Other Areas of Inquiry
Mediation is a process by which spouses or domestic partners attempt to resolve their disputes without going to court. The parties choose an impartial, experienced family law attorney or former family law judge or commissioner to assist them through the mediation process. Parties may participate in mediation after going to court but most mediation occurs because the parties wish to resolve the dispute out of court, in an attempt to save money and minimize stress. Mediation can also be pursued by parties who are represented by attorneys. The attorney provides advice to the client as the client participates in the mediation process. The client reports back to the attorney on the progress of the mediation and requests advice on various issues the mediation has raised.
Mediation can take many different forms. Good mediators advise that, at minimum, attorneys be hired by the parties when agreement is reached on most issues, so that each party’s attorney may review the proposed agreement.
Another style of mediation is collaborative law, wherein each party has an attorney who has been trained and educated in the collaborative process. Parties and their attorneys are not to take “positions” but rather are expected to cooperate. Skilled experts including marriage and family counselors and accountants can be hired to give their opinions to assist the parties in reaching an informed decision. The experts --especially the mental health experts -- can act as coaches to the parents in an effort to keep hostility down for the benefit of the children. In the collaborative setting, the parties and attorneys agree that if court proceedings become necessary, new attorneys must represent both clients in those proceedings.
For some people, mediation or collaborative law can be the proper avenue to dissolution of marriage. I have represented many individuals in mediation, and have acted as a mediator in many dissolution cases. To make sure you have an experienced attorney that can assist you in every step of the dissolution process, please call us at (415) 749-5900 or write to us using the form below for a free consultation.
A premarital agreement is one that is entered into before marriage and can affect property acquired both before and during marriage. Premarital Agreements are controlled by the California Uniform Premarital Agreement Act, contained in California Family Code Sections 1600 – 1620.
I know a premarital agreement may rain on the romanticism of a marriage parade. But in addition to being a relationship based on love, a marriage is a partnership which includes money and finances. It is better to air all issues before getting married than after.
A premarital agreement is often advisable where one prospective spouse has substantial assets or owns a business. Reserving a specific asset as the separate property of one spouse may make matters less complicated where, for example, one prospective spouse has children from a prior marriage. The marital community would not develop an interest in that separate property, which could then be placed in a living trust to benefit the children of the prior marriage after the acquiring spouse’s death.
Further, if a prospective spouse comes into the marriage with large debts or large potential liabilities, the other spouse might want to protect assets from seizure for those debts. A premarital agreement can accomplish that objective.
Premarital agreements can define rights, obligations, property division and spousal support in the event the parties’ marriage ends in divorce. Premarital agreements can modify the application of California community property and spousal support laws, to make earnings or assets acquired during the marriage the separate property of one spouse, or by stating that there shall be no support payable by either spouse to the other in the event of dissolution. Spousal support limitations are more complicated: A court may set aside an unfair spousal support waiver or limitation.
A prenuptial agreement is only enforceable if properly drafted, if the parties provide each other with full and accurate disclosure of their assets and debts, or if the parties legally waive the required disclosures. Financial issues should be discussed early on. The premarital agreement must be brought up at the earliest time possible—even in the dating stage of a relationship that is moving toward engagement. Before a wedding date is set, you and your prospective spouse should complete the negotiation and preparation of the premarital agreement and sign it. Do not set a wedding date and then try to get the agreement completed. You will learn a lot about your prospective spouse when you start the premarital agreement process, and I believe it is all for the best.
Nathan James has extensive experience in competently and thoroughly addressing the complex financial and other issues which premarital agreements can capture. If you need an experienced attorney for this type of matter, please call us at (415) 749-5900 or write to us using the form below for a free consultation.
Post Marital Agreements
Post marital agreements are subject to more scrutiny by courts than premarital agreements. Once people marry, the law imposes a fiduciary duty upon them. A fiduciary duty is the highest duty of trust under the law and requires spouses to treat each other fairly doing nothing that cheats or disadvantages the other spouse, from a financial standpoint. Under California law there is a presumption of undue influence when one spouse gains any advantage if assets are exchanged or transferred between spouses in accordance with a post marital agreement.
In most post marital agreements, spouses are “transmuting” (changing) property from separate to community, or from community to separate. Certain language under the law is required in order to perfect a transmutation. Family code section 850, et seq., address post marital agreements and transmutations. The law requires certain steps be followed, to ensure their enforceability, including:
A) Identification of all of the assets of each spouse and of the community;
B) Identification of all debts of each spouse and of the community;
C) Clear specification of the property that is being changed from community property to the separate property of one spouse, or vice versa; and
D) Consent of both spouses to the change.
If the transmutation is of real property, it is not binding on 3rd parties unless notice is given to the third party or there is a recording of the deed.
A post marital agreement that changes the character or ownership of property is still subject to the fraudulent transfer rules, which will not be addressed here. Suffice to say, a spouse cannot change the ownership character of property to defraud creditors.
As mentioned above, post marital agreements are subject to a great deal of scrutiny. Make sure you have an experienced family law attorney to assist you in this and all your family law endeavors. Please call us at (415) 749-5900 or write to us using the form below for a free consultation.
Palimony or Marvin Cases
California "palimony" law protects parties who have entered into agreements, either express or implied by conduct, oral or written, that call for the sharing of finances and property acquired during their relationship. Common law marriages are not recognized in California, yet many people live together for long periods for time. During this cohabitation, one party might support the other or put his or her name on a vehicle registration or bank account. If the co-habitation arrangement ends, one person involved in the cohabitation may assert a “Marvin” claim stating that the other person promised to share everything acquired during the cohabitation and or support the other person, so long as the other person did certain things around the house, such as clean, shop, take care of the other person's children, etc. These claims are called “Marvin” claims after the famous actor Lee Marvin. Generally speaking, a Marvin claim must be filed in civil court as a breach of contract claim, because it is not a family law matter. The remedies the claimant may have depend largely on the facts of the particular case.
To make sure you have an experienced attorney that can assist you in every step of the dissolution process or the civil litigation process, please call us at (415) 749-5900 or write to us using the form below for a free consultation.