Madigan & Lewis LLP

San Mateo County Divorce Attorneys

Divorce

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, all 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 all elements of your divorce will remain confidential, and you will face significantly fewer delays during the proceedings.

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. 

How Can I Keep Our Divorce from Impacting Our Children?

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The decision you make about the process you are going to use for getting divorced is the first decision you will make to limit the impact on your children. Not all clients are aware that they have choices because not all attorneys educate their clients about ADR (alternative dispute resolution) options. Parents can minimize the impact on their children by choosing mediation or collaborative divorce. Or, they can retain attorneys trained in mediation to settle the dispute or a private judge to help facilitate a settlement. Litigation in public court is usually a last resort but unavoidable in some cases.

No matter which process option is chosen, here are some important rules that parents can follow to shield their children from the impact of divorce:

  • Children should be encouraged, and parents need to remember that children are entitled to love both of their parents. It’s critical for children that they be protected from the conflict.
  • Do not talk badly about the other parent. This causes children to feel badly about themselves. It causes them to feel torn in two different directions.
  • Do not talk about the divorce or other grown up things. There are certain topics that should be off-limits. Do not make your child feel badly when they talk about their other parent or             show  joy. They should be entitled to enjoy their time with both of their parents.
  • Do not interrupt the other parent’s time by making repeated or unnecessary telephone calls.
  • Try not to argue with the other parent in front of the child. Arguing is frightening and really turns a child’s stomach inside out.
  • Do not use your child as a messenger for relaying messages to the other parent. Consider using Our Family Wizard or another co-parenting app.
  • Do not ask your child to spy on the other parent.
  • Do not treat your child, especially your teen, like your therapist, or an adult. It is important not to blur the boundaries. If you need emotional support, you should ask your therapist or a           trusted friend for help.

Following these rules will help to protect your child from conflict and improve their long-term prospects for success in life.  Children who are caught in the middle may go on to have problems with substance abuse, anxiety, or depression.   Help your child to feel safe emotionally and have loving relationships of their own down the road.

San Mateo County Superior Court Releases Best Practice Recommendations for Parents Sharing Custody and Parenting Time During COVID-19

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San Mateo County Superior Court Releases Best Practice Recommendations for Parents Sharing Custody and Parenting Time During COVID-19

COVID-19 has presented a new set of challenges for parents sharing custody and parenting time. Shelter-in-place orders, school closures, job losses, and limited family court operations have complicated parents’ ability to interpret, follow, and enforce court-ordered parenting plans.

On April 13, 2020, the Family Law Division of the San Mateo County Superior Court provided nine best practice recommendations for parents sharing custody and parenting time during the COVID-19 pandemic.

The goal of the Court’s recommendations is to encourage parents with shared custody orders to continue to follow their parenting plan as closely as possible. During these uncertain times, it is critical that parents are flexible, transparent, and collaborative, as doing so will ensure a level of consistency and stability that is in the children’s best interests.

The nine best practice recommendations include:
1. School Closures. Parenting time should continue as if the children are still attending school in accordance with the school calendar of the children’s school district.
2. Denial of Parenting Time. COVID-19 is generally not a reason to deny parenting time.
3. Parenting Time in Public Places. If there are no open parks or recreation areas where parents and children can maintain social distancing and avoid commonly touched surfaces, then parenting time should be conducted virtually via videoconferencing or telephone.
4. Supervised Parenting Time. If the supervision provider is unavailable due to COVID-19 related issues or government orders, the parents should work collaboratively to ensure parenting time continues to occur in a manner that promotes their children’s safety and well-being.
5. Governor’s Executive Orders Regarding Travel. Parents whose custody orders require out of state travel or travel outside of the 9 Bay Area Counties for custodial exchanges should work collaboratively to determine whether such travel is currently advisable or should be rescheduled in light of local health conditions where visits are scheduled to occur and the potential for COVID-19 related travel disruptions.
6. Exchanges. During the exchange of children, all parties should follow CDC guidelines and local health officer directives for limiting the spread of the virus.
7. Transparency. Unless parties are restrained from communicating with one another by court order, parents are encouraged to communicate with one another about precautions they are taking to slow the spread of COVID-19, and about potential exposure to the virus within their own households.
8. Makeup Parenting Time. If parenting time is missed due to COVID-19 related issues or government orders, parents are encouraged to work collaboratively to schedule makeup parenting time.
9. Flexibility. If COVID-19-related changes to a parent’s employment or health situation make current custody orders impractical, parents are encouraged to work together to reach agreements to modify those orders in the best interests of their children.

The complete recommendations can be found at the link below: https://www.sanmateocourt.org/documents/court_news_and_notices/041320a.pdf.

Divorcing or Co-Parenting While Sheltering-In-Place Due to Covid-19 or Coronavirus

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Divorcing While Sheltering-In-Place Due to Covid-19 or Coronavirus

Divorce is supposed to be one of life’s most stressful events.  And then you add Covid-19 and school closures to the mix.  It is a highly combustible situation!  The stress level for our clients, especially those who have a high-conflict parenting relationship with their ex-spouse, is off the charts right now.

While we are all new to this constantly changing landscape, below are some tips to help guide litigants and parents during this uncertain time.

  • Continued Hearings. Many courts in the Bay Area have postponed non-essential court hearings.  If you have a matter pending with the court, go online or contact your attorney to find out whether your case has been impacted.  Do not appear in court if you are sick or symptomatic.  Contact your department and ask the clerk for permission to attend your appearance telephonically.  If you cannot reach your department’s clerk, try calling the court’s family law clerk for more information.  For updates on California court proceedings, visit: https://support.onelegal.com/california-court-updates-covid-19
  • ADR. Ask your attorney about ADR, including mediation, attorney-assisted negotiation and settlement, private judging, or collaborative divorce to move your divorce case forward to a resolution while the Shelter-In-Place Order continues.  Many divorce professionals are continuing to resolve cases using Zoom or other web conferencing technology.  There is no reason why your case should have to stop just because the courts are temporarily shut down.
  • Domestic Violence Restraining Orders. For those of you who are in an abusive situation or need the protection of a domestic violence order, know that courts remain open to issue emergency domestic violence restraining orders.  Also, law enforcement and emergency services continue to operate.  You can call the police if you are experiencing domestic violence.
  • New Divorce Cases. Can you start a divorce now?  Yes, the courts are allowing cases to be filed.  However, the appropriate timing of a divorce filing really depends on the unique circumstances of your case.  You should consult with a family law attorney for advice about timing.
  • Follow your Custody Orders/ Parenting Plans. Do not use Covid-19 as an excuse not to exchange your children or follow a court order or written parenting plan.  Judges will not look kindly upon parents who use this crisis as an excuse to withhold their children from the other parent.  Moreover, children right now need a stable home life more than ever because they are losing the structure and routine associated with attending school.  If your children are accustomed to a regular parenting schedule, this schedule should continue unless there are exigent or emergency circumstances warranting a deviation, such as the other parent is self-isolating or has been diagnosed with Covid-19.  If you are truly concerned about the other parent’s ability to parent safely during this crisis, you should promptly seek legal advice.  If your parenting plan or custody orders are ambiguous and you are unsure how to handle the school closure, try to work it out with the other parent or seek legal advice if necessary.  Try to be flexible and put the needs of your children first.
  • The Importance of Self-Care. Please put the oxygen mask on yourself before your child (i.e., the importance of self-care).  Now is the time for parents to take care of themselves so that they are able to take care for their children.  This includes eating well, getting enough sleep, and getting exercise.  Stress can also be managed with the help of a meditation app, such as Calm.  It’s also important that we all find opportunities to connect with one another where we can by telephone or Zoom.

Obviously, this is a rapidly changing situation.  The information provided above does not, and is not intended to, constitute legal advice; instead, all information, content, and materials available on this site are for general informational purposes only.  Nor is the information contained in this article intended to be exhaustive.  Readers of this article should contact an attorney to obtain advice with respect to any particular family law matter.

 

 

A Request for Family Code, Section 271 Sanctions Made in a Response is Not Prohibited Affirmative Relief under Family Code Section 213.

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The Second Appellate District finally eliminates the confusion, holding in Marriage of Perow & Uzelac (2019) 31 Cal.App.5th 984, that a responding party’s request for sanction-based attorney fees under section 271 is not an impermissible request for alternative relief on different issues. The court explains that the Family Code, Section 213 restrictions on seeking affirmative relief on issues different than those raised in the moving papers are designed to keep the proceeding limited in scope to the “message” raised by the moving papers. By contrast, when the responding party is seeking Family Code, section 271 sanctions to redress the moving party’s conduct in litigating his/her motion, the sanctions request does not fall outside the scope of the moving party’s “message”. The sanctions request is properly responsive to the conduct of the movant and is therefore a permissible “attack on the messenger, not on his message.” (Id. at p. 991.)

Emergency Screenings in Santa Clara County Family Courts

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What Is an Emergency Screening?

An Emergency Screening is ordered to assist the court in determining the health, safety, welfare, and best interests of the child regarding the current emergency related to child custody and visitation.  An Emergency Screening is an urgently needed and time limited examination conducted by an investigator from Family Court Services, focusing on emergency issues and resulting in written recommendations to the court.

When Is an Emergency Screening Appropriate?

Emergency Screenings are a limited resource which should be reserved for cases involving true emergencies pertaining to a child’s immediate health, safety, or welfare.  The court will send a case to an Emergency Screening only if it is necessary due to an imminent risk to the child.

Pursuant to the Guidelines, an Emergency Screening is appropriate when:

  • There is evidence that the child may have been abused, neglected, or endangered;
  • There is evidence of child abduction or legitimate concern related to potential child abduction;
  • A parent is denied access to the child and there is no visitation order;
  • A move away issue is related to the emergency safety issues;
  • There is significant evidence that the child is suffering severe ongoing distress related to the existing time-sharing arrangements;
  • A parent is severely developmentally or psychiatrically disabled and the judge is therefore unable to determine an appropriate temporary time-sharing arrangement; and
  • Medical neglect that endangers a child.

What Happens at an Emergency Screening?

Before the Screening:  Each party may submit documents, certificates, photos, records, letters, etc. to the screener so long as everyone in the case has been given a copy.  A signed declaration made under penalty of perjury or a copy of a proof of service is required.  The limit for documents is 15 pages.  Attorneys will meet with their assigned screener for about 15 minutes.  Counsel will have the opportunity to tell the screener what they allege is a safety concern, deny is a safety concern, and feel would be best for the child.

During the Screening:  First, the screener will interview the parents.  Domestic violence victims are entitled to have separate interviews and may have a support person attend the screening.  The screener will then review the court file and selected documents or materials related to the emergency issues.  The screener will:  (1) conduct criminal record checks on all adults living in the home; (2) conduct a Child Protective Services history check; (3) interview the child(ren); (4) observe the child(ren) interacting with the parents or other family members; (5) interview other family members or witnesses by phone or in person; and (6) collect additional data from school, daycare, physicians, police, etc.

After the Screening:  Upon completion of the Emergency Screening, the screener will present written recommendations to the parents, attorneys, and the Court.  If both parents agree to the recommendations, they will become court orders.  If either parent does not agree with the recommendations, they will be presented to the judge and the parents will have a short hearing at the conclusion of which, the judge will make immediate, temporary orders related to child custody and visitation.

For more information about Emergency Screenings, please visit https://www.scscourt.org/court_divisions/family/fcs/fcs_home.shtml or contact a family law attorney who practices in Santa Clara County.

Holiday Tips for Divorcing Families

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  1. Make a detailed holiday plan and keep the children informed of the plan. Planning and predictability helps children cope with the often-intense emotions and expectations of the holidays.
  2. Be open and flexible. Although it is important to have a detailed and specific plan, changes are inevitable so don’t adhere too rigidly to your plan.
  3. Make early travel and logistical arrangements and provide the other parent with a copy of the travel itinerary and emergency contact information. This avoids last minute confusion and significantly decreases risk of conflict.
  4. Include the children in making the plans. If the children are old enough, include them in discussions about the development of new, post-separation holiday traditions, but make sure they understand that the final decision making is up to the parents.
  5. Create space for the children to describe their holiday experiences at the other parent’s home while still respecting their privacy and avoiding interrogation.
  6. Create new holiday traditions. Even though the family structure is now altered, invite the children to work with you to help create new personalized traditions while still honoring the old traditions.
  7. Holidays are not the time to introduce new romantic partners or other emotionally charged information such as a move.
  8. Make pick-ups and drop-offs conflict free. Avoid the temptation to discuss separation or divorce issues with the other parent during holiday drop-off and pick-up times as tensions are heightened and the children sense this.
  9. Email communication should be brief and focused. This is especially important during the holidays. Limit emails to one topic using one paragraph of five sentences or less and send no more than two emails per day, absent an emergency.  Keep the focus of your emails on the children and try not to repeat yourself.  Make sure emails are between the parents, not significant others or step-parents.
  10. Give yourself a break. Holidays can be stressful in the best of circumstances.   It is to be expected that you will struggle with difficult feelings and behaviors.  Do your best to parent cooperatively and put the children first but understand there is no right or perfect way for divorcing families to manage the holidays.

Adapted from Kids First: What Kids Want Grown-ups to Know about Divorce and Separation by Peg Libby (AFCC Ask the Experts).