The divorce process in America has largely gone the path of traditional litigation. Litigation is the act, process, or practice of resolving a dispute through a judge in a court of law. The parties are identified as a petitioner and a respondent. From the outset this is a contested process. Both parties have attorneys who are charged with “arguing” on their behalf. Each party is largely trying to win rather than go through the process amicably to reach a settlement.
Yet, there are other ways to navigate the divorce process such as the collaborative or mediation processes wherein the divorcing parties along with the professionals that serve them agree and pledge to work together peaceably rather than contentiously.
Getting divorced is one of the most traumatic life events one can go through. It’s unfortunate when couples decide that they no longer want to be married, but there are avenues that can be far less hurtful than litigation to get through it.
Collaborative Practice California, CP CAL, is an interdisciplinary group of collaborative divorce professionals (Collabortive Attorneys, Mediators, Financial Neutrals, and Divorce Coaches who are mental health professionals such as Licensed Marriage & Family Therapists). There are practice groups around the country comprised of teams of such professionals. CP CAL’s ultimate goal is to keep couples out of court. Their two-prong method is: 1) by raising the public’s awareness about divorce options, and 2) to assist collaborative professionals with tools and trainings to better serve divorcing couples as peacemakers. CPCAL has an annual event known as Divorce With Respect Week. This year it will take place March 4-8, 2024.
During Divorce With Respect Week, spouses and unmarried parents can speak with divorce professionals to learn about litigation versus non-litigation and their roles, and these collaborative professionals have committed to offer a free 30-minute consultation. More information about Divorce With Respect Week can be found at www.collaborativedivorcecalifornia.com/dwrw where spouses can also choose from various licensed, divorce attorneys, neutral financial specialists and mental health coaches in your area throughout California for your consultation.
CP Cal’s Divorce With Respect Week is growing nationwide. It is critical for couples to understand their options and to choose the process that makes the most sense for each couple, economically and emotionally, and moreover, to ensure the children come out of the process without their emotions being devastated.
More on the Litigation Process?
In the litigation process, couples make numerous court appearances while being represented by aggressive trial attorneys who are hired to fight for their clients. And fight they do. There are numerous court battles over characterization and division of assets and debts, spousal support (alimony), child custody and child support. There can also be separate trials to determine a couple’s date of separation, or to challenge a prenuptial agreement, among other issues.
It can be an extremely arduous process that includes, court appearances to argue for temporary orders, such as temporary child support, spousal support and child custody. The court can also order that a family’s real property be sold so that the sales proceeds can be used to pay the attorneys to fight to prepare for, and appear at, trial. Some of those “temporary” matters can take years to be resolved in court. Child custody negotiations can add more complexity to the matter.
For instance, in a child custody battle, the judge can order that a psychological evaluation be conducted by an expert psychologist, who will interview parents, family members, teachers, friends, and other “collaterals” who know the child and parents, and will also observe each parent while they are parenting the child in their home. The psychologist will then testify in court about each parent’s parenting abilities and styles, and make recommendations as to what child custody orders should be issued in light of the child’s best interests. This custody evaluation can take a couple of years and cost well over $25,000 per family. Both parents and their respective attorneys hope and pray that the expert will not be biased against them during the process. If the process is flawed, a parent can ask that the psychologist’s report be thrown out and start all over with a new psychologist.
There can be temporary orders made for child custody, and then one or both parents can go right back to court and ask the judge to modify that temporary order because a different order would be better for the child.
The same kind of situation can occur when litigating child support and spousal support. It often takes months or years of gathering and presenting evidence to support or oppose a request for temporary support that would be appropriate to hold a spouse over until the case is ready for trial. If one of the parties isn’t being transparent, a forensic accountant may be needed to gather information and conduct a cash flow analysis, marital standard of living analysis, business valuation, or some other kind of financial analysis. One spouse will win and the other spouse will lose.
In litigation there is on-going discovery to take depositions, subpoena each other’s documents from banks, credit card companies, and employers, and serve other kinds of demands for documents and information on each other. There are deadlines that spouses and their attorneys have to produce the information or else the requesting attorney can file a motion to compel the information. When a spouse loses that battle, they might be ordered to pay the other spouse’s attorney’s fees and costs associated with the motion to compel.
It can take a great deal of time to go to trial, where the spouses and their witnesses and expert witnesses testify about the parents’ shortcomings, or what percentage of a business ownership interest is community property and what percentage is a spouse’s separate property, or whether a third-party family member’s contribution to the couple’s living expenses should be included as a spouse’s income. There might be evidence and arguing about a spouse contributing their separate property money to the community property and whether they should be reimbursed for those contributions. Then more evidence and legal arguments about whether there should be permanent spousal support and how much should or shouldn’t be awarded under Family Code, Section 4320. The truth is, if 5 different judges are asked to determine an amount of permanent spousal support in a specific case, there could very well be 5 different outcomes.
In litigation, each attorney does their very best to make the other spouse look as monstrous as possible, outing each other’s secrets, mistakes, and weaknesses, while all of this embarrassing tattling becomes public record forever. In litigation, the spouses and attorneys all want to win and want the other spouse and their attorney to lose. This is the litigation mind set.
Often it’s between two to ten years after the process begins, and anywhere from $20,000 in a simpler case, to well over $500,000 per spouse in a more complex and/or high conflict case, before the trial is finally over and a stranger in a black robe has all of the evidence she or he needs to decide what will happen to the children, the money and the assets and debts. The outcome may be unpalatable for both spouses and their attorneys. Children, no matter what age, may be adversely impacted emotionally and financially for years.
How can spouses avoid leaving behind carnage and debris from a litigation war? Take time to learn about the other options available, like collaborative divorce and mediation.
What is the Collaborative Divorce Process?
Each spouse must have their own collaborative lawyer, and neither lawyer is permitted to appear in court. The lawyers and spouses must sign a written agreement that states the case will be a collaborative case and will not be litigated, which a judge also signs. There are a few lawyers who are committed to peacemaking, while no longer making court appearances, and who only practice amicable matters like collaborative divorce and mediation. There are also attorneys who continue to litigate, and who are trained in collaborative divorce and they do both litigation and collaborative divorce. Collaborative lawyers do not argue over child custody, or who should get what assets and debts, or about financial support. The lawyers are there to draft the necessary documents, give legal advice to their clients while encouraging them to keep an open mind, and attend meetings to support the spouses while they are in brainstorming meetings to resolve all of the family’s concerns. The lawyers do not spend all of the time during the brainstorm meetings arguing the law with each other like they do in a litigated case, although the law is mentioned as one of the many options while the couple is brainstorming. The lawyers should help the spouses to be more creative discussing settlement options.
It’s also essential for the spouses to work through the emotional side of the divorce for better communication, and if there are children, work together for the sake of the kids. Therefore, each spouse will have a collaboratively trained divorce coach who is a licensed mental health provider, such as a Marriage and Family Therapist, Psychologist, Certified Social Worker.
The final and equally important key to a successful collaborative team, is the neutral financial specialist. Neutral financials are CDFA’s, Certified Divorce Financial Analysts or Certified Public Accountants who might also be forensic accountants in litigated cases. The Neutral Financial is charged with helping parties find an equitable resolution to dividing the marital enterprise. Lawyers can advise what you are legally entitled to, but they are not trained to value all assets properly (like pensions) or take into account taxes, risk, liquidity or the ability to generate income. Lawyers do not answer the questions everyone asks, “am I going to be ok, what’s the impact on my life if I divide assets in a certain way?” CDFA’s put parties in the position to make informed decisions about marital asset division and understand how to make sense of your lives financially in post-divorce all the while saving money on legal fees.
Mediation
There are a couple of different ways a couple can mediate. There is a single mediator model and co-mediation or elevated mediation. With a single mediator model, a couple interviews and selects the mediator together. The mediator can be either a divorce coach, financial specialist, lawyer, family member, or any other person the couple chooses. Certifications, licensing and training are not required to be a mediator. Couples will decide together whether they want a professional mediator or someone else to walk them through the divorce process and all of the concerns they need to resolve, such as spousal support, property division, child custody and child support.
A mediator does not make decisions for the couple, and does not advocate for either spouse. Mediators are neither spouse’s legal advisor.
While a couple is going through the mediation process, each spouse may choose to have a consulting lawyer to learn about their legal rights and obligations. If a spouse has a consulting lawyer, they will often review the settlement agreement before the spouse signs it. The consulting lawyer may also draft their client’s paperwork if the mediator doesn’t provide those services. There are lawyers who no longer litigate and who work as consulting lawyers for a mediating spouse in case the spouse does not want a trial attorney to become involved in their otherwise amicable divorce. It’s helpful to compare consulting lawyers’ rates and availability to work with the spouse when looking for the right fit.
Sometimes, a couple can be more productive with more than one mediator. A couple can create a hybrid from a combination of the collaborative process and mediation and have 2 or 3 neutral mediators. For instance, if the couple chooses a divorce coach as their mediator, and they need an experienced financial professional for asset division child support and spousal support, a neutral financial can be added to the mediation sessions to help. Or the couple may go to the different professionals separately, spending time with a neutral financial and then returning to the divorce coach for the rest of the case when they’re ready.
In a third example, a couple may choose to have a financial specialist, a lawyer and a divorce coach in all of their sessions. This kind of support from all 3 disciplines can be efficient and cost effective when the couple has financial, legal, emotional issues and/or children.
How Can Divorce With Respect Week help?
There is enough information here to begin learning about a California divorce. During Divorce with Respect Week, spouses or couples can call collaborative professionals from March 4-8, 2024, for a free 30-minute phone or video call to ask follow-up questions that this article may raise. Other questions to ask could include how that professional works in a collaborative or mediation setting, as well as learning about rates. The first step is to decide what process fits the couple or family best. Divorce With Respect Week can give spouses the information to help them decide.
Glenn Crawford, CDFA, is a Mediator, Strategic Divorce Planning, and Wealth Asset Manager. Leslie K. Howell is a Collaborative Divorce Lawyer, Mediator, and Family Law Consulting Attorney.
