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California: Collaborative Divorce in Southern California
(provided by B. Daniel Lynch, Mediator)
1. What is a collaborative divorce?
A collaborative divorce is an extended negotiation between the two spouses, with the aid and counsel of their respective attorneys, and, as needed, other professionals such as a financial planner, a child advocate, and a mental health professional acting as coach for each spouse. When the spouses have finalized their agreement, it is filed with the court and made a part of the Judgment of Dissolution. Usually the divorce is obtained sooner, and with less overall expense than in a litigated divorce.
2. How is a collaborative divorce different from a litigated divorce?
In a litigated divorce, the two spouses, through their respective attorneys, fight over every issue. Only in one or two brief court-ordered mediations is there any occasion for the two spouses to discuss resolution of issues. Otherwise, the spouses are not required to work out anything, and they seldom do.
Instead, each spouse's attorney disputes the issues with the other spouse's attorney. The two attorneys go to court to argue, leading to orders by the judge, which the spouses must obey. Typically, little or no effort is made to negotiate until the case is ready to be called for trial. Then, under the pressure of possible adverse orders from the judge in the impending trial, and with little time for reflection and no time for experimentation, the attorneys cobble together a settlement agreement.
The years of battling between the two attorneys in preparing motions or applications for orders, preparing for court, and sitting in court waiting for the case to be called, contributes little or nothing to the settlement agreement, and costs a lot of money. Moreover, each attorney's attacks on the other spouse's credibility and integrity has exacerbated hard feelings and ill will between the two spouses. No wonder that the agreement, hurriedly reached between belligerent parties, is often largely unsatisfactory for both spouses, and for the children, not to mention the extended families.
In a collaborative divorce, all of the attorneys time and effort, from the beginning, is directed toward assisting the spouses to negotiate, as amicably as possible, a settlement agreement which takes full account of the needs and priorities of both spouses, and those of the children. Both spouses are encouraged to fully participate to create an agreement that will work best for all concerned. The attorneys do not go to court at all, until the agreement is finalized and ready for entry of the Judgment of Dissolution.
In a litigated divorce, to resolve issues of child support and spousal support, both spouses are required to file in the publicly accessible court file a complete Income and Expense Declaration, a complete Financial Statement, and complete Property Declaration, with supporting documents. See Judicial Counsel of California, mandatory Order to Show Cause form FL-300] In a collaborative divorce, all financial information remains private, and is not subjected to public view.
3. How long does a collaborative divorce take, compared to a litigated divorce?
A litigated divorce typically will not be finalized for several years, depending in large part on the number of cases on the docket of the judge to whom the case is assigned.
A collaborative divorce can move along as swiftly as the spouses complete the required meetings, produce the documents and obtain any required reports. In California, the Judgment of Dissolution cannot be entered until six months after the divorce papers are served. A collaborative divorce can often be ready for entry of the judgment at the end of that six-month waiting period; seldom does it take more than one year.
4. Is a collaborative divorce more or less expensive than a litigated divorce?
Typically, a collaborative divorce is much less expensive than a litigated divorce.
In a litigated divorce, it is very difficult for one spouse to hold down attorneys' fees and costs, since the other spouse and his/her attorney act as an adverse party, with the incentive to make demands, to file motions, and even to retaliate for perceived aggressive tactics by the other side.
Money that would otherwise remain to be divided between the spouses is wasted by two attorneys preparing and filing papers, driving to and from the courthouse, sitting in the crowded family law court waiting for the case to be called, and making arguments that are always costly in dollars, and may also be costly in increased rancor and ill will between the spouses, and disruptive to the lives of the children. Also, if one spouse employs an appraiser, accountant, or other financial expert, the other spouse may feel compelled to employ one of his/her own.
In a collaborative divorce, the attorneys are not permitted to file motions or applications, or to go to court. None of the spouses' money is wasted on such activities. Money is also saved by utilizing a single financial planner who reports to and counsels both spouses.
5. Since he does not go to court, what will my attorney do for me in a collaborative case?
In a collaborative divorce, your attorney acts as your counselor, advising you about your legal rights and obligations, so that you can confidently negotiate with the other spouse. Most of the negotiating is done at four-way meetings of you, your attorney, the other spouse, and the other spouse's attorney. Typically, you will meet with your attorney, then attend a four-way meeting, then debrief with your attorney. During the four-way meeting, both attorneys act as facilitators, encouraging both spouses to participate fully and creatively in the negotiation (rather than questioning, criticizing, and attempting to discredit the other spouse as in a litigated divorce).
One of the attorneys takes "minutes of the meeting" of what transpires at the four-way meeting, which are distributed to both spouses and both attorneys, and to any other professionals on the collaborative team [a financial planner, and in some cases child specialist and mental health professional coaches]. When all of the issues have been resolved to the satisfaction of both spouses, one of the attorneys will draft, and the other attorney will approve or suggest additions or changes to, the marital settlement agreement. The spouses and their attorneys will go to court for a single time, to obtain court approval of the agreement and entry of the Judgment of Dissolution.
One of the attorneys or another member of the collaborative divorce team will also act as the "case manager," keeping the negotiations going through successive four-way meetings, obtaining reports and documents as needed, etc., to maintain the momentum toward finalizing the agreement, which can then be filed with the court to obtain the Judgment of Dissolution.
Since there are no hearings, no arbitration and no trial, the spouses are never subjected to cross-examination or disparaging remarks by the other spouse's attorney, as happens in a litigated divorce.
6. Which produces a better agreement, a collaborative divorce or a litigated divorce?
A collaborative divorce agreement will typically work more smoothly, because it has been arrived at through a process of cooperative and amicable negotiation, which is likely to leave both spouses in a more positive state of mind and better able to get on with their lives.
Because the agreement is the result of a thoughtful and deliberate process and experimentation along the way, requests for modification of the agreement are less likely to be needed.
7. What is required of a spouse contemplating a collaborative divorce?
Either spouse can initiate the collaborative process, by conferring with a collaborative divorce lawyer, who can then send information about collaborative divorce to the other spouse or, if there is one, to the other spouse's attorney. Ultimately, both spouses will have to sign a participation agreement, which requires them to commit to the concept of working together with the other spouse and all of the other team members in an open, honest and trusting environment to fashion an agreement which is fair and reasonable. In the course of the collaborative divorce, both spouses will also have the opportunity to gain additional skills for budgeting, etc., and to put the divorce process behind them so they can get on in their lives.
8. What is the role of the financial planner?
The financial planner, who works for both spouses, initially makes suggestions for how to approach the question of division of property and other economic issues, and, after input from both spouses, then provides some tentative figures including spreadsheets. Besides the division of the property at the time of divorce, the planner will give consideration to what the two spouses' financial situations will be five, ten or fifteen years in the future, and can provide graphs showing future net worth of both spouses under different divisions of assets and income. The financial planner can also warn of tax dangers such as "recapture" caused by too great "front loading" of spousal support in the early years, and can counsel parties on tax questions such as understanding the cost basis of their property. Both spouses are required to provide three years of tax returns (the same as in a litigated divorce case), plus supporting documentation as needed by the financial planner (the same as in a litigated divorce case). The financial planner generally meets initially for about an hour and a half with the two spouses together, and then may meet separately with one or both spouses, and may also appear at a five-way meeting with the two spouses and two attorneys to explain his report and proposals.
9. What happens in a four-way meeting?
Four-way meetings are held with the two parties meeting together with the two attorneys. At the initial meeting both spouses are asked if they are willing to commit to entering into a collaborative divorce. Then both spouses, and the two attorneys, and ultimately all of the other members of the team are required to sign the participation agreement, setting the terms of the collaborative divorce. Additional four-way meetings are held with the two attorneys, and, in cases where coaches are employed, four-way meetings are held by the spouses and two coaches. Additional meetings may be held, with the financial planner, and possibly with the child specialist who represents the interests of the children. Before and after the meetings, the spouses consult with their respective attorneys so that they are aware of their legal rights and obligations, and are able to negotiate a fair agreement.
10. What are the other ways to obtain a divorce?
A litigated divorce is done by "litigation" , i.e., through the courts, usually with each spouse represented by an attorney who argues in court to obtain orders getting everything that he can for his client, at the expense of the other spouse. Sometimes one or both spouses may appear in court "pro per," i.e., appearing without an attorney.
A "pro per" spouse may obtain documents for filing with the court from a document preparer, who cannot provide legal advice or guidance on what will happen in court.
A recently developing alternative is "limited scope representation" in which a spouse may appear without an attorney in court, while consulting with an attorney to obtain legal advice and guidance on what to do in court and with professionally drafted documents. The attorney may also appear for selected matters in "limited scope representation."
Another approach is for the spouses to go, with or without representation by an attorney, to an independent mediator who helps them or encourages them towards a settlement.
11. Have collaborative divorces been endorsed by California courts?
The San Diego Superior Court Rules, effective January 2005, under Division V, Family Law Appendix B, provide an "Alternative Dispute Resolution Informational Notice" which states:
"...Collaborative Family Law is a voluntary process in which both parties commit themselves to resolving their issues through a cooperative approach rather than adversarial litigation. This process relies on the commitment of the parties to exercise honesty, cooperation, and integrity in working toward the future well-being of each of the parties, and, if there are children, the family. A team of experts assists the parties in solving problems, developing options, and creating a positive context for settlement. Each party works with a Collaborative Family Law attorney and a communication coach. The parties jointly hire a financial expert and, where appropriate, a child specialist to give the children a voice in the process. All information and documentation is voluntarily shared. The essence of the process is a series of face-to-face meetings between the parties and the relevant members of the professional team. When the process is completed, a written settlement agreement is prepared and filed, and a Judgment is entered by the Court..."
"You are encouraged to serve a copy of this fact sheet when you serve the Petition for Dissolution/Legal Separation/Annulment in this matter. (Eff. 1/1/05)"
Last year the Los Angeles Superior Court Supervising Family Law Judge, Hon. Aviva Bobb, said:
"I recommend Collaborative Family Law for those who are separating or divorcing. It provides legal, financial and personal support that protects and guides people through the difficult transition with safety, fairness, dignity and privacy."
12. How can I find a collaborative divorce attorney in Los Angeles county?
On Google or other internet search engines, enter "LACFLA" (Los Angeles Collaborative Family Law Association), or type in www.lacfla.com, to find the names of collaborative lawyers and other collaboratively trained professionals, and information on collaborative divorce, or call or e-mail our office.
Information provided by:
B. Daniel Lynch, Mediator
California Divorce Source
California Divorce Laws
California Community Forum
California Divorce Resources
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