LEGAL REPRESENTATION IS NOT ONE SIZE FITS ALL; CHOOSE THE REPRESENTATION THAT FITS YOUR NEEDS.

Going through a divorce usually means facing a serious cash flow problem.  In many cases the parties' income was barely enough to support one household.  Now, that same income must support two households.  Needless to say, most people don't have legal insurance or have disposable income to hire an attorney to help navigate the divorce.  However, it is during this very difficult financial time that they need the advice of an attorney more than ever.

It is true that attorneys require a hefty up front retainer before working on your case.  The purpose for that will be discussed in other blogs.  But the reality is that not all people can find an extra $3,000, $5,000, or $10,000 retainer.  Well, there are options that you should investigate. 

As you read the discussion of options below, you should keep in mind the principles discussed in my previous blog regarding options of whether to litigate, mediate, or enter into the collaborative process.  Namely, that you should not try and cram a square into a circle; you should not try a limited scope representation if you have complicated matters in all dissolution areas, a full service representation may be best.   

FULL SERVICE REPRESENTATION

In a Full Service Representation relationship, The attorney becomes your “Attorney of Record” for purposes of your Family Law case.  In essence, the attorney is your legal representative and steps into your shoes.  This means that the Court and your spouse’s counsel send all correspondence, pleadings, filings, etc., to your attorney on your behalf.  When you are represented in this capacity your spouse’s counsel may not contact you for any reason.  Attorneys must communicate with each other directly to discuss the case.  In this relationship, the attorney prepares and executes a case plan to achieve the goals decided between you and the attorney.  The attorney completes all calendaring, filing of papers, meeting of deadlines, and makes any and all required court appearances, most of which the you will also need to attend.  In court, the attorney will do the speaking and advocate on your behalf, unless you are required to give testimony under oath.  In this scenario, the attorney will prepare you for your testimony to ensure you are calm, confident, and most importantly, truthful.  When the case resolves or there is otherwise required a termination of the attorney-client relationship, a form must be submitted to the court and served on interested parties memorializing that the attorney is no longer “attorney of record”.    

LIMITED SCOPE REPRESENTATION

In a Limited Scope Representation, an attorney may limit the attorney services by agreement with a self represented litigant to consultation on procedures and preparation of pleadings to be filed by the client self represented. A litigant may be either self represented or represented by counsel, but not both at once, unless approved by the court.  In order for the attorney to specially appear on behalf of the litigants for a limited purpose, the attorney must comply with all applicable court rules and procedures, including the filing of a Notice of Limited Scope Representation with the Court and service on all interested parties.

As an example, a client may only want to hire an attorney to provide full service on one aspect of their case, like Child Support.  The attorney’s written engagement agreement with the client would designate the attorney as “attorney of record” for the Limited Scope of providing full service only for the issue of Child Support.  The attorney would not be attorney of record for any custody, visitation, spousal support, property division, or any other issues.  The client would remain self represented for those issues and would remain responsible for court appearances, calendaring, filing of papers, meeting at deadlines, and all other responsibilities that counsel of record normally would do.

However, at any time throughout the process, representation can change from Limited Scope to Full Service.  This would require a new engagement agreement and the requisite forms being filed with the Court and served on interested parties. 

At the end of the Limited Scope Representation, a form must be submitted to court memorializing that the attorney is no longer attorney of record for such limited purpose.   

UNBUNDLED SERVICES / CONSULTATION ONLY SERVICES

In an Unbundled Services or Consultation Only relationship, the attorney is engaged by individuals representing themselves in litigation or mediation to give legal advice about various steps in the case. The attorneys written engagement agreement with the self represented client provides that the attorney will not be the attorney of record in the case, that court appearances, calendaring, filing of papers, meeting at deadlines, and all other responsibilities that counsel of record normally would do, are the client’s responsibility. 

The attorney’s engagement is limited to that of a law consultant who will advise the client on matters only as the client requests, and to assist in or draft papers that the client will sign and file. The attorney also may keep track of the case and its deadlines.  All documents are prepared with the client appearing as a self-represented party.

The purpose of such agreement is to provide clients with the legal advice necessary to navigate their Family Law case as a self represented party.  This is attractive to some clients who desire to keep control of their case or do not have the financial capacity to hire an attorney for a Full Service Representation.

The issues discussed in this blog are generalized and not case specific.  In reading these blogs, it is expressly understood that the blog is not offering legal advice, nor is it establishing any attorney client relationship.  If you have specific questions about a legal issue you are experiencing, you should contact a lawyer in your area and seek legal advice.

CHOOSING THE RIGHT FAMILY LAW PATH FOR YOU BEGINS WITH THE CHOICE OF LAWYER AND CHOICE OF PROCESS.

Welcome to Sonoma County Family Law Blog, a weekly blog that provides insight into issues that arise in Family Law matters including divorce, legal separation, parentage, custody, visitation, child support, spousal support, property division, allocation of debts, and everything in between. 

The issues discussed in this blog are generalized and not case specific.  In reading these blogs, it is expressly understood that the blog is not offering legal advice, nor is it establishing any attorney client relationship.  If you have specific questions about a legal issue you are experiencing, you should contact a lawyer in your area and seek legal advice.

CHOOSING THE RIGHT FAMILY LAW PATH FOR YOU BEGINS WITH THE CHOICE OF LAWYER AND CHOICE OF PROCESS.

The decision to separate and file for divorce is one of the most difficult decisions a person can make.  At its core, divorce means dividing the three things people are attached to most: Children, Money, and Property.  The emotional and financial uncertainty that accompanies divorce can cloud the judgment of even the most educated, logical, and stable individuals.  That is why it is so important to choose not only the correct lawyer, but the correct process. 

Many people who decide to file for divorce first seek an attorney.  It seems like a logical place to start.  However, I propose that the first step after deciding to file for divorce is to research which process will work best for you.  After you decide the process, you can interview attorneys who have an upstanding reputation within that process.

By process I mean that there are several approaches to divorce from both a structural perspective and a cost perspective.  The structural component of the divorce process contains the principles and theories that underlie the legal strategy.  Typically, there are three structures to choose from, (1) Litigation, (2) Mediation, or (3) Collaborative.  Each has its own distinct advantages and disadvantages.

With regard to the cost of divorce, consideration must be given not only to the financial cost (quantitative cost), but also the emotional cost (qualitative cost).  The quantitative costs are far easier to perceive insofar as one can estimate how much money it will cost for a given decision.  The qualitative costs are far more difficult to estimate and are generally overlooked.  However, in many cases the emotional cost of allowing the divorce to completely invade and control your life creates an atmosphere which is not conducive to making sound decisions.  I propose that from the outset, each decision made in regards to the divorce should include a “cost analysis” that includes both quantitative and qualitative costs.

LITIGATION

Litigation is a highly technical practice area regulated by strict rules, time frames, and procedures.  Each party hires their own attorney to advocate their best interests.  While negotiations occur throughout the litigation process, and the vast majority of litigation cases do settle, if those negotiations do not result in agreements then contested hearings and trials are set.

Preparation for contested hearings and trial includes formal and informal discovery.  Informal discovery is merely asking for information without the use of the strict formal discovery process, and I will cover informal discovery in later blogs regarding spousal fiduciary duty. 

Formal discovery includes requests for documents and other information which the responding party must provide within a specific period of time.  Formal discovery also includes depositions, where one party’s attorney asks a series of questions of the other party who is placed under oath, and a court reporter records everything that is said.  All of the information gathered through discovery is potential evidence which your attorney will present to the court. 

If your case goes to trial, you may be required to testify under oath and your testimony will be challenged by the opposing attorney.  Depending on the complexity of the issue or issues being tried, trials can last from several hours to several weeks.  At the end of the trial, the Judge will render a tentative ruling.  From there, each party has the opportunity to object and suggest revisions to the tentative ruling for the judge to consider.  After each party has submitted their position, the judge renders a final judgment.  At that point, the only recourse is an appeal. 

The litigation approach has unfairly been under fire over the past few decades.  Opponents of the litigation approach argue that litigation only serves to benefit the litigation attorneys, and causes more harm than good.  Instead, they promote mediation, collaborative, or some other non-litigation process.  However, in reality, litigation is the best choice for some situations. 

In some cases the parties cannot reach agreements no matter what approach is employed, yet resolution is necessary.  Parties can toil for years in mediation or collaborative without any significant movement towards resolution.  In those cases, both the quantitative and qualitative costs can far outweigh the litigation costs.  With litigation, a time line is set by which resolution will be reached.  For some, litigation is the best choice.

MEDIATION

With mediation, the parties employ a neutral mediator who works with both parties towards facilitating a mutually satisfactory settlement.  I cannot stress this point enough: the mediator should be a licensed and practicing attorney.  You will want a mediator who can explain the law and only licensed attorneys can provide that information.  All negotiations in mediation are privileged from disclosure, meaning anything said in mediation cannot be brought into court.  Generally speaking, parties are more satisfied with orders and more likely to follow such orders if they are obtained through mutual agreement.

The mediator’s job is to facilitate an agreement, not to advocate one position over another.  The mediator must remain neutral and cannot give parties legal advice.  For that reason you may choose, and I recommend, hiring a consulting attorney who can provide you with legal advice throughout the mediation, including reviewing the settlement terms. 

In cases where parties communicate well, mediation is often an effective approach.  Parties can discuss their case openly without fear of their statements or settlement offers being used in court.  They are free to fashion an agreement in whichever way they deem fit, so long as it meets the statutory requirements.

However, mediation is not right for every case.  Effective mediation requires a mature approach that employs listening and respecting the other party’s positions while being able to reflect upon your own.  It requires compromise, which may mean giving up a position you hold dear for the sake of settlement.  If you or your spouse cannot communicate well, cannot respect the other’s position, or cannot compromise, then mediation is likely not the best choice for your case. 

Careful consideration should be given before employing the mediation approach.  If even one spouse cannot approach mediation in the manner suggested above, mediation is likely not for you.  However, if you choose mediation believing it will work, but months have passed and not even the smallest agreements have been reached, you may wish to reconsider.  Again, having a consulting attorney will help guide your decision. 

COLLABORATIVE

Similar to mediation, the collaborative approach employs a team of professionals including attorneys, therapists, and financial experts, to work with the parties in an open, non litigious atmosphere.  Litigation is not only discouraged, it is precluded.  Upon choosing the collaborate approach an agreement is signed by both parties that none of the information exchanged during the collaborative process can be used in court.  In addition, none of the collaborative team cannot be involved in litigation should the case fall out of collaborative, meaning hiring new lawyers and experts.

Each party hires their own collaborative attorney who operates more as a divorce coach.  Jointly, the parties may agree to invite therapists, financial planners, or other experts to help them reach agreements.  Discovery is unnecessary because everything is open and out on the table.  There are no depositions or trials. 

Proponents of the collaborative process cite the open, private, and cooperative approach leads to better results more efficiently.  It is true that agreements reached through open and respectful dialogue tend to result in higher satisfaction with parties, who in turn are more likely to follow the agreements since they had some control over the terms.  It is also true that in cases that are meant for the collaborative process settlement can be reached with a much lower quantitative and qualitative cost. 

However, like mediation, the collaborative process is not for every case.  The collaborative process requires the same mature approach as in mediation.  It also requires the ability to speak openly about the underlying emotional component of the divorce.  If one party cannot meet those expectations, parties can toil in the collaborative process for years because there is no specific end date.  Also, given the professionals and experts involved, the cost can be extraordinary especially if parties spend several years in the collaborative process only to have it fall out into litigation.  Once it falls into litigation, the process must start from the beginning. 

The collaborative approach is an innovative and efficient approach for the right cases.  Before employing this approach, careful consideration should be given to whether you and your spouse can approach the process with the necessary framework.  If even one of you cannot, then this approach is likely not for you.  However, if you choose the collaborative process believing it will work, but months have passed and not even the smallest agreements can be made, you may wish to reconsider. 

CONCLUSION

The decisions made during the divorce proceedings will likely be some of the hardest decisions you will ever make.  It is imperative that you are comfortable with the approach you are undertaking.  It is also imperative to understand that you can change gears at any time if a given approach is not working for you.  This is your life and no matter how much things seem to be out of your control, you still have control over how to approach divorce.  You should carefully choose the approach that you believe will culminate in the best quantitative and qualitative result for you.

Welcome / Introduction

Welcome to Sonoma County Family Law Blog, a weekly blog that provides insight into issues that arise in Family Law matters including divorce, legal separation, parentage, custody, visitation, child support, spousal support, property division, allocation of debts, and everything in between. 

The issues discussed in this blog are generalized and not case specific.  In reading these blogs, it is expressly understood that the blog is not offering legal advice, nor is it establishing any attorney client relationship.  If you have specific questions about a legal issue you are experiencing, you should contact a lawyer in your area and seek legal advice.

For this first blog, I would like to introduce myself and discuss what you can expect from weekly blogs.

They say that attorneys don’t choose the law they practice, the law chooses them.  I agree.  I received my B.A. in Psychology.  Upon graduation I needed to make the difficult decision whether to pursue a Ph.D. in Psychology, or go to law school.  Ultimately, I chose law school.  My curiosity of human nature and passion for the law coalesced into a legal career in Family Law.  

Although I have been practicing law as an attorney since April, 2009, my experience in Family Law dates to 2005 when I began working as a law clerk / legal assistant for a small Family Law practice in Sonoma County.  Working under the supervision of the licensed attorney I handled my first case in 2006.  I parlayed this experience into a certified law clerk position at the Sonoma County Department of Child Support Services where I made well over 100 court appearances for the County of Sonoma.  In addition to the court appearances, I investigated cases, interviewed parties, negotiated and reached settlement of complicated financial issues, and provided general litigation support to the staff attorneys.  However, it was my experience in the courtroom that solidified my reputation as hard working, intelligent, inquisitive, and prepared.

I joined the Tavis Firm in 2008.  I had just graduated Cum Laude and taken the California Bar Exam.  Prior to obtaining my passing results I continued working as a certified law clerk for the Tavis Firm.  My responsibilities included legal research, brief writing, and representing clients in court.  It was a seamless transition for when I obtained his license to practice law. 

Since obtaining my license to practice law I have handled complicated cases that involve high conflict Custody, Child Support, Spousal Support, Community Property Division Including Multiple Real Properties, Stock Options, Business Interests and Business Valuation, Pensions, 401(k)s, IRAs, Bankruptcy, Foreclosure, Pre-marital Agreements, Post-nuptial Agreements, Attorney Fees, Domestic Violence, Income Taxes, Venue and Jurisdiction, and all of the grey areas that fall in between.  I have recently been added as a Sonoma County Family Law Court settlement conference panelist, meaning that I volunteer my time as a mediator to help settle cases.

Family Law is a fascinating area of law that journeys into all other areas of law including tax law, bankruptcy, and civil law.  In most cases, my clients are good people who are experiencing a very difficult time in their lives.  The stress and confusion of the divorce process can cause ordinarily logical and calm people to act in contradiction to who they truly are.  In the weeks to come, I will explore all of the psychological issues that arise in a divorce as well as the legal issues, and will explain legal concepts.  In addition, I will provide links to resources I find helpful.  

Until next time,

Best Regards.