TIPS FOR PRESERVING CONFIDENTIALITY IN DIVORCE SETTLEMENT DISCUSSIONS

Evidence Code Section 1152:

How to (Attempt to) Ensure That Family Law

Based Settlement Offers Remain Confidential

Evidence Code section 1152 exists to ensure that civil case litigants can safely have the discussions that settle financial disputes of many flavors. It is also very frequently used in an effort to protect the content of marital settlement-related communications by purportedly ensuring the confidentiality of offers to settle, and so it may be useful when attempting to resolve property division and spousal support disputes. However, I must add a major CAVEAT.

Section 1152 is not directed to marital disputes, and only makes reference to resolving insurance related claims and other civil actions involving money disputes. Indeed, a literal reading of section 1152 does not support its application to family law proceedings - and certainly not as to non-financially related settlement conversations (as in custody, visitation, etc.). Nonetheless, I almost never see any kind of a family law settlement proposal on any topic that does not contain a reference to 1152, as though it does in fact extend to such. It is universally used (and sometimes abused where someone is trying to cloak a position in confidentiality in order to avoid the consequences for taking an unreasonable position or making an improper allegation or bullying statement) in such contexts, even if the basis for relying upon it is suspect.

The application of section 1152 within the family law context is something of a myth. No reported decision to my knowledge makes reference to 1152 as applicable. I am aware of no treatise that opines that it applies to family law. For instance, I consider Hogoboom & King, The Rutter Group, Family Law to be a terrific resource - in its index of the statutes that are cited within the three volume treatise, no reference to section 1152 exists (including no statement that it is inapplicable). Nonetheless, you will rarely find a family court judge who thinks it doesn't apply. And, at least for that reason, citing to it may prove valuable, even if ultimately misguided. "Your Honor, I object!!! Counsel is violating the settlement confidentiality of Evidence Code section 1152! This is inadmissible and improper - the other party is Bad, Bad, Bad and you should not consider anything she just said! I move that any evidence concerning our communications be stricken. I demand that they be sanctioned!" Only a very sophisticated judge will not fall for this. Hence, the common perception becomes reality, and so provides a tool.

What we need is a explicit privilege for family law based offers and counter-offers, but so far no one seems to be clamoring for a new Family Code provision that clearly delineates the bounds of confidentially within the public policy context of encouraging settlement discussions. We have that in the Evidence Code meditation statutes. But, there are different reasons for protecting confidentiality in mediation that do not apply to divorce warfare.

It is imperative that the integrity of negotiations be maintained. If offers were not privileged from disclosure there would be strong disincentives against being reasonable - spouses would be too worried that these offers would become a ceiling in terms of what a family court judge might decide, if she or he later learned what the parties felt was minimally acceptable. That is a valid concern, because in my experience when a judge believes that a party was willing to accept a lesser outcome, even though they are now demanding something much larger, they will sometimes scale down their awards to satisfy those expectations.

In practice most attorneys insert in the subject line (RE:...) of their letters the words "Confidential Evidence Code Section 1152 Settlement Discussion." This is a wise practice for the reasons stated. There is arguably an open debate about the applicability of section 1152 within famlaw, since neither the appellate courts nor the legislature have elected to weigh in. So it is a tool in the toolbox.

But, if you are defending against a claim that 1152 cloaks some supposedly privileged communication that you want entered into evidence, know that said alleged privilege is highly suspect. And that you may be still be shut down, leaving you to an unappetizing appellate remedy.

CALIFORNIA EVIDENCE CODE

EVIDENCE AFFECTED OR EXCLUDED BY EXTRINSIC POLICIES

Evidence Code Section 1152

(a) Evidence that a person has, in compromise or from humanitarian motives, furnished or offered or promised to furnish money or any other thing, act, or service to another who has sustained or will sustain or claims that he or she has sustained or will sustain loss or damage, as well as any conduct or statements made in negotiation thereof, is inadmissible to prove his or her liability for the loss or damage or any part of it.

(b) In the event that evidence of an offer to compromise is admitted in an action for breach of the covenant of good faith and fair dealing or violation of subdivision (h) of Section 790.03 of the Insurance Code, then at the request of the party against whom the evidence is admitted, or at the request of the party who made the offer to compromise that was admitted, evidence relating to any other offer or counteroffer to compromise the same or substantially the same claimed loss or damage shall also be admissible for the same purpose as the initial evidence regarding settlement. Other than as may be admitted in an action for breach of the covenant of good faith and fair dealing or violation of subdivision (h) of Section 790.03 of the Insurance Code, evidence of settlement offers shall not be admitted in a motion for a new trial, in any proceeding involving an additur or remittitur, or on appeal.

(c) This section does not affect the admissibility of evidence of any of the following:

(1) Partial satisfaction of an asserted claim or demand without questioning its validity when such evidence is offered to prove the validity of the claim.

(2) A debtor's payment or promise to pay all or a part of his or her preexisting debt when such evidence is offered to prove the creation of a new duty on his or her part or a revival of his or her preexisting duty.