Divorce Agreement

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.

Why a Collaborative Pre-nup Makes Cents

April 24, 2017 By CDSOC

by Suanne I. Honey Attorney at Law, CFLS, Mediator and Collaborative Attorney

Sorry for the silly pun when this is such a serious topic. Seriously, though, pre-nuptial agreements are hot topics which give rise to many emotions.

“It paints the Devil on the wall.”

“It is anticipating failure of the marriage.”

“If he or she really loved me, this would not be necessary.”

“I am uncomfortable talking about finances.”

The list can go on and on. Sometimes emotions are an unnecessary waste of energy. Other times emotions have some benefits, even negative emotions. For example, fear in a dark alley in a dangerous neighborhood will cause you to be zealously vigilant about your surroundings which will lead you into taking appropriate steps for your safety … much like the pre-nuptial agreement itself.

Unfortunately, statistics today are not favorable for a lasting marriage. If and when there is a decision to get divorced, the person you once loved turns into the enemy. There is often a total lack of trust at the time of a divorce. There are fights over money, property, and other issues creating stress for both partners. This stress almost always filters down to the children.

Collaborative Law is a process where couples work with a team of expert professionals.

The mental-health professionals work individually with each partner to a marriage (or a potential marriage). They help curb their emotions and phrase their individual needs and wants in a positive, cooperative and logical way, allowing those needs and wants to really be heard and understood by the other partner.

The financial professional will be able to identify and sort out the financial and property issues of concern to the couple in a transparent and logical way.

The Collborative Practice attorneys will help guide their clients through the legal quagmire. This can all be done in a much less stressful, more cooperative way in the collaborative arena.

While important, none of that is the real reason that Collaborative pre-nups make the most “cents.”

The biggest reason for marriages to fail is the breakdown in communication. Having gone through a divorce in the Collaborative law process, many (if not most) participants say if they’d gone through this process before the marriage, the divorce would be much less likely.

So it makes “cents” to have your pre-nuptial agreement created in the Collaborative setting. Because of the communication skills learned by the couple during the process, it may help avoid a future divorce altogether. This saves a great deal of “cents” paid to attorneys and litigation, or future Collaborative Divorce costs.

Even if the unthinkable happens and there is a future divorce, you will come out ahead. Having learned how to conduct difficult conversations in a way that allows your spouse to hear and understand your position, even discussing issues in the divorce process that were not part of the original prenup will save many “cents.”

Most importantly, the stress level exposed to any children during your divorce will be significantly reduced. This is an outcome which is “priceless.”

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!

The Most Important Decision You Will Make in Your Divorce

April 30, 2016 By CDSOC

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

The case history: John first came to see me looking for an attorney to represent him in his divorce case in family court. This is the most important choice he will have to make in the entire divorce process: choosing the process for his divorce case.

As a firm believer in the Collaborative Divorce Process, we discussed why John should consider the Collaborative Divorce process, which is part of every initial divorce consultation – when I meet with clients – I discuss divorce process options.

John then disclosed he had already been in mediation with some of my legal colleagues. John’s wife, Mary, withdrew from the process. He was distrustful of the process and not inclined to give it another try.

In spite of John and Mary’s failure, I still believed the Collaborative Process would serve them well. Nearly a year later, the divorce case was successfully concluded through the Collaborative Process.

How did we make this work?

I suggested that this would be a different experience because we would build a more complete team of collaborative professionals. I also suggested that I would ask the team to implement a protocol of reducing each and every agreement to a Collaborative Stipulation & Order to be signed by the parties and submitted to the Court for a Judge’s signature, thus creating a safety net – if either party withdrew, there would be the underlying agreements that have become Court Orders, thus the failed history would not be repeated. John became enrolled in the process that I envisioned for him.

The Family

John is a successful and employed individual who works in the entertainment industry. Mary, his wife, lacks trust in John because of John’s history of drug abuse and failed attempts at sobriety.

John lacks trust in Mary due to her history of making agreements and refusing to honor them. Mary believes that John is not worthy of being a father to their five-year-old twins and cannot be trusted due to his history of serious drug use. John believes that Mary is smothering the children and won’t let go. John has been practicing sober living for approximately 18 months and believes that as long as he is willing to evidence his sober living, he should not be kept away from his children.

The Collaborative Divorce Team

The Collaborative Practice Professional Team consisted of two collaborative lawyers, a neutral financial professional, and three very strong mental health professionals – two serving as coaches for John and Mary, and one serving as the Neutral Child Specialist.

Our Professional Team relied upon each other time and again, and the channels of communications were constant and open. The final electronic file for this case contained nearly 1,300 Professional Team e-mails.

John and Mary both had their respective coaches, and the children had a gifted Neutral Child Specialist whom the team relied upon to keep the parents focused on their children to the greatest extent possible instead of the own individual agendas. The Professional Team worked diligently and often times conducted three-way telephone conferences to remove temporary impediments and roadblocks created by the parties. The very first time that Mary made an agreement on visitation and then refused to honor it, a series of teleconferences ensued late on a Friday afternoon, resulting in an honoring of the agreement and John’s first overnight with his children.

Our Working Agreements

Three process agreements were co-created and agreed to by the parties. John agreed that given his history, he had the burden of proving his sober living as a condition precedent to being an involved parent to his twin children. John submitted random urine tests twice a week to his coach, who then sent the results to the rest of the Professional Team members. The second protocol was that every agreement would be and was reduced to a collaborative stipulation and order that was filed with the Court, and became an enforceable court order. The Third team protocol was that the Professional Team exchanged their personal cell phone numbers and committed to be available to all Professional Team members as needed and dictated by the family problems as they occurred.

The First Crisis

After several months of negative random drug tests, John tested positive for opiates!

When confronted by his coach, he broke down and cried; swearing that he had not fallen and had not used any drugs. What to do? John’s Coach and lawyer, and Mary’s Coach agreed that before reacting to the “dirty test” the possibility of a false positive had to be explored first. The urine test was re-submitted for additional testing, and John was asked to take a hair follicle test. The hair follicle test and the re-test of the urine test both concluded that John had in fact continued on his path of sober living, and the prior positive test was in fact a false positive. Eventually, John was moved from twice a week random urine tests to quarterly hair follicle tests, then to every six months.

The Second Crisis

Mary fired her collaborative Lawyer, and John saw that she once again reneging on her commitment. As it turned out, Mary replaced her collaborative lawyer with another collaborative lawyer, and I was able to point out to John that in so doing, she evidenced her commitment to the collaborative process. Confidence was rebuilt quickly, trust was re-enforced, and we proceeded forward.

The Victory for the Children

As John moved through the process of providing proof of his sober living in an irrefutable manner, the team worked with Mary in making her more comfortable moving from John having very little contact with the twins to being a truly involved parent who enjoyed equal time share with the twins and lots of overnight visits. The children benefited from the more normal and less restricted contact with their father, and now enjoy having two parents and two homes to grow in.

The Victory for the Clients

John and Mary’s divorce case is finished. But the coping and negotiating skills both of them learned through their Collaborative coaches will always be with them and will serve them in many situations for the rest of their lives as they effectively co-parent their children.

The Victory for the Process

The process which was originally described as “failed” succeeded in a significant way in that this very high conflict and contentious case was successful after the collaborative team was assembled, an accurate and detailed assessment was made, and a plan for success was carried out by all of the Professional Team members.

Many other Collaborative Practice professionals believe cases with chemical or alcohol dependency are not well suited for the Collaborative Process. While that may or may not be true for all cases, this case demonstrates that each divorce case is unique. The essential ingredient for a successful Collaborative Law case is an initial in-depth assessment by the Professional Team so it can determine what the family dynamics require, and how to position the parties for success.

My experience on this team has been invaluable in my journey as a Collaborative lawyer, as well as serving as an impressive and hopeful example of what we can do together.

How to Talk About Your Divorce With Your Adult Children

April 23, 2016 By CDSOC

by Carol R. Hughes, Ph.D., LMFT

One of the most difficult steps in the divorce process is talking about your decision with your adult children. It may feel like admitting a failure, or letting them down.

Divorce is a major life crisis for all family members and should be treated as such, even when your children are no longer “kids.” Children who are adults when their parents divorced consistently report years later the news of their parents’ divorce “rocked the very foundation” of their world.

You are making a good start and doing the best you can. You are reading this blog post. Give yourself permission not to be perfect. No one is perfect. Breathe deeply; you and your children can get through this difficult time together. These tips will help guide you through this process.

Schedule a time when you can speak with your children together and preferably in person. Siblings benefit from the support system they can provide each other. When you are scheduling the time to talk, tell them you have something important to discuss with them. Assure them no one is sick or dying. If they ask you what you want to talk about, tell them you prefer to discuss it in person when you are together.

If it isn’t possible to speak in person, schedule a time to speak via Skype, Face Time or another video chat program. Avoid telling them via telephone and especially resist the temptation to communicate via email. It is too impersonal.

Plan your presentation to your children in advance. Make some notes about what you plan to say and review them so you are familiar with what you intend to say. Anticipate what they may say to you. You can have the notes in front of you, if you wish, and simply say, “We have made some notes because what we are going to be talking about is very important for all of us and we don’t want to forget anything.”

Remember your children will likely be in emotional shock after you tell them your intentions to end your marriage. They will not be able to absorb everything you say this first time. Be prepared to have the same conversation with them multiple times. Their shock and grieving will interfere with them being able to fully take in all that you are sharing.

Explain the two of you have decided to end your marriage because you have problems between you have not been able to resolve. Avoid using the word “divorce” because it is laden with negative connotations.

Avoid blaming each other. This is the time for the two of you show a united front to your children. Remember this news will shatter their view of their family as they have known it for many years. Blaming each other puts them in the middle of your pain and conflict, causes them to experience divided loyalty and forces the impression they need to choose sides, as well as feel guilt for loving both of you. Adult children report they hated being put in this position and feeling that each parent was attempting to form an alliance with them against the other parent.

Tell them what will remain the same. Tell them that you are all still family, you will always be their parents and your intention is to be amicable so that you can both attend family gatherings and not create tension for them and their significant others. If they are still in college, tell them if you will be continuing the financial arrangements you have had in place. Tell them if one of you intends to stay in the family home. Assure them they will continue to have the emotional support of both parents in the newly restructured family.

Tell them what will not remain the same. You may be unable to continue the financial arrangements you had regarding college. You may intend to sell the family home. If you are helping them pay off college loans and won’t be able to continue doing so, inform them. Assure them you will do everything possible to assist them financially, as you have in the past, while at the same time acknowledging there will be some economic impact as the family restructures. It’s important to be neutral and factual. Resist being a victim or martyr. It will only make them feel guilty or angry at their other parent.

Remember, no matter how old your children are, you are still their parents. It is your job to put their feelings above yours and provide them with the support they need to hear, feel and understand. Acknowledge you realize the announcement is a shock and their feelings (anger, sadness, grief, shock, etc.) are normal. Focus on and be empathetic with THEIR feelings. Don’t talk about your feelings, e.g., how you haven’t been happy for years, how you deserve to be happy, etc. Having just received such painful news, they will be unable to express their happiness for you, and it is unreasonable for you to expect them to do so. Bear in mind their familial foundation has just been rocked and their family history has been rewritten. They have become members of the “lost nest” generation. There will be no “family nest” to return to at the holidays.

Tell them you still believe in family and you hope they will too. This doesn’t mean that they will not be able to having a strong and happy relationship. Tell them you don’t expect them to take care of you emotionally or physically. This is your job, not theirs. Tell them you have, or plan to have, your own support system separate from them and you want them to establish a support system for themselves as well.

Online groups for adult children whose parents are divorcing can be helpful. The books “A Grief Out of Season: When Your Parents Divorce in Your Adult Years,” and “The Way They Were: Dealing with Your Parents’ Divorce after a Lifetime” (both available via Amazon.com with excellent reviews) will help them realize they are not alone.

Avoid telling them you stayed together or delayed restructuring your family because of them. This will make them feel guilty for your unhappy marriage. They will recall their childhood memories and wonder: ‘What was real and what wasn’t real? Were you really happy on those family vacations? Has my whole life been a sham?’ Divorce destabilizes the family system and inevitably shakes every family member’s perception of their past, their present and their future.

Assure them that this will be a process for all of you to move through, at our own pace and in your own way. Assure them you will always love them and you will always be there for them in whatever ways will be most helpful to them. You want them to know they aren’t alone so they don’t become isolated and depressed. Encourage them to speak with a counselor about their feelings. Tell them you have spoken with or intend to speak with a counselor as well, because you have learned the end of a marriage is a major life stressor for all family members, second only to the death of a loved one. This too shall pass.

Teamwork is the Key to Success in Collaborative Divorce

April 2, 2016 By CDSOC

by Dr. Carol Hughes, Ph.D., LMFT

Clients often wonder how working with a team of professionals will benefit them when moving forward with the Collaborative Process for their divorce. Even experienced practitioners sometimes fail to understand how all professionals on an interdisciplinary team can assist and support clients, even high-conflict clients, to become “Agreement Ready.”

Licensed Marriage and Family Therapist Dr. Carol Hughes, family law lawyer Diana L. Martinez, and financial specialist Cathleen Collinsworth offer recent findings from neuroscience showing how working in teams can assist clients resolve even their most difficult conflicts at the upcoming Collaborative Practice California (CP Cal) “Celebration XI” Conference in Redwood City, California April 29 – May 1.

Dr. Hughes says the training is designed for all practitioners who want to continue evolving their ability to assist clients with the powerful tools provided through the Collaborative Process. Participants will learn techniques for assisting clients:

Identify and develop the clients’ ‘Key Elements of Agreement’ that avoid being too specific or too vague and therefore of no value.
Identify and develop the clients’ ‘Questions To Be Answered’ relative to their ‘Key Elements of Agreement.’
Develop ‘Options for Resolution’ that are both individually and family-centric interest based.
Evaluate their ‘Options for Resolution’ and co-create their Agreements.
Develop the necessary skills to support their interdisciplinary professional team members in the Agreement Readiness process.

From the inception of a case, interdisciplinary teams of lawyers, neutral financial specialists, divorce coaches and neutral child specialists can employ tools and techniques to shift clients toward Agreement Readiness. By doing so, a team can save client costs and facilitate better outcomes through more durable divorce agreements for the entire family involved.

Presenters (left to right) Dr. Carol Hughes, Cathleen Collinsworth, and Diana L. Martinez of Collaborative Divorce Solutions of Orange County.

“Our goal in the end is to educate our prospective clients that the goal of the Collaborative Process is reaching a final agreement each party can ‘live with,’ one that provides clarity and substantive closure for each of them,” said Dr. Hughes. “The agreement must also reflect their values and goals, no one else’s including the professional team’s goals.”

Dr. Hughes said it is important for each Collaborative team member to develop the necessary skills to support their clients. But what is often forgotten is the importance of learning how to develop similar skills to provide support among the professional team members as they work together to move the Collaborative Divorce case through the Agreement Readiness process.

“Just as it is critically important for the team members to work together to support their clients, we need to work together to support each other and allow the unique value that each professional from the three disciplines brings to their Collaborative Divorce team to flourish,” said Dr. Hughes. “This helps us educate clients about the pivotal role of each member in facilitating cost effective outcomes and durable agreements.”