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Entries from October 2014

Posted on Oct 14 on 2014

I have previously written on the need for alimony reform.  California law affecting what we call “spousal support” creates a situation where the supported spouse has, in many cases, little if any incentive to work.  Moreover, the legal presumption that one who is married for ten years or more is entitled to support until death or remarriage is patently unfair, mandating that the payor of support continue to fund the recipient’s lifestyle for years far beyond the duration of the marriage.  Rather than being rehabilitative, our spousal support laws reward the spouse who historically did not work or made less income to the expense of the higher earning spouse.

While our Sacramento legislators have not been interested in making people responsible for themselves, and would rather put the burden on the individual taxpayer, it appears that the concept of alimony reform is getting traction in at least some states.  As previously addressed, for many years the State of Texas has limited the duration of alimony to five years with a cap on the amounts that can be ordered paid to the recipient of $5,000 per month.   Back in 2007, the American Academy of Matrimonial Lawyers recommended that alimony laws be changed nationwide to restrict the amount of alimony and the duration.  That recommendation led to the State of Massachusetts abolishing permanent alimony in 2011.  It also resulted in Massachusetts promulgating guideline amounts of alimony that are to be ordered in each case.  The Massachusetts law further provides that alimony obligations end when the payor reaches normal retirement age according to the Social Security Administration.  It provides for modification or termination when the supported spouse takes up residence with someone for three months or longer.

The State of New Jersey adopted alimony reform just this past month.  On September 10, New Jersey adopted alimony reform which in several regards is similar to the Massachusetts law.  Under New Jersey law, there is a rebuttable presumption that payment should end when the payor reaches age 67.  New Jersey judges can terminate alimony if the recipient is cohabiting with someone, and in marriages of less than 20 years in duration, support cannot be ordered for a period of time longer than the marriage itself.  The presumption that alimony should be permanent has been removed from the law entirely.

It is unfortunate that our own legislature has failed to take up the subject of alimony reform.  The very inequities which the Massachusetts and New Jersey laws intended to address are present in our existing system. California is usually at the forefront of changes to the law.  We were the first state to adopt “no-fault” divorce.  It is unfortunate that in regard to alimony, California will not take a leadership role, to the detriment of its own citizens.


Posted on Oct 14 on 2014

Simply put, what is said during mediation stays in mediation. Well, that’s what most people think, but it is not actually that simple. A mediation privilege does exist in California, which means that in general, whatever is disclosed during mediation is considered privileged. (See California Evidence Code § 1119) The benefit of this confidentiality is that it allows parties the ability to speak more freely during mediation, without fear that what they say will affect the outcome of their case. Nevertheless, as with any rule, exceptions exist, and as discussed below, one of the main exceptions to the mediation privilege is a written settlement agreement.

There is a strong basis to protect discussions during mediation; however, there is an equally strong policy argument to promote the enforcement of settlement agreements. If an agreement cannot be disclosed to the court, it can never be enforced, so what would be the benefit of an agreement?   California Evidence Code § 1123 applies directly to this issue, which states that settlement agreements, signed by the parties during mediation, are admissible under certain exceptions. If the agreement states that it is admissible or “words to that effect”, if it states that it is binding or enforceable or “words to that effect”, if the parties agree that it is subject to disclosure, or if the agreement is needed to show fraud, duress or illegality, then the settlement agreement can be admissible in court. The tricky part is what does “words to that effect” actually mean?

The meaning of “words to that effect” was recently addressed in Daly v. Oyster, a Second District Court of Appeal opinion, filed on July 29, 2014. In Daly v. Oyster, a marital dissolution petition was filed in 2005. In 2006 the parties attended mediation and entered into a proposed stipulated judgment following the mediation; neither the stipulated judgment nor any other documents were ever filed with the court. Presumably, the parties followed the judgment as though it had been entered. In May 2011, the court dismissed the petition for lack of prosecution. In June 2011, Daly filed a second dissolution petition to enforce the stipulated judgment. Oyster objected to the admission of the stipulated judgment on the grounds that it was protected by the mediation privilege. Oyster assumed that since it was prepared during the course of the mediation, and never filed, it was considered confidential and could not be disclosed to the court.

The Court of Appeal disagreed with Oyster and found that an exception to the mediation privilege applied. The court found that “words to that effect” does not mean specific language must be written, but that if the terms unambiguously signify the parties’ intent to disclose the agreement or be bound by it, that is sufficient. Such was the case in Daly v. Oyster, when the court opined “The parties agreed the court enforce the document, which it could not do unless the document was disclosed to it.”

One way to avoid the problem that arose in Daly is to make sure that there is specific language in your settlement agreement, if achieved through mediation that it is subject to disclosure to the court, enforceable, admissible and binding. Any experienced attorney will meet with their clients before the mediation to review any outstanding questions, this is the perfect opportunity to speak with your attorney about the mediation privilege.

-Sarah Rosenblatt