SELECTED STATUTES

FAMILY CODE SECTION 1611
A premarital agreement shall be in writing and signed by both parties. It is enforceable without consideration.

FAMILY CODE SECTION 1612
Parties to a premarital agreement may contract with respect to all of the following:
(1) The rights and obligations of each of the parties in any of the property of either or both of them whenever and wherever acquired or located.
(2) The right to buy, sell, use, transfer, exchange, abandon, lease, consume, expend, assign, create a security interest in, mortgage, encumber, dispose of, or otherwise manage and control property.
(3) The disposition of property upon separation, marital dissolution, death, or the occurrence or nonoccurrence of any other event.
(4) The making of a will, trust, or other arrangement to carry out the provisions of the agreement.
(5) The ownership rights in and disposition of the death benefit from a life insurance policy.
(6) The choice of law governing the construction of the agreement.
(7) Any other matter, including their personal rights and obligations, not in violation of public policy or a statute imposing a criminal penalty.
(b) The right of a child to support may not be adversely affected by a premarital agreement.
(c) Any provision in a premarital agreement regarding spousal support, including, but not limited to, a waiver of it, is not enforceable if the party against whom enforcement of the spousal support provision is sought was not represented by independent counsel at the time the agreement containing the provision was signed, or if the provision regarding spousal support is unconscionable at the time of enforcement. An otherwise unenforceable provision in a premarital agreement regarding spousal support may not become enforceable solely because the party against whom enforcement is sought was represented by independent counsel."

FAMILY CODE SECTION 1615
(a) A premarital agreement is not enforceable if the party against whom enforcement is sought proves either of the following:
(1) That party did not execute the agreement voluntarily.
(2) The agreement was unconscionable when it was executed and, before execution of the agreement, all of the following applied to that party:
(A) That party was not provided a fair, reasonable, and full disclosure of the property or financial obligations of the other party.
(B) That party did not voluntarily and expressly waive, in writing, any right to disclosure of the property or financial obligations of the other party beyond the disclosure provided.
(C) That party did not have, or reasonably could not have had, an adequate knowledge of the property or financial obligations of the other party.
(b) An issue of unconscionability of a premarital agreement shall be decided by the court as a matter of law.
(c) For the purposes of subdivision (a), it shall be deemed that a premarital agreement was not executed voluntarily unless the court finds in writing or on the record all of the following:
(1) The party against whom enforcement is sought was represented by independent legal counsel at the time of signing the agreement or, after being advised to seek independent legal counsel, expressly waived, in a separate writing, representation by independent legal counsel.
(2) The party against whom enforcement is sought had not less than seven calendar days between the time that party was first presented with the agreement and advised to seek independent legal counsel and the time the agreement was signed.
(3) The party against whom enforcement is sought, if unrepresented by legal counsel, was fully informed of the terms and basic effect of the agreement as well as the rights and obligations he or she was giving up by signing the agreement, and was proficient in the language in which the explanation of the party's rights was conducted and in which the agreement was written. The explanation of the rights and obligations relinquished shall be memorialized in writing and delivered to the party prior to signing the agreement. The unrepresented party shall, on or before the signing of the premarital agreement, execute a document declaring that he or she received the information required by this paragraph and indicating who provided that information.
(4) The agreement and the writings executed pursuant to paragraphs (1) and (3) were not executed under duress, fraud, or undue influence, and the parties did not lack capacity to enter into the agreement.
(5) Any other factors the court deems relevant.” (Fam. Code §1615.)
NOTES: (1) Effective 1/1/2002, subsection (a)(2)(A) was amended to state that one of the requirements for showing unconscionability is the failure of the other party to provide: “a fair, reasonable and ••full•• disclosure of the property or financial obligations ....”
(2) The burden of proving that a premarital agreement is invalid is on the party alleging its invalidity. (In re Marriage of Iverson (1992) 11 Cal.App.4th 1495, 15 Cal.Rptr.2d 70, card ß{PrAT 255.00}, citing to the Comment to section 6 of the UPAA, enacted as former Civil Code section 5315.)
(3) These requirements do not apply to postmarital agreements. (In re Marriage of Friedman (2002) 100 Cal.App.4th 65, 122.)
(4) Fam. Code §1615 continues former Civil Code section 5315, which section was repealed effective 1/1/94. There were substantial amendments made by 2001 SB78, effective 1/1/2002.

FAMILY CODE §1615

(a) A premarital agreement is not enforceable if the party against whom enforcement is sought proves either of the following:
(1) That party did not execute the agreement voluntarily.
(2) The agreement was unconscionable when it was executed and, before execution of the agreement, all of the following applied to that party:
(A) That party was not provided a fair, reasonable, and full disclosure of the property or financial obligations of the other party.
(B) That party did not voluntarily and expressly waive, in writing, any right to disclosure of the property or financial obligations of the other party beyond the disclosure provided.
(C) That party did not have, or reasonably could not have had, an adequate knowledge of the property or financial obligations of the other party.
(b) An issue of unconscionability of a premarital agreement shall be decided by the court as a matter of law.
(c) For the purposes of subdivision (a), it shall be deemed that a premarital agreement was not executed voluntarily unless the court finds in writing or on the record all of the following:
(1) The party against whom enforcement is sought was represented by independent legal counsel at the time of signing the agreement or, after being advised to seek independent legal counsel, expressly waived, in a separate writing, representation by independent legal counsel.
(2) The party against whom enforcement is sought had not less than seven calendar days between the time that party was first presented with the agreement and advised to seek independent legal counsel and the time the agreement was signed.
(3) The party against whom enforcement is sought, if unrepresented by legal counsel, was fully informed of the terms and basic effect of the agreement as well as the rights and obligations he or she was giving up by signing the agreement, and was proficient in the language in which the explanation of the party's rights was conducted and in which the agreement was written. The explanation of the rights and obligations relinquished shall be memorialized in writing and delivered to the party prior to signing the agreement. The unrepresented party shall, on or before the signing of the premarital agreement, execute a document declaring that he or she received the information required by this paragraph and indicating who provided that information.
(4) The agreement and the writings executed pursuant to paragraphs (1) and (3) were not executed under duress, fraud, or undue influence, and the parties did not lack capacity to enter into the agreement.
(5) Any other factors the court deems relevant. (Am Stats 2001, C286)

Mediation

In mediation, an impartial person called a “mediator” helps the parties try to reach a mutually acceptable resolution of the dispute. The mediator does not decide the dispute but helps the parties communicate so they can try to settle the dispute themselves. Mediation leaves control of the outcome with the parties. Cases for Which Mediation May Be Appropriate: Mediation may be particularly useful when parties have a relationship they want to preserve. So when family members, neighbors, or business partners have a dispute, mediation may be the ADR process to use. Mediation is also effective when emotions are getting in the way of resolution. An effective mediator can hear the parties out and help them communicate with each other in an effective and nondestructive manner. Cases for Which Mediation May Not Be Appropriate: Mediation may not be effective if one of the parties is unwilling to cooperate or compromise. Mediation also may not be effective if one of the parties has a significant advantage in power over the other. Therefore, it may not be a good choice if the parties have a history of abuse or victimization.

Arbitration

In arbitration, a neutral person called an “arbitrator” hears arguments and evidence from each side and then decides the outcome of the dispute. Arbitration is less formal than a trial, and the rules of evidence are often relaxed. Arbitration may be either “binding” or “nonbinding.” Binding arbitration means that the parties waive their right to a trial and agree to accept the arbitrator’s decision as final. Generally, there is no right to appeal an arbitrator’s decision. Nonbinding arbitration means that the parties are free to request a trial if they do not accept the arbitrator’s decision. Cases for Which Arbitration May Be Appropriate: Arbitration is best for cases where the parties want another person to decide the outcome of their dispute for them but would like to avoid the formality, time, and expense of a trial. It may also be appropriate for complex matters where the parties want a decision-maker who has training or experience in the subject matter of the dispute. Cases for Which Arbitration May Not Be Appropriate: If parties want to retain control over how their dispute is resolved, arbitration, particularly binding arbitration, is not appropriate. In binding arbitration, the parties generally cannot appeal the arbitrator’s award, even if it is not supported by the evidence or the law. Even in nonbinding arbitration, if a party requests a trial and does not receive a more favorable result at trial than in arbitration, there may be penalties.

Neutral Evaluation

In neutral evaluation, each party gets a chance to present the case to a neutral person called an “evaluator.” The evaluator then gives an opinion on the strengths and weaknesses of each party’s evidence and arguments and about how the dispute could be resolved. The evaluator is often an expert in the subject matter of the dispute. Although the evaluator’s opinion is not binding, the parties typically use it as a basis for trying to negotiate a resolution of the dispute.

Cases for Which Neutral Evaluation May Be Appropriate:

Neutral evaluation may be most appropriate in cases in which there are technical issues that require special expertise to resolve or the only significant issue in the case is the amount of damages. Cases for Which Neutral Evaluation May Not Be Appropriate: Neutral evaluation may not be appropriate when there are significant personal or emotional barriers to resolving the dispute.

Settlement Conference

Settlement conferences may be either mandatory or voluntary. In both types of settlement conferences, the parties and their attorneys meet with a judge or a neutral person called a “settlement officer” to discuss possible settlement of their dispute. The judge or settlement officer does not make a decision in the case but assists the parties in evaluating the strengths and weaknesses of the case and in negotiating a settlement. Settlement conferences are appropriate in any case where settlement is an option. Mandatory settlement conferences are often held close to the date a case is set for trial.

1.        What is mediation?

Mediation is a way for divorcing couples to find mutually agreeable solutions to issues such as child custody, spousal support and the division of assets.  The mediator assists the parties in negotiating a resolution to their divorce.  The mediator is an objective party.  It is not the job of the mediator to force an agreement upon the parties but the mediator may make suggestions for the resolution of the issues. The mediator helps couples identify the issues that need to be resolved, and guides each through the decision making process.  The mediator remains neutral and helps keep the negotiations flowing, in order to reach an agreeable resolution for both parties.

2.       What are the advantages of mediation? 

Mediation saves time and money and if successful means not going to court.  Mediation allows the parties to make their own decisions.  Going to court means that people give up their power to make their own decisions.  The process is confidential. When couples work towards a mutual agreement, the likelihood of future cooperation is improved, and both sides can feel comfortable with the outcome.

3.       Does the mediator replace the lawyer? 

Yes and no.  The attorney/mediator drafts all the paperwork.  However, it is always good to use a consulting attorney to review the agreement.

4.       Is mediation appropriate for everyone? 

No.  Where there has been abuse or where one spouse feels very intimated by the other, mediation may not a be a suitable alternative.  However, this does not mean that other methods of alternative dispute will not be available.

5.       What does it mean actually mediate or negotiate? 

It is important to identify your “interests” (fears, wants, needs concerns).  Write down the issues and your proposals to resolve the issues.    Avoid POSITION BASED NEGOTIATION (Offer/Counter Order) which polarizes people and keeps them from exploring different avenues of resolution.

6.       How does this work? 

Here’s an example.  Two people are in a library and arguing whether a window should be open or closed.  The librarian asks the person who wants it open to explain why he or she wants it open.  That person says he or she wants the window open to get fresh air in the room.  The other person responds by saying they want the window closed because their papers are blowing around from the breeze.  The librarian then walks around the corner and opens a different window so that there is fresh air but no breeze.  THIS SATISFIES THE NEEDS OF BOTH PARTIES.
Rather than arguing from opposing positions (window closed/window open) it is best to try to think of a solution that can, in some way, meet both parties interests.  Frequently people have to adjust their interests in order to reach resolution.

7.        Okay, how do you apply it to the situation of a divorcing couple?

A classic case in point our discussion involving spousal support or alimony.  Simply “low balling” or “high balling” the other side and throwing numbers back and forth does not generally bring the parties to consensus and even if it does, the parties don’t generally feel they have been part of a constructive dialogue where they were able to express their interests. 

8.       Can you name some additional advantages to mediation?

Ask yourself how to you want your children to remember your divorce?

9.       How does the process work?

The couple and the mediator meet in 1 or more mediation sessions.  Some people can be through in one mediation session and other people require multiple mediation sessions.  The sessions normally last 2 -3 hours.

10.     How to the court papers get filed?

If the mediator is an attorney, he or she can assist the parties in filling out all of the paperwork required by the court and no court appearances will be necessary.

11.     How long will it take and how much will it cost?

The length of time depends upon the couple, themselves.  The average case takes at least 2 mediation sessions and then there is the paperwork which has to be done.  This can take from 1 to 3 months.  More complex cases will take longer.  The cost is dependent upon the number of mediation sessions as well as the complexity of the agreements to be resolved.  More complex mediations can take 4 – 6 months or even longer. 

12.     Can a case be too complicated for mediation?

No case is too complicated for mediation.  So long as the parties are resolution oriented they can work with consulting attorneys as well as valuation experts and financial planners to reach agreements.

13.     What does it mean when you say mediation is confidential?

State law says that no one, not even the two parties, can use what is said in mediation as evidence in court. What happens in mediation is as confidential as settlement negotiations between parties and their lawyers.

14.     What are the disadvantages of going to court?

The obvious disadvantage is giving up all of our power and letting the judge, a third party to make a decision for you.   People  who go to court have the belief that the judge will side with them.  Well, obviously, the judge can’t side both parties. Generally both parties don’t feel they “won” in the courtroom.

15.     What kinds of issues are resolved in mediation?

1. Parenting Plan (frequently known as physical custody).
2. Division of  Assets.
3. Spousal Support.
4. Child Support.
5. Tax Issues – dependent exemptions; tax filing status.

 

            Frequently one of the impediments to successful divorce negotiations is the use of language

which, while it may accurately convey what a person perceives or feels,  ultimately leads to hurt feelings, misunderstandings and, thus, litigation instead of negotiation.  This is because the divorce is ultimately a lawsuit, and divorcing parties are entitled to utilize all of the procedures and tools available to them in any suit -- the same procedures and tools as if they were suing their employer for sexual harassment, for example. The difference, of course, is that that the majority of people getting a divorce still have to co-parent or even co-grandparent, but the aggrieved employee will never have to deal with his or her employer again after the lawsuit is settled.  Parents continue to deal with each other even after the children are grown and there are grandchildren.  Thus, it is important to find ways that will allow divorcing couples to resolve their issues without court intervention.   And, people need to consider the emotional and financial expense of having a court make decisions for them.

Not every case may lend itself to a negotiated settlement. 

For example, it will probably be necessary to ask the court to make rulings on requests for restraining orders as well as other issues.  However, for the majority of people getting a divorce a negotiated settlement is possible.  However, there are many things that both the parties and the professionals involved need to understand about successful negotiations.  An important component of a successful negotiation is the use of language.

Some people may wonder why the use of language factors so heavily into these negotiations.  In my experience most people going through a divorce don’t want to end up in court.  They do, however, want to feel that they have been heard by the other person and that there has been efforts on both sides to address each party’s issues and concerns.  Consider that when people have filed for divorce they are already at a point where they are unable to communicate effectively and are probably unable to communicate effectively ABOUT ANYTHING.  Participating in divorce negotiations requires people to do something they probably haven’t done in a long time:  They must listen to each other in a new way where they no longer jump to conclusions about what the other person is saying.  It’s not easy.  In fact, it is hard.  However, it can be done and it can be done successfully so long as each party is aware that they can each frequently press the other’s “hot button” without even meaning to do so.  (Of course, most couples regardless of whether they are getting a divorce know exactly how to press each other’s buttons.)

So, what are some things to be on the lookout for?

1. The Use of Polarizing Language

Using the terms “custody” and “visitation”, while accurate, tends to draw battle lines.  Expressing the child sharing plan in terms of “I want to have custody and I want you to have visitation” will certainly cause the other parent to begin to focus on the terms “custody and visitation”.  The focus, in fact, should be on a parenting plan that works for the child or children and not on the terms.  Parents who focus on working out the times the child or children will be spending with each of them rather than arguing over the terms “custody and visitation” will be more successful in their negotiations.  And, being more successful in the negotiating process means that these parents will ultimately be more successful in their co-parenting post divorce.   Ultimately, the parents are more likely to stay our of court which causes less stress to the children and to them.  So, everyone comes out ahead.

2. Framing Issues In A Combative Manner. 

I have been in a number of negotiations where we have reached an impasse on an issue and have decided to move onto another issue.  Unfortunately, someone may say “We can fight about that later” when the non-combative way of phrasing this is:  “We’ll put this on our list to discuss later.”  It may seem small, but framing issues in terms of having to be fought out later rather than  discussing them makes a huge difference in the mindset of the parties who are experiencing the divorce. People have already had their share of “fights” and don’t need to be gearing up for another one. 

3. Engaging in Position Based Negotiations Rather Than Interest Based Negotiations. 

Positional based negotiations are adversarial as the “other side” or “opposing party” is seen as an opponent.  (Again, labels play a large part here.)  Reluctantly, a concession will be given.   Reluctance leads to resentment and this, of course, results in either the negotiations breaking down or the parties litigating issues in the future.  Also telling someone that you are not going to change your position is also not conducive to reaching resolution as it only causes each party to dig in their heels.  Interest based negotiations seek to find an outcome that is mutually acceptable to both parties.  Of course, neither party can generally meet all of their goals and objectives but it is important to ask each party to set forth realistic goals and objectives and see if a solution can be fashioned which will benefit both parties.

4. Referring to the Other Person In the Third Party. 

Sometimes a person will refer to his or her spouse as “he” or “she” rather than using the other person’s name.   While it is understandable that doing this is part of venting anger and frustration, referring to someone in the third person as if they aren’t even the room only serves to create additional conflict because that person will feel they are being diminished.      People who feel their feelings are being diminished are not likely to be able to act in a constructive fashion to resolve issues. 

5.  Using Four Letter Words.   

It should be evident that using four letter words during a business meeting is unprofessional and disrespectful.  However, it is amazing how many people actually do swear during negotiations.  Using curse words will not bring resolution to any issues but will only serve to cause people to focus on the fact that “them is fightin’ words”.  Learning how to express oneself not only allows for improved communication but also provides for a better understanding of one’s feelings.