July 29, 2025 • 39 mins
In this episode, California divorce mediator and attorney Scott Levin breaks down what you need to know about prenuptial agreements, community property laws, and the creative ways couples can protect their futures. Learn from California prenup attorney and CDFA about when a prenup makes sense, what mistakes to avoid, and how mediation can simplify the process.
Perfect for engaged couples, remarriages, and anyone planning wisely.
Topics Covered Include:
- How community property laws affect your joint finances
- When a prenup makes sense (and when it might not)
- Innovative clauses and provisions to customize your agreement
- Common mistakes couples make—and how to avoid them
- Why mediation can be a smarter, gentler way to manage legal planning
If you’re interested in learning how to safeguard your assets and foster clarity from the start, this episode is for you. Scott combines legal expertise with practical, client-friendly advice—making complex topics accessible and actionable.
Thanks for listening and I hope you'll continue to learn more about how you can peacefully divorce.
As a divorce mediation attorney in California, Scott Levin helps couples figure out the settlement terms and draft enforceable settlement agreements so they can divorce fairly without needing to go to court. Obtain closure peacefully through an amicable divorce. process that protects families and kids.
Visit San Diego Divorce Mediation for more information and to learn more about our mission to help divorcing couples make informed decisions and fair agreements through mediation or book a free virtual consultation.
Scott Levin, attorney, mediator, CDFA®
Chief PeaceKeeper
scottlevinmediation@gmail.com
858-255-1321
San Diego Divorce Mediation & Family Law
www.SanDiegoFamilyLawyer.net
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Transcript
Episode Transcript
Available transcripts are automatically generated. Complete accuracy is not guaranteed.
Speaker 1 (00:00):
Hello and welcome to our Prenup Lawyer podcast, where
you and I get to learn moreabout prenups as I interview
professionals in the fields offamily law, couples counseling
and wealth management.
I'm your host, libby Garabedian, and let's get started.
Today we have Scott Levin,family law attorney, certified
divorce financial analyst andfounder of the Chief Peacekeeper
(00:21):
Mediation Method, dedicated tohelping California families
navigate divorce outside ofcourt with compassion and
clarity.
With over 20 years ofexperience in finance and
litigation, he combines legalexpertise with emotional
intelligence to reduce conflict,ease anxiety and prioritize
children's wealth.
Hey Scott, thank you for beingon the episode today.
Speaker 2 (00:41):
Thank you for having me.
I'm excited Of course.
Speaker 1 (00:44):
So let's first start with what's Chief Peacekeeper?
That's trademarked right.
Speaker 2 (00:49):
Yeah, basically it just signifies kind of what I'm
about in terms of the divorceworld.
I had clients that were membersof one of the tribal councils
here in Southern Californiaabout 10 years ago and when they
were signing their divorcepapers.
So I work with both sides to adivorce and then I work as a
(01:10):
neutral and partial and I do allof the legal process for them.
So when we were signing oursettlement agreement, the mom in
this case looked at me and shesaid you're my chief peacekeeper
.
And I said, oh, can I stealthat from you?
But yeah, basically it's justkind of signifies, you know, in
(01:33):
terms of the divorced world,like you know, there's a way to
do it where you can be peaceful,you can be amicable, you can be
collaborative and you can avoida court battle.
Speaker 1 (01:45):
Right.
So how do you go about that inyour own practice, keeping it
amicable.
Speaker 2 (01:52):
I mean, yeah, it varies in a lot of cases, but I
mean it's about collaboration.
So in divorce, when you'remediating a divorce settlement,
you're really forming a teamwith the couple.
So a couple and they are onteam us and we collaborate on
(02:15):
finding solutions to the issuesof divorce.
So, on our side of the courtare the human beings On the
other side of the court are, youknow, the human beings on the
other side of the court are theproblems that we have to figure
out.
So we are not spending timedefeating each other or hurting
each other or trying to defeatthe other side.
(02:35):
We're trying to defeat theissues of the process, and so we
just I just set it up in thatway, basically like where it's
all about creative solution,problem solving, idea generation
, whiteboarding.
You know what are the ways thatwe can solve this issue?
My job is to let them know allthe ways that I'm aware of after
(02:58):
two decades plus of being inthis, in this world, and so when
people have conflict, they'reusually, um, putting forward,
you know, one idea each.
I want it, I would like it thisway, I would like it that way,
and those ideas are not.
Uh, you know, two things can'thappen at the same time.
So yeah, one of the things I dois say, hey, what about options
(03:21):
three through ten?
Or what if we took this part ofthat idea and this part of this
idea and meld them together?
So you know, I'm a creativethinker, I'm an outside the box
thinker.
That's kind of what Ispecialize in.
Speaker 1 (03:35):
So how did you get into mediation?
I don't know.
Speaker 2 (03:40):
Yeah, I mean, I was.
I've been in finance and I'vebeen involved in the startup
world in my past life, so I havea finance background and I was
litigating cases for about 10years in court as a as a lawyer
that would represent one sideversus the other, versus the
(04:01):
other.
In 2013, one of my kids was bornand I just decided that I, you
know, I was going to take astand for humanity and not
litigate anymore.
So, you know, since 2013, Ihaven't litigated a case
representing one person versusthe other as an attorney in
court, and you know it's achallenging place in the law,
(04:25):
because it's really easy to tell, you know, a client like this
is what you deserve, or this iswhat you should get, or this is
what we should tell the judgefrom their perspective.
Only, it's harder to put apuzzle together to make both
sides feel as whole as possibleand willing to sign a settlement
(04:46):
which they're not, you know,oftentimes neither of them are
ecstatic about, and so it'sreally much more nuanced and it
takes a, you know, a much morecritical.
It takes a lot of criticalthinking and evaluation and
strategizing, more so than just,you know.
Let's go get them.
Speaker 1 (05:06):
Yeah, how do you feel that you've had to adapt to go
from litigation to this whereyou're trying to bring people
together?
Speaker 2 (05:14):
It's a totally different mindset.
You know that teamwork, thatcollaboration.
I tell people that you knowthere's a big movement in family
law where almost every familylaw litigator now is mediating
cases on the side.
You know everyone has amediation tab on their website.
Even if they have nevermediated, they're putting it out
(05:36):
there, right, I believe thatmediation is a special skill set
.
You know that mediation is aspecial skill set.
You know, when I was litigatingcases and I was like waking up
to emergency hearings and allthe stuff that happens when
you're litigating, you know itputs you in a mindset that's
very, you know, us versus theworld, and so it's hard to turn
(06:02):
that, that mindset off.
That battle helmet for your 2pmappointment where husband and
wife or wife and wife or whoevera mediation couple is coming in
to see you for an hour and thenyou go back to defeating the
other, the other side, and inall your cases are all about
wins and losses, are all aboutwins and losses.
Mediation's a mindset, it's a,it's a, it's a specialty, um,
(06:27):
and I really think people shouldbe choosing one lane or the
other.
You know, either litigate casesand go on that route or mediate
cases and stay in that world.
But, um you know, I thinkpeople should, I think
professionals should um reallychoose, choose a lane.
Speaker 1 (06:44):
Yeah, it's not really a transferable skill set, is
what I'm hearing.
Speaker 2 (06:47):
Yeah, I mean, I just think it's just like family law
litigation is very tough andit's a grind and you really feel
like it's you and your clientsagainst the other side and
that's your mindset all day long.
To turn that off is almostimpossible, I believe.
Speaker 1 (07:07):
So in the mediation and divorce litigation processes
, how, I guess, is it made moredifficult or easier when you've
got a prenup in place?
Speaker 2 (07:19):
Yeah, I mean first of all, like in mediation.
You know, most of the time youhave to agree that the prenup's
valid.
Like you can't be contesting aprenup in mediation you can ask,
for sometimes I have clientsask for like a settlement that
goes beyond the prenup and theother side is open to that, but
(07:43):
the prenup kind of shuts downcertain aspects.
Like before they hire me therethey've already said, hey, we
both agree that the prenup doesthis, this and that.
But you know, maybe there'ssome flexibility on the edges,
but I'm not a judge.
So if someone's coming in here,if a couple's coming in here
and one's saying, you know, Idon't think the prenup is valid
(08:04):
because X, y or Z I'm not goingto rule on that or, you know,
really have any say.
What I can do is I can helpthem negotiate a settlement that
respects the prenup but also,you know, maybe gives them
something that the prenupdoesn't allow to one of the
sides, so that we can moveforward without a battle.
Speaker 1 (08:27):
So when you're drafting a prenup, what's your
process so that, when you'relooking forward into the future,
that on the off chance, acouple ends up getting divorced
or they go through mediation?
How do you make it airtight sothat both sides end up being
happy?
Speaker 2 (08:41):
Yeah, I mean I don't know if that's such a thing, but
airtight.
First of all, I won't beinvolved in a prenup unless both
sides are represented.
So it really depends on so Ican mediate a prenup, which is
where a couple comes in.
I work with both of them as animpartial neutral and I craft a
(09:01):
prenup with both of their inputsand we basically collaborate on
what we want it to say and thenI draft it and then they get
two attorneys to review it foreach of them and then I make
some edits that our attorneyswant.
So I can still work as aneutral in that capacity.
So that's one thing and thatworks out really well because
(09:24):
both sides are involved and bothsides understand what it says.
Because you know, we've talkedabout everything We've, we've
really gone over all the optionstogether.
I'm not a huge fan of thetraditional like one side just
meets with their lawyer, craftslike a one pre-up and hands it
(09:45):
to the other side out of theblue.
So the other way that I servein the pre-up realm is as an
attorney.
So there's basically just kindof collaborating with my client,
but both sides would berepresented.
Both sides have to do a fulldisclosure.
(10:06):
So a lot of times the clientwill be like you know, I have
this on set but it's really notmine, it's my grandma's.
But you know I say, hey, put itdown.
Oversharing is better thanundersharing because you don't
want the other side to be ableto say that they didn't know
about something or they weredefrauded essentially into the
(10:27):
prenup by a failure to disclose.
So it's really important thatdisclosures have to be done well
and accurately and everyone hasto have a chance to ask
questions and poke at thosedisclosures and ask for more
information.
And both sides have to berepresented and ask for more
information and both sides haveto be represented.
But I've never had a problemever in two decades doing a
(10:52):
mediated prenup because bothsides really do feel like they
had a hand in creating the endresult.
But the traditionalhigher-earning spouse or
higher-net-worth spouse craftinga prenup with a lawyer behind
closed doors and handing it akind of a one sided document to
the other, that's when you canhave, you know people feeling
(11:13):
like they don't reallyunderstand or they don't,
they're not really involved inthe, in the crafting, and that
can make them feel disadvantagedin the future.
Speaker 1 (11:23):
Yeah, kind of isolating one spouse and
freezing them out in a way.
So, talking about thatcollaboration and mediation, how
do you just fall in that havinga prenup or coming up with a
prenup is an adversarial processand instead you get more of the
couple coming together?
Speaker 2 (11:41):
Yeah, I mean in the mediation setting.
I mean the three of us sit downlike this or on zoom and we
talk things out.
So I bring, I bring upquestions like what if this were
to happen, or what if that wereto happen, and um, or you know,
and I just bring up scenariosso that they can put themselves
in, they can project forward andlike put themselves in those
scenarios that we can play thatout like if if this happens, um,
(12:04):
you know, then you happens.
Then each person kind of says,well, I think this financial
decision would mean X, y or Z inthat scenario.
So basically, if you're goingto have kids, what if one of you
takes a step back in yourcareer?
What does that mean to yourfinancial outcome if you
eventually divorce?
(12:25):
How do we account for that?
How can we basically set eachparty up so that, in the event
of divorce, this document isn'tpunitive to one or the other?
And that's really the goal of aand that's really the goal of a
(12:53):
mediated prenup is that thesedocuments are very real and they
have very real impacts andthey're not to be played with.
A prenuptial agreement can havea huge impact on your life in
the future.
I've seen it happen to a lot ofpeople.
I've seen clients that haveentered the divorce process with
a prenup and having no ideawhat it really means and having
it be just tremendouslyimpactful.
Speaker 1 (13:25):
So you just have to be really careful and understand
what you're signing, why andhow, and have a chance to amend
those things so that it doesn'tharshly affect you in the future
if you don't intend for it todo so.
So, going back to what youmentioned about having a higher
lesser-earning spouse in therelationship, when you're
representing, let's say, alesser-earning spouse, how do
you counsel them so that theydon't feel like their financial
future is in jeopardy?
Speaker 2 (13:48):
Yeah, I mean.
So.
Usually in a case like that,you know there's a prenup that's
given to them from the otherside and it's a pretty one-sided
document most of the time andit's very expansive.
So what I try to do is say, hey, like let's cut this back.
You know, in some ways, youknow we can't edit every
provision, or, like you knowit's not going to fly, but like
(14:10):
what's most important to myclient, um, what's most
important to their future, andwe just kind of, we just amend
those provisions so that theyhave more rights, more, less, uh
, less problems later.
But, um, yeah, that's a verycommon scenario.
Most prenups don't.
I'd say.
More often than not there's akind of an advantage and
(14:32):
disadvantage side to atraditional prenup that's
written with one person andtheir lawyer handed to the other
person with minimal time andyou're just trying to make sure
that they understand what itsays and what their options are
for changing what it says.
Speaker 1 (14:48):
How do you equalize the marriage when you're
drafting a prenup, when you haveone spouse who is giving up
their career to stay home withtheir kids?
Speaker 2 (14:57):
Yeah, I mean, a lot of times you can't predict that
because they don't have childrenyet.
You don't know.
You know they don't know ifthey're going to, or they don't
really know what that meanscareer wise if they do.
So you just again, you just tryto say, hey, if you have a
seven-year-old and afour-year-old and you're getting
a divorce, let's look at like,let's put ourselves in that
(15:18):
position and figure out whatthat looks like.
What this document would sayright now is X, y and Z would
happen.
If that's not a result that youare comfortable with, then
let's change it so that you knowyou are comfortable with that.
Or if you have a, you know a 17and a 14 and a nine-year-old, I
(15:40):
mean.
So I just try to put them inthese positions to get them
thinking about those scenariosand I help them understand what
would happen according to thecurrent document and what our
options are for changing it sothat those things may or may not
happen.
Speaker 1 (15:55):
What does child support alimony look like when
you have children born outsideof the marriage versus when
they're born inside of themarriage?
Speaker 2 (16:04):
Can you clarify.
Speaker 1 (16:06):
If you have, let's say, a couple's coming together
it might not be their firstmarriage and one partner has
children from a previousmarriage or previous
relationship and the couple haschildren together once they're
married, what does that looklike for the financial future of
each child, I mean?
Speaker 2 (16:23):
I'm not sure what it means.
I mean it could mean a lotfinancially but, um, you know
that's a common scenario.
I think that um, prenups aremost often, uh, sought by people
that have been divorcedpreviously, especially when they
have a business or that they'veaccumulated some wealth, um, in
their, in their, you know, 40sand 50s and 60s, as opposed to,
(16:47):
you know, their 20s and early30s.
Um, but yeah, blended family, Imean I'm not so sure that a lot
of it, the prenup, encompassesanything particular about those
situations.
As much as talking throughagain when I'm mediating a
prenup we can talk through likeissues about blending and what
(17:08):
might come up in the future.
That would be, you know,potential hazards and things
like that where we can kind ofgame plan, but I'm not so sure
it would like be appropriate inthe actual prenup document
what's the difference between aprenup for a couple on their
first marriage or maybe theirsecond or third marriage?
well if they've gone through areally hard divorce process.
(17:31):
One of the big keys is thatthey want to have a path towards
an amicable settlement if theydivorce in this upcoming
marriage.
So it's very common for oneperson to say, yeah, I went
through a two and a half orthree and a half year divorce
process.
I just can't do that again.
(17:52):
I need to make sure that thatdoesn't happen.
So, you know, creating a pathtowards, um, uh, divorcing
amicably or or in mediation as areal key, um, oftentimes people
have more assets and morewealth because of their, because
they're older, uh, or theybecause they, you, you know,
matured in their lives and theyhave more to protect.
(18:14):
So they have a business, they,they have a home, they have
multiple homes, they havechildren that are from a
previous relationship, so theyhave more complicated lives and
and the prenup can help clarify,you know, financial rights and
entitlements in the future.
Speaker 1 (18:35):
Obviously, prenups are becoming more popular among
couples.
What's the biggest changeyou've seen in the last end to
15 years with these types ofagreements?
Speaker 2 (18:45):
That people are being more collaborative.
About 30% of my work in prenupsare as a mediator and I love
that.
It's really fun to be in aprenup and I'm able to really,
you know, help people, like Isaid, talk about things that
might not go in the prenup butthat I know are coming up If
(19:06):
they have kids from previousrelationships.
We can talk about those things.
We also talk about what happensin the event of death while
(19:27):
you're married and you know Icould help them kind of get in
the frame of mind to makewanting the documents to reflect
their lives and they're notwanting as much of the one-sided
you know demon prenup which islike you know, you get nothing,
I get everything, et cetera, etcetera.
Speaker 1 (19:46):
So, going off that point about setting them up with
a trust attorney, shouldcouples be working on their
prenups in conjunction withestate planning?
Speaker 2 (19:54):
Yeah, I mean it's a really nuanced division.
People get really confused bythat, because a prenup is what
happens in the event of adivorce while both people are
alive, and then a trust wouldtake effect about in the event
that you are married, but at thetime that the first person dies
(20:17):
.
So, um, it's really nuancedthough, because, uh, you know,
people want to be taken care ofum in the event that they are
married and you and one persondies, but one person owns the
home according to the prenup andthe trust, but the day deny and
(20:39):
the other person theypresumably were happily married
because there's no divorceprocess going on, and so people
talked about what would happenin that realm at the time of
doing the prenup.
It's very common to for thoseconversations to take place, and
those are healthy conversations, but they can only take place
(21:00):
if you're mediating the prenup.
I mean, it's hard for thoseconversations to take place if
you're just talking amongst eachother and then the two
attorneys are kind of leadingthe the drafting of the
negotiation, because thosethings aren't being got up.
So it's kind of an advantage ofa mediated process.
Speaker 1 (21:20):
So kind of shifting gears here.
What if you have a situationyou touched upon this earlier
where you have inheritance ormoney from a family member.
Maybe the bank of mom and dadis contributing to one spouse.
How is that written into thePRETA?
Speaker 2 (21:38):
Yeah, I mean, it's common, very common, that people
are relying on their eitherongoing gifts or inheritance,
and it really depends.
There's lots of options, butinheritance people want to
protect inheritance options.
But inheritance people want toprotect inheritance.
Um, but we give them a way oflike, um, you know, protecting
(21:59):
their inheritance if they don'twant to, if they don't want it
to become part of a communityproperty, but at the same time
you say there's ways ofbasically making it really easy
for them to make certainproperty and convert it to
community property if theychoose to.
So the way that I like to setthese prenups are basically that
we're achieving the protectionin advance, so all the things
(22:23):
that they want to protect arekept separate, but giving them a
path to make their own choicesin the future on a case-by-case
decision.
So they could say, hey, I'mgoing to deposit this money into
a joint account andintentionally convert it to a
community asset.
So we're giving them themechanism to do that.
But yeah, but at the same timegiving them the option of
(22:47):
protecting that property astheir own.
Speaker 1 (22:50):
So, keeping with that idea of autonomy and helping
them make, or have the freedomto make, different decisions
about their financial future, atwhat point should couples who
already have a prenup take alook at it, make changes to it?
Where, in most states, itbecomes a post-nup?
Speaker 2 (23:06):
Yeah, I mean things change right Over time, like
your financial reality canchange dramatically.
When I got married we hadnothing and we don't have a
premium.
But if we did, this would be anappropriate time.
My wife has a business, I havea business, we have three kids,
we have property, 401k all thesethings that didn't necessarily
(23:31):
exist, 401k all those thingsthat didn't necessarily exist.
So if you make a prenup, and inthat prenup you made financial
decisions that might not reflectwhat your desires are at
present, so you should look atit and you should consider
totally revamping it or at leastunderstanding what it would say
, what it would mean in theevent that you divorce, uh, in
(23:54):
the future and um, based onthose terms.
And so a lot of people do amendtheir pre-ups and then,
obviously, if there's you know,wholesale changes that no,
they'll just set up a post-nup.
(24:24):
How does the post-up processdiffer, differ from the pre-nup
process?
I'm careful that I'm not takingon a case where it's a postnup
only.
You know to delay a divorceprocess by a year or two, but
you know you need to.
A postnup really should havenothing to do with divorce.
Of course.
It's like what will happen inthe event of divorce will be in
(24:45):
the postnup but you're notanticipating or planning a
divorce.
You know, a lot of times peoplewill get a post-nup when they
come into certain property orthey're about to.
You know, use money in acertain way where they want to
protect that money in the eventthat they eventually get
(25:05):
divorced.
So they'll write a post-nupbefore these decisions take
place.
Or in general, you know,sometimes people will write a
post not because they think thatif they can get the pressure
some financial issue is puttingpressure on the marriage that
(25:26):
they can relieve that pressure,that the marriage could thrive
more effectively.
So I mean and then of coursesome people are are getting a
post-nup because one person youknow was unfaithful or did
something to the other.
You know one person feelswronged and they agree to some
(25:48):
sort of financial terms thatthat will account for that wrong
and prevent temporarily thedivorce.
But those are the cases whereI'm really evaluating whether I
want to be involved or not.
I don't want one person to signover rights to property because
they cheated or did somethingfinancially that harmed the
(26:10):
other person, because theyreally want to save the marriage
and the other person's kind ofpunishing them for it.
Those are the cases I steeraway from.
Speaker 1 (26:20):
And thinking about those ideas of pressure and
maybe there is a little unfairbargaining power.
Have you ever been in aposition where you're acting as
counsel for one spouse oursoon-to-be spouse and you've had
to tell them that, no, youcan't sign this prenup or you
need to walk away?
Speaker 2 (26:35):
Yeah, I had a case recently where it's basically my
client.
They the two parties were quitein love, I think my perception
but one, uh, what are their?
Uh, you know, family memberswere putting a lot of pressure
on the marriage because of afamily business and wanting that
(26:58):
family business to be protected, um, and they just would not.
And they and my client's spousewas not in a position to make
any accommodations to anythingthat we asked for.
And it was really the firsttime in my life.
It was a take it or leave it,right from the get-go post that,
and I told her that I reallydidn't feel comfortable and that
(27:24):
it wasn't right and that youknow there's supposed to be
negotiation and back and forth,and it was just a take it or
leave it.
And what is leave it, leave it,and what?
What is leave it, leave it?
Is what divorce?
Yeah, at two people that arehappily married but have the
this outside family pressure onthem, um, so, yeah, uh, that's
(27:44):
the only time that I really feltlike, uh, the only time I felt
I felt the illy.
Speaker 1 (27:50):
Maybe how or at what point should couples in the
relationship you know, beforethey get engaged, or when
they're engaged, when shouldthey start talking about a
prenup?
Let's say that there is thatfamily pressure that they have a
business or their family justhas a history of prenups.
Oh, my older brother, my oldersister, they just have prenups.
(28:11):
That's how we do it.
Speaker 2 (28:15):
I mean you should really, I, you, I, you know I
don't.
When people call me and they'relike, yeah, I'm getting married
, you know what is it July, July7th, today or 8th, when they're
getting married July 20th andthey're just starting to get
lawyers, yeah, that's always.
That's always really strange tome, like if one person knew
that this was coming or thoughtyou know, that's always.
That's always really strange tome, like if one person knew
that this was coming or thoughtyou know, why is it coming up so
(28:36):
late?
That can be a strategy, astrategy to put pressure on the
other person to sign whateverthey give them or to only make
minimal changes because there'snot much time left.
So you should, you should do it.
You know.
You should start the processthree to four months in advance
of the wedding or the marriagedate.
Give yourself enough time tonegotiate, to understand, to sit
(29:01):
with an agreement where you'renot being pressured by.
You know you have to sign thisin the next two days or there's
no marriage.
I mean, isn't that inherentpressure on the person?
So a lot of people start theprenups, either by design or by
circumstance, very, very late inthe process and it puts in, no
(29:24):
matter what the case is, there'simplied pressure because you're
either going to get married andsign this document or not.
Speaker 1 (29:31):
How do courts look at that?
If there is divorce proceedingsafter when there is this
implied pressure, does it haveto be a little more clear?
Speaker 2 (29:41):
I mean I'm not involved in like contesting
prenups anymore.
I mean I know most lawyers youknow that I, friends of mine,
you know Talk about contestingprenups all the time.
I mean I think if both partiesare represented from the
beginning with, you know,quality legal counsel and
(30:02):
there's a full disclosure ofassets and they have time to
negotiate the terms, yeah thatseems like a fair setup to me.
Now the impact of what theagreement can say can be harsh,
like I said before.
But I mean the process is fairor is set up well, then I think
(30:26):
that that's right off the batlikely have a contested issue,
but if you're not represented,or one person's not represented,
or you start the negotiations,you know, 14 days out from the
marriage those are scenarios nowyou haven't processed since
fall.
Speaker 1 (30:45):
And thinking about that, having enough time to go
through the negotiation process.
What other advice would yougive to couples who are
considering whether to getprenup?
Speaker 2 (31:01):
Yeah, I mean, I think it's.
I think it can be a really goodidea in the sense that you can
basically agree in advance notto not to litigate cases.
So, like, if you get all thatcomes from a prenup is that you
agree to mediate and that youput into place a path to mediate
your divorce and you make itharder for that not to happen.
That's a really positiveoutcome by itself.
Um, but you know, in terms ofum, you know you could make a
(31:26):
lot of financial agreements thatthat would ease the divorce
process.
It's just that a lot of thesefinancial agreements can also
have really meaningful impacts.
If your lifestyle is supportedby your spouse's earnings
primarily your spouse's earningsduring marriage, or their net
(31:46):
worth, even if they're notearning income actively, and you
divorce income actively and youdivorce, you could.
If the prenup says all theirstuff is theirs, your lifestyle
is going to change dramatically.
Um, so you have to be carefulabout waiving spousal support
absolutely.
So most of the time, there's noreason to do that.
(32:08):
Um, a full waiver.
You can't predict.
You know spousal support is areally, really key issue and you
you can't predict.
You know spousal support is areally, really key issue and you
just can't predict what, thatyou know under what
circumstances you'll need it orwon't need it.
But to just, you know, most ofthese one-sided prenups where
I'm representing, like the lowerearning spouse or the
disadvantage you know, almost90% of them say there's a full
(32:31):
waiver of spousal support when Iget the document and I just
expect it to be there and itnormally is.
So you know, I have to like,you know push back on that and
you have to like come up with anagreement where there's not,
you know, a full waiver Becauseyou can't predict what will
happen in the future?
Speaker 1 (32:48):
What other statutory calculations or clauses or
must-haves in a prenup?
Speaker 2 (32:56):
I mean, if you have kids, so like, if you're getting
married and you have a youngchild but it's not the other,
it's not your partner's child,so like, let's say, you have a
four-year-old but basicallyyou're going to get married,
that person's going to basicallybe looked at as a parental
figure and if they go throughthe next 20 years as that
(33:18):
person's parent, the prenupcould have provisions about.
You know, and I you know carefor that person in terms of,
like, life insurancebeneficiaries or other things,
and I'm you know they can bevery creative, so I guess you
know the setting up.
One thing I'll say about onething, about spousal support.
(33:43):
That's the biggest thing.
A lot of people want to wait.
You know a lot of fun, you know,first of people that are
drafting prenups want spousesupport to be waived by both
sides and you can do a, andthat's always a defeat because
you don't know if it will beenforced later.
But one thing that most of myclients do, or many of my
(34:03):
clients do, is say, hey, we'regoing to set up a path where
there's going to be value givento the other person if they
accept the prenup.
So there's going to be thischunk of value money and this
money is yours in the event thatwe mediate a settlement and we
don't litigate, and so youbasically can set up your
settlement in the event ofdivorce in a way that is very
(34:26):
likely that it won't becontested and become like the
two or three year divorce.
That's the main benefit of aprenup.
That most lawyers don't captureis what is the process?
How will these two peoplenavigate divorce if it happens
and the prenup can really bestructured to make it an
amicable or, you know,collaborative process so that
(34:46):
they avoid the drama?
Speaker 1 (34:50):
you.
California is an equitabledistribution state right how?
Speaker 2 (35:01):
does that affect prenups when you have spouses
who have waived?
Well, so it's a communityproperty state.
So when there's spouse supportit's totally waived.
So income is relevant tospouse's support.
So division of assets isbasically when you you get
divorced, you're trying toaccount for what are the
community assets, what are theseparate assets?
So you're dividing assets anddebts and then separately.
(35:23):
If there is no print up, thenyou're you're setting child
support and spousal supportbased on the income and income
differentials between both sides.
If their spouse's court waived,yeah, again, I don't contest
cases as an attorney anymore.
So when their spouse's courtwaived and most of my clients
are acknowledging that, theyagree to that and then they can
(35:49):
mediate the settlement.
If they disagree that spouse'scourt is waived by the prenup
being invalid, they want topursue it to invalidate a prenup
, but not going to be mediatinga settlement.
Speaker 1 (36:04):
Now, from all the ugly divorces we've seen, but
also the amicable mediations andsuccessful marriages.
What is something that you'venoticed that leads to a happy
couple in the end?
Speaker 2 (36:17):
I think it's really important that couples form
community.
So you know, I'd say 90% of thecouples I see we never mixed
our assets.
I have no idea what he makes orshe makes Like.
You have to be willing to formcommunity.
Something about keeping yourmoney separate weighs on a
(36:40):
marriage over time and I don'tknow why that is.
But you have to form communityproperty.
You have to be willing, youhave to jump in it and put
something in together, becauseso many of my clients that are
divorcing are telling me thatthey never joined their property
(37:01):
in any way.
They each had separate accountsand they both transferred money
into a joint account to paybills in a specific figure and
that's the extent of what theyshared.
And there's something aboutthat that weighs on a marriage
and that and it defeats it overtime.
So you know, even when I'msetting up a prenup that says
(37:23):
you know there's ways of keepingmoney separate, but there's
also a really easy way of ofmaking community when we have to
give that path, to make it easy, and I encourage people to, to,
to do, to invest in thecommunity in some way, every
year, every month, you know, insome consistent way, because
(37:44):
over time, when you just aren'tforming financial community, it
just has a way of impacting thequality of the marriage.
Speaker 1 (37:52):
Yeah, so there's that honesty and openness and
willing to collaborate to makeit lasting.
Speaker 2 (37:58):
Yeah, definitely Just a way of just forming and
putting money together in someway.
You have to do that, I think,otherwise I can just tell you so
often people tell me thatthey've never integrated their
funds in any way and they haveno idea what the other person
(38:19):
makes.
After 15 years they had no idea.
Wow, and it's so strange andthat just you know.
You have to be willing to.
You know, join funds in someway.
Speaker 1 (38:32):
Well, thank you so much for all of this.
It was very insightful.
Speaker 2 (38:36):
Yeah, my pleasure.
And again, I really encouragepeople to think about mediating
a prenup or mediating a postdoc.
It can cost a little bit moremoney because you have three
professionals, but collaboratingand being very open and the
dialogue can really reallybenefit couples.
(38:57):
You know long term success andso I'm a huge fan of mediating
the premarital or post postnatalagreements and people really
feel very, very good about theprocess at the end of it
typically, so encourage peopleto try, thank you, thank you.
Hello and welcome to our Prenup Lawyer podcast, where
you and I get to learn moreabout prenups as I interview
professionals in the fields offamily law, couples counseling
and wealth management.
I'm your host, libby Garabedian, and let's get started.
Today we have Scott Levin,family law attorney, certified
divorce financial analyst andfounder of the Chief Peacekeeper
(00:21):
Mediation Method, dedicated tohelping California families
navigate divorce outside ofcourt with compassion and
clarity.
With over 20 years ofexperience in finance and
litigation, he combines legalexpertise with emotional
intelligence to reduce conflict,ease anxiety and prioritize
children's wealth.
Hey Scott, thank you for beingon the episode today.
Speaker 2 (00:41):
Thank you for having me.
I'm excited Of course.
Speaker 1 (00:44):
So let's first start with what's Chief Peacekeeper?
That's trademarked right.
Speaker 2 (00:49):
Yeah, basically it just signifies kind of what I'm
about in terms of the divorceworld.
I had clients that were membersof one of the tribal councils
here in Southern Californiaabout 10 years ago and when they
were signing their divorcepapers.
So I work with both sides to adivorce and then I work as a
(01:10):
neutral and partial and I do allof the legal process for them.
So when we were signing oursettlement agreement, the mom in
this case looked at me and shesaid you're my chief peacekeeper
.
And I said, oh, can I stealthat from you?
But yeah, basically it's justkind of signifies, you know, in
(01:33):
terms of the divorced world,like you know, there's a way to
do it where you can be peaceful,you can be amicable, you can be
collaborative and you can avoida court battle.
Speaker 1 (01:45):
Right.
So how do you go about that inyour own practice, keeping it
amicable.
Speaker 2 (01:52):
I mean, yeah, it varies in a lot of cases, but I
mean it's about collaboration.
So in divorce, when you'remediating a divorce settlement,
you're really forming a teamwith the couple.
So a couple and they are onteam us and we collaborate on
(02:15):
finding solutions to the issuesof divorce.
So, on our side of the courtare the human beings On the
other side of the court are, youknow, the human beings on the
other side of the court are theproblems that we have to figure
out.
So we are not spending timedefeating each other or hurting
each other or trying to defeatthe other side.
(02:35):
We're trying to defeat theissues of the process, and so we
just I just set it up in thatway, basically like where it's
all about creative solution,problem solving, idea generation
, whiteboarding.
You know what are the ways thatwe can solve this issue?
My job is to let them know allthe ways that I'm aware of after
(02:58):
two decades plus of being inthis, in this world, and so when
people have conflict, they'reusually, um, putting forward,
you know, one idea each.
I want it, I would like it thisway, I would like it that way,
and those ideas are not.
Uh, you know, two things can'thappen at the same time.
So yeah, one of the things I dois say, hey, what about options
(03:21):
three through ten?
Or what if we took this part ofthat idea and this part of this
idea and meld them together?
So you know, I'm a creativethinker, I'm an outside the box
thinker.
That's kind of what Ispecialize in.
Speaker 1 (03:35):
So how did you get into mediation?
I don't know.
Speaker 2 (03:40):
Yeah, I mean, I was.
I've been in finance and I'vebeen involved in the startup
world in my past life, so I havea finance background and I was
litigating cases for about 10years in court as a as a lawyer
that would represent one sideversus the other, versus the
(04:01):
other.
In 2013, one of my kids was bornand I just decided that I, you
know, I was going to take astand for humanity and not
litigate anymore.
So, you know, since 2013, Ihaven't litigated a case
representing one person versusthe other as an attorney in
court, and you know it's achallenging place in the law,
(04:25):
because it's really easy to tell, you know, a client like this
is what you deserve, or this iswhat you should get, or this is
what we should tell the judgefrom their perspective.
Only, it's harder to put apuzzle together to make both
sides feel as whole as possibleand willing to sign a settlement
(04:46):
which they're not, you know,oftentimes neither of them are
ecstatic about, and so it'sreally much more nuanced and it
takes a, you know, a much morecritical.
It takes a lot of criticalthinking and evaluation and
strategizing, more so than just,you know.
Let's go get them.
Speaker 1 (05:06):
Yeah, how do you feel that you've had to adapt to go
from litigation to this whereyou're trying to bring people
together?
Speaker 2 (05:14):
It's a totally different mindset.
You know that teamwork, thatcollaboration.
I tell people that you knowthere's a big movement in family
law where almost every familylaw litigator now is mediating
cases on the side.
You know everyone has amediation tab on their website.
Even if they have nevermediated, they're putting it out
(05:36):
there, right, I believe thatmediation is a special skill set
.
You know that mediation is aspecial skill set.
You know, when I was litigatingcases and I was like waking up
to emergency hearings and allthe stuff that happens when
you're litigating, you know itputs you in a mindset that's
very, you know, us versus theworld, and so it's hard to turn
(06:02):
that, that mindset off.
That battle helmet for your 2pmappointment where husband and
wife or wife and wife or whoevera mediation couple is coming in
to see you for an hour and thenyou go back to defeating the
other, the other side, and inall your cases are all about
wins and losses, are all aboutwins and losses.
Mediation's a mindset, it's a,it's a, it's a specialty, um,
(06:27):
and I really think people shouldbe choosing one lane or the
other.
You know, either litigate casesand go on that route or mediate
cases and stay in that world.
But, um you know, I thinkpeople should, I think
professionals should um reallychoose, choose a lane.
Speaker 1 (06:44):
Yeah, it's not really a transferable skill set, is
what I'm hearing.
Speaker 2 (06:47):
Yeah, I mean, I just think it's just like family law
litigation is very tough andit's a grind and you really feel
like it's you and your clientsagainst the other side and
that's your mindset all day long.
To turn that off is almostimpossible, I believe.
Speaker 1 (07:07):
So in the mediation and divorce litigation processes
, how, I guess, is it made moredifficult or easier when you've
got a prenup in place?
Speaker 2 (07:19):
Yeah, I mean first of all, like in mediation.
You know, most of the time youhave to agree that the prenup's
valid.
Like you can't be contesting aprenup in mediation you can ask,
for sometimes I have clientsask for like a settlement that
goes beyond the prenup and theother side is open to that, but
(07:43):
the prenup kind of shuts downcertain aspects.
Like before they hire me therethey've already said, hey, we
both agree that the prenup doesthis, this and that.
But you know, maybe there'ssome flexibility on the edges,
but I'm not a judge.
So if someone's coming in here,if a couple's coming in here
and one's saying, you know, Idon't think the prenup is valid
(08:04):
because X, y or Z I'm not goingto rule on that or, you know,
really have any say.
What I can do is I can helpthem negotiate a settlement that
respects the prenup but also,you know, maybe gives them
something that the prenupdoesn't allow to one of the
sides, so that we can moveforward without a battle.
Speaker 1 (08:27):
So when you're drafting a prenup, what's your
process so that, when you'relooking forward into the future,
that on the off chance, acouple ends up getting divorced
or they go through mediation?
How do you make it airtight sothat both sides end up being
happy?
Speaker 2 (08:41):
Yeah, I mean I don't know if that's such a thing, but
airtight.
First of all, I won't beinvolved in a prenup unless both
sides are represented.
So it really depends on so Ican mediate a prenup, which is
where a couple comes in.
I work with both of them as animpartial neutral and I craft a
(09:01):
prenup with both of their inputsand we basically collaborate on
what we want it to say and thenI draft it and then they get
two attorneys to review it foreach of them and then I make
some edits that our attorneyswant.
So I can still work as aneutral in that capacity.
So that's one thing and thatworks out really well because
(09:24):
both sides are involved and bothsides understand what it says.
Because you know, we've talkedabout everything We've, we've
really gone over all the optionstogether.
I'm not a huge fan of thetraditional like one side just
meets with their lawyer, craftslike a one pre-up and hands it
(09:45):
to the other side out of theblue.
So the other way that I servein the pre-up realm is as an
attorney.
So there's basically just kindof collaborating with my client,
but both sides would berepresented.
Both sides have to do a fulldisclosure.
(10:06):
So a lot of times the clientwill be like you know, I have
this on set but it's really notmine, it's my grandma's.
But you know I say, hey, put itdown.
Oversharing is better thanundersharing because you don't
want the other side to be ableto say that they didn't know
about something or they weredefrauded essentially into the
(10:27):
prenup by a failure to disclose.
So it's really important thatdisclosures have to be done well
and accurately and everyone hasto have a chance to ask
questions and poke at thosedisclosures and ask for more
information.
And both sides have to berepresented and ask for more
information and both sides haveto be represented.
But I've never had a problemever in two decades doing a
(10:52):
mediated prenup because bothsides really do feel like they
had a hand in creating the endresult.
But the traditionalhigher-earning spouse or
higher-net-worth spouse craftinga prenup with a lawyer behind
closed doors and handing it akind of a one sided document to
the other, that's when you canhave, you know people feeling
(11:13):
like they don't reallyunderstand or they don't,
they're not really involved inthe, in the crafting, and that
can make them feel disadvantagedin the future.
Speaker 1 (11:23):
Yeah, kind of isolating one spouse and
freezing them out in a way.
So, talking about thatcollaboration and mediation, how
do you just fall in that havinga prenup or coming up with a
prenup is an adversarial processand instead you get more of the
couple coming together?
Speaker 2 (11:41):
Yeah, I mean in the mediation setting.
I mean the three of us sit downlike this or on zoom and we
talk things out.
So I bring, I bring upquestions like what if this were
to happen, or what if that wereto happen, and um, or you know,
and I just bring up scenariosso that they can put themselves
in, they can project forward andlike put themselves in those
scenarios that we can play thatout like if if this happens, um,
(12:04):
you know, then you happens.
Then each person kind of says,well, I think this financial
decision would mean X, y or Z inthat scenario.
So basically, if you're goingto have kids, what if one of you
takes a step back in yourcareer?
What does that mean to yourfinancial outcome if you
eventually divorce?
(12:25):
How do we account for that?
How can we basically set eachparty up so that, in the event
of divorce, this document isn'tpunitive to one or the other?
And that's really the goal of aand that's really the goal of a
(12:53):
mediated prenup is that thesedocuments are very real and they
have very real impacts andthey're not to be played with.
A prenuptial agreement can havea huge impact on your life in
the future.
I've seen it happen to a lot ofpeople.
I've seen clients that haveentered the divorce process with
a prenup and having no ideawhat it really means and having
it be just tremendouslyimpactful.
Speaker 1 (13:25):
So you just have to be really careful and understand
what you're signing, why andhow, and have a chance to amend
those things so that it doesn'tharshly affect you in the future
if you don't intend for it todo so.
So, going back to what youmentioned about having a higher
lesser-earning spouse in therelationship, when you're
representing, let's say, alesser-earning spouse, how do
you counsel them so that theydon't feel like their financial
future is in jeopardy?
Speaker 2 (13:48):
Yeah, I mean.
So.
Usually in a case like that,you know there's a prenup that's
given to them from the otherside and it's a pretty one-sided
document most of the time andit's very expansive.
So what I try to do is say, hey, like let's cut this back.
You know, in some ways, youknow we can't edit every
provision, or, like you knowit's not going to fly, but like
(14:10):
what's most important to myclient, um, what's most
important to their future, andwe just kind of, we just amend
those provisions so that theyhave more rights, more, less, uh
, less problems later.
But, um, yeah, that's a verycommon scenario.
Most prenups don't.
I'd say.
More often than not there's akind of an advantage and
(14:32):
disadvantage side to atraditional prenup that's
written with one person andtheir lawyer handed to the other
person with minimal time andyou're just trying to make sure
that they understand what itsays and what their options are
for changing what it says.
Speaker 1 (14:48):
How do you equalize the marriage when you're
drafting a prenup, when you haveone spouse who is giving up
their career to stay home withtheir kids?
Speaker 2 (14:57):
Yeah, I mean, a lot of times you can't predict that
because they don't have childrenyet.
You don't know.
You know they don't know ifthey're going to, or they don't
really know what that meanscareer wise if they do.
So you just again, you just tryto say, hey, if you have a
seven-year-old and afour-year-old and you're getting
a divorce, let's look at like,let's put ourselves in that
(15:18):
position and figure out whatthat looks like.
What this document would sayright now is X, y and Z would
happen.
If that's not a result that youare comfortable with, then
let's change it so that you knowyou are comfortable with that.
Or if you have a, you know a 17and a 14 and a nine-year-old, I
(15:40):
mean.
So I just try to put them inthese positions to get them
thinking about those scenariosand I help them understand what
would happen according to thecurrent document and what our
options are for changing it sothat those things may or may not
happen.
Speaker 1 (15:55):
What does child support alimony look like when
you have children born outsideof the marriage versus when
they're born inside of themarriage?
Speaker 2 (16:04):
Can you clarify.
Speaker 1 (16:06):
If you have, let's say, a couple's coming together
it might not be their firstmarriage and one partner has
children from a previousmarriage or previous
relationship and the couple haschildren together once they're
married, what does that looklike for the financial future of
each child, I mean?
Speaker 2 (16:23):
I'm not sure what it means.
I mean it could mean a lotfinancially but, um, you know
that's a common scenario.
I think that um, prenups aremost often, uh, sought by people
that have been divorcedpreviously, especially when they
have a business or that they'veaccumulated some wealth, um, in
their, in their, you know, 40sand 50s and 60s, as opposed to,
(16:47):
you know, their 20s and early30s.
Um, but yeah, blended family, Imean I'm not so sure that a lot
of it, the prenup, encompassesanything particular about those
situations.
As much as talking throughagain when I'm mediating a
prenup we can talk through likeissues about blending and what
(17:08):
might come up in the future.
That would be, you know,potential hazards and things
like that where we can kind ofgame plan, but I'm not so sure
it would like be appropriate inthe actual prenup document
what's the difference between aprenup for a couple on their
first marriage or maybe theirsecond or third marriage?
well if they've gone through areally hard divorce process.
(17:31):
One of the big keys is thatthey want to have a path towards
an amicable settlement if theydivorce in this upcoming
marriage.
So it's very common for oneperson to say, yeah, I went
through a two and a half orthree and a half year divorce
process.
I just can't do that again.
(17:52):
I need to make sure that thatdoesn't happen.
So, you know, creating a pathtowards, um, uh, divorcing
amicably or or in mediation as areal key, um, oftentimes people
have more assets and morewealth because of their, because
they're older, uh, or theybecause they, you, you know,
matured in their lives and theyhave more to protect.
(18:14):
So they have a business, they,they have a home, they have
multiple homes, they havechildren that are from a
previous relationship, so theyhave more complicated lives and
and the prenup can help clarify,you know, financial rights and
entitlements in the future.
Speaker 1 (18:35):
Obviously, prenups are becoming more popular among
couples.
What's the biggest changeyou've seen in the last end to
15 years with these types ofagreements?
Speaker 2 (18:45):
That people are being more collaborative.
About 30% of my work in prenupsare as a mediator and I love
that.
It's really fun to be in aprenup and I'm able to really,
you know, help people, like Isaid, talk about things that
might not go in the prenup butthat I know are coming up If
(19:06):
they have kids from previousrelationships.
We can talk about those things.
We also talk about what happensin the event of death while
(19:27):
you're married and you know Icould help them kind of get in
the frame of mind to makewanting the documents to reflect
their lives and they're notwanting as much of the one-sided
you know demon prenup which islike you know, you get nothing,
I get everything, et cetera, etcetera.
Speaker 1 (19:46):
So, going off that point about setting them up with
a trust attorney, shouldcouples be working on their
prenups in conjunction withestate planning?
Speaker 2 (19:54):
Yeah, I mean it's a really nuanced division.
People get really confused bythat, because a prenup is what
happens in the event of adivorce while both people are
alive, and then a trust wouldtake effect about in the event
that you are married, but at thetime that the first person dies
(20:17):
.
So, um, it's really nuancedthough, because, uh, you know,
people want to be taken care ofum in the event that they are
married and you and one persondies, but one person owns the
home according to the prenup andthe trust, but the day deny and
(20:39):
the other person theypresumably were happily married
because there's no divorceprocess going on, and so people
talked about what would happenin that realm at the time of
doing the prenup.
It's very common to for thoseconversations to take place, and
those are healthy conversations, but they can only take place
(21:00):
if you're mediating the prenup.
I mean, it's hard for thoseconversations to take place if
you're just talking amongst eachother and then the two
attorneys are kind of leadingthe the drafting of the
negotiation, because thosethings aren't being got up.
So it's kind of an advantage ofa mediated process.
Speaker 1 (21:20):
So kind of shifting gears here.
What if you have a situationyou touched upon this earlier
where you have inheritance ormoney from a family member.
Maybe the bank of mom and dadis contributing to one spouse.
How is that written into thePRETA?
Speaker 2 (21:38):
Yeah, I mean, it's common, very common, that people
are relying on their eitherongoing gifts or inheritance,
and it really depends.
There's lots of options, butinheritance people want to
protect inheritance options.
But inheritance people want toprotect inheritance.
Um, but we give them a way oflike, um, you know, protecting
(21:59):
their inheritance if they don'twant to, if they don't want it
to become part of a communityproperty, but at the same time
you say there's ways ofbasically making it really easy
for them to make certainproperty and convert it to
community property if theychoose to.
So the way that I like to setthese prenups are basically that
we're achieving the protectionin advance, so all the things
(22:23):
that they want to protect arekept separate, but giving them a
path to make their own choicesin the future on a case-by-case
decision.
So they could say, hey, I'mgoing to deposit this money into
a joint account andintentionally convert it to a
community asset.
So we're giving them themechanism to do that.
But yeah, but at the same timegiving them the option of
(22:47):
protecting that property astheir own.
Speaker 1 (22:50):
So, keeping with that idea of autonomy and helping
them make, or have the freedomto make, different decisions
about their financial future, atwhat point should couples who
already have a prenup take alook at it, make changes to it?
Where, in most states, itbecomes a post-nup?
Speaker 2 (23:06):
Yeah, I mean things change right Over time, like
your financial reality canchange dramatically.
When I got married we hadnothing and we don't have a
premium.
But if we did, this would be anappropriate time.
My wife has a business, I havea business, we have three kids,
we have property, 401k all thesethings that didn't necessarily
(23:31):
exist, 401k all those thingsthat didn't necessarily exist.
So if you make a prenup, and inthat prenup you made financial
decisions that might not reflectwhat your desires are at
present, so you should look atit and you should consider
totally revamping it or at leastunderstanding what it would say
, what it would mean in theevent that you divorce, uh, in
(23:54):
the future and um, based onthose terms.
And so a lot of people do amendtheir pre-ups and then,
obviously, if there's you know,wholesale changes that no,
they'll just set up a post-nup.
(24:24):
How does the post-up processdiffer, differ from the pre-nup
process?
I'm careful that I'm not takingon a case where it's a postnup
only.
You know to delay a divorceprocess by a year or two, but
you know you need to.
A postnup really should havenothing to do with divorce.
Of course.
It's like what will happen inthe event of divorce will be in
(24:45):
the postnup but you're notanticipating or planning a
divorce.
You know, a lot of times peoplewill get a post-nup when they
come into certain property orthey're about to.
You know, use money in acertain way where they want to
protect that money in the eventthat they eventually get
(25:05):
divorced.
So they'll write a post-nupbefore these decisions take
place.
Or in general, you know,sometimes people will write a
post not because they think thatif they can get the pressure
some financial issue is puttingpressure on the marriage that
(25:26):
they can relieve that pressure,that the marriage could thrive
more effectively.
So I mean and then of coursesome people are are getting a
post-nup because one person youknow was unfaithful or did
something to the other.
You know one person feelswronged and they agree to some
(25:48):
sort of financial terms thatthat will account for that wrong
and prevent temporarily thedivorce.
But those are the cases whereI'm really evaluating whether I
want to be involved or not.
I don't want one person to signover rights to property because
they cheated or did somethingfinancially that harmed the
(26:10):
other person, because theyreally want to save the marriage
and the other person's kind ofpunishing them for it.
Those are the cases I steeraway from.
Speaker 1 (26:20):
And thinking about those ideas of pressure and
maybe there is a little unfairbargaining power.
Have you ever been in aposition where you're acting as
counsel for one spouse oursoon-to-be spouse and you've had
to tell them that, no, youcan't sign this prenup or you
need to walk away?
Speaker 2 (26:35):
Yeah, I had a case recently where it's basically my
client.
They the two parties were quitein love, I think my perception
but one, uh, what are their?
Uh, you know, family memberswere putting a lot of pressure
on the marriage because of afamily business and wanting that
(26:58):
family business to be protected, um, and they just would not.
And they and my client's spousewas not in a position to make
any accommodations to anythingthat we asked for.
And it was really the firsttime in my life.
It was a take it or leave it,right from the get-go post that,
and I told her that I reallydidn't feel comfortable and that
(27:24):
it wasn't right and that youknow there's supposed to be
negotiation and back and forth,and it was just a take it or
leave it.
And what is leave it, leave it,and what?
What is leave it, leave it?
Is what divorce?
Yeah, at two people that arehappily married but have the
this outside family pressure onthem, um, so, yeah, uh, that's
(27:44):
the only time that I really feltlike, uh, the only time I felt
I felt the illy.
Speaker 1 (27:50):
Maybe how or at what point should couples in the
relationship you know, beforethey get engaged, or when
they're engaged, when shouldthey start talking about a
prenup?
Let's say that there is thatfamily pressure that they have a
business or their family justhas a history of prenups.
Oh, my older brother, my oldersister, they just have prenups.
(28:11):
That's how we do it.
Speaker 2 (28:15):
I mean you should really, I, you, I, you know I
don't.
When people call me and they'relike, yeah, I'm getting married
, you know what is it July, July7th, today or 8th, when they're
getting married July 20th andthey're just starting to get
lawyers, yeah, that's always.
That's always really strange tome, like if one person knew
that this was coming or thoughtyou know, that's always.
That's always really strange tome, like if one person knew
that this was coming or thoughtyou know, why is it coming up so
(28:36):
late?
That can be a strategy, astrategy to put pressure on the
other person to sign whateverthey give them or to only make
minimal changes because there'snot much time left.
So you should, you should do it.
You know.
You should start the processthree to four months in advance
of the wedding or the marriagedate.
Give yourself enough time tonegotiate, to understand, to sit
(29:01):
with an agreement where you'renot being pressured by.
You know you have to sign thisin the next two days or there's
no marriage.
I mean, isn't that inherentpressure on the person?
So a lot of people start theprenups, either by design or by
circumstance, very, very late inthe process and it puts in, no
(29:24):
matter what the case is, there'simplied pressure because you're
either going to get married andsign this document or not.
Speaker 1 (29:31):
How do courts look at that?
If there is divorce proceedingsafter when there is this
implied pressure, does it haveto be a little more clear?
Speaker 2 (29:41):
I mean I'm not involved in like contesting
prenups anymore.
I mean I know most lawyers youknow that I, friends of mine,
you know Talk about contestingprenups all the time.
I mean I think if both partiesare represented from the
beginning with, you know,quality legal counsel and
(30:02):
there's a full disclosure ofassets and they have time to
negotiate the terms, yeah thatseems like a fair setup to me.
Now the impact of what theagreement can say can be harsh,
like I said before.
But I mean the process is fairor is set up well, then I think
(30:26):
that that's right off the batlikely have a contested issue,
but if you're not represented,or one person's not represented,
or you start the negotiations,you know, 14 days out from the
marriage those are scenarios nowyou haven't processed since
fall.
Speaker 1 (30:45):
And thinking about that, having enough time to go
through the negotiation process.
What other advice would yougive to couples who are
considering whether to getprenup?
Speaker 2 (31:01):
Yeah, I mean, I think it's.
I think it can be a really goodidea in the sense that you can
basically agree in advance notto not to litigate cases.
So, like, if you get all thatcomes from a prenup is that you
agree to mediate and that youput into place a path to mediate
your divorce and you make itharder for that not to happen.
That's a really positiveoutcome by itself.
Um, but you know, in terms ofum, you know you could make a
(31:26):
lot of financial agreements thatthat would ease the divorce
process.
It's just that a lot of thesefinancial agreements can also
have really meaningful impacts.
If your lifestyle is supportedby your spouse's earnings
primarily your spouse's earningsduring marriage, or their net
(31:46):
worth, even if they're notearning income actively, and you
divorce income actively and youdivorce, you could.
If the prenup says all theirstuff is theirs, your lifestyle
is going to change dramatically.
Um, so you have to be carefulabout waiving spousal support
absolutely.
So most of the time, there's noreason to do that.
(32:08):
Um, a full waiver.
You can't predict.
You know spousal support is areally, really key issue and you
you can't predict.
You know spousal support is areally, really key issue and you
just can't predict what, thatyou know under what
circumstances you'll need it orwon't need it.
But to just, you know, most ofthese one-sided prenups where
I'm representing, like the lowerearning spouse or the
disadvantage you know, almost90% of them say there's a full
(32:31):
waiver of spousal support when Iget the document and I just
expect it to be there and itnormally is.
So you know, I have to like,you know push back on that and
you have to like come up with anagreement where there's not,
you know, a full waiver Becauseyou can't predict what will
happen in the future?
Speaker 1 (32:48):
What other statutory calculations or clauses or
must-haves in a prenup?
Speaker 2 (32:56):
I mean, if you have kids, so like, if you're getting
married and you have a youngchild but it's not the other,
it's not your partner's child,so like, let's say, you have a
four-year-old but basicallyyou're going to get married,
that person's going to basicallybe looked at as a parental
figure and if they go throughthe next 20 years as that
(33:18):
person's parent, the prenupcould have provisions about.
You know, and I you know carefor that person in terms of,
like, life insurancebeneficiaries or other things,
and I'm you know they can bevery creative, so I guess you
know the setting up.
One thing I'll say about onething, about spousal support.
(33:43):
That's the biggest thing.
A lot of people want to wait.
You know a lot of fun, you know,first of people that are
drafting prenups want spousesupport to be waived by both
sides and you can do a, andthat's always a defeat because
you don't know if it will beenforced later.
But one thing that most of myclients do, or many of my
(34:03):
clients do, is say, hey, we'regoing to set up a path where
there's going to be value givento the other person if they
accept the prenup.
So there's going to be thischunk of value money and this
money is yours in the event thatwe mediate a settlement and we
don't litigate, and so youbasically can set up your
settlement in the event ofdivorce in a way that is very
(34:26):
likely that it won't becontested and become like the
two or three year divorce.
That's the main benefit of aprenup.
That most lawyers don't captureis what is the process?
How will these two peoplenavigate divorce if it happens
and the prenup can really bestructured to make it an
amicable or, you know,collaborative process so that
(34:46):
they avoid the drama?
Speaker 1 (34:50):
you.
California is an equitabledistribution state right how?
Speaker 2 (35:01):
does that affect prenups when you have spouses
who have waived?
Well, so it's a communityproperty state.
So when there's spouse supportit's totally waived.
So income is relevant tospouse's support.
So division of assets isbasically when you you get
divorced, you're trying toaccount for what are the
community assets, what are theseparate assets?
So you're dividing assets anddebts and then separately.
(35:23):
If there is no print up, thenyou're you're setting child
support and spousal supportbased on the income and income
differentials between both sides.
If their spouse's court waived,yeah, again, I don't contest
cases as an attorney anymore.
So when their spouse's courtwaived and most of my clients
are acknowledging that, theyagree to that and then they can
(35:49):
mediate the settlement.
If they disagree that spouse'scourt is waived by the prenup
being invalid, they want topursue it to invalidate a prenup
, but not going to be mediatinga settlement.
Speaker 1 (36:04):
Now, from all the ugly divorces we've seen, but
also the amicable mediations andsuccessful marriages.
What is something that you'venoticed that leads to a happy
couple in the end?
Speaker 2 (36:17):
I think it's really important that couples form
community.
So you know, I'd say 90% of thecouples I see we never mixed
our assets.
I have no idea what he makes orshe makes Like.
You have to be willing to formcommunity.
Something about keeping yourmoney separate weighs on a
(36:40):
marriage over time and I don'tknow why that is.
But you have to form communityproperty.
You have to be willing, youhave to jump in it and put
something in together, becauseso many of my clients that are
divorcing are telling me thatthey never joined their property
(37:01):
in any way.
They each had separate accountsand they both transferred money
into a joint account to paybills in a specific figure and
that's the extent of what theyshared.
And there's something aboutthat that weighs on a marriage
and that and it defeats it overtime.
So you know, even when I'msetting up a prenup that says
(37:23):
you know there's ways of keepingmoney separate, but there's
also a really easy way of ofmaking community when we have to
give that path, to make it easy, and I encourage people to, to,
to do, to invest in thecommunity in some way, every
year, every month, you know, insome consistent way, because
(37:44):
over time, when you just aren'tforming financial community, it
just has a way of impacting thequality of the marriage.
Speaker 1 (37:52):
Yeah, so there's that honesty and openness and
willing to collaborate to makeit lasting.
Speaker 2 (37:58):
Yeah, definitely Just a way of just forming and
putting money together in someway.
You have to do that, I think,otherwise I can just tell you so
often people tell me thatthey've never integrated their
funds in any way and they haveno idea what the other person
(38:19):
makes.
After 15 years they had no idea.
Wow, and it's so strange andthat just you know.
You have to be willing to.
You know, join funds in someway.
Speaker 1 (38:32):
Well, thank you so much for all of this.
It was very insightful.
Speaker 2 (38:36):
Yeah, my pleasure.
And again, I really encouragepeople to think about mediating
a prenup or mediating a postdoc.
It can cost a little bit moremoney because you have three
professionals, but collaboratingand being very open and the
dialogue can really reallybenefit couples.
(38:57):
You know long term success andso I'm a huge fan of mediating
the premarital or post postnatalagreements and people really
feel very, very good about theprocess at the end of it
typically, so encourage peopleto try, thank you, thank you.
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