TOP 9 REASONS TO UTILIZE A MEDIATOR IN FAMILY LAW - Part 2

In part one of this article, we discussed how mediation can save both parties time and money. Not only that, but mediation puts the decision-making power into the hands of the parties rather than an outside person (i.e. the judge) who may or may not fully understand the needs and goals of each party.

There are more reasons to consider mediation. Here are five more reasons:

5.             Mediation is a confidential process

When participating in mediation, the conversations between the parties and the mediator are confidential pursuant to California Evidence Code section 1119.  The details discussed will be kept private.

This allows the parties to freely exchange sensitive information about their finances, property, and children.  Confidentiality and privacy furthers the primary purpose behind the mediation process - facilitating a mutually acceptable agreement between the parties based on an open and honest dialogue.

6.                 The law is a guiding factor, not a dictating factor, in mediation

Whereas judges are bound by the confines of the law, parties in mediation can creatively look to the law as a reference point, but make decisions that are not necessarily driven by the confines of the law.

Keep in mind that while the law need not dictate mediation agreements, there cannot be any provision in the agreement that violates the law or public policy.  

7.                 Access to the mediator is much greater than access to the judge

Quite often, it can take 2-3 months to obtain a court date, even if the hearing is on a single issue (i.e. a request for child or spousal support).  The hearing will last about 20 minutes, and there are up to 20 other cases during the same half day calendar.

Decisions about your life are being made in this fashion.

On the contrary, a mediation session is typically set for 2 hours to allow sufficient time to make progress in each session. Setting longer meetings means that there are likely to be fewer sessions over a shorter period of time.


8. The mediation process is less formal

A mediator’s main objective is to get to know the needs and goals of each party and guide them towards the most mutually satisfying resolution. These goals yield a very different atmosphere than that of a cold courtroom where someone else has the pressure of making decisions about your life in a matter of 20 minutes.

Appearing before a judge can be intimidating.  Working together in mediation is a joint discussion in an office setting where each participant plays a major role in the outcome.

9.                 Satisfaction with the outcome of the case is very likely in a mediation setting

When parties and their attorneys ask the judge to make decisions in their case, parties often feel excluded from the process.  The judges and the attorneys do most of the talking.

A judge is likely to make decisions that don’t please either party.  After many months or years of being in conflict, this is a common occurrence.  

This is less likely in mediation, because it is a system in which there will be no resolution of the case without the input and decision-making of the parties.


Conclusion

Consider hiring a mediator if your case involves divorce, child custody matters, child support, spousal support, disputes over property division or valuation, and/or post-judgment modification/enforcement of orders.  

Although not required in California to be certified or licensed as a mediator, Diana Passadori completed a 40-hour mediation training with the Center for Understanding in Conflict.  Her training and experience as a family law attorney and mediator lends specialized support to the parties in the mediation process.

Mediation can be a successful decision-making arena that saves you time, money, and additional grief.  


CAN YOU RELOCATE WITH YOUR CHILD AWAY FROM THE OTHER PARENT?

                What rights do you have if you need to relocate with your child away from the area where you are currently living? Do you need the other parent’s permission to move away? Must you obtain a court order before relocating?

                This is a complex area of the law when it comes to child custody decisions.  The seminal case, Marriage of Burgess (1996) 13 Cal.4th 25, decided by the California Supreme Court, addressed the mother’s move away request for a move of only 40 minutes away from the other parent.  The Burgess case eliminated the obligation of the moving parent to demonstrate that the move is necessary, although the court will analyze the reasons for the move (i.e. whether the request to relocate is made for legitimate reasons or the moving parent wants to frustrating the non-moving parents relationship with the child).

Many move away requests seek permission to relocate out of county, out of state, or out of the country.   In most scenarios, the non-moving parent will be unable to maintain their existing visitation schedule or parenting time with the child if the move is permitted.  Either way, the court has a very difficult decision since allowing the move will strain the child’s relationship with the non-moving parent and preventing the move may separate the child from his or her primary caretaker if the court changes custody to the non-moving parent.

                The Burgess case was adopted by the California Legislature and codified in Family Code § 7501, which states that a parent with custody of a child has a presumptive right to relocate with the child. But it’s not that simple. Over time, the courts have analyzed the requirements for a parent’s relocation request depending upon many different factors, with the initial inquiry starting with:

-          whether the parents share joint physical custody (over 30% of the actual parenting time with the secondary parent), or

-          whether one parent has sole physical custody by court order or agreement or de facto sole physical custody (more than 70% of the parenting time with the custodial parent).

                If it is determined that one parent has sole or de facto physical custody, that parent has the presumptive right to move and the other parent must make an initial showing that it is essential or expedient to change custody to the non-moving parent in order to prevent detriment to the child if he or she were to move with the relocating parent.

                When the parents have a shared parenting plan, the court must make a review “de novo” to determine the child’s best interests in evaluating the move away request.

                In either scenario – whether one parent has sole custody or there is shared custody – the court must analyze and assess the factors enumerated in Marriage of La Musga (2004) 32 Cal.4th 1072 (pronounced “La Moo-shay”):

a.       the child’s interest in stability and continuity of the custody arrangement;

b.       the distance of the move;

c.       the child’s relationship with both parents;

d.       the relationship between the parents, including but not limited to their ability to communicate and cooperate effectively and their willingness to put the interests of the child above their individual interests;

e.       the minor child’s wishes if mature enough to provide such information;

f.        the reasons for the proposed move;

g.       Extent to which the parents are currently sharing custody.

The court should not overemphasize the potential negative impact on the non-moving parent’s relationship with the child as it is expected that there will be some impact on that relationship.  This is different than assessing whether the parent seeking to relocate has a bad faith motive for moving i.e. for the sole or primary purpose of frustrating the non-relocating parent’s relationship with the child.

In addition, if the relocation requests involves an international move, the court must consider additional factors to those enunciated in LaMusga, as set forth in Marriage of Condon (1998) 62 Cal.App.4th 533:

a.       Cultural conditions and practices that might impact the child;

b.       Whether distances are so great to financially prohibit visits;

c.       Jurisdictional problems making CA orders unenforceable.

If you need to discuss relocation (move-away) issues with an experienced child custody lawyer, please contact Diana Passadori of Passadori Family Law & Mediation, P.C. at diana@passadoriflm.com.

Planning Well in Advance for a Prenup

WHY PLANNING FOR A PREMARITAL AGREEMENT (“PRENUP”) SHOULD BE DONE WELL IN ADVANCE OF THE WEDDING DATE

1.                   Requirement that each party have their own attorney (or waive the requirement for independent counsel): The law requires [i] each party to have independent counsel at the time the premarital agreement is signed, or [ii] to waive their right to separate counsel after being advised to seek independent counsel, and the signed waiver must be in a separate document from the prenup agreement.  California Family Code § 1615(c)(1).  Without meeting this requirement, the agreement would be considered not have been entered into “voluntarily” and therefore it would be deemed invalid.  Thus, the California Family Code and other applicable rules, statues, and cases would apply.   In order for each party to have sufficient time to hire attorneys and have each attorney advise the respective client as to the terms and enforceability of the terms of the prenup, planning for the prenup should be done months in advance of the wedding date.

2.                   Mandatory timing requirement: The prenup would be considered to be entered into involuntarily, and therefore it would be invalid, if the person contesting the validity of the prenup did not have at least 7 days between the time the person was first presented with the prenup and advised to seek independent counsel and the time the prenup is signed. California Family Code § 1615(c)(2).  It is always advisable to allow for more than 7 days between the presentation of the prenup/advisement to seek independent counsel and the signing so that this legal requirement as to timing never comes into question.  In conjunction with hiring independent counsel, this mandatory timing requirement dictates that the parties should plan well in advance before the prenup agreement is presented, reviewed, and signed.

3.                   If one party is without independent legal counsel, that party must be presented with the terms of the agreement in the language in which that party is proficient: If after being advised to seek independent legal counsel a party opts not to hire an attorney, that party must be presented a separate document written in the language in which that party is proficient that contains an explanation as to the terms and effect of the prenup agreement and those rights and obligations being affected by the prenup. California Family Code § 1615(c)(3).  The separate writing in the party’s language of proficiency must be provided prior to the signing of the prenup, and prior to or during the signing of the prenup, that party must sign a document acknowledging receipt of the explanation of terms, effect, and rights and obligations being affected.  This legal requirement relates to the voluntariness of the signing since one cannot know what they are agreeing to and giving up if they do not understand the language in which the agreement is written and do not have independent legal counsel.  Therefore, the person would not be voluntarily agreeing to its terms or voluntarily waiving their rights.  Voluntarily signing the prenup is a separate requirement under California Family Code § 1615(a)(1).  In order to ensure the party has had sufficient time to waive the right to independent counsel in a separate writing, to receive the explanation of the prenup agreement in their language of proficiency, and to sign another separate document acknowledging receipt of said explanation, advanced planning is a necessity before entering into the prenuptial agreement.

4.                   The two separate writings (waiving independent counsel and acknowledging receipt of the explanation of prenup terms) must be entered into without duress, fraud, or undue influence:  If one party decides to waive the right to independent counsel, such waiver triggers the requirement for two additional writings separate and apart from the prenup document.  Pursuant to Section 1615(c)(1), the party waiving independent counsel must sign a separate waiver document, and pursuant to Section 1615(c)(3), the party waiving counsel must sign a separate document to acknowledge receipt of the explanation of the terms of the prenup in a language in which that party is proficient.  The person waiving independent counsel must sign each of those documents free of duress, fraud, and undue influence.  California Family Code § 1615(c)(4).  To ensure all three of the documents are drafted and signed properly and in the correct sequence, planning sufficiently in advance is a must.

5.                   An agreement may be deemed unconscionable (i.e. unfair) at the time it is signed.  If one party claims he or she was not provided a “fair, reasonable, and full disclosure” of the assets or obligations of the other party, the prenup will likely be deemed invalid. California Family Code § 1615(a)(2).  The other option is to “voluntarily and expressly” waive the right to receive a full disclosure of the other person’s property and obligations.  It would be best for this waiver to be contained in a separate document from the premarital agreement.  Again, if making a full disclosure of assets and debts, or waiving the right to disclosure, this will require adequate time prior to signing the prenup.

Please note: The subject matter of a prenuptial agreement is not necessarily to protect one party’s assets, inheritance or other financial claims such as waiving spousal support.  The prenup can merely set the intentions and expectations of the parties during the marriage, e.g. whether one party will stay home with children and whether that affects the award or amount of spousal support in the event of divorce; whether separate or joint bank accounts will be used; whether inherited funds or property will remain the recipient’s separate property; or whether gift money from one party’s parents for the down payment of a home will affect proportionate ownership interests in the home. Discussing and planning around matters of this nature in advance of the marriage can make for a more successful marriage.  Do not think of the prenup as planning for divorce but putting parameters in place to ensure a more prosperous marital union.

Also, prenups can contract around the Family Code so long as the prenup terms do not promote divorce or violate the law or public policy. 

For additional information, or a free phone consultation regarding a prenuptial agreement, be sure to contact Diana Passadori of Passadori Family Law & Mediation at (628) 200-3065 or diana@passadoriflm.com.