawyer suggests he can help you get revenge, or that he is “a shark”, cross that divorce lawyer off your list.

Revenge is expensive when it comes to legal action. It takes time and money — both of which are contrary to your interests and goals. Getting divorced is about dissolving your marriage in a manner that is equitable under the cirucmstances of the divorcing couple. It is not about revenge or about beating up on the other spouse or his/her divorce lawyer.

If the divorce lawyer suggests that any child of your magrriage can be used as a bargaining chip, cross that divorce lawyer off your list.

If the prospective divorce lawyer suggests that any child of your marriage can be used as a bargaining chip or tool for demanding something else you want from the divorce, cross that divorce lawyer off of your list. This is lacking in integrity and respect for your child(ren). Plus, if it backfires, you could be ithe receipient of a very unexpected outcome in your case.

How promptly does this divorce lawyer respond to your calls? One of the most common complaints from clients about their divorce lawyer is that the divorce lawyer fails to return the client’s telephone calls. Test this by calling the divorce lawyer’s office a couple of times before hiring him/her. If the divorce laweyer does not return your call within 1-2 business days, cross him/her off your list. Also note whether it is the divorce lawyer him/herself who returned your call or whether that duty was assigned to an associate, a secretary, or paralegal. This is an indication that the divorce lawyer does not have enough time to pay attention to you or your case. At worst, it is disrepsectful and inconsiderate.

Do not hire a divorce lawyer who does little or no divorce work. While some lawyers do a variety of different types of work, your divorce lawyer’s little to no divorce experience gives you little to no chance against any experienced divorce lawyer your spouse might hire. Tobie Waxman has over 20 years of experience and devotes 90% of her practice to family law matters including divorce and family law appeals.

Once you’ve made your choice of which divorce lawyer to hire, there’s one more step

Search the divorce lawyer by going to the State Bar’s web-site to see if he or she has had any reprimand or license suspentions.

One more tip!

Do not hire your friends or a friend of a family member or a friend of your friend to be your divorce lawyer unless you follow the above list. Give each prospective divorce lawyer the same evaluation. Do not make allowances for connections through friendship or family. If your relationship with the divorce lawyer goes bad, the realtionship with your friend or family member who referred you could go even worse.

Why do you need the help of lawyers when drafting or deciding whether to sign a Prenuptial Agreement?

If you want to end up with a clear and binding premarital agreement (one that you and your fiancée understand), you should get help from a good lawyer. In fact, you will need two lawyers — one for each of you — one to draft the agreement and the other to review the agreement with your fiancée. But before your lawyers start drafting the prenuptial agreement, you and your fiancée should decide on its essential terms. Start by answering a few questions. Even if you answer “no” to all of these questions, you may still benefit from having a prenuptial agreement. You can use it as a financial plan for your marriage; not just a plan for what happens if your marriage ends.

• Do you own any real estate?

• Do you own more than $50,000 worth of assets other than real estate?

• Do you own all or part of a business?

• Do you currently earn a salary of more than $100,000 per year?

• Have you earned more than one year’s worth of retirement benefits or do you have other valuable employment benefits, such as profit sharing or stock options?

• Does one of you plan to pursue an advanced degree while the other works?

• Will all or part of your estate go to someone other than your spouse when you die?

Jot down on a piece of paper a list of the things you might want to include in a prenuptial agreement, such as identifying separate property, decisions about how you will handle money and property while you are married, whether alimony will be paid or waived in the event of divorce, retirement benefit agreements, and agreements about how you want to leave property at your death

Why You Need Help From Lawyers

There are good reasons why seeking legal advice when making a prenup is advantageous. In fact, each party to the prenup should get help from a different lawyer. Here’s why.

Varying State Laws

The laws governing marriage contracts vary tremendously from state to state. You can certainly do some of your own research to find out general information on your state’s laws relating to prenups. But, if you don’t want to invest your time learning the ins and outs of your state’s matrimonial laws, a lawyer who knows the intricacies of those laws will be an important resource. The lawyer can help you put together an agreement that meets state requirements and says what you want it to say.

Independent Legal Advice

This explains the desirability of having one lawyer, but why two? Prenuptial agreements are still scrutinized by the courts, sometimes very closely. If you want your agreement to pass muster, having independent lawyers advise each of you can be critical. While most courts don’t require that each party to a prenup have a lawyer, the absence of separate independent advice for each party is always a red flag to a judge.

On a practical note, having separate legal advisers can help you and your fiancée craft a lasting agreement that you both understand and that doesn’t leave either of you feeling that you’ve been taken advantage of.

Decide What You Want Before Seeing a Lawyer

That said, it’s best not to ask your lawyers to start writing up a draft or final agreement until the two of you have settled on its essential terms. You should put those terms in writing — i.e. make a list or prepare a written outline. Here’s a sample list of some of the issues you may want included in your prenuptial agreement:

• separate vs. joint property

• estate planning issues, such as providing for children from prior marriages or leaving family property

• how to handle a separate business

• retirement benefits

• responsibility for or nonresponsibility for the other person’s debts

• who gets what, including alimony, if you separate or divorce

• procedures for filing tax returns, including allocating income and deductions

• who pays household bills — and how

• whether to have joint bank accounts and, if so, how to manage them

• agreements about specific purchases or projects, such as buying a house together or starting up a business

• how you will handle credit card charges

• agreements to set aside money for savings

• agreements for putting each other through college or professional school

• provisions for a surviving spouse in your estate plan or through life insurance coverage