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The Collaborative Premarital Agreement Process – A Better Way to Start a Marriage

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As more and more couples are waiting longer to marry, California lawyers are seeing an increase in requests for Premarital (also called Prenuptial) Agreements. By the time they get married, many people already have assets, such as retirement accounts and real property, and some even have children from a prior relationship. During the COVID19 pandemic, many people experienced the downsides of not having a premarital agreement and/or updated estate plan; with the loss of remarried loved ones, they also lost their family legacy to a stepparent or step grandparent. In one case, mom passed away quickly and, having no “prenup” or estate plan, stepdad, by default, got mom’s premarital assets. Result? Her two adult sons (who did not get along with stepdad) were given a couple of jet skis and were told to go away. Stepdad kept the family home, mom’s car, bank accounts, and personal belongings. You never think it will happen to you, until it does.

Despite its negative reputation, prenups can be an opportunity to plan for a successful marriage, to have a voice in the management of separate property assets during the marriage and to create a joint plan for separate and community property assets in the event either spouse predeceases the other as well as in the event of separation or divorce.

The word “prenup” can be a trigger given the “traditional” process: two lawyers, each in private session with their client, the first drafting a proposed agreement that strongly favors her client (who likely has more money and assets than the other party), the second receiving the draft agreement, explaining to his client how grossly unfair it is to her, and editing the agreement in favor of his client. This continues back and forth until the attorneys confirm that their clients have approved a final draft. The experience can be so negative, that the relationship is harmed rather than strengthened.

This process feels adversarial for a couple of reasons. First, the negotiations start from a competitive position, in favor of the initiating party. The receiving party then mirrors that behavior, given how outrageously unfair the first draft was. And they continue until they find a middle ground. While less extreme than the initial draft, there often remain provisions that leave one party feeling insulted or hurt.

Second, direct communication between the couple rarely happens and is typically not productive. Given how uncomfortable many couples are in talking about things like money, they will avoid direct discussions and only speak on such topics through their lawyers. Not only does this set a poor model for communication and problem-solving during the marriage, it’s also a time-consuming and expensive way to create the agreement itself.

Enter the Collaborative Premarital Agreement Process, which looks something like this:

Premarital Agreement Process

Sam calls lawyer Diana for a prenup. Diana tells Sam it’s important for fiancée Jo to have a lawyer as well, and that Jo may want to look into finding a collaborative lawyer. Diana sends Sam some information on the collaborative process, and they schedule their first meeting. If Jo hasn’t yet retained a lawyer, Jo is invited to that meeting. The first meeting is limited to discussing the process options – the actual negotiation of the agreement will take place only when Jo has retained a lawyer. If Jo already has a lawyer, both lawyers will meet to create the process for collaborative discussions.

Diana (and Jo’s collaborative lawyer if already retained) will jointly explain the collaborative process to co-create the Premarital agreement, which includes:

  • Jo and Sam meeting with both collaborative lawyers individually and in 4-way meetings. Often, a neutral family specialist (a therapist) and/or a neutral financial professional is/are brought in as well. This is a client-driven process, with the collaborative professionals helping the couple co-create an agreement that meets their individual and shared interests and goals.
  • Sam and Jo exchanging full financial disclosures with each other. Full financial disclosure is required for all premarital agreements to ensure that both parties are making informed decisions. This is key to an enforceable agreement.
  • The collaborative professionals guiding the couple through productive and respectful discussions, making sure that neither feels pressured. Another key piece that judges look for when enforcing prenups is the validity of the agreement which depends, in large part, on the voluntary and informed participation of each party. That means that neither was coerced, under duress, or mis-informed; that both had the time, space, and information to calmly review and understand each part of the agreement.
  • The collaborative professionals facilitating the discussions to help the couple build the financial foundation of their marriage. The focus is the relationship and future health of their family.
  • The couple speaking individually and confidentially with their individual collaborative lawyers AND with each other directly, with the support of their collaborative professionals.
  • The collaborative lawyers jointly drafting the Premarital Agreement for the couple to review. There may additional revisions as well as meetings to go over the agreement as needed, and then the signing ceremony with everyone present (or not – it’s really up to the couple).

How is this a better way to start a marriage?

  1. Collaboration. Working together creates an environment where everyone supports shared goals and understanding. There is no unknown lawyer promoting an extreme position.
  2. Direct Communication. Productive direct communication results in stronger and more complete solutions and reduces legal fees by eliminating the time it takes for party A to communicate to his attorney who then communicates to party B’s attorney who then communicates to party B and reverse for the response.
  3. Interest-Based Discussions. Where the traditional approach is position-driven (my house stays my house no matter what), the collaborative approach focuses on interests. For example, I want us to share my house during our marriage and preserve it as a legacy for my children. The couple in the collaborative model are encouraged to discuss both non-financial interests as well as their financial interests. The resulting agreements are more likely to satisfy the interests of both and create a foundation for a long and happy marriage.

There is no one-size-fits-all when it comes to creating your premarital agreement. The collaborative process strives to create a more productive and inclusive model than the traditional adversarial process of one-sided bargaining. The collaborative process can be tailored to the needs of the specific couple and can be started individually with the family specialist and/or each person’s collaborative lawyer to work through hidden interest and how best to present them. This process also sets the framework for working through difficult discussions moving forward, thereby setting a foundation for a successful marriage.

Arbitration and Mediation in California: What’s The Difference in These Forms of Dispute Resolution?

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by Diana L. Martinez Collaborative Lawyer and Mediator, West Coast Law & Mediation, APC

As a family law lawyer, I really look forward to my time on duty to volunteer at Riverside County Superior Court for VSC (Voluntary Settlement Conference) day. It is offered two Fridays per month and is THE most successful mediation program in the nation with an over 90 percent success rate!

Why? Because, in order to be a mediator on this panel, you must have the highest training and qualifications as both a family law lawyer and as a mediator. Not only do we donate our time, we must be in practice at least 10 years and have hundreds of hours of mediation training and practice under our belts. Other family law mediation programs that either do not have a structured program with high mediator qualifications, or that pay retired judges to do this work, enjoy a success rate below 60 percent.

Judges have an incredibly difficult job. It takes very specific skill sets to be a good judge. But being a talented judge does not, in and of itself, make you a good mediator.

I also volunteer as a fee arbitrator in attorney-client fee disputes for the California State Bar and for the San Bernardino County Bar Association. My role as an arbitrator is that of a judge: to listen to testimony, review the evidence, and make a ruling based on the law. There is no facilitation or brainstorming to help the parties create agreements together. As a result, the parties tend to stay polarized, hoping I will rule in their favor.

In contrast, a mediator works to find common ground, and assists the parties in bridging gaps, focusing on their goals and the reality of the benefits and risks of resolving versus litigation.

During a recent mediation in Riverside*, I had to use my skills as an arbitrator to attempt to resolve a divorce dispute in mediation. In this particular case, the husband was represented by counsel. The wife was not. The couple was married in the Netherlands and moved to California two years prior to the divorce. They had been married for 15 years. They had already agreed to the division of their assets and debts. The final item preventing them from resolving their divorce for nearly two years (yes, they had been divorcing for two years) was spousal support. The wife was not a legal U.S. resident and had struggled finding employment. During the marriage, she worked as a babysitter. The husband ran his own consulting business and was always the higher income earner.

As an arbitrator, looking at the evidence presented, the ruling is quite simple. Based on California law, Husband would be required to pay spousal support until one of the normal, terminating factors in a long term (over 10 years) marriage: 1) death of either party; 2) remarriage of wife; or 3) further order of the court. Wife, however, would have to make reasonable, good faith efforts to become self-supporting, in order to continue to receive support.

As a mediator, it is important to help both husband and wife craft an agreement that factors in wife’s financial needs and goals, as well as husband’s sense of unfairness of having to pay for so long a time. In this case, wife appreciated this and proposed that husband pay her only what she was short in rent each month ($200) for five years. This would give her time allowing her to get her legal resident papers in order and find a stable job, as she explained it, after which she would agree to “terminate” support.

Relying on a judge for a “fair” decision on your financial settlement during divorce is an expensive roll of the dice.

In a long-term marriage, courts do not, generally, terminate support; they may reduce it to zero dollars, but they will leave open the ability to request it in the future. This proposal, legally, put a lot of value on the table for the husband.   As a neutral, and especially given that wife was unrepresented, I did have to educate both parties about that legal value and the implications of a spousal support termination. To all knowledgeable in family law, this proposal was golden.

Husband’s attorney instructed him to reject the offer as completely unreasonable. His argument? In the Netherlands, his wife would not have received spousal support at all. Since the parties lived there for most of their marriage, wife should not be allowed to benefit from California spousal support laws. They argued the wife should agree to no more than six months of spousal support, which would then end. This sounded logical to husband.

Sadly, the husband’s “logic” is not the basis upon which family law judges issue orders. My inner arbitrator asked husband’s lawyer to explain the legal basis for this argument. It was a novel argument to me, and I’ve been in practice for nearly 20 years. His response: “Yes, it is a case of first impression, so I have to research this more.”

Excuse me? You have no legal basis for this argument, which means your client will be paying you for research that will very likely not result in the expected outcome. In addition to this expense, Husband’s lawyer planned on having a vocational evaluation done on wife to determine how much she could reasonably be earning. Really? She’s undocumented, and lawyer wants to do a vocational evaluation. Husband, as the sole income earning, would have to front this cost.

The court had already told the litigants prior to sending them off with their mediators that, if they do not resolve their matters, the next available court date would not be for another six months. This meant that husband will continue to pay his lawyer during that time, for research on an issue that has no support in law. If we calculate the legal fees at $1,750/month (lawyer rate of $350/hour, at five hours of legal work per month, including research on the foreign marriage issue, gathering information on wife’s earning ability, history of income during the marriage, and so forth), for six months, it will cost the husband $10,500 prior to his trial readiness conference. This is not the trial itself. It is a court hearing to confirm you are ready for trial.

The trial would likely be set within the following one or two months after that hearing, and trial preparation by his attorney would be far greater than five hours. But let’s keep it conservative for this discussion and add only another $1,750 to finish this case through trial. Now we have $11,750 in legal fees for the husband, in the hopes the judge will side with him and terminate spousal support, despite the law.

Let’s compare this with the wife’s proposal to resolve their case through mediation, six months before trial readiness. She proposed $200/month for five years = $12,000, and a signed, binding, agreement to terminate spousal support. That’s a guarantee, folks. Remember, by terminating, no court, in any state, would have the legal ability to order more support, ever!

Sadly, husband trusted his lawyer in the above mediation. The parties will end up going to trial, based on his lawyer adding to husband’s sense of unfairness, rather than educating his client as to the reality of the law. Logic would dictate that it would be better to take a sure bet for $250 more, than pay almost the same amount and risk the judge applying the law, as they are required to do.

In mediation, husband had the ability to cut his losses and be done. As a judge, there is no such flexibility. The judge or arbitrator (same function) is required to apply the law. But when emotion (that sense of unfairness) takes over, and a lawyer creates a false hope by feeding into that emotion, the only “winners” are the lawyers. There is no benefit to either spouse. There is no benefit to their families. The court battle continues.

If you expect a judge or arbitrator to “do the right thing” because he or she will see and understand the unfairness of it all, you will be disappointed. A judge does not have that kind of flexibility. They may find one argument more persuasive than another, but that means it follows the law more closely than the other. It does not factor in emotion or “fairness.”

In the above example, the law does not look at where you were married and apply the rules of a foreign country. If you lived in California six months prior to filing your petition for divorce, you fall under the laws of California – no exceptions based on “it’s not fair.” A judge must render decisions based on the law and the evidence properly presented. Don’t forget to factor in the financial and family relationship costs of the continued battle.

*I’ve changed certain facts of the case to protect confidential information, but have kept the substance the same.

The Last Thing A Man Needs To Hear When He’s Going Through A Divorce

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by Diana L. Martinez Collaborative Lawyer and Mediator, West Coast Law & Mediation, APC with Dr. Marvin Chapman, Collaborative Coach, LMFT

“Real men don’t cry,” right? BS!

I have represented many strong and successful men in divorces. The skill set which creates business success often does the opposite when seeking conflict resolution in a personal relationship.

Too often, men tend to handle negotiations in their divorce as they do in the boardroom. They become frustrated when their previously successful tactics do not work. Frustration often shows itself as anger, stubbornness, yelling, or complete withdrawal. The real obstacle to their successful divorce resolution is grief, or, rather, the failure to work through the grief.

Divorce is the second most traumatic event a person can experience, second only to the loss of a loved one. While there is plenty of information and support for women to work through the trauma of divorce, there is very little available to men. Why? Because “real men don’t cry.”

The reality: men do grieve the loss of their marriage, but their grief is expressed so differently it appears as aggression, arrogance, or as a complete lack of empathy to the untrained eye

To better understand what’s really influencing this behavior, we turned to Dr. Marvin Chapman, a military veteran, divorce coach and founder of United Fathers, for some answers.

When a man experiences the grief inherent in divorce, his stress comes from many sources. Some of them can include the following:

  • His role as provider and protector as he knows it is ending. Providing and protecting his family is now someone else’s business: the divorce court or perhaps a new partner. Either way, an overwhelming sense of helplessness engulfs many men.
  • He quickly realizes his role as a father, teacher, coach, and mentor to his child(ren) will soon be changing.
  • His self-esteem is challenged by allegations and accusations in papers filed with the divorce court, an entity he now sees as having intrusive control over his current and future life and livelihood.
  • He will quickly become overwhelmed by the legal process and requirements of going through the legal procedures totally and completely foreign to him, and therefore out of his control.
  • He sees his financial security threatened by legal fees, costs and expenses. Splitting one household into two households will cause extreme hardship and an expensive transition.
  • His status and standing in the community is changing, and not for the better unless he “fights it with all he’s got.” He must “win at all costs” if he wants to preserve what and who he is, or, at least, how he identifies himself.
  • He can’t show emotion and be weak. He must be strong, aggressive, and confrontational. Only weak men fall apart.

Most men do not see a divorce as the death of a relationship. They do not realize they are going through the grieving process. Men have no idea what to do with their feelings of pain, anguish, guilt, hurt, confusion, frustration, and a complete sense of being overwhelmed.

Then along come well-meaning family, friends, co-workers and others who want us to “feel better” or at least not so “confused.”  Their advice is the same today as it always has been:  “Man up!”

What can a divorcing man do to work through the grief and be the man he needs to be, for himself and his children? Grief needs to be addressed with time, patience, honesty, congruency, and support from someone willing to walk beside a man without judgment. This one person can acknowledge the pain and the life changes to come. It can be anyone, as long as it allows the grieving person to cut through the macho façade and find a safe place to be himself.

Male military veterans often say they feel safer in combat than after they return to civilian life because they know their buddies in arms always have their back. Divorce can be very isolating. More than ever, a voice of support, not judgment, is needed.

As a Collaborative lawyer and mediator, I have worked with many men in high stress careers. They are tremendously successful professionally, often because of the resources supporting them, including co-workers, employers, and employees.

But such successful business men frequently struggle in resolving their divorces. When working with a divorce coach, my clients can rely on a support team to help resolve challenging and personal conflicts in a way that promotes faster healing and productive parenting relationships (with the children and the other parent). It allows them to be the men they want and need to be for themselves and their families.

Everyone needs someone who has their back during difficult times in their lives, not to carry us through hardship but to give us the focus, encouragement, and resolve to do it ourselves and to do it right. Your coach, your buddy in arms, has your back, to help you keep your eyes wide open, and help you be the man and/or father you want to be.

The Cost of Divorce To Your Business

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by Diana L. Martinez Collaborative Lawyer and Mediator, West Coast Law & Mediation, APC

Divorce takes an emotional, physical, and financial toll on spouses and their children. But the potential negative effects of divorce don’t stop with the family directly involved. They often spill out past the front door and affect many other people.

When a valued employee is going through the trauma of a divorce, the divorce can affect the entire workplace. The cost to employers can go well beyond absenteeism for a few days here and there to attend court hearings or meetings with the lawyers. Trying to accommodate the employer and the divorce process can prove challenging.

Courthouses are open only between 8:30 a.m. and 4:30 p.m. Most lawyers’ offices are only open between 9 a.m. and 5 p.m. While some lawyers can be more flexible, most judges and courts cannot. The higher the conflict in the divorce, the more court appearances and the more time spent with the lawyers and in court.

Additionally, less obvious costs include:

  • “Presenteeism”: The employee who is physically present at work, but unable to focus as a result of the divorce.
  • Employees wasting valuable work time talking with co-workers about their divorce.
  • An employee leaving work early due to anxiety attacks or illness related to stress.
  • Childcare difficulties when the employee can no longer depend on his/her spouse to cover such tasks.

A depressed or distracted employee can end up with impaired judgment which negatively impacts his or her overall job performance. It can lead to safety concerns, injuries, mistakes, and accidents.

In one example, a company’s manager was served with divorce papers two days before the company was to submit a binding bid on a three-year contract for the company’s products through a county bidding process. The employee did his best to balance work with the depression, anger, and fears he experienced due to limited time with his children and concerns about spousal support and child support. The manager submitted the binding bid with an error committed by the distracted employee in the bid. When the company’s bid was opened, it was the lowest bid by approximately 25 percent. The county accepted the bid and the company was forced to abide by it, losing hundreds of thousands of dollars for those three years.

Employers value their loyal and dedicated employees who produce high quality work year after year. But imagine the same kind of employee suddenly hemorrhaging money in legal fees, expert fees, and custody evaluations; or when the same employee is on medication for depression, or is receiving harassing phone calls or disruptions at work from an irate soon-to-be ex-spouse. Even the most understanding and patient employer is ill equipped to provide the safety or emotional support the employee really needs.

Unfortunately, in a worst-case scenario, this can cost the employer a truly valuable employee. It can cost the employee his or her job at the worst possible time, adding to his or her financial hardship and stress.

These same challenges often continue one, two or even five years after the divorce is completed. The higher the conflict during the divorce, the longer the recovery will take. The more time spouses spend in contested court battles during their divorce, the more likely they will continue to battle over modifications to orders after the final judgment is entered.

Many couples facing divorce have found an alternative to the high stress and high cost of a litigated divorce. Spouses who co-create their agreements through an out-of-court process such as mediation or Collaborative Divorce spend less time in court when compared to a litigate divorce, and experience far less stress. Often, they are able to work with a divorce coach, a trained mental health professional, who can help manage the anger, sadness, or frustration they experience.

Children also tend to recover faster when their parents are able to communicate well and act as a team in support of their children. This also adds up to fewer lost workdays because of stress, anxiety, child illness, or childcare challenges after the final divorce decree.

Human resource professionals are starting to recognize the advantages of Alternate Dispute Resolution for all civil matters faced by their employees, including divorce, and often recommend employees consider these methods for divorce and other legal issues.

As an employer, consider these options to help your valued employees navigate the difficult process of divorce:

  • Be sure your human resources personnel know about out-of-court divorce options. Are they versed in conflict resolution skills? Understanding the emotional and financial trauma is the first step in assisting a valuable employee through the divorce transition. Having the skills to acknowledge the hardship and refocus the employee so they are fully present during work hours requires training and education.
  • Mediation and Collaborative Practice groups offer general conflict resolution training. The skills taught in such programs are transferable to family conflicts, as well as interoffice conflicts, which can arise during the divorce process.
  • Many employers recognize the benefits of offering needed support for employees experiencing trauma through Employee Assistance Programs (EAP). EAPs often include referrals to mental health professionals and divorce lawyers. Does your EAP provider have knowledge about out-of-court divorce options? Can it provide a referral to a Collaborative Divorce practice group or family law mediators?
  • Collaborative Divorce, like mediation, is an out-of-court, solutions–focused process for completing a divorce. Because it is an out-of-court process, an employee can meet with their professionals outside of work hours including evenings and weekends.
  • The Collaborative Process is especially useful in high-conflict or more complex divorces typically taking two to three years to resolve through the court system. Most Collaborative Divorces are resolved within 12 months, and can cost far less than a comparable litigated courtroom case.
  • Divorce Options Workshops: These workshops are held in the evenings and weekends. A family law lawyer, divorce financial professional and a divorce coach present information about the divorce process, and answer general questions. Taking the mystery out of the divorce process itself reduces the anxiety and stress typically associated with an impending divorce. Some programs are offered at no cost while others charge a nominal fee.
  • Provide online resources such as:
    • International Association of Collaborative Professionals
    • Collaborative Practice California
    • Collaborative Divorce Solutions of Orange County
    • Southern California Mediation Association

We all experience conflict in various aspects of our lives. The conflict can either escalate to the point of losing an employee, spouse, or friend, or it can strengthen those same relationships. It can mean the difference between a productive employee and happy customers or a company with a high employee turnover and a reputation for rude staff. Companies that support their employees during personal challenges like divorce will reap the benefits in terms of their bottom-line and their reputation.

When 50/50 Isn’t Always Equal in a California Divorce

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by Diana L. Martinez Collaborative Lawyer and Mediator, West Coast Law & Mediation, APC

California is one of nine “community property” states as it relates to divorce. This means that assets and debts acquired and incurred during your marriage will be divided equally upon divorce. Exceptions exist for specific items received during marriage that are deemed “separate property” under the law. This includes gifts and inheritance.

This is one of the most misunderstood concepts in divorce law. Spouses often believe their divorce will be easy if they just split all of their property in half, or “50/50.” While strong emotions present a barrier to resolving issues during a divorce, not far behind is the misunderstandings by couples about the concept of what is “fair” when it comes to dividing up assets and liabilities.

From extensive experience as a mediator, consultant, and Collaborative Divorce lawyer, I am a strong advocate for giving spouses a greater voice in the outcome of their divorce. I am also a strong proponent of ensuring divorcing spouses have as much information as possible to make the best decisions moving forward.

Although the courts are required to enforce the laws, spouses in a divorce, with few exceptions (typically related to minor children) are not limited by the law; they can create their own, unique, agreements, based on their goals and values. Laws controlling the division of assets and debts, the amount you receive or pay in support, and the amount of time granted with your children exist to guide you IF you and your spouse are not able to resolve these items together. If you can’t resolve your differences, a judge will make the decisions for you. He or she is required to enforce the law, regardless of your personal goals and values.

You and your spouse may have some understanding of the law. But in negotiating your agreement, you may be better served by accepting less than the law allows in return for a greater benefit elsewhere. The benefit could be a better co-parenting relationship, or the opportunity to reduce or eliminate spousal support. It may even be the creation of balance where the laws aren’t able to provide it.

Annette and John Peterson provide a case study worth discussing as an example. The Petersons were able to resolve all disputes in their divorce except one: Annette’s pension benefits of approximately $100,000. This roadblock stalled the Petersons’ divorce for six years, from February 2010 until the California Supreme Court rendered its decision in January 2016.

In retrospect, after nearly six years of legal fees, lost time from work, and stress, Annette and John might have preferred finding a compromise outside of the contested court process. State laws governing pensions and federal laws governing Social Security created the sense of imbalance that Mr. and Mrs. Peterson fought so hard to correct, as each, individually, deemed most “fair”.

In California, pension benefits are community property when earned during marriage. Pension benefits are a form of deferred compensation for services rendered. Non-financial contributions to pension benefits, or “service credits,” are also considered “a form of deferred compensation for services rendered” and, therefore, community property.

But Social Security benefits are separate property under federal law. Federal law preempts state law. Social Security is not transferable, nor can it be assigned by the wage earner. There are, however, derivative rights upon divorce if:

  • you and your spouse are entitled to receive Social Security;
  • your marriage lasted 10 years or longer;
  • the ex-spouse did not remarry;
  • the ex-spouse is age 62 or older; and
  • the benefit the ex-spouse is entitled to received based on his/her own work is less than the benefit he or she would receive based on his/her former spouse’s work.

If each requirement is met, an ex-spouse could elect to receive either all of his/her own Social Security, or one-half of his/her former spouse’s Social Security, but not both.

As an employee of the County of Los Angeles, Annette did not contribute to Social Security. Instead, the County contributed to a defined pension plan for Annette through the Los Angeles County Employees Retirement Association (LACERA). As an attorney in private practice, John contributed to Social Security through mandatory payroll deductions.

Annette’s LACERA benefits totaled between $200,000 and $216,000. Based on Social Security calculations, John’s Social Security benefits totaled $228,000. Annette attempted to argue that the laws governing LACERA pensions and the laws governing Social Security created unequal benefits. Annette and John would split her LACERA benefits in their divorce (approximately $100,000 to each). But John would keep all of his Social Security benefits.

The trial court ruled in John’s favor, creating an actual 150% windfall for John ($328,000 from 50% of Annette’s LACERA and 100% of his Social Security). Annette asked the California Supreme Court to correct this unfair situation, suggesting the court give John less than half of her LACERA pension benefits.

The Supreme Court let the trial court’s ruling stand, citing the requirement under California law that community assets be divided equally in a divorce. Since Social Security is not a “community asset,” the court correctly divided the community assets and could not deviate from that equal division, even when it creates an unequal division overall.

But the Supreme Court pointed out that it was completely within Annette and John’s power to create their own, more equal solution, even though the court under the law could not.

So let’s go back to Annette and John’s original circumstances. What was the value to John if he had agreed to give Annette all of her LACERA benefits, instead of insist on following the state law giving him a far greater share? What would have been the value to Annette to propose an alternate payout to John to resolve this issue?

As of 2010 in California, the average cost of a divorce where the parties were represented by lawyers was approximately $50,000 each. This amount is on the low end for a contested divorce in Orange County, and it does not include the legal fees for an appeal. Over the period of six years, based on 2010 estimates, Annette and John would have spent more than $100,000 each. Resolving your divorce early and collaboratively can save on legal fees, lost work time, and other intangible and emotional costs.

Managing emotional trauma and stress for yourself and your family offers priceless benefits, far beyond feeling a sense of entitlement or unfairness. Attorneys frequently fail to focus on these practical impacts because they are hired as legal advisors and guides, not as therapists. Attorneys are not equipped to help people through their fears; they are not trained mental health professionals.

Alternative (also known as “consensual”) dispute resolution models often incorporate legal and non-legal professionals to help educate and guide couples through unexpected emotional landmines, often resulting in less, or better managed, conflict, and better informed and well reasoned results.

For example, the Collaborative Divorce model incorporates guidance from a “divorce coach” to help manage the emotions of divorcing spouses, often saving the spouses tens, if not hundreds of thousands of dollars, as well as years of stress embroiled in a contested divorce, and the subsequent modifications to orders after trial. The outcomes tend to be far more satisfying to both spouses, and result in fewer or no additional hearings after judgment to modify those orders.

Making decisions based on accurate legal and financial information, as well as balancing the practical impact on your family and finances often results in far greater and lasting benefit for you and your family. Sometimes, there is too high a price for the short-term gain of getting everything you can under the law.