No time for a post-nup

February 7, 2015 12:58 PM

My spouse and I are entering a phase where we realize we may have to split up. It would be an amicable split though very, very sad. The issue is finances: my spouse is salaried, I am freelance, but we've always pulled in the same annual amount and thus split absolutely everything 50/50 -- no shared bank accounts or credit cards. We're not ready to start separation proceedings while we still try to work on saving our marriage, but I am about to book a new gig that will quadruple my annual earnings in one lump sum for a 6 month job. I would like to protect that sum from becoming "joint property" as I would like to still be married when I sign the job contract -- we're not ready to throw in the towel yet. My husband is okay with signing off on this, as our finances have always been separate and this is just a continuation of that. What kind of simple paperwork do we need that we can sign and notarize to keep my upcoming windfall out of the equation while we figure out our marriage?

YANMYL. We have no kids, no debt, no shared property. We have equal amounts of savings.

We would need something fast, like within 2 - 3 weeks, so I can sign my job contract in a timely manner.

We would like to avoid consulting divorce lawyers as much as possible right now. Neither of us wants to get a divorce right now and I feel like talking to divorce lawyers could make things get ugly and expensive and push us down a road we don't want to go. But I still want to protect myself regarding this one job.

We don't have time for a post-nup (which I understand takes 2 months) we just want a paper to address this one gig. Basically saying "the money I make on this one gig (which will last about 6 months and be my sole earnings) is not something my spouse has a legal claim to should we split in the future."

The reason I am so adamant about this is that I may have to live off this lump sum for several years and thus need to protect it the way someone would protect their salary. My job is not one where money coming in is guaranteed, and therefore this represents safety to me. My spouse has a good steady job and understands my position. I am just worried that if we do split he might get angry and could decide to take half my income just because he can. People warn me that divorce brings out the bad side in people, though I can never imagine him doing something like that now. It feels crazy to me to have always had separate finances but then upon divorcing to suddenly have to merge them.

Just to be clear: if we can't come up with a piece of paper we can sign to protect my incoming earnings from being halved, I will have to initiate separation proceedings to protect myself. I really really don't want to do that but I will.

Any advice would be much appreciated.

posted by egeanin to Law & Government (16 answers total)

In what legal jurisdiction do you reside?
posted by mr_roboto at 1:04 PM on February 7, 2015

The piece of paper would essentially be a post nup. You can write and sign whatever you want, but the enforceability of it in a divorce depends on SO many things including which state you're in, your other assets/income, how this piece of paper is worded, whether there is any consideration for the agreement, and whether that consideration will be invalidated as against public policy (e.g., "agree not to take this money or I'll divorce you").

You can write an agreement that says exactly what you said: "the money I make on this one gig (which will last about 6 months and be my sole earnings) is not something my spouse has a legal claim to should we split in the future." The only one who can tell you whether this may be enforceable in your jurisdiction is a family lawyer licensed in your jurisdiction - and even that will be a professional best guess.
posted by melissasaurus at 1:05 PM on February 7, 2015 [3 favorites]

Response by poster: Mr_Roboto: California
posted by egeanin at 1:05 PM on February 7, 2015 [1 favorite]

California is a community property state - meaning this is even more of an uphill battle. You need to meet with a lawyer.
posted by melissasaurus at 1:07 PM on February 7, 2015 [4 favorites]

The answer here is that you really need to consult a lawyer here. What you're asking for here is going to be important and pretty sophisticated legal advice. You should probably jointly consult with a family law attorney. They can advise you about your legal rights and whether you can do what you're trying to do, and if so, how.

Seeking legal advice should be a priority ahead of commencing separation proceedings that you claim to not want to commence, especially since you don't even know the legal effect of initiating separation proceedings.
posted by J. Wilson at 1:08 PM on February 7, 2015 [1 favorite]

If real money is involved, seek and pay for legal advice.

Penny wise, pound foolish, etc.
posted by megatherium at 1:32 PM on February 7, 2015 [3 favorites]

Look into the possibility of filing for legal separation. In California, you can divorce while still living together. I did exactly that. But, in some states, legal separation would put in some protection on current and future earnings -- ie it would separate your finances starting now, while not impacting, say, who owns what from the past.

As noted above, California is a community property state, which makes this hard. California expects a 50-50 division of property and debts. In some states, legal separation would help. I don't know if it would in California. But that's what you should look into. You may be able to file it yourself, without a lawyer. My divorce was handled without a lawyer.
posted by Michele in California at 1:36 PM on February 7, 2015

Yeah, your question basically boils down to, "how do I create and sign a legally binding document that is worth a ton of money to me and involves multiple areas of very complex law that is designed to prevent what I want here, without consulting someone who has any training in how to draft legally binding documents?" And the answer is that you probably can't. Or at least, there is absolutely no way to know whether or not you've successfully created the document until someone challenges it and you go through lengthy and expensive litigation about it. Especially in California.

Consulting a divorce lawyer about how to draw up a financial document is not the same as making the decision to get a divorce. But you absolutely need to do this with a lawyer.
posted by decathecting at 2:13 PM on February 7, 2015 [22 favorites]

Best answer: I feel like talking to divorce lawyers could make things get ugly and expensive and push us down a road we don't want to go

You need a lawyer that knows how to word monetary agreements with your spouse over how things will work if you divorce.

Fortunately there is another specialty known as family law, find a family law lawyer instead of a divorce lawyer. Yes, they might also do divorces as well, but not just that.
posted by yohko at 3:44 PM on February 7, 2015 [3 favorites]

if we can't come up with a piece of paper we can sign to protect my incoming earnings from being halved, I will have to initiate separation proceedings to protect myself

You seem awfully sure that these are the only two possible solutions. Consulting a lawyer can actually help you think outside the box. I'd recommend one that also does mediation, because they are more likely to take an approach that keeps things amicable.

Also, it often happens that when people separate without consulting a lawyer, they don't manage to clearly establish all the requirements of legal separation in their state, which at least leaves an open question as to whether they were legally separated when they thought they were. So even if separating is the route you go, still talk to a lawyer to make sure you're separating in a way that checks all the boxes legally. Think how much it would suck to rush into a separation you don't want, just to protect some assets, and then find out that since you weren't technically separated in the eyes of the law, the assets aren't even protected. Stuff like that happens all the time.
posted by Bentobox Humperdinck at 5:05 PM on February 7, 2015 [1 favorite]

What kind of simple paperwork do we need that we can sign and notarize to keep my upcoming windfall out of the equation while we figure out our marriage?

To echo what others have said, attempting to do this without legal counsel would be incredibly foolish. Talk to a lawyer first thing Monday morning and get this sorted out.

It's important that this is iron-clad for the same reasons that pre-nups are important: you don't just want to win if it goes to court, you want it to be so unassailable that you don't have to duke it out in court at all.

Can you afford to lose half of this money in a divorce settlement?

If the answer is "no", then you can't afford to not go get a lawyer.
posted by toomuchpete at 5:13 PM on February 7, 2015

My memory of getting divorced in California is that the moment you legally separate, your finances are legally separated. Any property you obtain after separation is not community property. A legal separation also stops the clock on the official length of the marriage, which may be relevant (alimony is different for "long" marriages).

I believe you can legally separate while living together. But you can't just decide you're legally separated; you have to have a legal document.

IANAL, this is not legal advice, get a lawyer.
posted by musofire at 5:21 PM on February 7, 2015 [1 favorite]

When it comes to dealing with legal matters, you get what you pay for. If you try to do this in the cheap, you're paying for it by inviting complications you can't even fathom later.

You seem to think a lawyer will push you towards divorce for their own benefit. This is an unlikely outcome, especially if you get someone that specializes in family law, as others have suggested.
posted by dry white toast at 10:47 PM on February 7, 2015

Best answer: You are talking about a transmutation of income that would be community property to make it your separate property. Nthing what others have said, you need to talk to a California lawyer about this to make sure it will hold up if challenged down the road. And depending on the circumstances, it may be that your spouse ought to have/needs to have separate legal advice, because of fiduciary duty and a presumption of undue influence.

Here are a couple paragraphs from an unpublished 2012 opinion that encapsulate the issues:


Transmutation Principles Under Family Code Section 852
FC § 852 (a) provides "A transmutation of real or personal property is not valid unless made in writing by an express declaration that is made, joined in, consented to, or accepted by the spouse whose interest in the property is adversely affected." The "express declaration" is not required to include the terms "transmutation," "community property" or "separate property" but it must "unambiguously indicate a change in character or ownership of property." (Irmo Starkman (2005) 129 Cal.App.4th 659, 664.) "A writing ... is not an 'express declaration' . . . unless it contains language which expressly states that the characterization or ownership of the property is being changed." (Estate of MacDonald (1990) 51 Cal.3d 262, 272; Irmo Benson (2005) 36 Cal.4th 1096, 1107.) "'The determination whether the language of a writing purporting to transmute property meets the MacDonald test must be made by reference to the writing itself, without resort to parol evidence.' " (Irmo Leni (2006) 144 Cal.App.4th 1087, 1096.)

Note: these people are not all named 'Irmo' -- that's 'In Re: Marriage Of'

Undue Influence
For a transmutation between spouses to be valid, it must also satisfy the rules governing fiduciary relationships set forth in FC § 721. (See Barneson at p. 588.) Under FC § 721(a), spouses "may enter into any transaction with the other ... respecting property which either might if unmarried." Their confidential relationship imposes a duty of the highest good faith and fair dealing on each spouse, and neither is permitted to take any unfair advantage of the other." (§ 721 (b).) When an advantage is obtained by one spouse "the law presumes such transactions to have been induced by undue influence." (Lund at p. 55.) Finally, if a presumption of undue influence applies, "the spouse who was advantaged by the transaction must establish that the disadvantaged spouse's action 'was freely and voluntarily made, with a full knowledge of all the facts, and with a complete understanding of the effect of" the transaction.'" (Ibid.)
Here, the trial court found Husband was advantaged by the PMA and required him to rebut the presumption of undue influence. It found he did so and the CA approved the conclusion. The trial court found Wife entered the agreement freely and voluntarily and cited a variety of facts that supported the finding. For example, Wife's claim that she lacked knowledge and understanding of the agreement was not credible in light of "consultation with no less than three family law specialists, five and a half years of negotiation, several drafts, and the plain language in the agreement."
posted by snuffleupagus at 4:22 AM on February 8, 2015 [2 favorites]

Response by poster: Okay, thank you all for these answers. This week we are going to go consult together with someone specializing in family law and mediation. I was naive to think it would be just a paper I could get someone to draw up -- I see now that these issues are more complicated.
posted by egeanin at 9:10 AM on February 8, 2015 [1 favorite]

So, I was married, and sold my business, which was non-marital property, and used the proceeds to buy a house with my then-spouse. We wrote up a very simple document stating that if we ever split up, the origin of the funds would be considered. When we later divorced, we used a mediator who took the document at face value. I kept the house. He kept his business, which was non-marital property. 20 years later he still tells people I stole 'his' half of the house (it lost value between the time we bought it and the time we divorced, I stayed in it for another 15 years, blah blah).

My point, and I sort of have one, is. Try to be decent and fair to each other. But even so, people easily get unpleasant about money.
posted by theora55 at 8:01 PM on February 8, 2015 [1 favorite]