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.