Divorce Just Tip of Iceberg for Heard and Depp
After just 15 months of marriage, Amber Heard has filed for divorce from Johnny Depp and according to sources, the two did not sign a prenuptial agreement.
The idea of a prenuptial agreement may seem far from romantic. On the other hand, if you are considering a prenuptial agreement, you are considering the opportunity to talk about financial decisions in a calm and logical manner. It can be a lot less awkward and stressful to discuss financial issues with your future spouse – as opposed to your future ex-spouse. Even tougher is finding out during a divorce that the prenuptial agreement you signed is invalid because of simple mistakes. Here’s a list of things to avoid.
Prenuptial Agreement Mistakes
A prenuptial agreement can be deemed invalid if there are mistakes. Here are some commonly made mistakes:
- Same Legal Representation – Both spouses should have separate attorneys that will ensure the client understands the prenuptial agreement independently of the other spouse. This way the signing of the final agreement is done voluntarily, and without one spouse feeling pressured into it.
- Signed Under Duress – A prenuptial agreement can be invalid if one party was pressured into it, or if they were drunk or under the influence of drugs and thus did not have the mental capacity to sign the agreement.
- Signed Too Close to the Wedding – Don’t leave the prenuptial agreement signing to the last minute. If a couple decides to divorce, and the agreement was signed too close to the wedding, it can be argued that one party was coerced into signing. Sign the prenuptial agreement at least one to three months before the wedding date. A spouse should have enough time to deliberate on what they are signing it.
- No Full Disclosure – Make sure all assets and debts are disclosed.
- Child Support Provisions – Leave custody and chill support off of a prenuptial agreement as they are counter to public policy. If a divorce happens, and there are children involved, a court will always rule in the best interests of a child, rather than what was decided on a prenuptial agreement. If such provisions are on the prenuptial agreement it can invalidate the whole thing.
- Biased – If a prenuptial agreement appears to be biased towards one party, it can deemed unenforceable or “unconscionable.”
- Unenforceable Provisions – If an agreement has unusual provisions in it (one person always does the dishes) those provisions can be deemed unenforceable and thus weaken the whole agreement.
- Oral Agreement – The prenuptial agreement should be in written form, with multiple copies: one for each spouse and one for each spouse’s attorney.
- Ambiguous Writing – If the agreement is not clear, or has ambiguous wording, it can be challenged in court.
What Can be Included in a Prenuptial Agreement
There’s a wide range of what can be included in a prenuptial agreement. It should be flexible enough to accommodate the couples’ wants, while also following legal guidelines.
A prenuptial agreement can include the following:
(a) how property will be divided on divorce;
(b) whether or not specific items should be considered community property or separate property;
(c) who will retain ownership of the marital residence;
(d) who will be responsible for premarital debts;
(e) how property should be distributed upon death;
(f) most States want alimony obligations to be included
(g) what are the financial responsibilities during the marriage;
(h) which state the prenuptial agreement is under. If this is not clearly stated, the prenuptial agreement will be considered under the state where the divorce is taking place, not the marriage;
(i) how disputes regarding the prenuptial agreement will be resolved; and
(j) sunset clause. This allows that the prenuptial agreement will not be valid if the couple is married for a certain number of years.
What Cannot be Included in a Prenuptial Agreement
There are limitations to what can be contained in prenuptial agreements. A prenuptial agreement cannot include the following:
(a) custody of children;
(b) visitation right to the children;
(c) child support;
(d) anything “illegal”;
(e) anything “unconscionable”;
(f) anything thought to encourage divorce.
While most states allow prenuptial agreements to outline alimony arrangements, if a judge believes these arrangements to be unjust, a court will be allowed to invalidate the alimony provisions. This usually happens if there is great disparity between spouses’ incomes.
Yet, the fact that the couple didn’t sign a prenuptial agreement is undoubtedly not the worst that Depp might be facing. In a shocking escalation of events, Heard obtained a temporary domestic violence restraining order against the 52-year-old actor.
Temporary Domestic Violence Restraining Order
When she appeared in court at the end of May, Heard appeared to have a bruise on her cheekbone. Additionally, she presented a photograph to a judge that showed a larger bruise on her cheek. In the filing, Heard alleged that that throughout the entire relationship, she “endured excessive emotional verbal and physical abuse from Johnny” and when on to describe that there were several incidents in which Depp had been violent towards her.
The next hearing has been scheduled for mid-June. It is unclear what charges Depp might face.
Depp’s attorney feels that Heard is “attempting to secure a premature financial resolution by alleging abuse.” In the divorce filing, heard requested $50,000 a month in spousal support, and that amount was reportedly based on their “marital lifestyle.” Yet it appears that Depp requested that spousal support be denied, his lawyer saying, that “as a successful actress with significant income of her own, there is no question Amber can support herself” until both actors “have had a reasonable amount of time to assess their finances” with their attorneys and later possibly negotiate a “mutually agreeable resolution.”
Determining Spousal Support
Permanent spousal support is determined by a court after careful consideration of various factors. The formula that is used to determine support is the same in every California court, but you will want to work with an attorney to help you negotiate certain items with your spouse to ensure you receive the proper support.
Court Must Consider Controlling Statute
A court must consider a controlling statute when establishing permanent spousal support.
The Controlling Statute states the following:
4320. In ordering spousal support under this part, the court shall consider all of the following circumstances: (a) The extent to which the earning capacity of each party is sufficient to maintain the standard of living established during the marriage, taking into account all of the following:
(1) The marketable skills of the supported party; the job market for those skills; the time and expenses required for the supported party to acquire the appropriate education or training to develop those skills; and the possible need for retraining or education to acquire other, more marketable skills or employment.
(2) The extent to which the supported party’s present or future earning capacity is impaired by periods of unemployment that were incurred during the marriage to permit the supported party to devote time to domestic duties.
(b) The extent to which the supported party contributed to the attainment of an education, training, a career position, or a license by the supporting party.
(c) The ability of the supporting party to pay spousal support, taking into account the supporting party’s earning capacity, earned and unearned income, assets, and standard of living.
(d) The needs of each party based on the standard of living established during the marriage.
(e) The obligations and assets, including the separate property, of each party.
(f) The duration of the marriage.
(g) The ability of the supported party to engage in gainful employment without unduly interfering with the interests of dependent children in the custody of the party.
(h) The age and health of the parties
(i) Documented evidence of any history of domestic violence, as defined in Section 6211, between the parties, including, but not limited to, consideration of emotional distress resulting from domestic violence perpetrated against the supported party by the supporting party, and consideration of any history of violence against the supporting party by the supported party.
(j) The immediate and specific tax consequences to each party.
(k) The balance of the hardships to each party.
(l) The goal that the supported party shall be self-supporting within a reasonable period of time. Except in the case of a marriage of long duration as described in Section 4336, a “reasonable period of time” for purposes of this section generally shall be one-half the length of the marriage. However, nothing in this section is intended to limit the court’s discretion to order support for a greater or lesser length of time, based on any of the other factors listed in this section, Section 4336, and the circumstances of the parties.
(m) The criminal conviction of an abusive spouse shall be considered in making a reduction or elimination of a spousal support award in accordance with Section 4325.
(n) Any other factors the court determines are just and equitable.
Working with a Divorce Law Firm
The divorce process can be a difficult one, but one that can be aided by the help of an attorney. There are many aspects of a marriage that must be decided, including child custody, marital property, and alimony. Working with an attorney is a way to make the process smoother. If you’re considering divorce, you should also consider an attorney like the ones at Law Offices of Korol and Velen, Certified Family Law Specialists.