Posts Tagged ‘marital’

I couldn’t have said it better myself. Love the title, so I had to use it. For those of us in Family Law, this is one of the most important points to make with a client. Know what it means before you sign! Be sure the other side knows what they are signing too!

Amplify’d from blog.ceb.com

In the high-profile divorce of Frank and Jamie McCourt, the ownership of the Dodger’s hangs in the balance. Frank put his faith in a marital property agreement that he believed would result in him keeping the team. After a judge’s ruling that the agreement was not valid and enforceable, it’s as if there was never any such agreement and the parties are like any other in California trying to characterize particular property in a divorce. This leaves questions about how this marital agreement failed and how attorneys can avoid their clients’ agreements suffering the same fate.

A marital agreement is an interspousal agreement, executed during an intact marriage, that affects marital rights and obligations. The Family Code specifically permits spouses to alter the property rights of husband and wife prescribed by statute through the use of a marital property agreement. See Fam C §§1620 and 3580. Essentially, a marital agreement can change the character of property.  This can be a very powerful tool. But, as with any other legal agreement, the marital agreement also must comply with general contract law, i.e., it must be the product of the free, mutual consent of the parties, communicated by each to the other. CC §1550.

The McCourt’s marital agreement was set aside for lack of mutual understanding on what it meant when it was signed. As NPR.org reports,

both sides gave differing accounts of what their intentions were when they signed the agreement, but one aspect was clear — neither of them read the agreement closely enough.  

Indeed, the Judge’s tentative ruling, as reported by the Huffington Post, states that “[t]he parties had mistaken belief and no agreement as to the meaning of the agreement, the content of the agreement, and the effect of the (agreement) on their property and property rights.”

To confuse things further, there also seems to have been two conflicting versions of the agreement.   

The McCourt case illustrates the wrong thing to do when preparing a marital agreement for a client. To get it right, always make sure your client reads and understands what he or she is agreeing to. Sounds obvious, but all the money involved in this situation didn’t buy some basic common sense.

Read more at blog.ceb.com

 

For those of you who have struggled through the court system in California during a divorce or custody matter, now is your chance to let the Court know how you feel about the recommendations that the Elkins Task Force has put out in a 78 page draft.  You can review the Elkins draft by clicking here, Elkins.

If you are not familiar with what Elkins is, in 2005 Mr. Elkins represented himself in Contra Costa Superior Court in a Family Law matter.  Prior to the trial, he attempted to introduce 36 exhibits to establish his case.  The Court allowed only 2 of these exhibits and frustrated that he could not present his case to the court, Mr. Elkins rested his case.   Of course, Mr. Elkins did not get what he was asking the Court to do in the separation o f assets in his dissolution.  Mr. Elkins filed a writ and in 2007 the Supreme Court found that the Contra Costa local rule conflicted with the existing statutory law and held that marital dissolution trials should “proceed under the same general rules of procedure that govern other civil trials.”

The Supreme Court recognized that the courts were underresourced and that the number of self-represented litigants were creating unique challenges to the Court’s ability to provide access to justice.  The Court recommended that the Judicial Council of California establish a task force to study and propose measures trial courts could use to establish fairness and efficiency in marital dissolution proceedings.  This is how the Elkins Task Force was appointed.