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Divorce Options

SUMMARY DISSOLUTION

 

Summary Dissolution is the “small claims” version of marriage dissolution. It is a simple procedure, but not all qualify for it.  To qualify for Summary Dissolution the parties must have been married only 5 years or less, have no children, little or no property, and neither requests spousal support. In sum, there is really nothing to decide.  In that case, both parties jointly sign and file the petition, which means they both want the divorce and agree on everything.  They must wait six months, during which time either one of them can back out.  After the six months, either one of them can file the “Request for Judgment” to finalize the divorce.   The divorce does not become final automatically, but only after the Request for Judgment is filed by one of the parties.  Once it is approved, the parties will be returned to the status of unmarried persons without ever going to court.

 

TRADITIONAL DIVORCE PROCESS (CONTESTED AND UNCONTESTED DIVORCE)

 

In California, a divorce is called a dissolution of marriage.  It is a lawsuit, and it is subject to all the rules and procedures for court cases.  The divorce process begins when one of the parties files a Summons and Petition for Dissolution of Marriage, and serves the other party. The party who first files the case is called the Petitioner, and the other party is the Respondent.   The legal rights of the parties are the same regardless of which files first, although for strategy purposes one may have a preference as to which to be.

 

In the conventional approach one or both parties retain an attorney.  The attorneys represent the interest for their individual clients.  In cases in which only one attorney is used, it is important to understand that legal ethics prohibit one attorney from representing both parties.  The attorney will represent one of the parties as his/her individual client.

 

The dissolution is concluded through one of the following methods:

 

Settlement: This is a process in which the parties agree on all issues including child custody, child visitation, child support, spousal support or alimony, determination of separate and community property rights, division of property, division of assets, division of debts, rights of reimbursements and credits.

 

This is an "uncontested divorce."  Many people think that to have an uncontested divorce the parties must agree on everything before the case is filed.  But it is not the case; it is only necessary that the parties are able to eventually come to an agreement.  Knowledgeable and experienced counsel can provide the direction and advice to help the parties resolve their issues, and can greatly increase the likelihood of settlement and full resolution.

 

A settlement is typically reached through both verbal and written communication, settlement meetings and, possibly, court Mandatory Settlement Conferences.  Once a settlement is reached the terms of the agreement(s) are prepared into a formal document such as a Stipulation, Marital Settlement Agreement or Judgment.  The document is then signed by all parties (and attorneys) and filed with the court.

 

Very complex cases can be, and often are, fully resolved by settlement. The clear advantage is that the parties choose their outcome rather than being ordered by a court, possibly to an outcome that neither would choose.  And usually it is accomplished with far less expense.

 

Compromise may still be required, and often is, but one can compromise with confidence when one understands his/her rights and options.  On the other hand, a settlement in which one “gives in” because he/she is not sure what his/her rights are, or is bullied and pressured into “agreeing,” often does not last.  The issues may continue to fester and cause problems which eventually will bring the parties back to court.  It is key to a successful settlement that both parties have good understanding of their rights and their options, and can make knowing decisions, and then embrace them moving forward.

 

The Law Office of Lisa Staight will provide the expert representation and advice which will allow the parties to understand their choices, to compromise where advisable, and to promote fair and lasting settlement. At the Law Office of Lisa Staight, the goal in every case is to arrive at the right resolution, one that allows the parties to regain stability and move forward with their lives.

 

Contested Matters: If the dissolution case does not settle, then the parties go to court and a trial is held.  After each party presents his/her case through evidence, testimony of lay and expert witnesses, the Judge rules on the matter. A trial can be as short as an hour or two, or in complex cases, can require several weeks.

 

Combination of Settlement and Contested Matters: This process includes a combination of settlement and trial.  The issues that are settled are formalized in a written agreement while the unresolved issues are tried before a Judge.

 

At the Law Offices of Lisa Staight, A.P.L.C., we can aid you in making decisions necessary to conclude this chapter of your life and move forward to a new beginning with confidence.  We will promote by settlement whenever possible, and aggressively present any remaining issues at trial. Divorce can be extremely complex process and having an experienced divorce lawyer who will clearly explain your rights and provide competent information  during this proceeding is extremely important.  The State Bar of California recognizes attorneys who demonstrate high competence in Family Law through specialized education, passing a separate bar examination and peer review.  Although there are many attorneys who practice family law, this recognition is earned by fewer than 150 attorneys in Orange County.  Attorney Lisa Staight is one of the few individuals who has attained recognition as a Certified Family Law Specialist.  She has been so certified since 1985. For more specific information and assistance with your family law matter, please call our offices at (949) 852-4442 to schedule a consultation.

 

MEDIATION

 

Mediation is a specific method of coming to a divorce settlement.  In this method, a couple jointly hires a mediator to help them negotiate their own divorce settlement agreement.

 

Couples interested in using this method must understand that the mediator does not act as an attorney for either of them.  The mediator does not provide legal advice.  A mediator is not even required to be an attorney, nor to have any special training or certifications to be a mediator.   Moreover, once an agreement is reached, the couple will still need a formal court judgment for the agreement to be legally enforceable.

 

Since the purpose of mediation is to reach an agreement, the viability or the advisability of the agreement is secondary.  The legal basis for the choices to be made may not be understood or considered, and little regard may be given to whether important rights are being relinquished.  An agreement is reached, a party may nevertheless unilaterally decide not to sign a written agreement, there is a change of mind or  he/she subsequently discovers, or feels, that it is not fair.

 

If no written agreement is signed, and it is not uncommon, all payments to the mediator are wasted, any potential savings are lost and the parties are left in a worse position than when they started.

 

In accordance with California Evidence Code §119, no reports of accountants, other experts or writings of any kind prepared during the mediation process can be used in subsequent court proceedings (See also California Supreme Court Case Cassel v. Super.Ct (Wasserman, Comden, Casselman & Pearson, L.L.P.)(2001) 51 C. 4th 113, 119 Cal.Rptr. 3d 437).

 

 

COLLABORATIVE LAW

 

Yet another innovation has emerged to sidestep the legal process.  In theory, “collaborative law” is a method of resolving family law disputes outside the court process.   The impetus for the collaboration process is to avoid the court room setting, at all cost, which is considered to be unnecessarily litigious and with uncertain outcomes, and it purports to address the emotional and psychological issues that are incident to a divorce which may be impeding resolution.

 

The theory of the collaboration process emphasizes a “team” approach and involves assembling a battery of professionals to assist in various aspects of the case.  It recognizes that the disputes may be both legal and emotional and therefore the “team” includes mental health counselors/coaches for each party, financial advisers, accountants, parenting specialists, child specialists, vocational experts, and appraisers, if needed.

 

In the collaboration process, each party signs a contractual agreement which provides that no one may go to court while the collaboration agreement is in effect.  In this method, each party retains his/her own attorney whose job it is to assist in settling the case.  They jointly retain the other members of the team – the experts, evaluators, counselors and coaches. The agreement further provides that in the event settlement is not reached – making it necessary to go to court –  both parties' attorneys are disqualified from representing the party further in any court action, and none of the retained “team” of experts can be used.  In that event, in order to go forward, both parties must retain new attorneys, new experts, new evaluators.

 

The standard collaboration agreement also provides for the following:

Full disclosure of all relevant information,

Respect for one another shown by avoiding any disparaging or vilifying words or actions,

Insulating the children from the proceedings and minimizing the impact on them,

Sharing the cost of any necessary experts (e.g. real estate appraisers, business appraisers, parenting consultants, vocational evaluators, or accountants).

 

These are worthy considerations and not to be diminished, however, it may come as no surprise that many experienced family law specialist attorneys are not in support of the collaborative method.

 

In reality, anything that attempts to resolve disputes outside the court process will compromise “due process” rights.  “Due process” is the term for stating that all participants will have the same rights to present his/her case.  Due process is the basis of legal fairness, and is not to be given up lightly.  Anything that seeks to avoid “due process” should be suspect.

 

Most respected and experienced family law practitioners see their job, at the outset, to assist the client in resolving their issues without having to go to court, if at all possible.  And in fact, most issues can be resolved.  There is concern for the emphasis in “collaborative law,” as with medication, on agreement for agreement's sake, rather than for the reasoned, right resolution.  Experienced family law attorneys generally find that the issues are best resolved by the client knowing well what the law provides and what one's rights are.

 

Certainly, there will be emotional and psychological issues.  Experienced counsel are adept recognizing them and at encouraging realistic expectations and sensible responses. Experienced counsel are adept at keeping their cases and their clients focused and the opposing party and counsel under control.  They maintain their good reputations in the legal community and with the courts, not for being litigious, but for resolving cases and obtaining good results.  And in fact, most cases are resolved without court intervention.

 

Nevertheless, even in the best of situations, there will be issues which simply cannot be resolved, and for valid reasons.  This may be because the law may be unclear or there may be a split of opinion in the authorities.  Or the facts may be in dispute.  In such cases, the court is the only avenue to obtain a firm decision, and it is its job and its business to do so.

 

The collaboration process unfortunately and regrettably removes the “fall back” position of being able to put the matter, perhaps one remaining issue, before a judge if a resolution can not be reached.

 

In the collaboration process a failure to reach a complete resolution would bring about a complete failure of the entire process.  The members of the collaboration “team,” all of which come with a substantial price tag, would be disqualified from further participation, and their reports or testimony could not be used going forward.  When this occurs, the parties find themselves with their financial resources depleted by the enormous expense of the collaboration process, and with no resolution of their case.

 

The Law Office of Lisa Staight does not participate in collaborative law process.  However, the traditional divorce process which we take has the opportunity to reach divorce agreements in an amicable fashion without the necessity of court involvement.  If agreements are not reached, you will not need to retain new counsel if your matter takes the route of court intervention.

 

 

SELF-REPRESENTATION

 

Do you really need a lawyer for a divorce? The answer is "no" - - There is no legal requirement for anyone to have an attorney and anyone can choose to represent him/herself in his/her divorce.  The primary reason for choosing to represent one's self is to save on attorney’s fees.  The dilemma is that even though you may not hold a law degree, you are still required to follow the law and court procedures.  There are no "special rules" for those who represent themselves; they are not relieve of any legal requirements and they operate at their own risk

 

Mistakes made through self-representation are common and sometimes irreversible and can cause long-term repercussions. Common errors can include failure to recognize property rights or to hastily make child custody decisions which become very difficult to modify.  Others include poorly-worded orders, missed filing of required documents, and missed hearings or deadlines.  Additionally, there are many disclosures you are obligated to acknowledge as a party to divorce and certain disclosures are required to be made  without a formal request. Failure to timely disclose or acknowledge certain information can result in costly penalties and consequences.

 

A self-represented party's unfamiliarity with court procedures can also cause delays, and cause repeated appearances and multiple days in court that could have been avoided.  To the self-represented party, and the other party, this may mean missing work, perhaps lost income, and frustration. Consider that Judges carefully guard their court time, many have backlogs of cases waiting to be heard. Far from being sympathetic to a self-represented party, judges can become impatient with anyone who causes misuse of the court's resources.

 

Important questions to ask when considering self-representation are:  “What if I make a mistake?” "What am I really saving?"

 

Many find that hiring a knowledgeable attorney is cost saving in the long run.  At the Law Offices of Lisa Staight, A.P.L.C., we offer high quality and affordable solutions for family law related services to individuals throughout Orange County, California.  Contact our office for a flat fee consultation.

 

PARALEGAL SERVICES

 

Paralegals can assist you in preparing your dissolution documents.  However, they cannot give legal advice therefore the same risks associated with self-representation also apply here.

 

At the Law Offices of Lisa Staight, A.P.L.C., we employ Paralegals and Legal Secretaries to assist in keeping costs more affordable.  These individuals bill at a lower hourly rate than the attorney.