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APPROACHES TO THE DIVORCE, OR DISSOLUTION OF MARRIAGE, PROCESS IN CALIFORNIA

In California, there are three generally recognized methods, or models, to resolve the issues in your divorce.

They are the traditional, Representation model, the Mediation model; and the Collaborative model.

The Representation Model:

In this approach, often referred to as the “Litigation Model,” each party retains an attorney, one party files the Petition for Dissolution of Marriage and, if appropriate a Request for Orders for Temporary Orders for Spousal Support, Child Support, Health Insurance, use and possession of the home or other community property, and Attorney Fees.

Each party is then required to complete and serve on the other party their Preliminary Declaration of Disclosure.

Once both parties have exchanged their Preliminary Declarations of Disclosure, the parties can then begin substantive settlement negotiations, discovery, and, if the case doesn’t settle, preparation for Settlement Conference and Trial.

The case will also be proceeding to court on any issues raised in a Request for Orders. If there are issues of custody and/timeshare of the parties minor children, the parties are required to meet with Family Court Services to attempt a resolution of their issues regarding custody and timeshare.

If the parties are unable to agree, the Family Court Recommending Counselor will make a written recommendation to the judge prior to the hearing date.

Before the hearing, there is a requirement that the parties “meet and confer” to attempt a resolution of the issues.

This is usually by way of “4-way conferences” or “meet and confer conferences” attended by the parties and their counsel.

These meet and confer conferences are required by the local rules, and they are very useful in resolving the issues in your divorce.

The great majority of family law cases are settled during this part of the process.

In the litigation model, if, through meet and confer, you are still unable to resolve some or all of the issues in your divorce, the matter proceeds to a formal Settlement Conference and then to Trial.

In the litigation model, if the parties are unable to agree the issues are presented to a judge in a trial, also known as an “evidentiary hearing,” and, after evidence is presented, witnesses are heard, and testimony is taken, the Judge makes the final decision.

This is, by necessity a very brief introduction to the litigation model; each case is different and unique, shaped by the facts of the case, the law, and the attitudes of the participants. The process listed above is an outline of the process and it is not meant as a comprehensive guide.

If you would like to discuss the litigation model in more detail, please contact me by email or telephone.

The Mediation Model:

In the Mediation Model, the parties retain the services of a Family Law Mediator, usually a family law attorney. The Attorney/Mediator does not represent either party, but works with both parties in the procedural aspects of a divorce action in working through the paperwork necessary to process a divorce action, and, substantively, to “Mediate” agreements between the parties on all issues in the case.

Criteria for Mediation:

  1. The motivation to mediate:
    • Avoid adversarial system
    • Resolve differences and reach an agreement together
    • Retain control of the process
    • Minimize hostility
  2. Self Responsibility:
    • This is the recognition that both of you are in control of the decision-making process.
    • You each need to do what is necessary to understand your situation completely.
    • You each need to understand your priorities.
    • You each need to be able to stand up for yourself and face whatever conflicts arise.
  3. The willingness to disagree.
  4. The willingness to agree.
  5. Mediator Neutrality:
    • Your Mediator will be neutral as to the outcome, but not as to the process. On the contrary, your Mediator will be actively engaged in trying to ensure that each party take responsibility for themselves and making sure that all decisions are sound for both parties.

Ground Rules:

  1. Any litigation must stop
  2. Both parties will disclose all necessary information and produce relevant documentation
  3. No information obtained in mediation – either written or oral- is to be used in court
  4. It’s your Mediator’s job to inform you of how issues would probably be resolved in court, about the legal consequences of any decisions you make, and to assist you in reaching an agreement on the issues in your case.

The Process:

  1. Gather and share all relevant information and prepare and file all necessary court documents
  2. List all issues
  3. Each party to be heard on their opinion of each issue, using “I” statements.
  4. Explore all possible resolutions of each issue

Finalizing the Agreement:

  1. The Marital Settlement Agreement is prepared by the Mediator and reviewed by both parties.
  2. Preparation and execution of any transfer documents (deeds, titles to vehicles, etc.)
  3. Preparation of Judicial Council Forms, file final papers with the court for approval.

In the Mediation model, the parties retain control of the outcome, and although the Mediator is neutral as to the outcome, the Mediator is very involved in the process and will work to direct the parties toward a mediated, agreed-upon settlement.

In addition, in order to allow for parties to fully discuss and express their views and opinions during Mediation, the California State Legislature has enacted certain protections against information bought up in Mediation being used in later court proceedings.

The discussions during your Mediation sessions, documents produced, and all other communications are protected from later disclosure.

What this means is that if the Mediation process does not work for you and you transition to the Litigation Model to resolve your case, everything said and done in your Mediation sessions, and all documents produced, are protected.

As stated in California Evidence Code Section 1119 “ No evidence of anything said or any admission made for the purpose of, in the course of, or pursuant to, a mediation or a mediation consultation is admissible or subject to discovery, and disclosure of the evidence shall not be compelled, in any arbitration, administrative adjudication, civil action, or other noncriminal proceeding in which, pursuant to law, testimony can be compelled to be given.”

This is, by necessity a very brief introduction to the mediation model; each case is different and unique, shaped by the facts of the case, the law, and the attitudes of the participants. The process listed above is an outline of the process and it is not meant as a comprehensive guide.

If you would like to discuss the litigation model in more detail, please contact me by email or telephone.

The Collaborative Model:

While the Collaborative Model is a relatively new approach to resolving family law divorce, custody, and paternity cases, it has proved very successful. In fact the California Family Law Code now includes provisions specifically regarding the Collaborative Law proses

In the Collaborative Model, as in the Litigation Model, each party retains counsel. But then the process shifts.

First, for a case to qualify as a Collaborative Case both parties must agree that all court actions will cease and that neither party shall file any actions with the court as long as the Collaborative Case is ongoing.

Second, many of the traditional rules of litigation do not apply. For instance, in a Collaborative setting contact between parties and counsel is much more informal and is part of the process. Neutral experts are also utilized.

In the traditional, litigated, case if there is a dispute as to the value of a piece of real property or a business, each party retains an expert to give the court their expert opinion as to the value of the property.

The experts testify at trial and the trial Judge then decides.

In the Collaborative Model, the parties both agree on an expert, appraiser, accountant, contractor, or other professional. The parties retain the expert and and both parties have the right to give the expert their input as to issues affecting the value of the property, and to be participating party to the evaluation.

It is my experience that in this approach, after the parties have both agreed on the expert, both parties have given the expert their input, and they have both been involved in the process, they are more likely to accept the experts opinion, however it comes out, because they have been party of the process. They may not like the outcome, but they understand it.

Another important aspect of the Collaborative Model is the degree of self determination the parties retain. In the litigation model clients often experience a feeling of “loss of control.” They feel that they have given control to their attorney, who in turn is going to argue with another attorney, and to a Judge, who will have control of the final outcome.

In the Collaborative Model the clients have complete control over the outcome of the process.

The communication between the parties and counsel in a Collaborative Case is very relaxed, which allows the parties to negotiate, discuss, and settle in a face to face informal setting.

This is a brief outline of the Collaborative process and is not meant to be comprehensive. If you would like to discuss the Collaborative Model in more detail, please contact me by email or telephone.