My husband cheated on me a year ago, and I made him write out and certify a promise that if he ever cheated again, that I would get full custody of our 2 kids and he would have to sign over his entire paycheck every payday. In other words, I get everything. Well, I caught him cheating again last week. He hasn't moved out yet. How do I start the ball rolling on enforcing the postnup? Do I need an attorney, or can a mediator get the garnishments started?
I agree. In California, the reason for the divorce does not matter. For custody and visitation, what matters is the best interests of the children. Even if your husband is a cheater, the Court will likely order joint legal custody, but you may be able to get your husband to agree to give you sole physical custody with visitation to him. I think it unlikely that he will be signing over his paycheck to you every payday, although depending on your situation you may be able to get spousal support in addition to child support. I would strongly advise that you consult with a family law attorney in your area to explore your options. Good luck to you.
Joshua Tobias HershonCriminal Defense AttorneyCarlsbad, CA ·
I agree the agreement is very likely unenforceable. This matter calls for an attorney - you should consult one immediately in order to discuss all of the details of this matter.
Although I am not licensed in CA, what you describe really isn't a post-nuptual agreement that is enforcable. I highly doubt that a judge would force your husband into destitution by giving you every penny of his income, and I highly doubt that a judge would award you sole, full custody of the children based upon his alleged infidelity (that has nothing to do with his ability to parent the children). Further, since CA is a no-fault divorce state, the reason for the divorce isn't relevant at all. So, I would have to believe that what you have is totally unenforcable. The only way to even try to enforce it, however, is to petition for divorce and bring a motion in front of the court to try to enforce it. A mediator cannot order anything - they certainly can't order a wage garnishment.
