Articles Posted in Conflict Resolution

In an incident that received little attention in the mainstream press, a man named Tom Ball, 58, committed suicide in front of the Keene, New Hampshire County Courthouse on June 15, 2011 by dousing himself with gasoline and lighting a match. His 15 page suicide note explained that he was angry at the state child protection bureaucracy and the courts after his ten year battle over child abuse charges. He was angry at the US court system, the federal government, police, child protective services, in general, a system that in his opinion no longer works and no longer serves our interests.

Ball’s troubles began when he slapped his then four-year-old daughter, giving her a cut on the lip, when she refused to obey him after three verbal warnings.

His wife called the child’s mental health provider who apparently told her that if she did not call the police, both she and Ball would be arrested.

I live and practice law in Fremont, California, one of the most diverse communities in the diverse San Francisco Bay area. Over half the population of Fremont is Asian and Fremont has more folks from Afghanistan than any city in the US. Consequently, many of my clients are Asian and Middle Eastern.

Asian clients often express their belief that divorce is more shameful in their culture and consequently more difficult for them. In addition, in those cultures where arranged marriages are common, and even if the marriage itself was not arranged, the divorce involves the entire extended family.

Another difficulty for these clients in a divorce is that the cultural and legal systems from their country of origin differ from the American system, but American courts will not take these factors into account. For example, aspects of Sharia law or property issues related to dowry may be very important to the spouses but will not be factors that a California divorce court will consider. But in mediation or Collaborative, couples can incorporate their own sense of fairness and justice and/or values and principles that derive from their cultural and ethnic background and thereby create agreements that honor their highest values and the values of their culture.

To most couples planning to marry, marriage is a loving commitment between two people who want to share the rest of their lives. Under the law, however, marriage is a contract between two people … not a contract about love, but a contract about the legal and financial rights and obligations of marriage.

It isn’t easy to discuss marriage as if it were a business, but when considering a premarital (or prenuptial) agreement, that is precisely the right approach. A premarital agreement isn’t a predetermined exit plan and neither does it reflect a lack of faith in the relationship. It simply protects against unfortunate future circumstances that can, and frequently do, happen and is a most worthwhile effort to address the legal and financial issues of the marital contract.

The following suggestions may help you and your future spouse have a constructive conversation about what kind of premarital agreement would be right for your marriage and your relationship, as well as the role of money in your lives together, and if done right such a conversation can ultimately be more helpful in securing a strong foundation for the marriage than it’s actual, intended use.

California does not recognize community property rights between cohabiting couples and does not recognize “common law marriage”, and therefore does not protect those who opt out of traditional marriage or registered domestic partnerships. There are no automatic property rights or support rights under the California Family Code for unmarried cohabitants. Though there may be judicial recognition and enforcement of express or implied agreements between unwed cohabitants, such as breach of contract, partnership theories, constructive trust, declaratory relief, specific performance, quantum meruit and other equitable remedies, the legal process to obtain such recognition is likely to be emotionally torturous and very costly in the absence of a clear, written agreement.

Therefore, it is important for unmarried couples living together to discuss and reach agreements on financial and property rights if the relationship ends. These agreements should be reflected in a cohabitation agreement and testamentary documents such as wills or trusts.

Palimony is a combination of the words pal and alimony coined by celebrity divorce attorney Marvin Mitchelson in 1977 when his client Michelle Marvin (Marvin v. Marvin, 8 Cal. 3d 660 (Cal. 1976) filed an unsuccessful suit against the actor Lee Marvin. Palimony is a popular term, not a legal term, and is often used to describe the division of financial assets and real property when parties end an unmarried domestic relationship. Unlike alimony or spousal support, which is often provided for by law, palimony is not guaranteed to unmarried partners. There must be a clear agreement, written or oral, by both partners stipulating the extent of financial sharing and/or support in order for palimony to be granted. Palimony cases are determined in civil court as a contract matter, rather than in family court, as in cases of divorce.

There are so many reasons to end a marriage through the mediation or Collaborative process, rather than resorting to litigation and traditional legal representation. For example, the opportunity to create a positive and supportive co-parenting relationship for the benefit of children and parents, minimizing conflict so that children (and parents) can survive a divorce with little, or at least much less, emotional trauma, reducing legal fees and other divorce costs so that there are more assets available for the divorcing spouses and their children, the opportunity to craft a creative settlement that meets the needs of all concerned. The list is truly endless.

But there is another reason not generally highlighted by those who advocate alternative dispute resolution processes. And that is the satisfaction that one derives from being the master of one’s own destiny. Who is really the best person to make vitally important decisions about your family? Lawyers whom you have probably just met and a judge that you never really get to talk to, and who never gets to hear what really matters to you? In my experience, the best people to make these decisions are those whose lives will be impacted. With the right support, most people who are willing to express their own needs, to hear and understand what is important to the other, and are willing to address the others’ needs as well as their own, can do much better than courts.

It is enormously empowering to solve these problems together, and be able to say “We don’t need the government, we don’t need the courts, we don’t need the system to solve our problems. We can do it ourselves.”