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Collaborative Divorce Solutions of Orange County

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  • The Collaborative Process
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    • FAQs
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Divorce Litigation

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

Your Six Different Divorce Alternatives

September 6, 2016 By CDSOC

by Leslee J. Newman, CFL-S, Family Law Attorney
Orange, California

1.  Self-Representation (“Pro-Per”)

Both parties may consult with attorneys, but decide to represent themselves in or out of court. Both parties are ultimately responsible for the agreements and paperwork that goes to the court for filing including the final Judgment.

Leslee Newman
Leslee Newman

2. One-Party Representation

One party is represented by an attorney and the other is not. Generally, the party who has the attorney is responsible for drafting the paperwork, and the unrepresented spouse would get advice as to what he or she wants included in the final Judgment.

3. Both Spouses Have Representation

Both spouses have their own litigation counsel, and try to settle parts of the case through settlement discussion. If they are unable to settle some or all of the issues, the case goes to court for a judge to make the decisions for the spouses.

4. Mediation

Both spouses retain the same mediator who acts as their neutral facilitator and does not represent either party. Depending on the style of the mediator, and whether or not the mediator is an attorney, the spouses may have the benefit of being educated as to the law, available options, recommendations, and suggestions, etc. If the mediator is an attorney, there is the added advantage of accurate drafting of the court forms, and the Judgment of Dissolution of Marriage.

Because the mediator is a neutral party, the mediator encourages both spouses to consult and review the Judgment with other attorneys before signing. There is also a confidentiality privilege in the California Evidence Code, called the mediation privilege, which can help to protect the privacy of the mediation process. If the spouses are able to settle all of the issues of their case through mediation, they do not have any court appearances.

5. Collaborative Practice

The Collaborative Process features an integrated team of professionals. Each spouse retains their own Collaborative lawyer, and a divorce coach who is a mental health professional assisting with the communication, the emotion of the divorce, and helping to regulate the interaction between the parties. The neutral professionals on the team are a financial specialist (forensic or financial planner), and a child specialist, if there are minor children or adult children still living with the parents.

Through the Collaborative Process, the spouses and their professional team enter into a written agreement with the understanding that if the collaborative process breaks down before the entry of the Judgment or completion of the case, then the professional team, including the attorneys, are disqualified from going to court and continuing on the case.   This process usually includes the privilege of confidentiality in the written stipulation to begin the collaborative case.

6. Cooperative Process

The cooperative process begins with an informal agreement between the spouses and their attorneys not to go to court, but to conduct settlement discussion and face to face meetings to settle the issues of the case.   Unlike collaborative practice, however, the spouses and their attorneys are not disqualified from going to court if there are any issues that cannot be settled out of court.

Filed Under: Child Custody, Child Specialist, Child Support, Coaching, Collaborative Practice, Divorce and The Law, Mediation, Self-Representation Tagged With: Dissolution of Marriage, Divorce Alternatives, Divorce and Children, Divorce and Privacy, Divorce Financial Professional, Divorce Litigation, Family Law, Leslee Newman

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

Tracy McKenney named President of Collaborative Divorce Solutions of Orange County

August 4, 2016 By CDSOC

 

New board named to serve 2016-2017 term August 4, 2016  Contact: Gayle Lynn Falkenthal, APR
619-997-2495 or gayle@falconvalleygroup.com

(Irvine, California) – Tracy McKenney, CDFA, CFP, has been named President of Collaborative Divorce Solutions of Orange County for the 2016-2017 term. McKenney is a Certified Financial Planner and Certified Divorce Financial Analyst in private practice based in Irvine, California.

Joining McKenney on the 2016-2017 Board of Directors are:

  • President-Elect: Therese Fey
  • Vice President: Patrice Courteau
  • Secretary: Diana L. Martinez
  • Treasurer: Leslee Newman
  • Advertising and Marketing Chair: Yaffa Balsam
  • Membership Chair: Marvin L. Chapman
  • Training and Education Chair: Suanne Honey
  • Speakers Bureau Co-Chairs: Carol Hughes and Bruce Fredenburg
  • Website Chair: Sara E. Milburn
  • Member at Large: Jann Glasser

“It is important to me to be involved in an organization like Collaborative Divorce Solutions of Orange County. Collaborative Divorce represents a significant advancement in resolving divorce respectfully,” said McKenney. “Going through a divorce is in some ways harder than dealing with the death of a loved one. It worsens when the process is dragged out through contentious, time-consuming and costly litigation in court. In so many cases, couples can avoid the damage of a court battle, even when they aren’t sure they can cooperate. Our approach makes it possible.

“Collaborative Divorce keeps decision-making in the hands of the couple. It spares them and especially their children the duress from an acrimonious divorce, preventing lasting harm, and preserving the family relationships for a healthier future,” said McKenney. “In most cases, it is less expensive than a litigated divorce.”

“Our goal for the coming year is to make more couples in Orange County aware of Collaborative Divorce,” said McKenney.

About Collaborative Divorce Solutions of Orange County

Collaborative Divorce Solutions of Orange County (CDSOC) was founded in 2003 to advise couples in Orange County about out of court options to traditional divorce litigation. Our group consists of experienced family law attorneys, licensed mental health professionals, and credentialed financial professionals, all of whom are specially trained in Collaborative Practice, mediation, and conflict resolution. Working under the Collaborative Practice model, the result is a divorce guided with respect and compassion in a non-adversarial way so families can make the best possible decisions about their future.

CDSOC is online at https://cdsoc.com/, and Facebook.

Filed Under: Coaching, Collaborative Practice, Divorce Options Tagged With: Alternative Dispute Resolution, Bruce Fredenburg, California, Carol Hughes, CDSOC, Diana Martinez, Divorce Litigation, Dr. Marvin Chapman, Family Law Attorney, Irvine, Jann Glasser, Leslee Newman, Mental Health Professionals, New Board President, News Release, Orange County, Patrice Courteau, Sara Milburn, Suanne Honey, Tracy McKenney

Six Ways a Collaborative Divorce Supports Your Family Values

May 13, 2016 By CDSOC

by Bart Carey, Attorney/Mediator and Family Law Attorney
Law Office of Bart J. Carey, Mediation and Collaborative Family Law

Why do so many people behave so poorly when they separate and divorce? You know what I mean. As people choose to separate and divorce, as we get caught up in emotions and conflict, we say and do things that, in our everyday lives we’d never do or say.

Worse, this behavior is often condoned, counseled and/or supported by well-meaning family friends and even professionals. We fight for control or justification by speaking to and treating our children’s mother or father in ways we’d never condone under any other circumstance. We’d certainly never teach our children such behavior is acceptable, except they actually are learning from observing what we do.

This reality became personal for me when after a number of years as a litigator, I experienced my own divorce. I learned that divorce is not a legal process. It is a life experience.

As a life experience, I had to ask myself how I could square my own behavior with my values as a husband and father. Like many, I can’t say I was proud of everything I said and did.

A big part of the problem was the court process, which pitted parents against each other as adversaries in a win-lose fight while placing the decisions regarding their most precious treasures of their hearts in the hands of lawyers, judges and other professionals.

This experience launched me on a life and career changing journey: how to find, and offer my clients, a process that can be shaped to reflect their values:

  • A process in which spouses are supported and encouraged to work together, not against each other, to plan the family’s future while protecting their respective rights.
  • A process which allows the family to fashion a financial plan that provides for everyone’s needs yet still focuses upon the family’s goals and priorities.
  • A process which helps spouses address and manage their fears and emotions while still being able to choose to behave the way we would teach our children to behave, with respect and dignity for each individual.
  • A process that allows them to remain a family throughout and after the divorce process.
  • A process that supports and teaches co-parenting tools so they can better raise their children after transitioning to two households.
  • A process that supports parents to set a living example for their children of the values they have already worked hard to instill in them during the biggest crisis their family will likely ever face.

There is good news. Collaborative Divorce is that process. Review the information on this website for more information. The Collaborative Divorce process allows me to align my career with my personal values. You will find it a process which allows you to live up to your values.

Did I mention Collaborative Divorce can be easier on the pocketbook than a stressful, contentious litigated divorce, too?

Filed Under: Child Custody, Child Support, Coaching, Collaborative Divorce, Divorce and Emotions, Divorce and Money, Family Issues, Financial, Legal, Mediation, Tips & Resources Tagged With: Alternative Dispute Resolution, Divorce and Children, Divorce and Families, Divorce and Parenting, Divorce Counseling, Divorce Litigation, Divorce Settlement, Parenting Plan

How You Can Benefit from the Collaborative Practice Philosophy

April 9, 2016 By CDSOC

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

Social science research including the United States Census routinely reports that roughly fifty percent or more of all marriages end in divorce. Co-habitating relationships fail at similar rates. We expect same sex marriages to follow the same pattern statistically once enough time passes to gather the data over the next decade as well. Psychology Today reports that in 1990, fewer than one in 10 persons who got divorced was over the age of 50, while today one in four people getting divorced is 50 or older.

Since a certain amount of divorce is statistically inevitable, it is imperative we find better ways to facilitate the legal, financial, and emotional processing of a human experience through our civil systems. The emotional devastation that often occurs with the breakup of a relationship shouldn’t be a given. This is where Collaborative Practice lives.

Despite the jokes and eye-rolling over the term “conscious uncoupling,” actress Gwenyth Paltrow put her finger on a healthy modern attitude embodied within Collaborative Practice. Collaborative Practice is the process that provides a more respectful alternative to the destructive divorces we see too often when parties use the court system to end their marriage. Collaborative Practice is designed specifically around ways to minimize the hurt, the loss of self-esteem, the anger and the alienation that occurs in many traditional litigated divorces. It is also designed to support families in transition to take advantage of all of their healthy options and opportunities while building a better tomorrow.

The Collaborative Law approach is grounded upon making human dignity and respect a priority. Individuals may cease being partners, but they don’t cease being good people who deserve consideration. Nor do they cease being parents and part of a family unit after a divorce. Collaborative Practice has a firm grasp on this reality – When a divorce goes into a courtroom, the “winner take all” mentality inflicts damage and leaves pain in its wake, which takes a long time to heal at best, and may never heal at all at its worst. All of this ugliness takes place in a public forum, on the record and for all to see.

Every part of Collaborative Practice is intended to foster the respectful resolution of family problems. These intentions include open communication, interest based negotiations, solution focused negotiation, out-of-court settlement and no court divorce. When respect is given and received, self-esteem is likely to be preserved, making discussions more productive and a healthy and viable agreement more easily reached.

Collaborative Divorce allows the parties involved to find creative solutions that work for their unique situation, in a private and respectful setting. The parties are supported by a team who will help them learn the skills and techniques to work through problems and conflicts in a productive way. The future of the family is not determined by a judge who is a complete stranger to their circumstances.

The end of a marriage or relationship can be tragic in and of itself. Collaborative Practice believes that the process of divorcing shouldn’t cause or add to the pain and suffering, but rather should guide and support the clients and their children in achieving a respectful resolution of their issues, leading to a hopeful, healthy future.

Filed Under: Collaborative Divorce, Collaborative Practice, Divorce and Emotions, Divorce and Money, Divorce and The Law, Family Issues Tagged With: Brian Don Levy, Divorce Alternatives, Divorce and Self-Esteem, Divorce Litigation, Divorce Philosophy, Divorce Settlement, Settlement Agreement

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