Author: Jeremy Masys

Everything You Always Wanted to Know About Prenuptial Agreements* (*But Were Afraid to Talk About With Your Fiance) 

As a pre-teen circa 1990, I spent the better part of an afternoon in my dad’s basement study secretly perusing his copy of the 1969 bestseller “Everything You Always Wanted to Know About Sex* (*But Were Afraid to Ask).” Based on the book’s massive popularity, I gather that society-at-large didn’t talk about sex in 1969 the same way we do now, or else that book would not have become a number one best seller in 51 countries. 

Fast forward to now, and sex is talked about basically non-stop. Few people these days go into their wedding requiring a thick, yellow tome to clinically explain the basics of lovemaking. 

What is far more common, however, is for people to walk down the aisle rather clueless about the basics of money and how it will work in their marriage. Talking about how bills will get paid, what might happen to the money in the event of a divorce or death of one party, and – (Gasp!) whether a well thought out prenuptial agreement is advisable – might be as common today as was a healthy discussion of sexual expectations between an unwed couple before 1969. 

And as you probably know, it’s money problems and not sex problems that end most marriages (although the former can often lead to the latter). But fear or ignorance regarding discussing money – and prenups even more so – before the wedding day persists. With that in mind, here is some of what you never knew you wanted to know about prenuptial agreements – and you don’t even have to wait until your parents leave the house to read about it.  

Do I Need a Prenuptial Agreement? 

No. 

Probably weren’t expecting that clear, direct, and notably selfless answer from an attorney, were you? 

Literally no one “needs” a prenuptial agreement the way you need water or food or, let’s say, a good haircut (You know who you are, and we’re all thinking it.).

A prenuptial agreement is not a necessity for survival. Plenty of people get married all the time without one and never think twice about it. That said, as a family law mediator and attorney who has seen more than my fair share of nasty, brutish, and not-at-all-short contested divorce cases, where the only people who seem to make out well are the lawyers, I know that plenty of people in those situations deeply wish they’d taken advantage of a prenuptial agreement long after the opportunity to have one has passed. 

On the one hand, a prenuptial agreement can give you and your spouse clarity on the financial picture of your partnership, both during the marriage and beyond. Should a divorce happen, prenups help prevent a good deal of treacherous and miserable legal and emotional drudgery. By working together on an agreement, couples who are about to tie the knot can have serious and vital conversations about money, their preferred lifestyle, and roles and responsibilities in the marriage. 

On the other hand, a prenuptial agreement can bring a certain, unappreciated business-like tenor to a marriage even before it starts. It is a legal document that essentially says, at the very least, “What’s mine is not necessarily yours.” So, persuading your partner to sign a prenuptial agreement can be a difficult, awkward, and sometimes fatal conversation leading up to a wedding. There’s a reason why Disney princesses and Rom-Com heroines rarely get presented with 32-page prenups right before they give their vows. 

“Okay. Enough with the semantics on the meaning of ‘need’. Should I have a prenup or not?”

I know that’s your real question, and I don’t have a simple answer for you.  But hopefully the rest of this article will provide helpful guidance for your decision. 

Are Prenuptial Agreements Just for Rich Folk?

That’s definitely what I thought growing up. It’s safe to say that this belief came from a very special episode of Diff’rent Strokes (weren’t they all?) where Mr. Drummond’s lawyer absolutely insisted that he persuade his fiance Maggie to sign a prenuptial agreement – specifically one that the lawyer had presented to both Mr. Drummond and Maggie on the day of the wedding. As you can see from this Youtube clip – aptly titled “Maggie is Furious with Mr. Drummond” – the suggestion does not go well and Maggie calls off the wedding. 

Because most of my early views on life were rightfully shaped by Diff’rent Strokes, and this episode was almost certainly the first time I’d ever heard of prenuptial agreements, I came away with two lessons here: 1) prenuptial agreements are for rich people; and 2) the love of your life will become furious once you, your lawyer, and/or your florist suggest it to them. 

Certainly, many rich people utilize prenuptial agreements, and many people do get at least upset if not furious when the topic of a prenuptial agreement is broached (But honestly, after I explain the exact nature of the prenup terms their partner is pushing for, people are far less upset than you might expect).

I’m not suggesting that everyone should have one, but I am saying that prenups are not just for rich people. First of all, while the agreement is finalized before the marriage, it generally does not have full impact until a divorce or death occurs. Many people have very little when they get married but wealth and assets accumulate over 20 or 30 years . You could be poor at the wedding and rich at the divorce (or vice versa if you don’t get that prenup). But no matter how much money you have, that money represents…well, all of your money. And most people want to protect that, regardless of whether or not they are rich by society’s standards.

So, no, prenuptial agreements are not just for rich people. And, also, have no fear Maggie and Mr. Drummond did indeed get married in the end.

Are Prenuptial Agreements Just for People Who Think They Will Get Divorced? 

In my experience, again – no. Of all of the prenuptial agreements I’ve done, no one has ever even suggested that they don’t think their marriage will work. As far as I can tell, the couples really love each other. Although I will say that I’m taken aback at times at how that love jives with some of the more draconian financial provisions I’ve seen proposed by wealthier partners in the marriage. (The response is nearly always that their lawyer thought them up, and they didn’t even know what the provisions meant! Uh, sure, Jan). 

In spite of what you might think, the vast majority of people I’ve worked with strongly express a desire and intention for their marriage to last “until death do us part”.  At the same time, they are aware that there are no guarantees against divorce. What is a guarantee is that in all 50 states, if one person in the marriage wants a divorce, then that person is going to be legally able to get one. In California, one person just has to say there are “irreconcilable differences”, and they will be able to terminate the marriage, no-questions-asked and no matter how reconcilable the other spouse thinks their differences are. 

You can objectively be the “world’s greatest husband” or “world’s greatest wife” year after year for decades on end, but if the other person wakes up one day, and says they want a divorce, then all those years of superlative-worthy spousal performance legally mean nothing with regards to whether you can stay married or not. Not many people want to think about that reality before the marriage even starts, but it is a reality nonetheless. In the same way that people have insurance to protect their finances in the case of the destruction of their house by fire, earthquake or flood without wanting or planning for any natural disaster to occur, people have a prenuptial agreement to protect their finances in the case of a divorce. 

And, let’s be brutally honest, a divorce is exponentially more likely to occur to you than a home-destroying fire, earthquake, or flood. 

So What’s the Difference Between a Prenuptial Agreement and a Premarital Agreement?

Nothing. Nada. They’re the same thing, and are interchangeable. I prefer “Premarital Agreement” as it relates to the entire marriage, not just the “nuptials” which refer specifically to the wedding. 

It often seems to me that clients, especially younger ones, mistakenly think of the prenuptial agreement as just one part of the wedding-planning process, whereas I try to focus them on the inherent, long-term implications of the agreement. In essence, with a prenuptial agreement you are entering into a contract that may not seem to affect your life now but your very-distant-future self (e.g., you in 2055 when your now-fiance decides they’re not feeling it anymore) may face the consequences of. 

Even though “Premarital Agreement” relays the significance of the agreement better than “Prenuptial Agreement”, “Prenuptial Agreement ” or “Prenup” is far more commonly used than “Premarital Agreement”, so that’s the term I use here. 

What Exactly Do Prenuptial Agreements Do? 

Perhaps the biggest misconception I encounter is that, somehow, all prenuptial agreements are the same, and you’ve either got one or you don’t. But Prenuptial Agreements vary according to the needs of each couple.

Before marriage, this is expressed as “I want a prenup.” When someone is getting divorced, this is expressed as “we have a prenup.” For people who want a prenuptial agreement, my next question is “Well, what do you want the agreement to say?” For people who are getting divorced, my next question is “Well, what does the agreement say?” Even quite sophisticated people, and even lawyers themselves, often respond, “I don’t know.”

A prenuptial agreement is simply a contract between two people who are not yet married that includes financial terms about their marriage. What those specific terms are is up to the parties getting married. 

Prenuptial agreements serve two general functions, one or both of which might be employed in a prenuptial agreement: 

1) changing the law that would otherwise be applicable to a married couple’s assets and financial obligations, specifically with regard to separate and community property (in states that have community property laws) or equitable property distribution laws, and spousal support (aka alimony); and/or

2) the parties agreeing to certain facts applicable to their marriage. 

As an example of the first function, a marrying couple might agree in the prenuptial agreement that neither of them can ever receive spousal support (aka alimony) from the other, even though state law might require a judge to order that in a divorce case when there is no agreement. For the second function, a marrying couple might agree that the Stradivarius on display in the living room was a premarital purchase of the soon-to-be wife;therefore, the husband will have no claim to it in a divorce. This does not change the law. It indicates both parties are affirmatively agreeing to the facts in writing and avoiding a possible evidentiary fight later when it might be difficult to prove such facts. 

Wait, How Does Separate Property and Community Property Work? 

This question is a good reminder that each state has its own family / divorce laws, and you will want to think about what the laws of your own state are as you enter into a prenuptial agreement. You also may get divorced in a completely different state than where you married, and that new state’s laws can take precedence over those of the state where you got married – a note on that below…. That said, there are more commonalities than differences among the various state laws regarding divorce. 

I live, practice, and have been divorced in California, which is a “community property” state, as are 8 other states. The remaining 41 states are “equitable distribution” states with respect to division of property. 

In a community property state, the earnings from either party during the marriage and the property that is purchased with such earnings are generally “community property”. That means they are owned 50/50 by the parties during the marriage. Upon divorce, regardless of which spouse earned the money and regardless of whose name is on the title of the bank account, house, boat, etc., they are split 50/50. Separate property, however, refers to funds and property earned or acquired before the marriage or received by gift/inheritance, and such property belongs solely to that person. Usually, separate property is not divided up or shared with the other spouse in the event of a divorce. 

Equitable distribution laws do not follow community property law principles but often still provide for the distribution of property to spouses regardless of who earned or acquired the funds or property.

This is an extremely short and cosmically over-simplified description of how marital property distribution laws work, but the point is that, in a prenuptial agreement, the parties can decide how property should be treated in a divorce or at death. And prenuptial agreement property terms can override the state law that would otherwise apply to their property. A prenuptial agreement can also include language that indicates that, wherever the divorce occurs (e.g., a different state from that of the marriage), the terms of that prenuptial agreement should apply. 

So, What’s the Deal With Alimony and Spousal Support? 

Spousal support and alimony mean the same thing. Some states like California use the term “spousal support” to refer to payments from one spouse to another after the marriage for a period of time, which is separate and apart from the distribution of marital property and from child support. But, yes, this is the alimony that you have heard about in the movies or from your shell-shocked uncle at Thanksgiving. 

The laws of the various states regarding alimony are much more varied than those regarding property. Here in California, we have what is quite possibly the most generous spousal support regime in the country. If you make a million dollars a year, but your spouse makes two million dollars a year, there is a good chance you can nonetheless be awarded significant spousal support from him or her even though you are financially doing just fine. In other states, particularly in the Bible Belt, you might only get spousal support if you would otherwise be destitute (someday I’ll write a piece about the disconnect between states that have laws claiming to uphold the “sanctity of marriage” while at the same time making it really financially easy to leave your spouse, but that day is not today…). 

And at least iIn California, the real kicker in my opinion is the utterly unpredictable nature of how that spousal support amount is reached. I once heard a well-respected judge say that 20 different judges were given the same exact facts regarding a spousal support determination in an exercise, and they came back with 20 different numbers on what, if any, that spousal support should be. As such, it can be very expensive to litigate spousal support, but people have an incentive to do so if they think they will luck out in court (And, yes, I do mean luck. Going to court to litigate your divorce is a lot like going to a casino to grow your retirement, except there are no drinks served, and you have to pay your attorneys many hundreds of dollars an hour for the privilege.)

Many people successfully avoid such unpredictability, delay, and the general crazy-making of litigation by including specific spousal support numbers and durations (or waiving it altogether) in a prenuptial agreement. 

Can We Decide Child Custody and Child Support in a Prenuptial Agreement?

No.

You cannot dictate terms about child custody and child support in a prenuptial agreement. Because we’re talking about third parties here – your current or future kids – and third parties that are minors at that, the government retains some authority to step in and make sure that the best interests and needs of said children are being met based on the current circumstances they are in. 

One way to illustrate this is, imagine two fresh-faced 28-year-olds getting married who sign a prenuptial agreement indicating that the wife will have sole legal and physical custody over the children in the event of the divorce, and that child support will be capped at $1,000 a month. Now, fast forward 12 years, when they are divorcing and have three kids, but mom is suffering from a serious opioid addiction and is completely incompetent to take care of the children. It would make no sense to honor such a prenuptial agreement. Conversely, imagine that dad strikes it rich, making a million dollars a year, while mom struggles to get by on minimum wage. Similarly it would make no sense to permit dad to pay only $1,000 a month in support in that scenario. 

What’s the Best Way to Talk to My Fiance About a Prenuptial Agreement? 

Very delicately. If I had a one-size-fits-all script for you, I would give it to you. Your first step is to understand that it’s a touchy topic and that even bringing it up might cause your fiance to think you are greedy, not committed to the marriage, suspicious, unromantic, or all of the above. 

Hopefully, you are none of those things, and you can discuss the positive reasons for having a prenuptial agreement in a non-patronizing manner: financial clarity for both parties, like the avoidance of soul-crushing and bank-draining litigation down the road, a clear and transparent accounting of the financial circumstances for both parties before the marriage, etc. 

But if you are some of those things, this conversation is just as important and necessary to get those out on the table and have honest and open dialogue before you walk down the aisle.

Or you can just say it was all your parent’s idea. Or your kid’s idea. Both of which frequently seem to be the case. 

Ultimately, it can be a tough conversation, no doubt, and I have written more extensively about this topic separately in another article. But if you have a strong desire for the benefits of a prenuptial agreement – which is normal and rational – and you are about to embark on what is possibly the most significant financial move of your life, then the toughness of the conversation should not be a barrier to having it. 

I Found this $99 (or Free!) Prenuptial Agreement Online, So What Kind of Idiots Pay a Lawyer for a Prenuptial Agreement? 

No one likes free and/or discounted stuff more than me. Even if I win the powerball, I will still shop at Costco and feel a jolt of excitement if I see that the three-pound bag of frozen wontons is 2 bucks off. 

Then again, no one dislikes cheap stuff that is ultimately worthless and therefore a waste of time, money, and landfill space more than me. If you have a problem that needs fixing, certainly shop around for the best deal, but make sure what you are buying actually fixes the problem and is durable enough to still work by the time you actually need it..

You see where I’m going with this. Yes, of course the inclination is to download some Mad Libs style fill-in-the-blank PDF rather than pay a professional hundreds of dollars an hour to draft a prenuptial agreement. And that might work fine, particularly if you never get divorced. Or if you’re secretly hoping that the prenuptial agreement actually turns out to be unenforceable and/or otherwise useless.

I have seen quite a few “downloaded” prenuptial agreements in my divorce cases, whether shown to me by a client or asserted by the other party. Not once has one actually: 1) said what the person asserting the agreement thinks it says; and 2) been legally enforceable. In other words, every one that I have seen has been ultimately worthless and inconsequential to the divorce, except that rather than paying an attorney to draft you a useful prenuptial agreement at the time of marriage, you’re paying your attorney at the time of divorce to read it and tell you that you can’t use it in the divorce and you’ve been operating under a false assumption this whole time.

I’m not saying it’s impossible for a DIY prenuptial agreement to do what you want it to do without having to pay any attorney fees. I’m just saying I haven’t seen it in the wild yet. And, because marriage is again, quite possibly the most significant financial action you will ever make, it’s worth spending some of that money you are trying to save on a prenuptial agreement that will do it right.

Seriously, Do We Need a Lawyer for a Prenuptial Agreement? 

Along with the misconception that all prenups are the same, another common misconception is implicit in this question. The two of you, the “we” in the question, cannot share a lawyer. Doing so would be an inherent conflict of interest. So, while you might not need “a” lawyer, – you may very well need “two” lawyers, one for you and one for your fiance. 

In some cases, a prenuptial agreement will actually not be enforceable without an attorney having represented the party against whom enforcement of the agreement is sought. For example, in California, any provision in a prenuptial agreement relating to spousal support is unenforceable if the person whose rights to support would be impaired was not represented by their own attorney at the time the agreement was signed. 

Even if there are no provisions regarding spousal support in the agreement, there could still be a very uphill battle enforcing any of the terms in the agreement in court at the time of divorce if your spouse was not represented by their own legal counsel in the prenuptial agreement. Having both parties represented by counsel counters most arguments against enforceability before they even arise. And if your spouse does not have the funds to pay for a lawyer or does not want to, then you as the person who wants the prenuptial agreement may need to pay for their lawyer in addition to your own. This is fairly common practice for the person who wants the prenuptial agreement to pay for both their lawyer and their finance’s. 

Can We Have a Neutral Third Party Negotiate and Draft Our Prenuptial Agreement? 

Maybe this wasn’t on your list of questions. But the traditional, old-school procedure of one lawyer working with a client to draft a prenuptial agreement without any involvement of the other party, and then presenting it to the other person and their lawyer is not the only way of getting a prenuptial agreement done. 

A marrying couple can meet with a single mediator who can work with the two of them to come up with an agreement that meets their needs then potentially have each of their attorneys review the agreement. Unlike an attorney who will represent only one of the parties, a mediator is a neutral who does not represent either party. With such a dynamic, the parties may be able to speak more freely with one another and benefit from the problem-solving and peacekeeping skills that a mediator brings to the table. 

My Fiance’s Lawyer Suggested a Lawyer for Me – Is that a Red Flag? 

Maybe, but it’s probably not a bad thing that your fiance’s lawyer recommends a lawyer for you. I have a network of other competent family law attorneys who work on prenuptial agreements and are easy to work with while still zealously representing the interests of their clients. Unfortunately, many family law attorneys can be combative, unresponsive, and frankly not at all good at what they do. Do your own research on any attorneys recommended to you, but, no, this is not inherently a red flag. 

For Real, Though, Do I Need a Prenuptial Agreement? 

I’m not a mindreader, but if you’ve read all 4,000+ words of this article up to this point, I have a feeling you probably have some significant and well founded concerns about structuring and planning your finances prior to a marriage.

So – like I said at the beginning – not every couple needs a prenup to get married or divorced. However, your interests seem to show that a prenuptial agreement is worth looking into, and you don’t have to be afraid to ask or explore its benefits with your fiance. 

About the Author – Jeremy Masys (Mediator, Divorce Coach, Attorney)

Jeremy Masys is a family law mediator, divorce coach, and consulting family law attorney based in Southern California. He has drafted and/or represented parties in dozens of prenuptial agreements, and also serves as a mediator and scribe of prenuptial agreements where parties are represented by their own attorneys or self-represented. If you would like to speak with Jeremy about your California prenuptial agreement issue – whether to mediate a prenuptial agreement, draft an agreement on your behalf, or review an agreement that has been or will be presented to you – contact Jeremy at jeremymasyslaw@gmail.com today.

What Does the Bible Really Say About Divorce? A Family Law Mediator’s Look at “Divorce and Remarriage in the Church”

by Jeremy Masys, Esq.

As a churchgoer and mediator/attorney working in divorce law, I can tell you the most common ongoing conversation I hear among my family law colleagues is about what the Bible actually says about divorce and remarriage. 

Yes, I am 100% kidding. I have never heard this conversation be brought up once among family law attorneys or mediators. I’m sure it’s happened at least once when I wasn’t in earshot, and I’m also sure the conversation is rare.

On the one hand, this makes sense. It’s not the job of a mediator or attorney to tell you whether you should get divorced, much less whether your doing so is in line with the will of the Almighty. It’s also the case that in a big coastal city like Los Angeles, the proportion of people considering how Biblical principles should affect their decision making isn’t as high as it might be in other parts of the country or in bygone eras. And by the time a situation comes in front of an attorney and/or mediator, the decision has often already been made. Finally, in our now half-century-old regime of no-fault divorce in California (signed into law by one Governor Ronald Reagan on January 1, 1970), if one spouse wants a divorce, the law grants the divorce, regardless of whatever decision the other spouse might have made on the issue.   

On the other hand, for a perhaps shrinking but still significant portion of the population, understanding what the Bible actually does say about the grounds for divorce (and for remarriage after a divorce) is an enormously important and relevant issue. It can mean the difference between staying in a toxic, unhealthy, and even dangerous relationship out of a misunderstanding of religious obligation and moving forward to a new chapter of restoration and resurrection (conversely, it can also mean understanding that pursuing a divorce to escape what could be temporary emotional discomfort may not serve you or your spouse spiritually or practically in the long run). 

Odds are that, if you’ve read this far, you’re willing to at least entertain the notion that the Bible does have something meaningful to say about divorce and remarriage, whether as a person contemplating divorce or as a friend, family member, pastor, spiritual advisor, therapist, or legal advisor to someone who is. I would also hazard to say that odds are you are not exactly sure what that something meaningful exactly is. 

I’ve befriended some extremely knowledgeable and well-educated pastors and Christian therapists over the years (and even provided legal counsel to some), and, despite their education, their collective answers to the question of what the Bible says about divorce or remarriage are neither anything approaching consistent nor super helpful. You’ve probably experienced the same (and if you feel confused by what your pastor really thinks about divorce, understand that he or she may be confused as well). And with such controversial theological questions, it seems that people often conclude that the most severe, strict interpretation of Biblical statements on divorce must be the correct one, and that all others are wishy-washy modern heresies intended to tell people what they want to hear as opposed to what they need to hear. 

Enter “Divorce and Remarriage in the Church: Biblical Solutions for Pastoral Realities,” a 2003 book authored by Rev. Dr. David Instone-Brewer, a former Baptist minister and research fellow at Tyndale House in Cambridge, England. In short, not a celebrity pastor’s ghostwritten hot takes, but rather a guy who knows his Greek from his Aramaic. I was first referred to this book by a former client, and the sound of it conjured up an impenetrable 600-page tome in the style of NT Wright’s non-mass-market treatises, better suited for treating insomnia than providing practical guidance. 

When I finally ordered it off Amazon and read it, though, I was very pleasantly surprised to find a 212-page user-friendly manual that appears directed at pastors, but presented in a practical and straightforward style that anyone can easily digest and appreciate. Honestly, it was a page-turner in its clear presentation of principles that, as far as I can tell, have been mostly ignored, misunderstood, or at least not discussed openly by the church (I’m guessing you’ve heard dozens of sermons about marriage, singleness, and dating and maybe close to none on divorce). 

And to the extent you have heard divorce openly spoken about by a religious authority, it’s probably better than 50/50 odds that you came away with the understanding that divorce is allowable only in cases of adultery and perhaps abandonment. Meaning – and taking this to the logical extreme – if your spouse had a drunken one-night stand once over the course of a thirty-year marriage, you can leave, but if he’s been unsuccessfully trying to murder you every day for the last year but not cheating on you or leaving, you have to stick by him until he succeeds or gives up. 

Instone-Brewer presents a very different Biblical view on divorce, informed by his deep research into the Old Testament, Rabbinic law, the Dead Sea Scrolls, and Church history. I won’t try to encapsulate the entire message of the book as a substitute for reading said book, but the author’s core thesis is that Old Testament law allowed for divorce when the marriage vows were broken and the culpable breaker of the vows is unwilling to rectify the situation when given time and opportunity to do so, and the New Testament does not nullify those principles. And these vows go beyond just sexual fidelity – indeed they include the provision of emotional and material support. As Instone-Brewer puts it, “Divorce is never good, but sometimes it is the only way to end the evil of a broken marriage.” 

Over the course of the book, Instone-Brewer sets forth seven Biblical principles on divorce and remarriage: 

“1. Marriage is a lifetime contract between two partners, and marriage vows are the stipulations of this contract.

2. Both partners vow to provide material support and physical affection and to be sexually faithful to each other.

3. If one partner breaks a marriage vow, the other has the right to decide either to end the marriage with a divorce or to carry on.

4. Divorce should take place only if vows have been broken, and it is always sinful to break those vows.

5. Jesus adds the caveat that we should forgive an erring partner unless they break their vows continuously or without repentance.

6. Pauls adds the caveat that if a divorce takes place without citing broken vows, remarriage to another is allowed only if reconciliation is impossible.

7. The overriding principle in all these is that the wronged partner must be able to choose. They must be able to decide whether to regard the marriage contract as broken or whether to persevere with it.” 

But wait, you say, that’s not what I’ve heard in church all these years (in the rare times the topic is raised)! Isn’t this just a new feel-good theology departing from orthodox teaching? To the contrary, Instone-Brewer argues this was the original theology of the Church, and presents a compelling historical lesson on why it has been in disfavor or simply unknown for all this time. 

Of course, Instone-Brewer’s interpretation is not without its detractors – influential theologian John Piper’s position is that all remarriage after a divorce should be prohibited in the Church while both spouses are alive (Piper’s organization has also asserted that Marvel’s Captain Marvel is problematic because it presents a woman saving men from danger rather than being protected and cherished by men, so there’s that). On the other hand, the Tim Keller-founded Gospel Coalition reviewed Instone-Brewer’s book and deemed it “essential reading for anyone concerned to develop a biblical understanding of divorce and remarriage…the author presents the fruits of many years of research in a clear, gripping and enjoyable way.”

In the end, for me, I return to where I started with this, which is that as a mediator and attorney, it is not my place to tell anyone how to proceed with the life-changing decision to pursue a divorce, and, although I did double-major in Religion and English in undergrad some 20-odd years ago, my Biblical knowledge is far less than Instone-Brewer’s, Keller’s, or Piper’s, so I am not here to say who is right and who is wrong. But I am keenly sensitive to the importance of the issues for clients and their friends, pastors, therapists, and family members, and my hope is that Instone-Brewer’s book can provide insight and guidance on very difficult questions. 

Contact a Los Angeles Divorce Mediator With Further Questions 

At the Mediation and Law Offices of Jeremy Masys, I serve as a mediator between divorcing spouses and attorney to those in mediation, negotiation and litigation. If you have any questions, please contact me at jeremymasyslaw@gmail.com.

Some Maybe Do’s and Maybe Don’ts For Being a Good Friend to Someone in the First Weeks of a Divorce

By Jeremy Masys 

When a friend is going through the first days/weeks/months of a separation heading towards divorce, you might be asking yourself how you can be a good friend to that person. And if you’re not – well, you really should be, as the beginning stages of a divorce is when a person needs positive friendship in their life the most. 

After all, not only is this person grieving what has been lost (even if pursuing divorce is an incontrovertibly wise decision, that’s obviously not what they thought when they got married, and that loss is still deeply felt when the separation starts), but also quite possibly figuring out how to navigate the world on their own without a companion for the first time in a long time. 

Among other things, they may be figuring out what friendship even looks like as a single person. 

If you’ve read this far, then that probably means you have positive intentions of helping this person out through your friendship. Which is fantastic. But positive intentions don’t always lead to positive outcomes, and what you think might be helpful could be not that great for the other person. Conversely, what you think might be minor and insignificant could mean the world to that person and be a forever positive memory in their time of darkness. 

I’m no therapist or life coach (thankfully), but I’ve worked with and been friends with loads of men and women as they go through the first stages of separation and divorce, and I went through all of it myself as a young thirty-something shortly after I moved to a city where I knew no one. So I’ve gained some unscientific insights along the way about what seems to be helpful and what is not.

Everyone’s different in myriad ways (now there’s an insight, huh?) so none of this is one-size fit all, but here are some “maybe” do’s and don’ts of being a good friend to someone in the first days, weeks, and months of separation/divorce:

Maybe Don’t:

Tell your friend that “marriage is hard.” Yes, it’s a true statement. But is it a helpful statement in this moment? I really don’t think so. I can’t tell you how many times I heard this when I was first separated. If there’s one person that knows that marriage is hard, it’s the person who just realized they’re getting divorced. Telling them that probably doesn’t make it easier, but instead states the obvious of what’s already in their brain 24/7 from the moment they open their eyes in the morning til the moment they finally get themself to sleep. Saying it doesn’t give them any hope to hang onto. And worse, it just kind of suggests they didn’t try hard enough and so it’s on them. This is especially true if you as the great messenger of this truism are married. It’s basically saying, “Yeah, marriage is hard. I mean I can do it. You clearly not so much. Maybe try harder next time?”

Maybe Do: 

Understand that your friend is going to want to hang out more and be open to that. Yes, another way of putting this is, your friend is going to be needy because they are in need and what they need is friendship, and that would be where you come in. It’s tough going from sharing a household for years to suddenly facing a perpetual string of solo Tuesday nights (and the other six days of the week too). You don’t have to bend over backwards or pretend you don’t have your own life, but maybe be open to having a third wheel around while you watch Dancing With the Stars, or make room for guys’ night at the bar here and there even if you haven’t left the house on a Wednesday in months and gave up whiskey for White Claws with the wifey years ago.

Maybe Don’t:

Tell your friend all the bad stuff you really thought about their ex unless invited. It’s extremely common for friends to suddenly unload every bad impression of their recently-separated friend’s ex as soon as the relationship is over, basically some version of “I/we never actually liked him/her because _____.” Now this one can go both ways, because maybe having a clear-headed impression of the ex is exactly what your friend wants or needs, but you shouldn’t be the one to initiate that. Even when things go bad, there is still a lot of love there, and in the end that was the person they were married to. Dumping all over that person reflects badly on the marriage and thus badly on your friend. And the two might reconcile and then you’re in a position of having talked serious trash about their spouse. But, hey, if your friend wants to hear what you really thought of him/her, some of that can be empowering and affirming in small doses. But again let your friend be the moderator of that.

Maybe Do: 

Invite your friend into positive social groups and interactions, even if they were never interested before. A bad marriage can really close one person off to the rest of what’s going on in the world, and when it comes to an end they can find themselves spit out into the social wilderness without a community, a lot of friends, or recently-used social skills. Their marriage may have been close to their social everything and, as bad as it may have been, it’s now gone and they don’t know how to start over. Invite your friend along with you to group events you do that they may or may not be interested in: book club, ultimate frisbee, church, beach outings, even support groups if that’s applicable. They may not want to come but they’ll appreciate the thought and may be inspired to go find a group/community that will provide them with social support and new connections.

Maybe Don’t:

Encourage your friend to “get back out there” quickly. Yes, to the brain of a long-married person, the world of Tinder and Bumble and whatever else may sound like a wonderland where single people go live their best unshackled lives, and as such it’s the immediate silver lining of a divorce. And it’s the low hanging fruit of suggestions of how to distract oneself from a bad breakup. But, really, encouraging someone who’s in the thick of the emotional pain and practical concerns to go learn to swim in the murky world of online dating is not great for them, and probably not great for anyone else either. Dating immediately at the start of legal proceedings with an ex-spouse can also be an emotional time-bomb for both parties that makes the divorce way messier than it needs to be. Your vicarious delight at your friend’s adventures and/or misadventures in online dating can wait until they get more pressing personal and legal issues sorted out. 

Maybe Do:

Have your friend over for dinner with the family on a regular basis. You might think that eating pot roast with you and your kids and then settling into a night of Disney Plus is the last thing your newly single-and-ready-to-mingle friend wants to do after a separation. Again, having known tons of people who go through this, I’m guessing you’d be wrong. Make the invite and find out. 

Maybe Don’t:

Give amateur and/or aggressive legal advice. We’ve all heard about other people’s divorces, read about them, and seen them depicted in TV and movies. But I’ve rarely found anyone who can provide any sort of useful legal guidance on someone else’s family law issues who wasn’t themselves practicing in the family law world in that particular jurisdiction (and this especially goes for lawyers who practice in other fields). What I have heard is a lot of bad and/or incorrect legal advice that doesn’t help people and usually just makes them upset/frightened or, even worse, unreasonably confident. Furthermore, this advice for some reason tends to be on the aggressive side against the other spouse. And if there’s one recipe for making a bad separation situation way worse, it’s having one spouse act aggressively and ignorantly with regard to the law. It’s a legal fees arms race waiting to happen. 

Maybe Do:

Suggest your friend go into mediation and/or speak with a trusted legal adviser. Well, this being my blog, this is of course the self-serving pitch, but I can say this confidently: I have only ever seen positive consequences of a separated person seeking consultation with a skilled legal professional and or reaching out to a mediator in the process; while at the same time I have seen quite the opposite when a person assumes it will all work out on its own and/or pursues legal action on their own without help. 

Contact a Los Angeles Divorce Mediator/Attorney With Further Questions

At the Mediation and Law Offices of Jeremy Masys, I serve as a mediator between divorcing spouses and family law attorney providing full representation and limited scope counsel. If you have any questions about the divorce process in California, please contact me at 213-478-0089 or by entering your information below.

20 Frequently Asked Questions (And To-The-Point Answers) About Spousal Support (AKA Alimony) in California

By Jeremy Masys, Esq.

One of the most perplexing issues people going through divorce in California face is the issue of spousal support, AKA alimony. Which all come down to variations of the two questions “how much can I get?” and “how much do I have to pay?” but there are often a lot of other questions to be answered in getting to that question. 

A main reason the issue of spousal support in California is so confusing to those going through the divorce process is because, while there is plenty of “law” on the topic, that law never really gives you numbers (at least not numbers that are easily accessible) and there is an enormous amount of discretion that judges have in setting those numbers. Most people can wrap their heads relatively easy around the basic concepts of property (50/50 split of community property) and custody/visitation (what is in the best interests of the child), but spousal support is murky to be sure. 

To add to this, when clients ask their attorneys about spousal support numbers, oftentimes attorneys will give a deeply unsatisfying answer that boils down to “it depends.” There is of course truth to this, and in some cases, it may be very unclear, but in a lot of cases attorneys could be giving their clients way more pointed guidance than they actualy do. 

With all that said, let’s go through 20 frequently asked questions about spousal support in California with some very to-the-point answers (with the caveat that, yes, to some extent “it depends” is quite often going to be the case with questions about spousal support). 

Q: Can a man get spousal support from an ex-wife?

A: Yes. (No “it depends” on this one!).

Q: Do we have to have been married for a certain amount of time for one spouse to pay spousal support to the other?

A: No. (Another no “it depends”!). But the duration of the marriage will affect the duration of the spousal support. 

Q: Got it. So how long do I have to pay spousal support?

A: It depends (sorry). But for marriages under ten years, courts generally order spousal support for half the length of the marriage, measured from the date of marriage to the date of separation. Meaning if you were married for six years, spousal support would be paid for three years. For marriages over ten years, the duration is a little trickier. 

Q: Right, I heard that if I stay married for ten years, then I get guaranteed spousal support forever, correct?

A: No! You might. But it’s not “guaranteed” for several reasons. First, there is always the question of whether you would be entitled to spousal support in the first place. But even if you are, the Court will expect you to make efforts to be self-supporting over time. With marriages over ten years, a Court can retain indefinite jurisdiction to make an award of spousal support – meaning the Court would have the ability to award support indefinitely over and above half the length of the marriage – but that doesn’t mean a Court will continue to award it indefinitely. Still, yes, a person seeking spousal support who was in a marriage lasting over ten years is going to probably be in a better position than someone who was not. 

Q: Can I just pay spousal support in one lump sum?

A: Yes, assuming the other party agrees to doing so. Many divorces are resolved with a negotiated agreement by which one party pays a lump sum of spousal support to the other party. 

Q: Can I get spousal support (or “do I have to pay spousal support”) if we didn’t have kids?

A: Yes (another straight ahead one). Spousal support is entirely separate from child support, and whether or not you have children has no bearing on whether you are eligible for spousal support (although the efforts of one party to take care of children in lieu of earning income can have an effect on the amount and duration). 

Q: Do I have to pay spousal support if my ex gets remarried?

A: Generally, no under the law (although this can be negotiated). Under the California Family Code, spousal support ends at the death of either party or the remarriage of the supported party, unless the parties have an agreement otherwise.

Q: But what if my ex just moves in with someone else but doesn’t get married?

A: This is trickier, but spousal support can at least be modified if not terminated where the supported party is cohabitating and being supported by a new romantic interest to whom they are not married. 

Q: If I stop earning income, can I stop paying spousal support?

A: You can’t stop paying unilaterally, but yes either party can request that the Court make a modification of spousal support after a divorce where either party’s financial circumstances have changed significantly (although some parties negotiate spousal support to not allow for such modifications). This modification can make the support higher or lower.

Q: Okay, but what I really want to know is how much I have to pay (or how much I can expect to get paid) in spousal support?

A: It depends (again, sorry). But let me provide more explanation. First we have to talk about the difference between temporary spousal support and permanent spousal support…

Q: Wait, what? 

A: Hold on! I’m getting to it. Temporary spousal support – also called pendente lite spousal support if you like a little Latin with your legalese (and, really, what kind of philistine doesn’t?) – is spousal support that can be requested at any time during the divorce proceedings, including right after the initial petition is filed, and can last until the divorce is finalized. Permanent spousal support is the spousal support that is part of a final divorce judgment. 

Q: Permanent spousal support as in forever?

A: No, that’s just a term for it being a final support award. A five-year award of spousal support in a final judgment is literally “temporary” in that it only lasts five years but is considered “permanent” or “final” in the sense that it is a settled matter part of a final judgment order. 

Q: This is confusing.

A: That’s technically not a question. And yet I’m counting it towards your 20. But, yes, it can be at first. Also, your attorney will know all of this. 

Q: So how much will I receive/pay in temporary spousal support?

A: Under California law, a Court can simply take the respective incomes of each spouse, and plug them into a formula in a program called Dissomaster and that program will spit out a temporary spousal support number with the idea of partially equalizing the monthly incomes of each party. But a Court can also hear all other kinds of evidence as well that is relevant to setting a fair spousal support number, such as one party’s ability to work or to earn higher income, and other factors from the marriage. 

Q: Can I get this Dissomaster program online for free?

A: Not that I’m aware of. It’s a proprietary software, but your attorney should have a copy and they should be responsive to you in asking for potential scenarios from the program. 

Q: Alright, well how is permanent spousal support set?

A: And we have now come to the ultimate “it depends” question and answer. A Court sets permanent spousal support based on what are called the “4320 factors” named after California Family Code 4320. These factors include:

— The age and health of both parties

— Whether one party stopped working to take care of children and/or support the other spouse

— Whether one party would need time to learn new skills (e.g. go back to school) to become self-supporting

— Any history of domestic violence

— Whether the supported party has marketable skills, education, etc. to go earn a living and be self-supporting

— The marital standard of living enjoyed by the couple during a marriage (e.g. did you vacation around the world for six months a year, or was every weekend netflix and chill in your shared studio apartment the entire time you were married?)

— The needs of the party based on the marital standard of living (using what some might consider a rather loose approach to the concept of “needs”)

— Whether one party contributed to the education of the other party 

— The total obligations and assets of each party

— The duration of the marriage

— Basically any other fact that the Court deems relevant to determining what a fair spousal support award is…

Q: Stop right there. I sort of get these factors but how do I actually calculate with precision what a Judge will order in spousal support?

A: You don’t! This is where the “it depends” comes from. Not only do Judges have the ability to review evidence on all of the above factors, they have quite a lot of discretion in setting what that spousal support amount should be. 

Q: Am I wrong to say that this sounds like it could be a very expensive and complex issue to go to trial on?

A: No, you’re not wrong. It definitely could be. And it would be difficult to predict what result you’d get.

Q: So how do I avoid that?

A: Good thing you asked. Very few divorces go to trial on the issue of spousal support for these very reasons. Generally what happens is the parties negotiate a number and amount in light of the above factors, and often use the Dissomaster as a guide in reaching these numbers, with the understanding that temporary spousal support is often higher than what a Court would order in a trial to set permanent support. 

Q: Can we enter into mediation to mediate a spousal support number?

A: Absolutely! And mediation may well be the best way to resolve the issue of spousal support for many parties. This question deserves a blog of it’s own (and it will come in due time), but, to put it briefly, in mediation the spouses can work together in a collaborative environment to figure out what funds are available for support, what each party needs for their respective lifestyles post-divorce, and what is fair and mutually beneficial to one another in light of the law and/or their own personal concerns.  

Contact a Los Angeles Divorce Attorney/Mediator With Further Questions on Spousal Support

At the Mediation and Law Offices of Jeremy Masys, I serve as a mediator between divorcing spouses and attorney to those in mediation, negotiation and litigation. If you have any questions about spousal support or other family law issues, please contact me at 213-478-0089 or by entering your information below.

10 Tips for Discussing With Your Soon-To-Be-Ex-Spouse Whether Mediation Is Right For You

by Jeremy Masys

At the outset of a divorce, there are typically two difficult series of conversations you and your soon-to-be-ex-spouse have, or at least should be having: 1) whether one or both of you is moving ahead with seeking a divorce, and 2) figuring out the process (e.g. both of you hire expensive lawyers, trying to figure the paperwork and negotiation out on your own, and so on) by which you are going to get the divorce done in the Court so that you are legally divorced and both of you get a result you are comfortable with moving forward in life. 

I and many others in the California family law field are strong proponents of the proposition that mediation is in many cases a far more preferable alternative to resolving your divorce legally, as compared to the stressful and expensive process of having attorneys fight it out inside or outside of court, or the confusing and annoying process of two people trying to figure out the law and paperwork on their own when they’re not even sure what their rights and obligations are under California law. 

The benefits of mediation to resolve your divorce are well-explained in this blog and elsewhere, but very basically: divorce mediation with a knowledgeable and skilled legal professional gives you the best of both worlds in that you can understand your rights and options with the guidance of an impartial mediation while avoiding the high legal fees, stress, and very long delay that often comes with trying to argue your way to a result in an overcrowded, overburdened public courtroom in a front of a judge who has hundreds and hundreds of cases on their docket. 

But it takes two to tango with mediation. Because mediation is a voluntary process, both you and your spouse have to agree to enter into mediation, and you have to agree on the same mediator. And trying to get an agreement on anything at the time your marriage is dissolving may feel like a task not worth the effort. But let’s be very clear: getting to a successful mediation is absolutely worth the effort when compared to months or years in court, legal fees to both of you in the tens of thousands (if not higher), and the severe emotional strain that a contested, adversarial and drawn-out legal fight can put on you and your children. 

In other words, yes, getting an agreement from your spouse to try mediation may be a chore, but it’s worth it in the vast majority of cases. 

With that, here are 10 tips for discussing with your soon-to-be-ex-spouse whether mediation is right for you: 

  1. Before you have the discussion, do a little bit of your own research (as in an hour or so, but more if you feel so led) on the benefits of mediation, so you are prepared to make a case for why it would be a good idea for both of you. 
  2. Taking that one step further, spend a little time thinking about the tangible benefits mediation could be for the two of you in your specific circumstances and write those down. Such reasons could be: 1) we can figure out a custody schedule for [insert your child’s name] that works for her and us without dragging it through the courts; 2) we can get this done without digging into our 401ks; 3) we can figure out a way to keep this house and split the equity fairly, while preserving our collective net worth by not spending tons of money on lawyers, etc. 
  3. Email or print out articles on the benefits of mediation that you think would appeal to your spouse and share them with him or her.
  4. Find the names of a couple mediators that you would feel comfortable working with, and who would potentially appeal to your spouse as well. This way you can give options so as it does not seem to be forcing the process of working with a specific mediator. 
  5. Set a specific time to have the conversation on “how we are going to get this done” so that your spouse doesn’t feel ambushed, and so that they have time to prepare and think about what their goals and concerns are. 
  6. In the conversation, stress that mediation is a voluntary process and that both you and your spouse can choose to discontinue the process at any time and go to court if they so choose. In other words, neither party is giving up anything other than the modest time and fees associated with mediation to try the process out. 
  7. Also make it clear to the other spouse that a mediator – by definition – cannot and will not force any decisions on him or her. 
  8. Encourage your spouse to do their own research if they want, and to seek out other names of mediators if they so choose.
  9. Don’t demand an answer in a first conversation, although, if you get one, great. Understand that the other spouse likely has their own fears and insecurities about the process and may need time to get their mind around what their options are. 
  10. That said, do be persistent and patient with encouraging mediation. You may well want to say “screw it, let’s go to court” in a moment of frustration, but the negative consequences of that are often so great that sucking it up and letting the process of agreeing to mediation play out is worth the annoyance and minor delay. 

Contact a Los Angeles Divorce Mediator With Further Questions

At the Mediation and Law Offices of Jeremy Masys, I serve as a mediator between divorcing spouses and consulting attorney to those in mediation. If you have any questions about mediation, please contact me at 213-478-0089 or by entering your information here.

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