Is The Alternative to Killing Each Other The Solution to a Family’s Problems?

Taking your divorce disputes in front of a judge is not always the best method of reaching a satisfactory solution. Consider the Collaborative Divorce approach instead.

by Sandra Joan Morris, Certified Family Law Specialist; Member, American Academy of Matrimonial Lawyers
Seltzer Caplan McMahon Vitek

Courts evolved long ago to provide an alternative to self-help and violent solutions to San Diego Divorce Attorney Sandra Joan Morris can help with your Collaborative Divorce 858-472-4022disagreements. Both sides submitted their positions, and a Solomon decided how to resolve the dispute. Determining a property boundary, or allocating fault and awarding funds might not go too badly, but dividing up a baby or deciding deeply personal issues, can. Resorting to litigation and court is a default position, the one last thing to try when all else fails, short of the self-help we call taking the law into your own hands. The question is, is court the best way to solve problems? It took me 44 years as a trial lawyer, but I have come to see that the alternative to settlement is litigation, not the other way around. And of the settlement methods I have used in the last two years, Collaborative Process has proven to be the most successful.

We have come to look at court suits and litigation as the inevitable recourse for a solution, forgetting that it requires turning over to a stranger who does not know you, your life, your family, or your history, the control of what will happen next.   That stranger may have little or no knowledge, experience or interest in your area of the law, or even in judging.   That stranger may have biases, implicit or explicit, that no one knows about, that will affect their own perception of what they see and hear.

There is the fantasy and misconception that somehow a judge will be able to determine the true facts and make the right decision based on the correct interpretation of the law. The reality is that there are no true facts as to events, there is only the perception of the facts. Over 2,000 innocent prisoners so far have been released from incarceration based on subsequently discovered scientific evidence, because witnesses misremembered, misidentified, didn’t see things correctly, and juries and judges erred. The Rashomon effect is described as the contradictory interpretations of the same event by different witnesses to it. It does not require that the witnesses have an evil intent or desire to lie. The case books are filled with cases that were judged incorrectly or in which the law changed unexpectedly.

Trial lawyers know that everything is perception, and they know that their job is to create in the judge a perception of a narrative that helps their client in court. It may not be true, but it will look and sound true.

This requires the parties in a litigated matter to state their case to the court in the way that is most helpful to themselves, and the least helpful to the other side. The judge then tries to figure out which person or witnesses sound the most like they are telling the truth. This is all done in a public forum for all the world to see and hear. In family court the process usually takes two to seven years, and a lot of money in fees, to conclude. Litigants on the opposite sides of a case do not like each other better after this process. It is asking a lot to expect that after it is over, the two parties will somehow be able to put the case behind them and go forward to co-parent children, or show up at family events at the same time, in a civil and respectful way.

There are better ways to solve problems than merely an alternative to violence. There are ways to reach creative solutions that work for the family going forward in a humane and respectful way. There are more economical ways to conserve resources for your families, rather than providing them for your lawyers’ families. I used to tell my litigation clients, you can send your children to college and settle this case, or you can send my children to college and litigate it. The better way to solve the problems is through a negotiated settlement. This can be facilitated by sitting down and talking, or having the assistance of a neutral mediator, or through the team approach of the Collaborative Process.

The least well known to most people, but the most effective, is the Collaborative Process. The reason why it is so effective is that all of the persons on the teams are trained the same way, and are dedicated to using their different skill sets to helping the parties reach their own informed settlement based on their respective needs and interests. The parties are in control of the outcome, and are assisted by the Collaborative teams to arrive at solutions.   It is a confidential, respectful process that empowers both parties. It rarely takes more than a year to complete, and the cost for the assistance of all of the team participants is far less than the fees and costs of the litigated case. The parties leave this process feeling intact, and with skills to assist them if they need to interact in the future to work through new issues that might arise.

Desensitizing, Brutalizing, And Degrading: Is This the Effect of Divorce Court?

Learn about your Divorce Options at a free workshop on March 4 at 10:30 a.m. in the Carmel Valley area of San Diego. RSVP at 858-472-2022.

by Mark Hill, Certified Financial Planner, Certified Divorce Financial Analyst
and Ryan Fentin-Thompson, Certified Divorce Financial Analyst
Pacific Divorce Management

Divorce can be a dehumanizing experience, especially for children. Avoiding a court battle can help relieve some of the negative effects of divorce on the family.

Divorce can be a dehumanizing experience, especially for children. Avoiding a court battle can help relieve some of the negative effects of divorce on the family.

Oftentimes, a couple going through divorce is portrayed as angry, revengeful and resentful towards one another. While these feelings may be present we have found that the more prevalent sentiment for both parties is a feeling of sadness and sorrow. Despite any current animosity that may be felt towards one another, no one enters into marriage expecting to divorce, so there will always be some sense of loss.

From the outsider’s perspective, one might assume the hostility between the couple stems from the decision to divorce; however, more often, it is the process of divorce which produces these feelings. The litigation system drives people from sad to furious, furious to enraged, enraged to resentful. Open court is usually the worst place to negotiate the end of an intimate relationship. Not only is this a public forum but also it tends to place the focus on winning and losing which usually does not benefit the whole family.

mark-hill-photo-02One example I saw in my own practice was in a highly contested divorce where both husband and wife wanted to keep the family home. Since they could not reach agreement, the judge ordered the house sold, which had the result of taking the children away from their friends and requiring them to change schools based upon their parents’ new residency.

Even the best judges seldom have time to do more than render strictly legal based decisions which lack the creativity which families always need when facing divorce. I was struck by a recent TV commercial related to our current presidential election using the tagline “Our children are watching,” and thought how it also relates to divorce. Offspring of divorcing couples always learn a lot about relationships from how their parents behave throughout the process. My experience is that choosing the adversarial approach seldom improves such behavior.

It can be dehumanizing for the professionals involved as well. Most people go into this field from a desire to help families work through what is usually an incredibly difficult life event. Too often, we find the system forcing decisions that we know will not fit the needs of our clients. It undermines what motivates us to do this work and can distance us from our own sense of humanity and compassion. We in the field have all experienced cases where outcomes fall well short of what our hopes and expectations were at the point at which we were retained. Recent research has suggested divorce professionals pay an ongoing price for this, described as “vicarious trauma.”

Alternative dispute resolution allows many of the shortcomings of a traditional divorce to be addressed. Professionals are required to look for creative solutions that benefit the entire family rather than trying to advance the cause of one side. The clients are engaged and required to take responsibility for the decisions that are reached. In the case of Collaborative Divorce they do so with the resources of legal, financial, and mental health professionals together with them at the table. We have found that this provides the best opportunity for outcomes that avoid much of the negativity usually associated with divorce.

 

 

 

Keeping The Costs Of Divorce Down Is Up To You

by Myra Chack Fleischer
Lead Counsel, Fleischer & Ravreby

There is an old joke about divorce.

Why is divorce so expensive? Because it’s worth it. Plunging into Bankruptcy - Financial Speedometer

Humor is rooted in the truth. The truth is that sometimes getting divorced can cost a lot of money. The legal fees can seem out of proportion after it’s all over and the parties involved tally up what they’ve “won” in the form of spousal or child support or property like a home.

But here is another important truth. The cost of a divorce is largely up to you. Your actions determine whether legal fees keep adding up, or whether they can be managed in a reasonable way and minimized.

These are the recommendations I provide to my own clients when they express the need to control their spending on their divorce.

1. Just the facts

Your family law attorney needs to gather all the facts of your case. He or she needs specific information to prepare certain documents and begin the divorce process. The more efficiently and accurately you can provide the necessary information to your attorney, the easier it is for your attorney to get up to speed and prepare documents. Easier equals quicker, and quicker means less expensive if you are paying by the hour.

Don’t think because you “hide” something it will go away. The truth always comes out. Your attorney prefers to avoid surprises.

2. Honesty is the best policy

As part of the divorce process, each side collects as much detailed information about the other side’s circumstances as possible. Written questions are drafted (called interrogatories), and requests for documents and records are made. Depositions are often used, where witnesses are put under oath and asked more extensive questions with all answers on the record. There is no reason not to be forthcoming with your attorney about the good, the bad, and the ugly. The longer it takes to put the story together, the more it costs.

3. Be prepared

If you and your soon-to-be-ex spouse cannot settle your disagreements outside of the courts on your own, with or without help from professionals, you will end up in a trial. This is when divorce gets expensive. Try to avoid this if possible. Consider Collaborative Divorce or mediation as a more efficient, cost-effective way to work things out.

If you are heading to court, a lot of preparation is required. There are simply no shortcuts. There are endless details that must be gathered and verified. Your attorney must be diligent on your behalf and determine how best to use the facts to best persuade a judge to make a decision protecting your interests.

It takes time to prepare the parties and witnesses for a courtroom appearance. This is a new and intimidating experience for most people. They need to understand what will happen when they provide testimony, especially when they are cross-examined and challenged by the other party’s attorney.

4. Watch the clock in court

Assuming you don’t decide on a resolution along the way, you will find yourself in a courtroom where a third party – the judge – will make decisions for you since you cannot. A family law judge will listen to all of the testimony, read all of the written documents, and consider the total sum of all evidence presented by both sides. The judge will then render a decision on all of the issues on which you and your ex-spouse disagree.

Trials can last a few hours, a few days, or a few weeks. Complex cases can last months. Juggling the schedules of everyone involved can make it challenging to get everyone in the courtroom at the same time. Factor in work and family conflicts, sick days and vacations for more delays. If there are lengthy delays, more time is added to get back up to speed.

5. Family court cutbacks

Many family law courts across the country have experienced funding cutbacks from their state governments. The result is often a shortage of courtroom space or a shortage of personnel available for the amount of cases waiting for a trial. It not only takes longer for you to get divorced, it takes even more time invested by your attorney and other professionals involved to stay up to speed. None of this helps the bottom line.

Have you picked up on a common theme? Time is money where a divorce case is concerned.

You can help save costs by working through the process with your attorney as swiftly and openly as possible. Make decisions in a timely manner; get expert help from a licensed financial professional specializing in divorce, and mental health professional if necessary.

For many reasons including cost, consider a form of Alternative Dispute Resolution that keeps you out of the courtroom, but still allows both sides to work through disagreements. A Collaborative Divorce can present an ideal way to advocate for your interests without the enormous investment of time and money necessary for a litigated divorce.

Myra Chack Fleischer serves as Lead Counsel for Fleischer & Ravreby in Carlsbad, California with a focus on divorce, property, custody and support, settlement agreements, mediation, asset division and family law appeals. Follow Myra on Facebook and on Twitter.