The Pros and Cons of Prenuptial Agreements

Americans today are getting married later in life. Currently, the average age of a first marriage is 27 for women and 29 for men – an increase of four years for women and three years for men in just the last 25 years.

So it may not be so surprising that more well-established brides and grooms are considering prenuptial agreements to be part of the wedding process. According to a 2013 survey of members of the American Academy of Matrimonial Lawyers, 63% of attorneys surveyed said they have seen an increase in prenups over the past three years. A recent Wall Street Journal article examined two essays written by two attorneys to highlight the pros and cons of creating a pre-nuptial agreement. Arguing in favor of prenups, Pennsylvania attorney Cheryl Young writes that the realities of marriage – that many end in divorce and, of those that don’t, all end in death – dictate the need for prenups, especially for those couples with assets of their own or an expected inheritance.

Arguing against prenups, Massachusetts attorney Laurie Israel concedes that prenups do have their uses, particularly for couples marrying later in life with children from a previous marriage. However, she calls prenups “unnecessary, overly broad and mean-spirited,” and says they harm the spouse with fewer assets who is likely to “contract away” his or her marital rights.

Whether you are for pre-nups or not, when you have an estate plan set up to provide for a lifetime of asset protection – this goes beyond a typical revocable living trust plan – you can avoid the need for prenuptial planning altogether.

The best way for this kind of planning to be set up is for a parent to set a trust up that leaves an inheritance (or makes a gift during life) to her child in a protected trust we call a lifetime asset protection trust. That trust, when set up right, can never be reached in the event of a divorce, or by any other creditors, ever.

It’s an undisputed truth that every couple and every marriage is different. Whether you are being married for the first time or the fourth, my office can help you provide for the financial security of all your loved ones with a Family Wealth Planning Session. Call this office for details.

Landmark Supreme Court Ruling on Same-Sex Marriage Will Have Monumental Effects

In June, the United States Supreme Court issued its decision in Obergefell v. Hodges, a highly publicized case upholding the rights of same-sex couples to marry. This decision has widespread implications in various areas, many of which were not anticipated by the mainstream media.

Background

Most of the plaintiffs were same-sex couples who challenged practices of several states, including the refusals to issue marriage licenses or recognize valid marriages performed in other states. Although the challengers won in each of the federal trial courts, the intermediate appellate court ruled against them. This created a split in the law of the federal circuits, and the United States Supreme Court accepted the case for review.

Ruling

The United States Supreme Court held that the right to marry was fundamental and ought to be applied to same-sex couples in the same way
that it has been applied to couples of the opposite sex. As a result, the state laws that refused marriage licenses to same-sex couples were invalidated, as were those that refused to recognize valid same-sex marriages licensed in other states. In making its holding, the Court overruled a prior decision from the early 1970s.

Implications

While the media coverage of the Obergefell  same-sex marriage case was extensive, the effects of the decision will be even more so. Here are some examples of areas that will likely be affected:

  • Adoption rights
  • Antidiscrimination law
  • Family and Medical Leave Act rights
  • Health care benefits
  • Vital statistics, such as birth and death certificates
  • Wills and trusts

Now that the Obergefell decision has been issued, many court cases will be brought to help clarify its impact. The Obergefell decision will have a significant impact on the American Legal landscape and how this case affects inheritance rights in the realm of estate planning will be better understood within the next couple years. In the meantime, when your family needs legal advice, contact me, your neighborhood Personal Family Lawyer. I build trusting relationships with my clients and as the law evolves so will my office. I’m there for you and your family to answer your questions and make the law work for you.

How to Pass On Family Heirlooms Without Causing a Family Feud

The holidays are traditionally the time for family gatherings, where generations come together and perform holiday rituals that have been passed down through the years. Part of those rituals includes material possessions – a well-worn set of silver at the holiday table, grandmother’s china or treasured tree ornaments from childhood.

When we sit down to that holiday meal, rarely do we contemplate Susie and Sally engaged in a bitter fight over the sterling butter knives. But it happens. A lot.

To ensure that family memories are kept in a good place, your estate plan needs to include the orderly disposition of your material possessions. Unbeknownst to a lot of us, these possessions can hold special meaning to younger generations, and a family feud that could be in the offing can be avoided by advance planning.

As part of your comprehensive estate plan, you may want to consider distributing some material possessions to your heirs prior to your death. If not, then you need to be sure you specify exactly who you want to get what by:

  • Listing in detail each item and the name of the intended recipient
  • Sharing this list with your estate executor as well as with your family
  • Including the list within your last will and testament or other estate planning documents

If you’d like to learn more about estate planning strategies for your family, call our office today to schedule a time for us to sit down and talk. We normally charge $500 for a Family Wealth Planning Session, but because this planning is so important, I’ve made space for the next two people who mention this article to have a complete planning session at no charge. Call today and mention this article.

California’s Security First Rule

While I’ve covered several different consumer law topics over the course of my blog, I have yet to touch on the issues and rules associated with mortgages. During the bubble burst of the late 2000’s, foreclosure was an unfortunate reality for many home owners. Since then, the rate of foreclosure has diminished and people are again becoming comfortable with the idea of purchasing a home and financing it through a mortgage. Unfortunately, one of the harshest truths of existence is the uncertainty of what the future brings. And for some home owners events will transpire which will cause them to fall behind on their mortgage payments. If you fall behind on your mortgage payments it’s important that you understand the rules governing a mortgagee attempting to collect money due to it.

One of the key differences between a mortgage lender and a regular creditor/debt collector is the fact that the mortgagee’s loan is secured by the home that is the subject matter of the mortgage agreement. Which means in the event of a home owner failing to make payments, the mortgagee can take steps to offset the home owners delinquency such as selling the home in foreclosure. In the alternative, a mortgagee may try and sue the home buyer in court for the remainder of the mortgage payments. More often than not a mortgagee will not sue on the underlying indebtedness of the debtor but will simply pursue a foreclosure and nothing more.

The reason a mortgage lender does not also file a lawsuit against the debtor for the underlying indebtedness is due to California’s “Security First” Rule. This rule is codified by California Code of Civil Procedure Section 726(a) and it (among other things) prevents a secured creditor from ignoring its security and suing on the underlying debt. What that means is that a creditor cannot sue a debtor for a mortgage without first foreclosing on the property. If a mortgage lender does file a lawsuit without having first foreclosed on the property then they are in violation of CCP 726(a) and their debt collection lawsuit will fail.

Once they have foreclosed on the property, they are still not able to file a lawsuit on the underlying debt. Another rule in California entitled the “One Action” rule holds that a creditor may only take one form of action in trying to collect on default mortgage. Which means that once a mortgage lender forecloses on a property, they are legally forbidden from pursing a lawsuit in addition to the proceeds of the foreclosure. This is true even if the amount the mortgage lender receives in foreclosure is less than the amount of mortgage. I will go into greater detail on the “One Action” rule in a future blog post.

It’s important to note that the “Security First” rule only applies to a creditor that is the first secured creditor of a home. Home owners might take out a mortgage and a Home Equity Line of Credit; and which ever credit extension is first in line on the registry of secured creditors will be subject to the “Security First” rule while the second secured creditor may be permitted to file a lawsuit against a former home owner after the property has been foreclosed on. Still California’s anti-deficiency laws may limit the second secured creditors rights and abilities to collect money from the home owner. Generally speaking, if you are being sued by a secured creditor and they have not first foreclosed upon your property then they may be in violation of the law.

ARBITRATION CLAUSES ARE BAD FOR CONSUMERS

Most people take the time to meticulously read through every line of a contract when they are engaged in a consumer transaction. I apologize, did I say “most” people? What I meant to say was “no” people. No consumer reads through every line of a contract because it is long and riddled with legalese. If a person is able to read through a consumer contract, like the one they give you when you buy a new car, without falling asleep then they should give that person some kind of award or at least a discount. I’m an attorney and I have trouble staying awake when required to scan through a consumer contract.

What’s frustrating about this is that everyone knows that no one reads through a consumer contract  including our judicial system, south park even premised one of their episodes on this truth (see en.wikipedia.org/wiki/HumancentiPad); yet judges will punish consumers for their failure to read through a consumer contract. Not just for their failure to read through a consumer contract, but for their failure to grasp the effect of the consumer contract. I speak of the farce that is the arbitration clause located in many contracts consumers sign. If you’re unfamiliar with an arbitration clause what it does is effectively remove a consumer’s right to bring a lawsuit against a company; they must instead try and enforce their rights through a process called “arbitration” that is generally more favorable to corporations then it is to the consumer.

The arbitration clause not only removes a consumer’s right to file a lawsuit against the company, but the way it is written in most contracts is meant to insulate the corporation from potential significant loses. Despite this courts will still enforce arbitration clauses seemingly implying that arbitration clauses are not unfair in their eyes; but there is now a decision coming out of Federal court in which a judge enforced an arbitration clause against his better judgement. Here’s a link to a blog post that explains the judge’s misgivings in forcing the lawsuit to proceed in arbitration. Although it is not an outright victory in the consumer battle against arbitration clauses it is a step in the right direction.

 

www.publicjustice.net/content/Judge-Laments-Law-of-Arbitration-Ignores-Common-Sense

The Duty of a Credit Reporting Agency

As the loan and credit culture in America continues to grow in many facets, a person’s credit report can make or break their livelihood. A person with a positive credit report can more easily obtain loans or credit than a person that suffers from a negative credit report. This is why it is important that credit reporting agencies accurately reflect a person’s creditworthiness; otherwise a person that ought to be able to obtain credit might be bogged down by information that should not appear on his/her credit report.  Continue reading

Who Can Bring a Lawsuit Against a Debt Collector?

It is common practice for debt collectors to engage in harassing and abusive behavior in an attempt to collect a debt. Debt collectors are fully aware that the people they contact are not familiar with the law so they use whatever means are necessary to collect. This is of course a generalization, there are debt collectors and debt collection agencies that follow the law and treat consumers ethically but there are also those agencies that are either unaware of the law or completely disregard it and go out of their way to be as heinous as possible.  Continue reading

Don’t Trust Debt Collectors

These past few years I’ve learned a great deal about consumer law and the rights of a consumer in general; but I think the most significant thing I’ve learned is that you should never trust a debt collector. Recently I had a trial in which I was representing a consumer against a debt collector regarding an allegedly owed debt. The consumer had been handling his own case for about two years before he retained my services less than a week before the trial. Prior to trial, the debt collector would periodically send my client official looking documents trying to convince my client that he owed them money, and that they had a legal right to collect this money. The debt collectors would speak on the phone with my client and say things like “we’ve never lost one of these cases before, you might as well settle just so we can avoid the time and expense of trial.”

Continue reading

INCORRECT INFORMATION ON A CREDIT REPORT

Last week I wrote about what a consumer should do if they believe they are the victim of Identity Theft. This week I want to talk about what a Consumer should do if they identify inaccurate information on a credit report that is not the result of Identity Theft. This would be a situation in which an account discharged in bankruptcy is being reported as past due on a credit report, or if the balance on a home loan is listed as being significant greater than it actually is. There are many different examples of what would qualify as inaccurate information.  Continue reading