Madigan & Lewis LLP

San Mateo County Divorce Attorneys

Kimberly Madigan

How Family Court Differs From Civil and Criminal Courts

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In the United States, there are three primary forms of law that apply to the average individual: criminal, civil, and family law. These laws can overlap, but they have significant differences that have led to the development of specialized courts designated for each. 

The differences between courts can be significant. Most people are familiar with civil or criminal court proceedings, but know far less about the family court system. This article discusses the differences between the civil, criminal, and family court systems, and what you should expect from your family law litigation case. 

The Purpose of Criminal and Civil Courts

Civil and criminal courts are dedicated to determining if defendants violated laws or contracts and, if so, how they should be penalized.

Criminal cases entail the state prosecuting parties and can involve intense scrutiny and public attention due to concerns of jeopardized freedoms and imprisonment. The defendant has the right to request a jury of their peers to hear their case. Furthermore, the defendant must be presumed innocent until proven guilty beyond a reasonable doubt. If proven guilty, they face legal penalties from fines to imprisonment. 

Civil cases on the other hand, entail an individual or organization filing a claim against another party. The Civil court hears various cases, from business contract disputes to personal injury claims, and determines whether one party has wronged another. Civil cases can have jury or bench trials. Civil courts have a lower burden of proof than criminal courts, and if fault is determined, the court will assess compensation to the wronged party. 

The Purpose of Family Court

Family law is significantly different from criminal and most civil law. In most cases, family court matters are not focused on determining fault. Instead, they are intended to preserve and respect the rights of all people involved in complicated legal issues, such as divorces and child custody. They may also determine whether contracts are fair and how they should be fulfilled. 

There is rarely a consideration of penalization within these courts. While one party may be unhappy with a judge’s ruling, divorce decrees and child custody orders are not intended to punish one party. They are designed to identify fair outcomes during disputes between family members. For example, being ordered to pay child support or losing custody of a child is not a punishment to the parent; it is an order intended to support the child’s best interests. 

Family court also does not include the use of juries in any situation because these matters do not include the determination of wrongdoing or assignment of penalties. Instead, the judge hearing the case will consider both parties’ arguments and evidence, then issue a ruling. 

Finally, in California, family court is unique because the participants can choose to hire a private judge instead litigate a matter in a public court. Private judges are intended to lighten the load of public courts by providing an alternative judicial setting. Should all parties agree, they can hire a private judge to resolve their disputes in a more private location without the scheduling complications involved in public courts. 

Understanding the Family Court Process

There are many types of family law cases. You may need to bring matters before a family court if you have disputes regarding the following:

  • Dividing assets in a divorce, legal separation, or dissolution of a domestic partnership
  • Petitioning for a spousal or child support order
  • Formalizing a parenting plan through a child custody order
  • Altering existing custody or support orders

In some cases, you may also need to go to family court to request a restraining order, such as if your parent, child, or partner is abusing you. 

Because of the range of topics handled by these courts, the process can vary significantly. However, the basic structure of a family law case often takes the following shape:

  • One party files a petition in the court with jurisdiction and notifies the other party. 
  • Once the recipient acknowledges the petition, the court initiates the proceedings.
  • The parties may opt to work together to draft documents such as a divorce settlement or parenting plan and present them to the court. If so, the court will typically accept the documents and use them as the foundation for the legally binding court order.
  • If the parties have a dispute they cannot resolve on their own, they may hire a private judge or schedule a hearing in a public court.
  • The parties and their attorneys will present their arguments at the hearing. The judge will then deliberate before issuing a judgment on the matter. 
  • Once all hearings are complete, the rulings will be collected into a final, binding court order, such as a divorce decree or child custody order. 

Resolve Your Family Law Concern With Compassionate Legal Guidance

At the end of the day, divorces and child custody disputes are still legal proceedings. If you have a matter that may require court intervention, you should consult with an experienced family law attorney. 

The lawyers at Flicker, Kerin, Kruger & Bissada LLP specialize in family law. We are prepared to assist with your divorce, property division, and child custody disputes before public or private judges. Discover how expert legal guidance can make a difference in your case by scheduling your consultation with our experienced attorneys today.

What You Need to Know About Bifurcation in Divorce

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Divorce or dissolution of marriage is a complex legal process. The end result – a judgment of dissolution of marriage – addresses not just the termination of marital status (i.e., an order that the marriage has ended), but child custody and parenting issues, property division, child and spousal support issues, attorney fees, and other issues. This is one of the reasons that most divorces take, on average, 18 months to resolve. 

What is a Bifurcation and Termination of Marital Status? 

In some cases, we will recommend to our clients that they bifurcate and terminate legal status, while reserving the court’s jurisdiction over other issues. This legal procedure permits the parties to a divorce to legally end their marriage before the other issues have been resolved provided that the six-month waiting period and other statutory requirements have been met.

Bifurcation is almost always permitted in California. Courts in the state have repeatedly ruled that there is no benefit to forcing unhappy couples to remain legally bound to each other until the other issues in their case are resolved. See, for example, the Court of Appeal’s decision in Gionis v. Superior Court (1988) 202 Cal. App. 3d 786, 788: “Separating the termination of marriage from controversies over spousal support, child custody and division of marital property is not a new idea.”

The Court of Appeal, in Hull v. Superior Court (1960) 54 Cal. 2d 139, 147-148, explained the concept of divisible divorce as follows: “Severance of a personal relationship, which the law has found to be unworkable and, as a result, injurious to the public welfare is not dependent upon final settlement of property disputes. Society will be little concerned if the parties engage in property litigation of however long duration; it will be much concerned if two people are forced to remain legally bound to one another when this status can do nothing but engender additional bitterness and unhappiness.” 

A bifurcation and termination of marital status can be accomplished by stipulation or agreement of the parties. Alternatively, either party can request the bifurcation and termination of marital status by filing a request for order with the court.

Pursuant to Family Code section 2337(c), our family law judges may “impose upon a party… conditions on granting a severance of the issue of the dissolution of the status of the marriage, and in case of that party’s death, an order of … conditions continues to be binding upon that party’s estate.” These conditions are complex and preserve the rights and protections of married persons pending the resolution of the other property and financial issues in their case.

Conditions may include requiring the spouse who maintains health and medical insurance to continue maintaining the coverage for the other spouse and minor children or indemnifying and holding the other spouse harmless from any adverse consequences if the bifurcation results in the loss of the rights with respect to any retirement, survivor, or deferred compensation benefits. (See Family Code section 2337(c) for a list of the conditions that may be imposed by the court.)

There are many reasons why you may choose to pursue a bifurcated divorce. The simplest is that you no longer wish to be married, but you are involved in a contested divorce proceeding that has extended beyond the six-month waiting period. Other reasons may include:

  • You want to remarry.
  • You want to take the time pressure off resolving complex financial concerns. 
  • You anticipate tax benefits. 

Discuss Your Case With Madigan & Lewis, LLP 

If you want to end your marriage quickly, a bifurcation and termination of marital status may be the most efficient way to restore your single status. However, it is critical to understand the potential legal impacts of this procedure and the conditions that can be imposed by the court. Accordingly, we recommend that you consult with an attorney at Madigan & Lewis, LLP or another qualified family law attorney with experience in this area.

Understanding Postnuptial Agreements

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Prenuptial agreements are becoming more popular every year among engaged couples of all ages. Often, engaged couples entering a first marriage at a young age and without significant employment history overestimate the value of these agreements. 

It is essential to seek the advice of counsel to determine if, based on your circumstances and marital financial goals, a premarital or postnuptial agreement is appropriate for your needs. These contracts are intended to help couples dictate the terms of their finances in their future relationship instead of defaulting to the terms California sets for all marriages, which in some instances may conflict with the couples’ goals. Because married couples cannot enter a premarital agreement, they may enter a postnuptial agreement to achieve similar results.

If you still want the benefits offered by premarital agreements, you may consider the alternative: a postnuptial agreement. These contracts provide similar benefits without the restriction of having to occur before you are legally wed. However, they must be approached with caution, given the fiduciary relationship that binds married couples as opposed to unmarried couples. 

Choosing a postnuptial agreement may benefit you whether or not you are concerned about a future divorce. A postnuptial agreement can also be a good tool for understanding your financial responsibilities to one another and help you in setting your long-term marital financial goals. Below, you will learn about what these contracts may do for you, their requirements, and techniques for developing them effectively.

What Is a Postnuptial Agreement?

Postnuptial agreements, also known as post-marital contracts or “postnups,” are contracts between married partners that may dictate various terms regarding their financial and property rights. They are flexible tools that can address ownership issues within the marriage and provide advance determinations for considerations that may arise if the couple divorces or legally separates. They may also be used to address issues of support in the event of divorce.

While these contracts have their limits, they can give couples the freedom to change the specific terms of their financial relationship long after they first get married. They may also be used to supersede premarital agreements that are outdated or no longer reflect the couple’s preferences. 

What Can a Postnuptial Agreement Include?

Post-marital contracts may address many concerns, including:

  • Property ownership and the division of debts and assets: The agreement may define certain assets or asset classes as separate or marital property when they would not otherwise be considered as such, altering who may make decisions about those items and whether they are eligible to be divided in a divorce.
  • Spousal support: The agreement may determine whether either spouse should be eligible for spousal support (also referred to as alimony) in the event of a divorce, how much those payments may be, how long they will last, and how they will be calculated.
  • Protection of the parties’ business interests: If either partner owns part or the whole of a premarital business, a postnuptial agreement can dictate whether the other partner will be given any ownership or control over the company and to what extent they may have the right to company profits.
  • The rights of the surviving person after one party’s death: The postnuptial agreement may also include estate planning provisions, allowing couples to clarify the surviving partner’s rights regarding the decedent’s separate property and share of the marital estate.

California law imposes two critical restrictions on what may be included in post-marital contracts. First, according to CA Family Code § 1620, “Except as otherwise provided by law, spouses cannot, by a contract with each other, alter their legal relations, except as to property.” This means that you cannot use a postnuptial contract to alter the terms of your relationship, such as your responsibilities to each other, except regarding your assets. 

Second, a postnuptial agreement may not be used to dictate how child support or custody is awarded. These matters are to be determined at the time of the dispute with the child’s best interest in mind. Since the best interest of the future children cannot be decided in advance, these contracts may not make determinations regarding them.

California Postnuptial Agreement Requirements

California law views spouses similarly to business partners with significant fiduciary duties towards each other. In particular, California Family Code § 721(b) states, “This confidential relationship imposes a duty of the highest good faith and fair dealing on each spouse, and neither shall take any unfair advantage of the other.”

This makes validity and enforceability concerns in postnups more significant than they would be in premarital contracts. For a postnup to be considered legally binding, it must meet, among other things, the following criteria:

  • Both partners signed the agreement voluntarily, and with a complete understanding of the obligations it imparts
  • Both parties received full and fair disclosure of the property and financial obligations of the other person
  • Both parties either received independent legal counsel regarding the contract or expressly waived this right in a separate written agreement. 
  • The terms of the agreement do not violate law or public policy

If these criteria are met, the post-marital contract will likely be considered valid and enforceable in court.

How to Approach a Postnuptial Contract in Your Marriage

Before writing your post-marital contract, it is critical to understand how to approach the development process to achieve the best possible results. These techniques can help you create an agreement that satisfies both you and your partner without wasting time or risking questions of enforceability. 

  • Communicate openly with your spouse about finances. A significant benefit of addressing concerns related to a divorce in a postnuptial agreement is the opportunity to communicate openly about financial matters and collaborate with your spouse. Take this time to find satisfactory compromises without the emotional impact of a looming divorce affecting your decisions.
  • Have a goal in mind. Postnuptial contracts may address many issues, which can lead you to feel overwhelmed. Have a few specific goals for the agreement to ensure your contract focuses on what matters to you and your partner and helps avoid unnecessary distractions. 
  • Acquire independent legal counsel. Both you and your spouse should consult with independent attorneys to ensure that you receive a fair and unbiased legal understanding of the agreement. This will significantly reduce the risk of validity concerns and ensures you both understand the agreement’s impacts before signing. 

Experienced Legal Counsel for Postnuptial Agreements

A post-marital contract is an invaluable financial and legal tool for couples who are already married. If you are considering a postnuptial agreement, you will benefit from receiving expert legal counsel from a qualified family law attorney. You may learn more about how a postnup could help your relationship by scheduling your consultation with Madigan & Lewis, LLP. Our experienced attorneys are dedicated to providing strategic, responsive, and solution-oriented legal representation to clients seeking comprehensive and enforceable postnuptial agreements. Call 650-482-8480 or reach out online to begin the process.

Helping Children Cope With Divorce

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Divorce can feel complicated enough for an adult who understands what is happening. Children whose parents are getting divorced may not have that level of understanding. For many children, that can make their parents’ divorce confusing, upsetting, and even scary. 

As a parent, it is your responsibility to help your child prepare for and navigate the changes that your divorce will bring. With the right approach, you can help your child adjust to their new life with minimal stress. Below, we have outlined some tools children need to cope with significant life changes such as a divorce, and what you can do to help them during the process. 

What Do Children Need During a Divorce?

Growing up is hard, even for children with married parents. Divorce can leave a child feeling vulnerable and needing more support than usual. This support includes reassuring them of the following:

  • Safety: Above everything else, children need to feel safe. Angry arguments or sudden changes to their surroundings can make kids of all ages feel threatened and scared. Do your best to assure your kids that no matter what, they will always be protected.
  • Stability: A stable, predictable environment is crucial to helping kids feel safe. Try to keep your child’s routines and daily life as similar as possible. If things need to change, develop new habits quickly to help them adjust. 
  • Love and Acceptance: It is natural for children to worry that a divorce somehow means they are at risk of losing their parents’ love. Give your child extra attention during this difficult time and express how much the other parent loves them. This helps assure them that they are still a priority. It also allows them to ask questions and reaffirm that they are in no way responsible for the end of your marriage.

How to Prioritize Your Child During Your Divorce

The best way to help your child cope with the challenges of divorcing parents is to prioritize them. Regardless of how old they are or how independent they may seem, they still rely on you for guidance, support, and care. When you put them first, you make it much easier for them to adjust to their new family situation. Below are several ways you can prioritize your kids during divorce proceedings and make the process less stressful for them. 

Present a United Front

Your kids are used to you and your spouse working together to parent them. Even though it may be difficult, it is worthwhile and often critical to a child’s well-being to continue collaborating during and after your divorce. This means working with your co-parent to implement similar household rules and enforcing each other’s decisions to the extent possible. 

Keep Your Child Out of Disputes

Most divorcing couples have disagreements. Regardless of your personal feelings about a dispute, never involve your child in the argument. Your child should not be a pawn or intermediator in any marital dispute. 

Putting your child in the middle of a dispute can cause them to feel guilty or responsible for your split. A common complaint of grown children of divorce is that they felt like they had to mediate arguments or make their parents feel better. That is too heavy a burden to put on children.

Furthermore, never force your child to “pick a side” or try to use them against your spouse in custody disputes. That only makes the process harder on your children. They may feel they must abandon one parent or risk losing both of you. 

Instead, let your kids be kids and prioritize their best interests. If you have a disagreement with your spouse, either resolve it civilly where children cannot hear, then tell your children once you have come to an agreement. If you and your spouse disagree about how to share custody, work with an experienced family law attorney to resolve the dispute. Handling these matters professionally gives your children the space to process their emotions without getting further entangled in adult concerns.

Consider Negotiation or Mediation

Beyond just keeping your child out of any disputes, you can go a step further and pursue low-conflict divorce resolution methods such as mediation, attorney-assisted negotiation, or collaborative divorce. These alternatives to litigation are intended to help spouses resolve disputes within divorce with less conflict. 

This may better allow you and/or your spouse to determine how your final settlement will be structured instead of requesting a judge make rulings on your behalf. If you and your spouse remain amicable, these approaches can resolve disputes with less conflict and reduce the time it takes to reach a settlement. 

Not only can negotiation, mediation, and collaboration allow parties to draft mutually satisfying agreements outside the courtroom, but also they may reduce the amount of conflict your children experience. By resolving your divorce without litigation, you may reclaim time and energy to focus on your children’s needs instead of legal battles. That is better for both you and your children.

Put Your Children First With Expert Legal Counsel

If you are concerned about your children’s well-being during your divorce, one of the best things you can do is to work with an expert family law attorney. At Madigan & Lewis, LLP, our attorneys have years of experience helping families handle divorces and other disputes while prioritizing their children’s needs. We will work closely with you to determine the most effective method to resolve conflicts in your divorce and pursue the best possible outcome for you and your family. Schedule your consultation today to learn more about how we can assist you in your divorce. 

The material contained herein has been prepared by Madigan & Lewis, LLP for informational purposes only, not legal advice. This information is not intended to create – and receipt of it does not constitute – a lawyer-client relationship between Madigan & Lewis, LLP and the reader. This website is intended to provide information about our law firm and its services and is not guaranteed to be up-to-date or complete. Internet subscribers and online readers should not act upon this information without seeking professional counsel.

Blending Families and Finances the Right Way

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Second marriages are increasingly common in the US. As of 2013, 40% of all weddings involved at least one partner who had been married before. As a result, it’s more common than ever for engaged couples to need to consider how they’ll blend families and finances when they get married. 

Blending families presents unique challenges, but it can be handled smoothly if the couple prepares in advance. Below, we discuss some of the demands placed on couples entering a second marriage, as well as techniques for addressing these demands before they cause additional complications.

Demands Involved in Blending Families

Blending families and finances requires careful handling of both emotional and financial concerns. Unlike many first marriages, second marriages are more likely to require couples to consider the following:

  • Managing significant assets. People who are remarrying are likely to be older and have had more time to acquire assets and investments. As such, they have more property that they may want to protect in their upcoming marriage than younger couples. For example, if one partner owns a business, they may prefer to keep it separate from the marital estate instead of commingling it with other joint assets.
  • Addressing other financial obligations. Previously married people are likely to have financial commitments such as spousal or child support from prior marriages. When entering their new marriage, they must ensure they can continue to meet these obligations despite blending their finances with their new spouse. 
  • Protecting children from previous relationships. If either partner has children from a prior relationship, they may want to protect assets they have set aside for those children. For instance, many parents may opt to protect assets like 529 plans and intended inheritances when remarrying to ensure that their children will receive those assets regardless of what occurs in their new marriage. 
  • Handling the emotional impact of previous marriages. Finally, when considering a second or subsequent marriage, many people find that they are wary of combining their finances the way they did previously. As such, many engaged couples choose to use more structured methods of blending their financial lives than simply relying on California’s state laws regarding marital assets.

How to Blend Family Finances Effectively

The concerns above may sound familiar if you’re preparing to merge families with your partner. There is no right or wrong way to blend your finances. Some couples choose to combine everything with no reservations, others prefer to retain completely separate accounts and bills, and others find a compromise in between. 

When discussing how to manage these concerns, the goal is to find the solution that works for your specific relationship. The following four techniques can assist you in finding the right way to merge finances in your unique relationship with less stress and fewer risks. 

Talk Things Through in Advance

The best thing any engaged couple can do for their joint financial future is to discuss their expectations before getting married. Regardless of how well you believe you know your partner, it’s still valuable to sit down and discuss how you want to structure your finances. Topics worth talking about include:

  • Details about your current financial situation, including earnings, assets, debts, obligations, and spending habits
  • How you prefer to save or invest your funds
  • Whether you would prefer to merge accounts or keep them separate
  • How you will share bills and expenses
  • Whether you both intend to work or expect one of you to remain at home

In addition, you may benefit from discussing how finances were managed in your previous relationships. This allows you to talk about any points of financial conflict with your previous spouse/partner and develop a plan to prevent the same problems from occurring in your current relationship. 

Think About the Future

Though it may seem unusual, it is critical to consider all future possibilities when preparing to blend your finances. It is worth considering what will happen to your assets should either of you pass away. 

If you have any assets or loved ones you want to protect, you can take the time to do so now. Discussing these details in advance ensures that you and your partner are on the same page. If you make your wishes clear before you get married, there is less risk of misunderstandings or disputes in the decades to follow.

Create a Prenuptial Agreement

One of the most common ways couples address the above concerns is by creating a prenuptial agreement. While drafting your prenuptial agreement, you will exchange comprehensive financial disclosures with your partner. You will be obliged to discuss details of how you want to handle your finances, both on a daily basis and in the future. It’s an excellent way to ensure you’re on the same page before you get married. 

Furthermore, the prenuptial contract itself protects both parties. You can use your agreement to keep certain assets separate if you choose. That can be reassuring for people who have divorced before. It also simplifies matters such as guarding your children’s inheritances or protecting a family business. If you have any concerns about blending finances, a prenuptial agreement can be invaluable.

Simplify the Process of Combining Families With Madigan & Lewis, LLP

Getting remarried is exciting, but it may come with financial complications. If you’re preparing to blend families during a second or subsequent marriage, you should consult with the expert attorneys at Madigan & Lewis, LLP. We understand the financial demands you face when remarrying. We have years of experience providing legal counsel to clients regarding these financial concerns and drafting mutually satisfying prenuptial agreements. Discover how we can simplify the process of merging your finances through a comprehensive and well-written prenuptial agreement by scheduling your consultation today.

The material contained herein has been prepared by Madigan & Lewis, LLP for informational purposes only, not legal advice. This information is not intended to create – and receipt of it does not constitute – a lawyer-client relationship between Madigan & Lewis, LLP and the reader. This website is intended to provide information about our law firm and its services and is not guaranteed to be up-to-date or complete. Internet subscribers and online readers should not act upon this information without seeking professional counsel.

The Impact of Private Judging on Your Divorce

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Litigation is one of the most common methods for resolving divorce proceedings. This process allows couples to have their case heard by a judicial officer who can issue legally binding rulings regarding disputes, including child custody, child support, spousal support, attorney fees, and asset division. However, many people feel uncomfortable with the public nature of pursuing a divorce in family courts. 

If you need to litigate your divorce, California offers a valuable alternative to the public court system. You can choose to hire a private judge to oversee your case, assist with case management and the mediation of issues, and issue rulings as needed. Private judging can protect your privacy, reduce delays in your divorce, and potentially result in more equitable judgments. 

What Is a Private Judge?

Private judges, also known as judges pro tem, are typically retired judicial officers or very seasoned family law attorneys with significant experience overseeing civil and/or family law disputes. 

Private judges may issue rulings, orders, sanctions, and otherwise decide cases that litigants choose to bring before them. Their decisions are considered legally binding and enforceable by appellate courts. Most private judges handle significantly fewer cases than those in public courtrooms, allowing them to give each case more attention and time. 

Unless you have signed a contract stating otherwise, you are never obligated to agree to your case being heard by a private judge. Even if your spouse prefers to have your matter handled by a private judge, you must agree. Occasionally, parties to a prenuptial or postnuptial agreement will agree that any future divorce proceeding will be handled by a private judge. 

The Differences Between Private Judges and Public Courts

There are several differences between litigating matters in a public court or with a private judge. The most important include:

  • Cost: As private judges do not operate through the public court system, they are compensated by their litigants. This is an additional cost that is not present in a public court case. However, if working with a private judge expedites your divorce proceeding, you may ultimately save money.
  • Choice: In public court, your case will be assigned to a judge. When working with a private judge, you and your spouse can select and stipulate to the judge.
  • Scheduling: Temporary judges generally have control over their schedules, unlike public court judges, allowing these judges to take on fewer cases and give each case the attention it deserves. 

Who May Benefit From Working With a Private Judge?

Many people may benefit from choosing to work with a private judge. The additional attention, discretion, and efficiency offered by these judges can be invaluable. You may find that hiring a private judge to oversee your divorce is the best solution if you fall into one of the following categories.

Couples With Significant Assets

If you have significant marital property, a private judge may help you resolve your divorce dispute more equitably and with less stress. High-asset divorces require careful attention to detail.

Private litigation ensures your case receives the attention it deserves. The private judge will have the time to thoroughly examine and understand the details of your case. As such, they will be better prepared to issue rulings that address each party’s relevant concerns. 

Spouses in the Public Eye

Similarly, if you or your spouse is frequently in the public eye, private judging may help you reclaim your privacy during this difficult time. Many high-profile celebrities and individuals elect to have their divorces overseen by private judges to ensure that the details of their finances and disputes remain as private as possible. 

People With Tight Timelines

You may also benefit from a private judge if you wish to expedite your proceeding. You will not have to risk delays due to crowded courts or conflicting schedules. You and your spouse will be able to work directly with the judge and your attorneys to schedule times and locations for each hearing that are convenient meet your scheduling needs.

As a result, you will face significantly fewer delays in dissolving your marriage. With a private judge, it is possible to finalize all aspects of your divorce before the end of California’s mandatory six-month waiting period, allowing you to move on with your life as soon as possible. 

Experienced Legal Representation Before Private Judges

If you are interested in working with a private judge, it is to your benefit to work with divorce attorneys who are experienced appearing before private judges. At Madigan & Lewis, LLP, we have years of experience guiding clients like you through divorces with discretion in various litigation settings. Schedule your consultation today for more information.

The material contained herein has been prepared by Madigan & Lewis, LLP for informational purposes only, not legal advice. This information is not intended to create – and receipt of it does not constitute – a lawyer-client relationship between Madigan & Lewis, LLP and the reader. This website is intended to provide information about our law firm and its services and is not guaranteed to be up-to-date or complete. Internet subscribers and online readers should not act upon this information without seeking professional counsel.

Mediation, Collaboration, and Litigation: Choosing the Right Solution for Your Divorce

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Ending a marriage is rarely easy. Disentangling yourself from someone with whom you’ve spent years of your life is emotionally and mentally taxing. There is no one right way to handle the emotional, financial, and legal complications involved in the process.

In fact, you have the opportunity to choose between several methods of dissolving your marriage. Once you have initiated the dissolution proceedings, you and your spouse have the right to decide whether you want to take your divorce to court or negotiate elements of it independently. 

Choosing the right solution for your divorce can significantly affect how long the process takes and how stressful it is. Below, you will learn the three basic methods for reaching a divorce settlement, their benefits and drawbacks, and how to choose the best alternative for your situation.

The Three Primary Methods for Resolving Divorce

California provides three main solutions for ending marriages that involve disputes, significant assets, or children. These are litigation, collaboration, and mediation. Each method has benefits and drawbacks that make them best suited for specific circumstances. To determine the approach that will work best for your situation, it is crucial to understand how they differ.

Litigation

Litigation is the process of taking your divorce before a judge. This is the solution that is most often portrayed in media, so it is the most familiar option for many couples. It is typically the most time-consuming and stressful approach, so it is best reserved for situations where negotiation is unlikely to succeed. 

When you choose to litigate your divorce, you and your spouse will schedule hearings or a full trial before a judge. During these proceedings, you and your attorney will argue your case regarding disputes within your divorce, and your spouse will do the same. After hearing both sides of the conflict, the judge will issue a ruling determining how it will be resolved. 

Litigation may cover specific elements of the case or the entire process. For example, some couples may only require litigation to resolve child custody or spousal support concerns. Others may have such serious disagreements that they need a judge to oversee every matter involved in the divorce. 

You may choose to litigate your divorce in your county’s public family courts or by hiring a private judge. Both approaches will result in legally binding orders being issued regarding your dispute. General courts may be more accessible but can also lead to significant delays due to scheduling requirements. Furthermore, many matters presented in family court are considered matters of public record, so anyone may look up the details of your relationship. In contrast, hiring a private judge may lead to higher costs, but many elements of your divorce will remain private, and you will face significantly fewer delays during the proceedings.

It is important to note that a significant majority of litigated divorces do not actually go to trial. Instead, spouses and their attorneys negotiate before the trial and achieve a settlement before appearing in court. Litigation proceeds to trial only in cases where couples cannot achieve a settlement before their court date. 

Collaboration

Collaborative divorce is working directly with your spouse and your respective attorneys to develop a divorce settlement that satisfies both of you without judicial interference. When you collaborate, you agree to negotiate fair terms for considerations such as the division of assets, spousal support, and child custody. This approach works best for couples who remain amicable or have few or no disagreements about handling these concerns. 

During collaborative divorces, the spouses are responsible for working together to find terms that suit both of them. Your attorney will work with you to ensure you understand your rights and suggest compromises, but you remain in control of what offers you accept or decline. This gives couples significantly more freedom to shape their divorce settlement into something mutually satisfying rather than risking a judge issuing a ruling that neither party likes. 

Collaboration is also the primary drawback of this approach. If your spouse is unwilling to compromise on a matter, you may not be able to negotiate a fair and satisfying settlement. In that case, you may need to litigate that specific matter to have a judge decide it for you. 

Mediation

Between litigation and collaboration lies mediation. In this approach, you hire a neutral third-party mediator to oversee negotiation meetings between you, your spouse, and your respective attorneys. The mediator may make suggestions, guide the meeting, and ensure your discussions remain civil. They will not make legally binding orders, however. 

Mediation can be an excellent compromise between collaborative divorce and litigation. Having a neutral party present ensures that even if emotions run high, there is someone to keep negotiations focused on the task at hand. Since they are not directly involved in the situation or advocating for either party, they may also see solutions that you may not have noticed on your own. This makes mediation a great choice for couples who have disagreements but want to negotiate. 

As with collaborative divorce, though, mediation requires both parties to be willing to compromise and work together. If either person is unwilling to bend, it may still be necessary to litigate certain aspects of the case. 

Choosing the Right Solution for Your Split

Litigation, collaboration, and mediation all have their strengths. Collaborative allows you to work with your spouse to reach a settlement that makes you both happy. Mediation does the same while adding a buffer to help you remain professional despite any emotional turmoil. Meanwhile, litigation allows you and your spouse to have your case heard by a judge to receive a fair and legally binding ruling on any issues on which you cannot reach a compromise.

Choosing the right solution can be difficult. If you are unsure what method will work best for your situation, you should consult with the experienced divorce attorneys at Madigan & Lewis, LLP. We have years of experience guiding clients through mediation, collaborative divorce, and litigation. Schedule your consultation today to discuss your case and learn more about how we can help you choose the right approach and support you through the process every step of the way. 

The material contained herein has been prepared by Madigan & Lewis, LLP for informational purposes only, not legal advice. This information is not intended to create – and receipt of it does not constitute – a lawyer-client relationship between Madigan & Lewis, LLP and the reader. This website is intended to provide information about our law firm and its services and is not guaranteed to be up-to-date or complete. Internet subscribers and online readers should not act upon this information without seeking professional counsel.