The Glamorous Grind

Prenups 101: Love, Law & Protecting Your Future

• Ilona Antonyan, Mila Arutunian • Season 2 • Episode 10

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Are prenups just for the rich—or are they a smart move for anyone saying “I do”?

In this episode of The Glamorous Grind, Ilona and Mila are joined by certified family law specialist Andrew Rosenberry to unpack the truth about prenuptial agreements. From protecting both parties to why they’re more common (and necessary) than ever, we’re breaking down the legal and emotional realities of love, money, and marriage.

💔 What if your partner refuses to sign?
 💼 What makes a prenup enforceable—or totally useless in court?
 👰🏽‍♀️ Should you skip marriage and just get a cohabitation agreement?

Whether you're planning a wedding or just curious how the law views relationships, this episode brings the grit and the glam.

Want more glam during your grind?

New episodes every Tuesday. Make sure you are subscribed on YouTube and wherever you get your podcasts.

🎙️ Hosts: Ilona Antonyan & Mila Arutunian
📲 Follow us on IG: @glamorousgrindpodcast

Andrew:

Is your fiancé on board with this, or are you going to drop a bomb?

Mila:

on them. Prenuptial agreements do help, because you know the truth is, divorce is a likelihood for most people.

Ilona:

But you're loved, even if someone presents you with a prenup you're loved. This is just to prevent both of you from protracted litigation years down the road.

Mila:

Welcome to the Glamorous Grind where grit meets glamour and the law is always in style.

Ilona:

Today we're diving into a topic that's rarely discussed openly prenups.

Mila:

Do weddings get canceled because of prenups?

Andrew:

If your fiancee digs their heels in and says "'I'm not signing it', what are you going to do"?

Ilona:

Whether you're planning a wedding or just dreaming about one Another option is not to get married and live together.

Mila:

Understanding the legal side of love is crucial.

Andrew:

Maybe in the end she's dodging the bullet.

Ilona:

So let's talk how to protect your heart and your assets. In Russian they say любовь зла, полюбыша козла means love is mean you can fall in love with a goat. We're excited to have our partner, Andrew Rosenberry, on our show today. Andrew is a certified family law specialist and one of the toughest litigators in California. Andrew, can you please tell our viewers about yourself?

Andrew:

Sure, I've been practicing law for a little over 30 years. I tripped into family law. It wasn't something that I chose. I grew up in the days of LA law, where there was a guy named Arnie Becker and he was the family law attorney in the firm. And Arnie was just. Everyone just knew he was just a sleazebag. So I was probably six months into my practice I got a referral from a friend of mine.

Andrew:

It was a five-week arranged marriage that took us a year to litigate. Fortunately and unfortunately for me, the attorney on the other side was probably one of the top five litigators in the state of california and he just enjoyed spending that whole year just screwing with me. Basically. And after we litigated for a year and did a full day trial, um he, uh. He called me five days later and I thought thought what's this jerk want? And he said I think you ought to come work for me and it was such an epiphany for me that he could treat me that way. But he was watching how I was conducting myself as a new attorney and he was sizing me up for what for me was like complete change in my career the amount of skills that are required to be a high-level family law attorney. It takes decades to develop that.

Ilona:

Yes, you have to know contract law, criminal law, to be able to prosecute contempt.

Mila:

Bankruptcy.

Ilona:

Family law, bankruptcy, there's everything. All right. Let's talk prenups and postnupsups. I love litigating postnuptial agreements and you're the guy at our office who's an expert on prenups and writing them up. They all go to you right now. What do you love about it?

Andrew:

the thing about writing prenups that I like is that you you can take a lot of the the angst and the anxiety that some people have going into their marriage and just take it out Whenever.

Andrew:

I'm approached with a you know someone comes in and they want a premarital agreement. They've got a lot of nerves surrounding their finances, so it could be a first marriage. It could be that they had a really bad experience with a prior divorce and they just don't want that hanging over their head a prior divorce and they just don't want that hanging over their head. And so, if done right and you have both people coming into it on the same page, it's nice to see that they're able to wipe away this anxiety from this part of their relationship and then really focus on the fun part of having this phenomenal wedding and party.

Mila:

As someone who's been married for almost 13 years, believe it or not, I feel like 13 years ago prenups were crazy and a lot of like society did not really accept that. People would go like, oh, you're going in and you're already contemplating divorce and that's why you want this agreement. But now it's so much more accepted and I don't know if it's because people are getting married when they're older so they have a lot more to lose or more that they've built up, or just people are just becoming more accepting of the fact that divorce is possible and it's better to prepare yourself on both sides, because I think that you know the general theory and when people think prenups, they think, oh, it protects the higher wage earner, but I think in a lot of situations it also protects the person who maybe earns less wages because they don't have to deal with litigation costs of divorce.

Mila:

If that happens, they already know what they'll be entitled to.

Andrew:

It's a great point because most premarital negotiations start off on very far extremes, where one person gets everything and the other person gets nothing.

Andrew:

And the beauty of the premarital agreement is in the negotiation that goes through and developing ultimately what their expectations are going to be, not while they're married, but in the unfortunate event that somehow it doesn't work out.

Andrew:

So a good point that you make, which is it's not all about protecting, but it's really many times what we'll call the disadvantaged spouse and that is the person that comes into the marriage with less or many times it's the woman that there's an expectation that they're going to be having children, she's going to forego a career, and this is the perfect opportunity to really set the expectations. For if we go down the road of winding up our marriage, I'm not going to have to go through all this hard-fought litigation just to make sure that I've got enough to live at the marital standard for a reasonable period of time. Make sure that our kids are living in homes that are relatively situated, so you don't have one parent that's got this phenomenal house and then you've got another parent living in a two bedroom apartment. They're squeezing everybody into it. So that's a great opportunity for them to negotiate those types of terms.

Ilona:

And you can't waive the right to receive child support, so that's always going to be on the table.

Mila:

I do have a question on that point. Normally and I have so many questions because I never dealt with this area of the law, but normally when people come in for prenups, are both parties represented separately or are neither of the parties represented. They give you their terms and you kind of serve as a mediator.

Andrew:

I require that both parties have attorneys with experience in drafting or negotiating premarital agreements.

Mila:

Who pays for the attorneys, because I feel like most situations, probably one person is the one pushing the prenup and it's not fair that the other person has to pay to be represented.

Andrew:

It's usually the person that is wanting the premarital agreement will pay for the cost of both.

Ilona:

But not directly. They will give money to their future spouse so that spouse can pay directly, to avoid any conflict of interest or appearance thereof.

Andrew:

Sure, it's important that, not only just from appearance's sake, but in actuality, both parties are able to choose the attorney of their selection. If I'm representing the person that is, for example, that has the majority of the assets going into the negotiation, I'll make sure that their fiancé has the link for all the certified family law specialists in San Diego or whatever county they happen to be in, and let them know that there's no limitation on who they want to hire.

Ilona:

Because if you go to someone who's a general practitioner, they'll charge 500 bucks just to quickly meet with you and sign off on the agreement without negotiating it. And then you hope that in the future you can argue that they had legal counsel and representation. It can probably be challenged because one this attorney may have not explained everything to them in writing, the risks they may not speak the language that the party speaks, and often it happens to non-English speakers. Let's say you have a bride from another country on K-1 visa. You're like okay, let's go to a cheap lawyer and pay them to sign off on this, or let's go a couple of times. That'll probably be challenged in litigation later.

Mila:

That goes to my next question of, because I know you've litigated these a lot, so you've taken them to court and argued that something has been unenforceable. What type of factors do judges and courts look at to determine if a prenuptial agreement is enforceable or when they throw it out and say it's not a valid agreement?

Ilona:

Voluntariness. You know where. Did you enter into this agreement voluntarily or you were under duress? If you didn't have a lawyer and you waived your spouse support rights, then that would be unenforceable.

Andrew:

In preparing the premarital agreements. I look at it from the same perspective that ALONA does, which is, what would it look like on the litigation side of it? And so you try to approach it from avoiding those pitfalls that could lead the parties into further litigation. It's did you have the opportunity arm's length negotiation, no pressure, to get this done. That's why it's so important for attorneys when clients come in and they're talking, they want a premarital agreement.

Andrew:

You have to know well, when is your wedding date? Is this a fixed wedding? Is this date fixed? Have the invitations been sent out? Are people coming in from out of town? Has there been a bachelorette party? I mean, if someone comes in and they're getting married in three weeks or four weeks, I respectfully turn them away. I think the sweet spot is if someone comes to me and they've got a wedding date that is four to six months out. I think that's kind of a sweet spot because, generally speaking, you know you find out at the initial consultation. Is your fiancé on board with this or are you going to drop a bomb?

Mila:

on them? Do weddings get canceled because of prenups?

Andrew:

I've only had a couple that canceled.

Mila:

Okay, that's not bad. That makes me happy.

Andrew:

But it's a conversation that I have to have with them, which is look, if your fiance digs their heels in and says I'm not signing it, what are you going to do? Are you going to just bite the bullet and get married and hope that you can negotiate a post-marital agreement which they're no longer obligated to sign, or are you going to move the wedding date out? I've had marriages that just never ended up happening. They just the relationship ended. I've had them. I've seen people move their wedding dates out.

Mila:

To make sure they were.

Andrew:

And in fact, when they move, the wedding dates out and they ultimately sign a premarital agreement, it only makes that premarital agreement stronger, because they recognize that they needed more time.

Ilona:

And I want to add that premarital agreement under the law is only effective upon marriage. So if you have this contract and you choose not to get married but continue cohabitating and living together, it doesn't take effect. So, for the listeners, if you are living with someone and you want to protect yourself from what's called a Marvin action that's a breach of oral agreement and you have a two-year statute of limitation after your breakup with your boyfriend or girlfriend, then you'd want to have cohabitation agreements that don't go after you for verbal promises made that you didn't keep.

Mila:

From the other end. Prenuptial agreements do help because, you know, the truth is, divorce is a likelihood for most people, like more than 50% of people get divorced right. So if it does happen, it's extremely difficult. So this is a way to protect both parties, to make sure that everything's fair.

Ilona:

Another option is not to get married and live together and you can have children together, but in your cohabitation agreement you could agree on how assets acquired during your relationship may be owned, whether or not you're entitled or the title controls, or you know whether you're going to have bank accounts together and if those joint bank accounts are going to be 50% owned by both of you, regardless of who puts in the money. So there are ways to reach an agreement as to your property and co-ownership without being married.

Mila:

I have a logistical question and maybe this is a dumb question, but as a lay person I've always wondered this. I understand that prenuptial agreements take into account what was previously owned by the person and by each side and what they can reasonably make, what's anticipated to be made. But what if, let's say, one of the parties opens up a business during the course of the marriage? Can the prenuptial agreement account, or should it, or does it always account for potential higher earning capacity later down the line? And how is that even enforced by a court? If you can't really anticipate that, what if the other spouse played a part in helping grow that business and then they're not entitled to any of that or the support that they provided to the spouse while they grew the business? Can they sign off their rights to ever benefiting from that business later on? Absolutely.

Andrew:

Really, and most premarital agreements are 30, 40 pages long, and the reason is because they take into account all of those little items that you hit, plus a whole bunch more, and so every possible legal theory that community property could attach to is addressed within the premarital agreement. How can you waive?

Mila:

the rights to that Like as a woman. If you anticipate you're going to be a stay at home mom, how can you waive the rights to that Like as a woman if you anticipate you're going to be a stay-at-home mom, how can you waive your rights to like having any rights into a potential business that your husband could start?

Ilona:

You have to negotiate in front before you sign the agreement or it's all waived. Generally it'll say both parties waive any and all rights, any businesses and income that's earned during the marriage, except for a joint account they may open together and decide to put money into.

Andrew:

It's the least romantic part of the premarital agreement because ultimately, nobody is required to marry another individual. That is completely voluntary. And if someone says I can only foresee myself getting into that permanency of a relationship with you, if we have these other things, then they have the right to do that. And keep in mind, premarital agreements are probably a fraction of a fraction of cases. I don't think that they're as widespread as people think. But of course, if you know someone that's got a premarital agreement, then everybody's an expert in it. But ultimately people don't have to get married.

Andrew:

If one person doesn't want to get married unless they have these contingencies, then maybe they should go a different direction. Maybe a woman that is looking at it from a hey, I'm going to love this man for the rest of my life and I want to have his children and I want to raise them and I want him to be the most successful person there is. And in the meantime I don't necessarily want to put myself in a position where I put myself at risk and not being able to support myself or support the kids and I'm going to forego a lot of things. Maybe in the end she's dodging the bullet. Maybe that's not the right person for her, if that person is going to require all these contingencies.

Mila:

Yeah, but love is blind. In Russian they say Любовь зла, полюбушка зла. It means Love is mean you can fall in love with a goat.

Andrew:

Facts Most states that's not permissible.

Mila:

I just feel like I don't know. I just feel like I don't know, I just feel like when you're in that phase actually an ass you can fall out with an ass. That would be yeah a better translation. Like an ad. It's like the goat I don't know it. Just. It just seems difficult to really anticipate these things and then be really be able to plan for these things.

Ilona:

But I guess I think it's easy to anticipate those things. Everybody is. When you're young, you think you know we're in love and everything will be great and we'll be together forever. And you see, you know hearts flying around you. That's not real life. Eventually, after a few years of marriage, you have children. You have real life problems and you're not with the same person that you married, because life is now in a different stage. You either are in the right mindset and mature enough to advance through those stages and tolerate it, or you still have different expectations or not on board. And what? Over 50% of marriages end up in divorce. Did those 50% get married, thinking they're gonna be part of that statistic? No, but what percentage of those 50% who are getting divorced actually have prenups? Maybe 5% to 10%.

Andrew:

Not even probably, and I think statistically, your prenups are usually going to fall within people that are in their 30s and 40s.

Ilona:

I had a client who retained me to do a prenup, who needed a prenup big time, but he ended up getting married with that one because his fiance was very, very hurt by the proposal of having one.

Andrew:

And that happens a lot and that's what I was saying is is having that conversation with, with the client is a does the, does your fiance, man or woman? Do they know that you're asking, that you want a premarital agreement? I would say four out of five times they've already had the conversation, so this is not going to be something that is foreign to them, but every now and then they say, well, I wouldn't even talk to them about it. And I usually say you need to go talk to them first, then come back and see me. Obviously, the client has been up front with their fiancé and now somehow I'm going to be part of that. I'm going to be the person that drops the bad news and I'm also going to be the person that starts the stopwatch and says okay, the clock is ticking, now we have to do this. So I've sent clients back to talk to their fiancés and say you need to go tell them first and then, if you're both on the same page, come back and we'll start the process.

Ilona:

I know and there are situations like in my life this happened where you meet someone and they're like yeah sure, I'll sign a prenup. What's mine is yours and what's yours is yours, no problem. And then when it comes to hey, here's the prenup. Go get a certified family law specialist out of the county so that everything is clear and negotiated at arm's length. And then there's daily fighting about you don't love me, you don't trust me. This is not for real and I think that's a real thing that when someone doesn't want to sign a prenup, that you are going to be faced with. So there's a lot, there's a very. It's difficult emotionally to have to fight every day over prenup and that could lead to the breakdown of a relationship or one of the people just saying, okay, screw it, I don't want to have a prenup, let's just get married and take the risk.

Mila:

That's what I would anticipate would happen that if someone presented someone else with a prenup, they'd be like you don't love me, You're already thinking that we might get divorced.

Ilona:

That's not real love. But you're loved. Even if someone presents you with a prenup, you're loved. This is just to prevent both of you from protracted litigation years down the road. And you have an opportunity now to negotiate for yourself. But if you're not strong enough to do it yourself, hire a specialist to negotiate for you.

Mila:

Well, the fact of the matter is like, most of us have life insurance and no one's expecting to die tomorrow, so it's kind of the same thing, I mean, although you'll die for sure and you won't get divorced for sure.

Andrew:

You just want to make sure that you're worth more alive than you are.

Ilona:

Prenup is an insurance policy.

Mila:

People are waiting longer to get married and people are making more cognizant choices of who they marry. But, as a result, people are also, you know, financially stable enough and intelligent enough to think about prenups, and I think they are becoming more and more accepted. And, like I want my kids to have prenups. Even if their spouses are more successful than they are, I would still want them to have prenups to make sure that they don't have nasty divorces, because I've seen how nasty divorces affect kids more than anything else. If you don't think about yourself, think about your kids and what fights they'll have to go through if you do get split up.

Ilona:

But if you are a woman who's going to marry this person and have children with them and help them build their career, be strong now to negotiate for yourself a good deal. Don't sign away all your rights spouse support, even if you have a lawyer, property rights negotiate something so that 10 years down the road, when he potentially cheats on you, leaves you or you cheat on him, whatever happens in life that makes you hate each other, you're not broke and fighting in court and can't afford a lawyer. You need to really negotiate the parts for attorney's fees or property division for spouse support. Child support can be left out because that's not negotiable and cannot be covered in a prenup.

Andrew:

Let's just say it's called the stereotypical situation, where the man's got the career and he's got these assets and he's marrying a woman who is not similarly situated with him. It's an opportunity for her to recognize he wants an agreement. It's likely that he's been told that this is not going to be a take it or leave it endeavor. This is going to be a negotiation. Part of her can say I feel offended or I'm not loved, but on the other side it's an opportunity for say, hey, I'm going to take control over my side of this relationship as well and ask for things, because you're not going to get what you don't ask for.

Mila:

Amen.

Andrew:

Try to put yourself in the other person's shoes and try to get a sense of why they feel they need this. To get a sense of why they feel they need this and what is it that they really want to make sure that they're protected on or they feel comfortable going into this relationship with. Because there's a lot of creativity that can be done within a premarital agreement.

Andrew:

I've had them where they have payments on anniversaries. Where a person gets money, they get to put it in their own separate account. They have control over it. They have sunset clauses. I've seen premarital agreements that after 10 years parties agree the premarital agreement goes away entirely.

Mila:

Wow, you can tolerate me.

Ilona:

For 10 years you can have gradual support, style support. The longer you're married, the more you're going to receive gradual support style support.

Mila:

The longer you're married, the more you're going to receive. I think that the takeaway here is PSA ladies and gentlemen, if you're asked for a prenuptial agreement, don't get offended. Use it as an opportunity to fight back.

Ilona:

If you're younger, you don't know what to negotiate or how to negotiate for yourself. If you're older, you'll probably have a better idea, but if someone is not willing to pay you money, then what you can negotiate in a prenup is for them to buy a life insurance policy and to pay premiums and for you to get notices if it's ever going to lapse and for it to be enforceable against their estate if they die, and you can negotiate how much that's going to be. There are different tools that can be used to negotiate in a prenup. If you cannot agree on a specific division of an asset or how much money you're going to get in a spouse support for you to be taken care of.

Andrew:

This person's not changing their daily habits. They're just going to go about their same business transactional routine, whether they got married on this date to this person or not, whether they got married on this date to this person or not. And what they don't want is they don't want what they were going to do anyway to now necessarily lose half of it or not. And so that's usually the thought process that's coming in, and so sometimes they'll have a business interest on one side, but they'll still have W-2 income coming in from another source, and the parties will agree that, for spousal support purposes, whatever businesses were owned on the date of the marriage, that whatever passive income is received coming in on that won't be considered for spousal support. But this other bucket will be used for determining spousal support and that's generally where people are coming into it and want to protect.

Mila:

We are going to play. Red flag, green flag. Are you ready, ready? The flags, you'll notice, are glamorous, matching to your very glamorous blazer. That I requested. I requested that you wear something glamorous, so so you like, went above and beyond. Thank you, I really appreciate it. We're going to give situations with regards to prenups and you're going to let us know if it's a red flag or a green flag and why.

Ilona:

You decide to draft a prenup together with the help of a mediator, not an attorney, without having independent counsel. Red flag or green flag why?

Andrew:

counsel Red flag or green flag? Why Green flag? You've avoided the issue of conflict of interest with the attorney, because the mediator is a neutral Red flag if you don't have attorneys representing the parties. It can make any negotiation regarding spousal support unenforceable on its face, and it can still also require that now each party who's unrepresented has to prepare a document in layman's terms explaining what that premarital agreement means for the other person.

Ilona:

And most likely, the mediator is going to use some boilerplate agreement that's equal in terms of the waiver of rights as to both parties and it's not going to have any special provisions that may address your specific needs if you don't have an attorney.

Andrew:

I would say it's more red flag than green flag.

Mila:

Yeah, here's the next one your partner refuses to discuss finances before marriage.

Andrew:

Big red flag.

Mila:

Red flag. Why?

Andrew:

There has to be transparency in the relationship. There has to be, and I usually don't tell my clients. I find it awful when, even going through a divorce and you ask them what they made last year and they don't know and they didn't even look at the tax return and they weren't allowed to look at the tax return. I find that awful. So people going into a marriage that don't discuss finances are, I think, setting themselves up for failure.

Mila:

Basically, and you talked about fiduciary duties beautifully. It was very powerful to think about. You know what marriage means besides the law, like the duty you have to your spouse. If you can't have even the respect to discuss your finances before you get married, how are you going to ever meet that standard after you're married?

Ilona:

See, that's a standard in California. If you think of marriage back centuries ago, what was the point of marriage? You have a ceremony, you live together, you raise a family together. There were no fiduciary duties, there was no dividing assets or divorce court.

Andrew:

Marriage is not even allowed to own property in some states.

Ilona:

Right Marriage is an institution developed into certain laws which are different in every state and in California.

Andrew:

I would say it's definitely progressive compared to other states.

Ilona:

What about keeping separate bank accounts once you're married?

Andrew:

I can give a green flag, I can give a red flag for it. Ultimately, I think there needs to be transparency. So if you're going to have separate bank accounts, that's fine, but if the other person wants to know what's in your bank account at any given time, then you give them access to it.

Ilona:

What about a clause in a premarital agreement that penalizes weight gain?

Andrew:

The red flag.

Mila:

Is that even conscionable?

Andrew:

I don't think that any punishment for putting on or losing weight would be enforceable by any judge. I would love to find the judge who would find that enforceable.

Mila:

By the way, guys, this is from an actual prenup.

Andrew:

Something like that really goes to show you the control that's trying to be exerted by one person on the other. So you start thinking about things like coercion. Undue influence. Boy, you've got something in there that controls what your body looks like.

Mila:

I would take the girl in the room and be like run, girl, run.

Andrew:

I would put a red flag on it. I would say that you are putting the entirety of your premarital agreement at risk by having that kind of control over them.

Ilona:

That paragraph would be unenforceable, but the rest of the agreement, if done right with an attorney with proper disclosures, would be enforceable, don't you think?

Mila:

I would argue if I was her attorney, how could the agreement be enforceable, because obviously my client was not in a mental state to agree to any type of agreement if she agreed to this clause?

Ilona:

but if a lawyer signed off?

Andrew:

I think that it goes toward the overall coercion side of it and the and the heavy-handedness which I think permeates an entire, the entire agreement what if it applies to both sides?

Mila:

plus, like men have easier time, like not keeping body fat on. Men don't have to have children where you're going to gain 30 pounds at the minimum. Sorry, ladies, like, believe it or not, that's a thing. So I think if, even if it was on both sides, it'd still be.

Andrew:

Everyone gains weight during their relationship, so it's kind of I couldn't put weight on to save my life in my 20s and 30s and I can't take it off to save my life in my 20s and 30s and I can't take it off to save my life right now.

Mila:

So funny story on my Facebook group for gym rats. One of the posts was like okay, ladies and gentlemen, what's your quickest weight loss supplement that you've used? No fat burner supplement.

Ilona:

And a bunch of people wrote divorce. For me it was work Because when you're in trial time.

Andrew:

When you do family law you have no time to eat. Sometimes I always seem to eat plenty between the hours of like 7 and 10 at night. Makes up for the rest of the day.

Mila:

And isn't there like a statutory requirement that has to be a certain amount of time in advance?

Andrew:

I've seen people sign their premarital agreements on the day they get married. They go to a notary that morning, they sign off, they get married that afternoon. There's nothing wrong with that and I see that happen many times. I've had clients that have gone to like Catalina, and they've just made sure everything was done in advance and they waited seven full calendar days between when we confirmed they had the final version and then, in that same email we've confirmed that final version. We say now we're going to wait a full seven days.

Andrew:

That doesn't include the day you got it, it's not going to include the day you signed it. We're going to give a full seven days, at least in between. And that way everyone knows just relax, don't think about it, just have a cooling off period for this, this period of time. And then I put a date. You cannot sign this document before this date. Um and so to answer your question, I mean there's no. There is a requirement with regard to when you have to have the final version before you sign it, but there's no requirement before, like when the wedding is.

Ilona:

It has to be at least seven calendar days from the time you were presented with the final version of the agreement advised to seek legal counsel and the time the agreement was signed. The agreement was signed, but then if it's after January 1st 2020, then it has to be seven days from the time you were first presented with the final agreement and the time it was signed. There is no requirement that you have legal counsel at least seven court days.

Andrew:

If anyone's interested in getting a premarital agreement, they should go read the statute.

Andrew:

You can Google it online, it pops right up. Or if somebody anticipates that, hey, I've got a premarital agreement, my marriage looks like it's falling apart, you may want to go take a look at the statute and just read it for yourself as to whether there's anything that jumps out at you that tells you you've got some issues with regard to your premarital agreement. One of the reasons why I insist on having attorneys on both sides and competent attorneys on both sides if I'm going to be involved is that there's a portion of that statute that if there's not an attorney representing someone representing someone, then that person has to be informed in layman's terms of what all the consequences are of the premarital agreement. So I would not only be almost fighting with myself because I'm representing one party. Now I have to draft a whole separate document. That's not the premarital agreement. So I've drafted a separate document and explained to the other side what the benefits are, what the negatives are, what the pitfalls are, and I would never wish that upon myself.

Ilona:

Yeah, because if you're in litigation later, even if you're retired, you could be subpoenaed and put on the stand to defend the letter you wrote and what you didn't put in there, and what you put in there and what you should have put in there. So you don't want to be in that position.

Mila:

Guys, I'm about to have a panic attack as, like a civilian hearing, this I'm just imagining like a couple like really excited for their wedding, just from a pragmatic standpoint. They're excited for their wedding and they're like, oh wait, let's do this. And they have to get attorneys and look at each other's assets and being like, if we get divorced, what am I going to get?

Ilona:

It's not pretty and normally, I have to say, women get dramatic about it.

Andrew:

It's also interesting that I find that just as many women want premarital agreements as men, and so it's really not a gender-weighted endeavor.

Ilona:

I think it protects women too. It depends, if. I guess I dealt with people who were brought over from another country because I speak multiple languages. So in that case, if they can wiggle out of signing, one is better for them, because they really have no leverage to negotiate the terms. It's like either get your green card and get married and you stay here and your K-1 visa gets extended and you sign this, or we're not getting married and you're going back to your country.

Andrew:

And I find a lot of times it's not necessarily one of the parties that wants a premarital agreement. It's their family members that are insisting that they get a premarital agreement.

Mila:

My kids are having premarital agreements, so it could be others that are insisting.

Andrew:

It could be parents that have insisted upon it, which creates other other touchy issues because, uh, as a drafting attorney, my obligation and my fiduciary duty runs to my client. It doesn't run to their family members.

Ilona:

But from a family's perspective, if you have businesses and private companies you don't want and your children may have some sort of interest in them, you don't want to be involved in their divorce later without a prenup and become a party to their divorce proceeding and be joined. So I would absolutely insist on someone having a prenup if their business is involved.

Andrew:

And I found that people are usually pretty amenable and pretty willing to negotiate those terms. Very rarely have I ever had someone come in and they're just like this is it, they won't sign it, we're not getting married. I can't remember the last time that I had someone that came in that just was like it's a take it or leave it type of thing Because there's no point in take it or leave it. You come to me and you say you've got take it or leave it. Then I'll say I'm not even taking you as a client because there's no point to it.

Ilona:

Because I speak Russian. I used to have a lot of Russian women that are getting married to American citizens come to me to review premarital contracts and often it was take it or leave it. It wasn't very negotiable. I often refuse actually most of the time I just refuse to sign them. I'm not willing to put my signature on it, they're not willing to change anything, and then I tell them if you're ever going to, if you are going to end up signing it against my advice, then if you're litigating in the future, then perhaps you may need that documentation that I refuse to sign it.

Ilona:

Let's talk about postnaps. Postmarital contracts is a contract that you enter into with your spouse after you're married, and the difference is that once you're married, you now have fiduciary duties. Fiduciary duties are the duties of highest good faith and fair dealing and obligation to disclose all documents and information upon demand, which you don't have that obligation before you get married and what Andrew and I like to do when we do prenups or postnups is list all real estate, all bank accounts, all retirement plans, credit card, debt, investment accounts. Anything you may have, including business interest, needs to be disclosed because it doesn't hurt you before you're married to disclose what you have. It only protects you to outline the assets that belong to you only before the marriage.

Ilona:

I litigated a case where I set aside two post-marital contracts because they went to the same attorney and each of them had a consultation with the same attorney who then drafted it and they signed a waiver. But there was so much on the line and there were a lot of blurred lines between the attorney's communication with each party that it resulted in millions of dollars that one party thought was all his and ended up not being In layman's terms, that means that you now have a duty to look out for the other person's best interest really before you look out for your own.

Andrew:

Before you got married you can look out for your own and handle it that way, but once you get married you have that obligation of good faith and fair dealing to really look out for the other person's best interest before you look for your own self-interest.

Ilona:

Nobody does that guys.

Andrew:

But that's really what the duty is.

Andrew:

So if you start thinking about that when we're talking now about post-marital agreements and you have that obligation to each other, even though there are fewer technical rules for post-marital agreements. The reason there are fewer technical reasons is because this fiduciary duty is so great. It doesn't exist before you're married. That's why we have to have these really technical provisions in a premarital agreement, because there is no legal obligation to the other person to treat them fairly or anything like that. So we have to create those Now that you're married. Now we've got those fiduciary duties.

Mila:

What type of situations do you see this come up in?

Andrew:

I see it usually in two. One is they couldn't get the premarital agreement done and they don't want to change the wedding date, so they go through with it. The fact that they're still willing to even talk about a postmarital agreement kind of leads to the conclusion that they were both on the same page. They just couldn't get it done. The other is that the marriage is really suffering but they're not ready to call it quits. Other is that the marriage is really suffering but they're not ready to call it quits, and so many times it's used as hey, we're either doing a post-marital agreement or I'm filing for divorce. In my opinion, I think that it is used many times as leverage to basically say, hey, if you're not willing to, if you want to stay in this and you want me to work on this, I don't have a whole lot of confidence in it, but I will keep working on it. But I need some protections right now, and so that's one of the main reasons that I've seen for post-marital agreements.

Mila:

I read some of finances are the number one reason for fighting in marriages.

Andrew:

I would probably agree that that's accurate. Most of the issues are control issues. There's quite a bit of domestic violence.

Mila:

And.

Andrew:

I can't speak for everybody else's practice, is it just? That's where, that's where my career has taken me? My experience has taken me that I tend to attract high conflict, high asset, highly litigated cases. It's, you know, it's a certain type of case that I'd say most family law attorneys just couldn't stomach.

Mila:

But you're so happy all the time. Well, he's happily married, yeah.

Andrew:

I'm happily married.

Mila:

How do you leave all that stuff and continue on with your life and not get emotionally drawn into any of that? I struggle with that as an attorney.

Andrew:

Well, I've developed certain systems for myself over the years and that may sound kind of mechanical but for like. One of them is that we're on the 21st floor. So I got 21 floors to wipe my job out of my brain and focus on my family.

Mila:

I love that. I mean it sounds mechanical, but you need that as an attorney. You need that because, guys, you don't want an attorney to come in and you know you have all this trauma because people trauma dump, people trauma dump and family law, people trauma dump and employment all the time.

Andrew:

But that should also just be for anybody out there.

Andrew:

When you're at work you're, you're selling your time for money, but when you're no longer on the clock like for me I'm thinking from floors 21 to ground level. I'm thinking what are we doing tonight? What are we having for dinner? Are we going someplace? What do the kids need? What does my wife need? What's the dog need? These are the things that I'm starting to focus on. So by get to my car, I've transitioned from work to family. I think that that other people doesn't matter what profession you're in, that will help with your marriage. Yeah, now you can have really like, great experience at work and you can focus on it.

Mila:

Yeah, great experience at home there was this man at my gym one time. I'll never forget this he's. He was like a 65 year old man. He's been married for 35 years and three kids and he told me one time he's like if people put as much work in at home as they did at work, everyone would be a lot happier.

Andrew:

That's true.

Ilona:

You're a divorce attorney, doing it for 30 years. Why do you believe in the institution of marriage, considering all the California laws that make it so painful to go through a divorce?

Andrew:

My parents were married for 52 years. My grandparents were married for, I think, 60 some years. It's just. It's how I was raised and I think that it is a beautiful I wouldn't even call it an institution, it's just. It's a beautiful promise to another person. Obviously, things that have happened to other people over the years have required us to have laws and things like that that are more protective, because back in the day, you know, when that promise fell apart, people weren't very protective and it did leave some people that were out without anything. Just because we have laws that handle how we handle divorces doesn't mean marriage is, you know, aside from having kids, you know, the most beautiful thing.

Mila:

And I think honestly, on the contrary, you were saying I hope I didn't scare people out of getting married. I think, on the contrary, I think the more you talk about these things, the more you come to acceptance of the fact that marriage is a beautiful thing, but it's also very complicated and it's better to protect yourself if you're going to do it, because ignorance is not bliss. There are complications that go into life. It is rough out here, and the more you know, the more you talk about these things, the more you understand how to protect yourself.

Andrew:

Well said.

Ilona:

Yes, protect yourself at all times. Yes.

Mila:

Thanks for spending time with us today and talking about the legal side of love.

Ilona:

And to our audience. If you enjoyed this conversation and it resonated with you, please share it. Knowledge is power.

Mila:

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Ilona:

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People on this episode

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Ilona Antonyan

Co-host
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Mila Arutunian

Co-host