The law often uses archaic terms with which most people are not familiar in divorce proceedings. One of the most common terms, In Pro Per, appears on most court filings in divorce cases in San Diego. In Pro Per, or more specifically In Propria Persona, appears after the heading “Attorney For:” and literally means “for one’s self.” In Pro Per is used in California when a person acts as his/her own attorney in a legal dispute.
Filing In Pro Per does not mean you are limited in any of your legal rights, only that you are representing yourself in the proceeding. Many people choose to file In Pro Per for a variety of reasons, chief among these is cost.
Thursday, February 18, 2010
Monday, February 8, 2010
IN DIVORCE MEDIATION YOU CAN AGREE TO DIFFERENT THINGS THAN A COURT CAN ORDER
When couples are getting divorced and rely on the judge to make decisions for them, the outcomes are more limited than when they reach their own agreements in mediation.
Lately, NCRC has had a number of divorcing clients who don’t want to sell their houses due to the current market conditions. In mediation, they can agree to continue to co-own it, but change the title from Joint Tenants to Tenants in Common. Then when they are ready later, they can sell it. In court, if the parties don't agree on what to do about the house, the court is likely to order that it be sold.
The point to take from this:
Mediation offers more flexibility with outcomes than a court can.
Lately, NCRC has had a number of divorcing clients who don’t want to sell their houses due to the current market conditions. In mediation, they can agree to continue to co-own it, but change the title from Joint Tenants to Tenants in Common. Then when they are ready later, they can sell it. In court, if the parties don't agree on what to do about the house, the court is likely to order that it be sold.
The point to take from this:
Mediation offers more flexibility with outcomes than a court can.
Wednesday, June 17, 2009
Do You Have to Have “Grounds” For Divorce in California?
by Shawn Skillin, Esq., Mediator
No. California is a “No Fault” divorce state. This means you do not have to prove with legal evidence your reason (grounds) for getting divorced. In your Petition requesting your divorce you just state that you have “irreconcilable differences.” This is the basis or grounds for your divorce. You do not have to prove you have irreconcilable differences, you merely state that they exist.
This means that you do not have to prove that your spouse committed adultery, abuse or abandonment in order to get divorced in California. These things may or may not have happened in your marriage and may or may not be one of the reasons you want a divorce, the court just does not require you to prove it in order to get divorced.
Clients often want the court to know why they are getting a divorce, especially when they perceive that the other spouse has done something “wrong” to end the relationship. It is frustrating that they are never “heard” by the court. In mediation, these issues may come up and can, at least, be discussed.
Just because the Court does not require you to prove these issues, it doesn’t mean that you don’t have unresolved feelings about them if they occurred during your marriage. And while the court may not wish to hear about it, it can be very helpful to discuss your feelings with a counselor.
If Domestic Violence (DV) is an issue in your marriage, the court can issue appropriate restraining orders. The grounds for your divorce will still be “irreconcilable differences”. However, if DV is proved to the court’s satisfaction, it may have an effect on certain outcomes in the divorce, such as spousal support or child custody and visitation. (If you or your children are victims of DV it is strongly recommended that you get help. The court has free assistance available for victims of DV.)
No. California is a “No Fault” divorce state. This means you do not have to prove with legal evidence your reason (grounds) for getting divorced. In your Petition requesting your divorce you just state that you have “irreconcilable differences.” This is the basis or grounds for your divorce. You do not have to prove you have irreconcilable differences, you merely state that they exist.
This means that you do not have to prove that your spouse committed adultery, abuse or abandonment in order to get divorced in California. These things may or may not have happened in your marriage and may or may not be one of the reasons you want a divorce, the court just does not require you to prove it in order to get divorced.
Clients often want the court to know why they are getting a divorce, especially when they perceive that the other spouse has done something “wrong” to end the relationship. It is frustrating that they are never “heard” by the court. In mediation, these issues may come up and can, at least, be discussed.
Just because the Court does not require you to prove these issues, it doesn’t mean that you don’t have unresolved feelings about them if they occurred during your marriage. And while the court may not wish to hear about it, it can be very helpful to discuss your feelings with a counselor.
If Domestic Violence (DV) is an issue in your marriage, the court can issue appropriate restraining orders. The grounds for your divorce will still be “irreconcilable differences”. However, if DV is proved to the court’s satisfaction, it may have an effect on certain outcomes in the divorce, such as spousal support or child custody and visitation. (If you or your children are victims of DV it is strongly recommended that you get help. The court has free assistance available for victims of DV.)
Monday, May 4, 2009
YES, NO, or I’LL THINK ABOUT IT (Two Tips for Resolving Any Conflict)
by Bill Eddy, LCSW, ESQ., NCRC Senior Family Mediator
Whether in a divorce, a workplace dispute, or a conflict with a neighbor, it’s easy to get caught up in defending our own behavior and point of view. In a conflict, people can “push our buttons,” and it’s easy to react before we know it. The focus can quickly become personal and about the past.
To avoid this problem, there’s a simple, two-step method that seems to help, no matter what type of conflict you are in. If you think you are going to be in a difficult situation, remind yourself of these two steps before you start talking. And if you are in the middle of an argument, you can always shift to this approach.
1) First Person: MAKE A PROPOSAL
Whatever has happened before is less important than what to do now. Avoid trying to emphasize how bad the problem is or criticizing the other person’s past actions. There’s nothing he or she can do about the past now. This just triggers defensiveness. Plus, people never agree on what happened in the past anyway. Instead, picture a solution and propose it.
For example, in a divorce dispute: “If you’re going to be late to pick up the kids on Fridays, then I propose we just change the pickup time to a more realistic time. Instead of 5pm, let’s make it 6:30pm.”
Or in a workplace dispute: “I propose that we talk to our manager about finding a better cubicle for you, since you have so many phone calls that need to be made and I often hear them.”
2) Second Person: YES, NO, or I’LL THINK ABOUT IT
All you have to do to respond to such a proposal is say: “Yes.” “No.” or “I’ll think about it.” You always have the right to say: “Yes.” “No.” or “I’ll think about it.” Of course, there are consequences to each choice, but you always have these three choices at least. Here’s some examples of each:
YES: “Yes, I agree. Let’s do that.” And then stop! No need to save face, evaluate the other person’s proposal, or give the other person some negative feedback. Just let it go. After all, if you have been personally criticized or attacked, it’s not about you. Personal attacks are not problem-solving. They are about the person making the hostile attack. You are better off to ignore everything else.
NO: “No, I don’t want to change the pickup time. I’ll try to make other arrangements to get there on time. Let’s keep it as is.” Just keep it simple. Avoid the urge to defend your decision or criticize the other person’s idea. You said no. You’re done. Let it drop.
I’LL THINK ABOUT IT: “I don’t know about your proposal, but I’ll think about it. I’ll get back to you tomorrow about your idea. Right now I have to get back to work. Thanks for making a proposal.” Once again, just stop the discussion there. Avoid the temptation to discuss it at length, or question the validity of the other person’s point of view. It is what it is.
When you say “I’ll think about it,” you are respecting the other person. It calms people down to know you are taking them seriously enough to think about what they said. This doesn’t mean you will agree. It just means you’ll think about it.
MAKE A NEW PROPOSAL: After you think about it, you can always make a new proposal. Perhaps you’ll think of a new approach that neither of you thought of before. Try it out. You can always propose anything. (But remember there are consequences to each proposal.) And you can always respond: “Yes.” “No.” or “I’ll think about it.” (And there are consequences to each of those choices, too.)
AVOID MAKING IT PERSONAL
In the heat of the conflict, it’s easy to react and criticize the other person’s proposals—or even to criticize the other person personally, such as saying that he or she is arrogant, ignorant, stupid, crazy or evil. It’s easy and natural to want to say: “You’re so stupid it makes me sick.” Or: “What are you, crazy?” “Your proposal is the worst idea I have ever heard.” But if you want to end the dispute and move on, just ask for a proposal and respond “Yes” “No” or “I’ll think about it.”
© 2009 High Conflict Institute -- published with permission
Whether in a divorce, a workplace dispute, or a conflict with a neighbor, it’s easy to get caught up in defending our own behavior and point of view. In a conflict, people can “push our buttons,” and it’s easy to react before we know it. The focus can quickly become personal and about the past.
To avoid this problem, there’s a simple, two-step method that seems to help, no matter what type of conflict you are in. If you think you are going to be in a difficult situation, remind yourself of these two steps before you start talking. And if you are in the middle of an argument, you can always shift to this approach.
1) First Person: MAKE A PROPOSAL
Whatever has happened before is less important than what to do now. Avoid trying to emphasize how bad the problem is or criticizing the other person’s past actions. There’s nothing he or she can do about the past now. This just triggers defensiveness. Plus, people never agree on what happened in the past anyway. Instead, picture a solution and propose it.
For example, in a divorce dispute: “If you’re going to be late to pick up the kids on Fridays, then I propose we just change the pickup time to a more realistic time. Instead of 5pm, let’s make it 6:30pm.”
Or in a workplace dispute: “I propose that we talk to our manager about finding a better cubicle for you, since you have so many phone calls that need to be made and I often hear them.”
2) Second Person: YES, NO, or I’LL THINK ABOUT IT
All you have to do to respond to such a proposal is say: “Yes.” “No.” or “I’ll think about it.” You always have the right to say: “Yes.” “No.” or “I’ll think about it.” Of course, there are consequences to each choice, but you always have these three choices at least. Here’s some examples of each:
YES: “Yes, I agree. Let’s do that.” And then stop! No need to save face, evaluate the other person’s proposal, or give the other person some negative feedback. Just let it go. After all, if you have been personally criticized or attacked, it’s not about you. Personal attacks are not problem-solving. They are about the person making the hostile attack. You are better off to ignore everything else.
NO: “No, I don’t want to change the pickup time. I’ll try to make other arrangements to get there on time. Let’s keep it as is.” Just keep it simple. Avoid the urge to defend your decision or criticize the other person’s idea. You said no. You’re done. Let it drop.
I’LL THINK ABOUT IT: “I don’t know about your proposal, but I’ll think about it. I’ll get back to you tomorrow about your idea. Right now I have to get back to work. Thanks for making a proposal.” Once again, just stop the discussion there. Avoid the temptation to discuss it at length, or question the validity of the other person’s point of view. It is what it is.
When you say “I’ll think about it,” you are respecting the other person. It calms people down to know you are taking them seriously enough to think about what they said. This doesn’t mean you will agree. It just means you’ll think about it.
MAKE A NEW PROPOSAL: After you think about it, you can always make a new proposal. Perhaps you’ll think of a new approach that neither of you thought of before. Try it out. You can always propose anything. (But remember there are consequences to each proposal.) And you can always respond: “Yes.” “No.” or “I’ll think about it.” (And there are consequences to each of those choices, too.)
AVOID MAKING IT PERSONAL
In the heat of the conflict, it’s easy to react and criticize the other person’s proposals—or even to criticize the other person personally, such as saying that he or she is arrogant, ignorant, stupid, crazy or evil. It’s easy and natural to want to say: “You’re so stupid it makes me sick.” Or: “What are you, crazy?” “Your proposal is the worst idea I have ever heard.” But if you want to end the dispute and move on, just ask for a proposal and respond “Yes” “No” or “I’ll think about it.”
© 2009 High Conflict Institute -- published with permission
Tuesday, April 7, 2009
IF I’M USING MEDIATION, DO I EVER HAVE TO GO TO COURT?
by Shawn Skillin, Esq., Mediator
When you file for divorce in San Diego County the Court sets a date for a Court hearing called a Status Conference approximately 3-5 months after the date your Petition is filed. However, in mediation, we file an agreement with the Petition telling the Court that you are in Mediation and asking the Court to delay the Status Conference for one year. The Court will then give you one year to finalize your divorce. If you are able to complete mediation and get all of your paperwork in to the Court in less than one year, you should not have to go to Court.
However, if it takes longer than one year, you may have to go to your Status Conference and let the judge know you are still trying to finish your divorce in mediation. The Court will give you more time, but will probably set another status conference in the future. Each judge has a different policy regarding how much additional time they will give you.
You may also have to go to Court if you and your spouse are unable to agree on all of your issues in mediation. In that case you would have to set a date for a trial at which a judge would decide on any unresolved issues.
Refer to a previous blog article regarding Status Conferences on February 9, 2009.
However, if it takes longer than one year, you may have to go to your Status Conference and let the judge know you are still trying to finish your divorce in mediation. The Court will give you more time, but will probably set another status conference in the future. Each judge has a different policy regarding how much additional time they will give you.
You may also have to go to Court if you and your spouse are unable to agree on all of your issues in mediation. In that case you would have to set a date for a trial at which a judge would decide on any unresolved issues.
Refer to a previous blog article regarding Status Conferences on February 9, 2009.
Wednesday, March 25, 2009
CAN WE USE NCRC’S DIVORCE/FAMILY LAW MEDIATION SERVICES IF WE HAVEN'T DECIDED WHETHER TO STAY TOGETHER, SEPARATE OR DIVORCE?
by Robin Duboe Seigle, Director, NCRC Divorce Mediation Services
Because NCRC’s program is called “Divorce Mediation Services”, many people assume that to use it, they need to have already decided to get divorced. With the current tough economic times, couples who might be thinking about or wanting to get divorced are not sure that they can afford to live in two separate households. Others have issues about their shared finances and want to separate them, but wonder if they have to get divorced to do that.
NCRC’S DIVORCE/FAMILY LAW MEDIATION SERVICES CAN BE USED TO HELP YOU DECIDE WHETHER TO STAY TOGETHER, SEPARATE, FILE FOR DIVORCE or LEGAL SEPARATION and/or TO EXPLORE SPLITTING FINANCES WITHOUT SEPARATING OR DIVORCING.
The role of NCRC’s Divorce/Family Law Mediators is to assist the couple to discuss ANY issues or concerns they have (whether married or not) about staying together, separating, initiating the legal family law process, staying in the same house, separating their finances, etc. The role of the mediator is to provide legal and practical information, as well as to facilitate the discussion so that it can be very productive and without “fighting”.
Mediation is a good way to work together to determine in which direction you want to proceed. Sometimes, after couples meet with a mediator, they decide to try counseling, a trial separation, or other alternatives.
Please call 619-238-2400 extension 220 or 223 for further information. Trissan Maleskey or I can help you explore whether our services will be appropriate for your situation.
Thursday, March 19, 2009
Divorce Mediation vs. Litigation by Bill Eddy, LCSW, Esq., Divorce/Family Law Mediator
Over the past 25 years, many couples have turned to divorce mediation instead of litigation in Family Court, because it minimizes animosity and provides more control over the divorce process. Today, in this time of economic distress, even more people are seeking to use divorce mediation, primarily because it saves them money.
How Decisions Are Made
In Family Court litigation, the decisions are made by a judge based on the California Family Code and Court of Appeals decisions. Many decisions are clear cut (child support and property division), regardless of who has done what. Other decisions (spousal support, custody and visitation) are very discretionary, so that different judges might reach different conclusions. The main point in litigation, is that decisions are made based on broad legal standards which may have nothing to do with your specific situation. The job of the parties and their attorneys, if any, is to argue over the past and reasons for favorable future court orders. Litigation promotes conflict, then resolution, and sometimes more conflict in the future because of the stress it places on the parties.
In Mediation, the parties are the decision-makers. The parties are informed of basic California Family laws, but then they are allowed to vary from the standards and make agreements which fit their specific situation. For example, a judge in court cannot usually deviate from the Child Support Guidelines, but parents (once they are informed about the Guidelines) can agree to other amounts. Property division can be shaped to fit the needs of the parties, such as delaying the sale of their home in this bad economy. Spousal support can be structured to pay more now and less later, or vice versa, or a lump sum buy-out may be made, if the parties agree. At court, all a judge will do is order a monthly amount and the parties will need to come back to court someday to change it.
The Overall Cost
In divorce litigation, each party often retains an attorney who will be responsible for presenting their case to the judge in Family Court. Family law attorneys typically charge $250-400 in San Diego County. A retainer is commonly between $1500 and $5000 – for each party. The overall cost may be up to $40,000 or even $400,000, depending on the assets of the family estate and the number of issues the judge will need to decide. Lawyers may need to do discovery (depositions, subpoenas, demands for documents, etc.) and legal research. Much time is spent preparing papers for court hearings and waiting around at court.
In divorce mediation, the cost is typically between $2000 and $5000 -- depending on the complexity of the issues involved and the level of disagreement of the spouses. While a mediator may also charge $250 per hour (as we do at NCRC), the number of hours is significantly less than in litigation, because most of the time is spent making decisions with the parties. Proposals and agreements can be made with both parties and the mediator present to discuss them right away. Unworkable terms can be discarded or refined very quickly. In litigated divorces, settlement proposals take time to go back and forth between the parties’ attorneys and themselves. Since most litigated divorces are resolved by agreement anyway (often at the courthouse at the last minute), it makes sense to have the parties assisted in working together throughout the process.
Also, in most divorce mediations, you pay for each mediation session at the end of the session. Then you pay for the preparation of court papers before each document is prepared. With this approach, parties can proceed with the divorce at the same pace as their finances allow. For example, after some parties have made all of their decisions, they decide to wait a month or two before paying to have the Marital Settlement Agreement prepared.
Sharing the Cost
Usually, each party pays one-half of the cost of the mediation. However, there are also many cases in which one party agrees to pay all of the cost, or a higher percentage than the other. In some cases, one party pays for the mediation as fees are incurred, then gets reimbursed for one-half in the final property division.
In litigated divorces, the cost is often driven by one party -- who can force deadlines for discovery and hearings on the other party. This drives the other party's costs upwards.
Fear and Anger
Much of a litigated divorce is driven by one or both parties' fear or anger. This may be because of an affair, bad financial decisions, substance abuse, or other issues which caused mistrust. However, in mediation emotions can be calmed so that decisions can be made, while using a consulting attorney to advise the client, examine financial documents, and review the Marital Settlement Agreement to protect the client's interests. This is much less expensive than taking the whole case to court because of fear or anger.
Inexpensive To Try
Since divorce mediation is a pay-as-you-go process, there is little financial risk in attempting to use it even if you are skeptical. At worst, you might spend a few hundred dollars on mediation and end up in court anyway. However, 80-90% of cases that go to divorce mediation usually finish in mediation. In that case, you may save yourself tens of thousands of dollars.
How Decisions Are Made
In Family Court litigation, the decisions are made by a judge based on the California Family Code and Court of Appeals decisions. Many decisions are clear cut (child support and property division), regardless of who has done what. Other decisions (spousal support, custody and visitation) are very discretionary, so that different judges might reach different conclusions. The main point in litigation, is that decisions are made based on broad legal standards which may have nothing to do with your specific situation. The job of the parties and their attorneys, if any, is to argue over the past and reasons for favorable future court orders. Litigation promotes conflict, then resolution, and sometimes more conflict in the future because of the stress it places on the parties.
In Mediation, the parties are the decision-makers. The parties are informed of basic California Family laws, but then they are allowed to vary from the standards and make agreements which fit their specific situation. For example, a judge in court cannot usually deviate from the Child Support Guidelines, but parents (once they are informed about the Guidelines) can agree to other amounts. Property division can be shaped to fit the needs of the parties, such as delaying the sale of their home in this bad economy. Spousal support can be structured to pay more now and less later, or vice versa, or a lump sum buy-out may be made, if the parties agree. At court, all a judge will do is order a monthly amount and the parties will need to come back to court someday to change it.
The Overall Cost
In divorce litigation, each party often retains an attorney who will be responsible for presenting their case to the judge in Family Court. Family law attorneys typically charge $250-400 in San Diego County. A retainer is commonly between $1500 and $5000 – for each party. The overall cost may be up to $40,000 or even $400,000, depending on the assets of the family estate and the number of issues the judge will need to decide. Lawyers may need to do discovery (depositions, subpoenas, demands for documents, etc.) and legal research. Much time is spent preparing papers for court hearings and waiting around at court.
In divorce mediation, the cost is typically between $2000 and $5000 -- depending on the complexity of the issues involved and the level of disagreement of the spouses. While a mediator may also charge $250 per hour (as we do at NCRC), the number of hours is significantly less than in litigation, because most of the time is spent making decisions with the parties. Proposals and agreements can be made with both parties and the mediator present to discuss them right away. Unworkable terms can be discarded or refined very quickly. In litigated divorces, settlement proposals take time to go back and forth between the parties’ attorneys and themselves. Since most litigated divorces are resolved by agreement anyway (often at the courthouse at the last minute), it makes sense to have the parties assisted in working together throughout the process.
Also, in most divorce mediations, you pay for each mediation session at the end of the session. Then you pay for the preparation of court papers before each document is prepared. With this approach, parties can proceed with the divorce at the same pace as their finances allow. For example, after some parties have made all of their decisions, they decide to wait a month or two before paying to have the Marital Settlement Agreement prepared.
Sharing the Cost
Usually, each party pays one-half of the cost of the mediation. However, there are also many cases in which one party agrees to pay all of the cost, or a higher percentage than the other. In some cases, one party pays for the mediation as fees are incurred, then gets reimbursed for one-half in the final property division.
In litigated divorces, the cost is often driven by one party -- who can force deadlines for discovery and hearings on the other party. This drives the other party's costs upwards.
Fear and Anger
Much of a litigated divorce is driven by one or both parties' fear or anger. This may be because of an affair, bad financial decisions, substance abuse, or other issues which caused mistrust. However, in mediation emotions can be calmed so that decisions can be made, while using a consulting attorney to advise the client, examine financial documents, and review the Marital Settlement Agreement to protect the client's interests. This is much less expensive than taking the whole case to court because of fear or anger.
Inexpensive To Try
Since divorce mediation is a pay-as-you-go process, there is little financial risk in attempting to use it even if you are skeptical. At worst, you might spend a few hundred dollars on mediation and end up in court anyway. However, 80-90% of cases that go to divorce mediation usually finish in mediation. In that case, you may save yourself tens of thousands of dollars.
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