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  • Writer's pictureJames Chau

How much control do spouses have over their divorce agreement?

There is a misconception among people contemplating divorce that the courts will dictate the terms of the divorce agreement. Court shows such as Divorce Court or legal dramas show a judge telling people how much people must pay in child and spousal support and who will get the house, car, boat, and the family's prize-winning fish. (Of course, people on television will have a boat and a prize-winning fish. It ups the stakes of the drama.)

Despite the term "reality television," the reality is that the divorce process is often not very exciting, and very few prize-winning fish are negotiated in divorce settlements. The court will only dictate the terms of a divorce after all other forms of negotiation and mediation have failed to produce a workable and fair settlement.

As a divorcing couple, you have more control than you may think.

Whether you work with an attorney or enter into divorce mediation where you and your spouse work directly with a mediator, you can control most aspects of the divorce agreement.

A Marriage Settlement Agreement can be incorporated into the Judgement of Dissolution form (California Form FL-180). A marriage settlement agreement will contain agreed-upon terms for areas such as child custody and visitation, also called parenting time, spousal support, child support, division of assets, and any other agreements related to divorce, such as the disposition and handling of pets.

Please note that every divorce is different, and not every spouse is willing or able to negotiate in good faith. Therefore, a marriage settlement agreement is not always the recommended way to proceed.

Aspects of divorce, such as the division of assets, or the disposition of a pre-owned business, can also be planned with a pre or post-nuptial agreement.

In another post, we discussed forming a parenting plan, which will discuss aspects of the divorce related to the children. The divorcing couple can fully negotiate the plan's provisions through attorneys or an alternative dispute resolution process such as mediation or a collaborative divorce, which, unlike mediation, includes attorneys for each party.

If a couple is able to negotiate their own terms, or certain terms were pre-determined with pre or post-nuptial agreements, the negotiated terms are still not official until a judge reviews the terms of the agreement. A judge will not allow an agreement contrary to the law or public policy or does not reflect the children's best interests.

If the judge on the case has any concerns about the agreement as presented, they may reject the settlement. If the court finds that a pre or post-nuptial agreement or the marriage settlement agreement is unconscionable, the agreement will be void and thrown out.

As California is a community property state, marital assets are divided evenly, and any business owned by one spouse is considered a marital asset. If the business was owned before marriage, a portion of the company might be regarded as a marital asset, while another portion may be considered separate. This is commonly called Van Camp / Perrera apportionment. This concept is too complex for a blog post. Call our office if you have questions about what is considered a martial asset versus an individual asset.

Another unconscionable agreement would be relinquishing all rights to legal custody of a child. If a parent who still wanted to be a parent and have a relationship with their children agreed to sign away such significant rights, it could only be seen as being contrary to the law.

When you decide to end your marriage, you have a significant amount of control. That control may be yielded at the negotiation table to get the best possible settlement. Control may be used during the process of mediation working with your soon-to-be ex. Or, most importantly, control may be displayed by the power of saying "no" and proceeding with the divorce through litigation.

People need to know that regardless of their role in the marriage and how many assets each person had prior to the wedding, neither spouse has more control over the divorce process than the other. Each spouse has the ultimate power by simply walking away from the table if negotiations fail to produce fair and equitable results.

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