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CDSOC

Collaborative Divorce Solutions of Orange County

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  • The Collaborative Process
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    • FAQs
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Cost of Divorce

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

June 28, 2017 By CDSOC

by Diana L. Martinez Collaborative Lawyer and Mediator, Law and Mediation Office of Diana L. Martinez

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.

Filed Under: Collaborative Divorce, Collaborative Practice, Divorce and Money, Divorce and The Law, Mediation, Tips & Resources Tagged With: Alternative Dispute Resolution, Cost of Divorce, Diana Martinez, Divorce, Divorce Agreement, Divorce and Children, Divorce and Retirement, Divorce Litigation, Divorce Settlement, Financial Agreement, Financial Settlement, Legal Fees, Settlement Agreement

The Most Effective Way to Reduce the Cost of Your Divorce or Civil Dispute

January 3, 2017 By CDSOC

by Brian Don Levy, Esq., Collaborative Attorney and Mediator

What single item can add the most cost to your divorce or civil dispute?  Acting or reacting based on emotional thinking, or making unilateral decisions that are based in emotional thinking.  It is critical to understand how our emotions can drive our thinking and our behavior, and it is important to manage those emotions in a healthy way that allows for understanding viable solutions and facilitates well thought out problem solving.

Every legal and financial decision is potentially wrapped in emotion, and those emotions can prevent us from fully understanding our options and choosing the options that make the most sense going forward.  For almost every divorcing couple or civil disputant, trust is usually broken and communication is not working very well, if at all.  Bringing broken trust and poor communication into the decision-making process is not a good recipe for success.

Therefore, communication coaches are an important investment to be made in achieving a long term satisfying outcome for those in conflict.  I use the term “investment” because failure to understand and manage emotions is a huge cost inflator for those engaged in civil and family law disputes.  The valuable work provided by the communication coach is a cost savings mechanism as well as a valuable resource for those in conflict.

Our emotions determine the “elevator music” that plays in the background of all we do.  Going through a divorce or civil dispute creates uncertainty and ambiguity, which can drive fear.  If fear is the background music playing in our minds at times of conflict, then our ability to process choices and achieve informed consent is limited if not impeded.  Having a communication coach to work with allows a sounding board to check in and assess if we are reacting from an emotional standpoint rather than a legal or financial standpoint.

Having a communication coach also makes it easier for the client to stay present and focused, manage their emotions, and moderate their behavior.  It has been my experience in working with clients embroiled in civil and family law disputes that communication coaches can assist in measurable ways on many levels, including:

  • Helping client create enhanced safety zones;
  • Helping client cope with strong emotions and stress;
  • Helping client to practice effective communication;
  • Helping client remove barriers to communication;
  • Facilitate necessary and difficult conversations;
  • Check in with clients and make sure they stay on task; and
  • Coach the client to the finish line of their dispute resolution process;

Collaborative Law is a unique process that utilizes an integrated team of professionals working together to help people involved in all types of civil and family law disputes to co-create agreements that will be durable and lasting.  Each professional is highly trained in his or her specific profession and all professionals work together to support a healthy outcome.  The integrated team of Collaborative professionals includes legal professionals, financial professionals and communication coaches to support a conflict resolution process that promotes healthy and sustainable outcomes.

Communication coaches are a vital component to the interdisciplinary team of professionals to help us separate the fear or anxiety from the decision-making process so that clients can remain fully present in meetings and in making the important decisions that must be made in a way that will be satisfying, durable and lasting.

Experience is not Expensive.  It’s Priceless!

Filed Under: Collaborative Divorce, Collaborative Practice, Divorce and Emotions, Divorce and Money, Financial Tagged With: Brian Don Levy, CDSOC, Cost of Divorce, Divorce Agreement, Divorce and Mental Health, Divorce and Stress, Family Law, Family Law Attorney, Make Divorce Easier

10 Best Reasons To Do Your Divorce Collaboratively

August 4, 2016 By CDSOC

by John R. Denny, Family Law Attorney Hittelman Strunk Law Group, LLP, Newport Beach, California

  1. The team approach helps you get through the process without going to war.

You will work with a team of legal, financial, and mental health professionals who are specifically trained in the Collaborative Process. They agree to work with you to reach a settlement outside of court.

  1. You make the decisions, not the judge.

In the Collaborative Process, the parties do not go to court. They resolve their differences through cooperative negotiation. Thus, all orders are made with both parties’ agreement.

  1. The process is less expensive than a litigated divorce.

While all cases are different, studies show that a successful Collaborative case is less expensive than a litigated case, even one which settles before trial.

  1. Coaches help you and your spouse learn to communicate in ways which can reduce the adversarial nature of the divorce.

In a full team Collaborative Divorce, each party will work with an assigned mental health professional acting as a coach. Among other things, the coach will assist the party to avoid the type of communication which will further divide the parties, and make settlement more costly and difficult.

  1. Your children’s interests are taken into account, and brought forth through a neutral child specialist.

The child specialist’s role is to be the voice of your children at the Collaborative negotiation table. The child specialist speaks to the children at age-appropriate levels. This enables both parents to have a clearer perspective on what their children really think and feel.

  1. More privacy – less of a court record.

Because you are not in court, your case does not become a public record. The only documents filed with the court are those absolutely necessary to make your agreement legal. You will not file declarations telling the world your private business.

  1. You can avoid going to court.

Because Collaborative Divorces are processed outside of court, you will not be subject to court rules, except those necessary for the court to process your judgment. You will not have to give public testimony in court. You will not have to miss work, or other important functions, to attend court on a date which may be inconvenient for you. You can go as fast or slow as you choose, and not be subject to the delays which budget shortages increasingly cause in litigated divorce cases.

  1. The process allows for more creative resolutions than the court is permitted to offer.

The court is bound by California statutes dictating what must be done in terms of property division, support, and custody. In a Collaborative Divorce, the parties are free (and assisted) to reach a result which uniquely fits their family.

  1. You will acquire skills which will enable you to more effectively co-parent after the divorce.

The Collaborative Process requires the parties to work together in order to solve the issues in their divorce. Working together is a skill which many couples facing divorce have lost. It is exactly what they will need to do in order to effectively co-parent their children after divorce. Thus, going through the process helps the parties with the skills they will need post-divorce.

  1. Result of a Collaborative Divorce: a better life after divorce.

There will be many events for the rest of your lives which a couple will both want to attend post-divorce without making it awkward for everyone else who is there. When you have children, these events include graduations, weddings, and grandchildren events.

Even when you do not have children, there are often overlaps in family and friends. Events with these people can be much less awkward when the divorce process itself has not driven the parties even further apart. This may be the best – and most lasting – reason to do your divorce collaboratively.

Filed Under: Child Custody, Child Specialist, Child Support, Collaborative Practice, Divorce and Emotions, Divorce and Money, Divorce and The Law, Family Issues Tagged With: California, Cost of Divorce, Divorce and Children, Divorce and Families, Divorce and Privacy, Divorce Litigation, Irvine, Irvine Divorce, John Denny, Less Expensive Divorce, Settlement Agreement

The Cost of Divorce To Your Business

July 5, 2016 By CDSOC

by Diana L. Martinez Collaborative Lawyer and Mediator, Law and Mediation Office of Diana L. Martinez

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.

Filed Under: Collaborative Divorce, Divorce and Money, Divorce and The Law, Legal Tagged With: Alternative Dispute Resolution, Business, Cost of Divorce, Diana Martinez, Divorce and Trauma, Divorce Options Workshops, Employee Benefits, Legal Fees

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