Posted by: Gerald A. Maggio, Esq.
Going through a divorce can be a difficult time for couples. Not only must they decide on an attorney to hire, but they must also consider whether a divorce can be handled through mediation rather than litigation.
Mediation is a practical option that can offer couples a chance to end their marriage in the spirit of cooperation rather than hostility. Once mediation is chosen as an option, the couple will work with a mediator to reach an amicable resolution of any issues that remain at the dissolution of the marriage.
“Mediation can offer couples the opportunity to end their marriage in a manner that minimizes stress and maximizes cooperation. During mediation, both parties can work together to achieve a positive outcome where both parties get some of what they want,” explained Gerald A. Maggio, an Orange County divorce attorney.
One of the most common reasons couples choose mediation is because it is less expensive than litigation. A couple will need to hire only one person to assist them in their divorce, rather than two separate attorneys. It is a flexible, inexpensive way for a couple to end their marriage without much conflict.
Mediation is also a good choice for couples because it offers them a greater degree of control than other options. When couples choose to pursue litigation, all of the decisions regarding their future rest in the hands of a stranger who really does not know their situation and personal circumstances.
“If divorces are settled through litigation, a judge will be responsible for making decisions that will affect a family’s future. A judge will have limited time to hear the details of each divorce case and cannot carefully consider how a decision will affect a family in the long-term. Mediation, on the other hand, offers families the flexibility to take as much time as necessary to consider how these decisions will impact their future,” indicated Maggio.
A divorce can have a traumatic effect on children, and pursuing mediation instead of litigation is often easier on them. When choosing to use a mediator, it can help families move forward in a way this is amicable. Children will not be subjected to a bitter battle in a court room, and the couple will be able to work together to find the best solution without putting the children in the middle. “Placing children in the middle of difficult divorce proceedings could impact their ability to have healthy relationships and may cause them to suffer emotional problems that can carry into adulthood. Mediation allows parents to discuss important decisions in an arena that is less stressful on child,” added Maggio.
Mediation is also a great option because it does not limit couples from going to court. If a couple is not satisfied in mediation and cannot come up with a solution that fits both parties, they can stop at any time, retain separate attorneys and have a judge decide their important issues.
Mediation is not the only alternative to an unpleasant divorce experience, but it is an option that deserves serious consideration. A family law attorney is an excellent choice for a mediator, as he or she will know and understand the rules of divorce and will understand the type of decisions a judge could make, if the matter has to be litigated. A divorce attorney serving as a mediator can also prepare the necessary documentation to complete the divorce process in the court.
To learn more about the Maggio Law Firm visit http://www.maggiolawfirm.com/.
Posted by: admin
The next step after service of the Summons and Petition for Marital Dissolution and the Response thereto is for both parties to complete and exchange their own “Preliminary Declaration of Disclosure.”
Both parties in a California divorce are required to disclose detailed, accurate information to the other about their respective incomes, expenses, property (both marital and separate property) and all debts and obligations. There mutual disclosures are called the parties’ “Preliminary Declaration of Disclosure”. The formal disclosures are signed under penalty of perjury. A Final Declaration of Disclosure can be completed at approximately the time of trial or settlement in the case unless the parties mutually agree in writing to waive such final disclosure.
These Declarations of Disclosure consist of special forms required by the court, and except for proof that the parties served each other with such forms, these forms are otherwise not filed with the court. The 4 forms that generally comprise the Declaration of Disclosure are:
1. Declaration of Disclosure (Form FL-140)
2. Income and Expense Declaration (Form FL-150)
3. Schedule of Assets and Debts (Form FL-142)
4. Declaration of Service of Declaration of Disclosure (Form FL-141)
The purpose of such financial disclosures is to make settlement negotiations easier to proceed because of the generally clear picture of the parties’ financial situation given by such formal disclosure. Moreover, it protects the parties in the event that either spouse failed to disclose all assets.
California law requires that the disclosure documents be completed and served twice, once at the beginning of the divorce (Preliminary) and then again near the end of the case immediately prior to trial or judgment (Final). However, the parties can agree to waive service of the final Declaration of Disclosure, as long as such a waiver is in writing on the appropriate legal paperwork.
Posted by: admin
In any California child custody case, including divorce and separation cases, whenever an Order to Show Cause (OSC) hearing addressing child custody and visitation issues are filed, the Court will order that the parties attend mediation at no cost through the court’s mediation department prior to the Order the Show Cause hearing date. Although the law requires that the parents participate in mediation, there is not a requirement that they reach an agreement.
Mediation is intended to reduce conflict between the parties by encouraging cooperation and assisting parents in creating their own parenting plan the meet the needs of their children with their best interests in mind.
The court mediators are generally trained professionals who have at least a Master’s Degree, have extensive experience in psychology and marital/family counseling and are trained in conflict resolution.
In mediation, the mediator meets with the parties wither together and/or individually. If there has been domestic violence between the parties, the mediation is usually held in separate sessions with each parent for safety reasons and to avoid any appearance of intimidation.
The mediator works to assist the parties in focusing on parenting arrangements that are in the best interests of their children and can put together a partial or full parenting agreement schedule (including legal custody, parenting plans, holiday and vacation schedules, transportation and other issues) depending on what the parties are able to agree upon in mediation.
Parents can sometimes resolve all of their parenting issues in mediation, sometimes only a partial agreement can be reached, and otherwise no agreement is reached. Mediators only draft agreements that are acceptable to both parties. If the mediation agreement is still agreeable to both parties at the time of the Order to Show Cause hearing, in can be adopted and incorporated into a court order.
Only the parties attend mediation, with no attorneys, spouses or other family members present, although a second session can sometimes be requested so that the mediator can speak with the parties’ children, if it is believed that such feedback would be helpful in assisting the parties to develop parenting plans.
Posted by: admin
In Orange County, mediations are merely efforts for the parties to meet face-to-face without their attorneys to attempt to resolve such issues. Mediators in Orange County do not make recommendations to the Court of parenting plans.
However, in Riverside County and other Inland Empire Family Courts, the court mediator can make recommendations regarding child custody and visitation that the Court judge will very likely give substantial consideration to in making court orders.
Mediators in all California Custody cases are allowed under law to make recommendations to the Court where there are allegations of domestic violence, drug and/or alcohol abuse, and other concerns of the mediator affecting the welfare and best interests of the children. Such recommendations can include an emergency child custody evaluation, a domestic violence investigation, a full psychological child custody evaluation, or the appointment of a “minor’s counsel,” who is a private attorney appointed to represent and protect the best interests of the minor children.
Posted by: admin
Stipulation (Agreement) of the Parties:
When parties are able to work together in reaching agreements for temporary orders or final settlement of their entire marital dissolution case, a “Stipulation & Order” for temporary orders or a “Marital Settlement Agreement” can be drafted by the attorney outlining the terms of such agreement which the parties and their respective counsel will sign and when filed with the court, they become official orders of the court.
Trial:
If the spouses ultimately are unable to reach a more “permanent” agreement on all custody, visitation and related issues, the parties will need to request that a trial date be set to have the judge assigned to the case decide the issues. There are not juries in family law court, so such issues are generally decided by the Judge or a Commissioner of the Family Law Court.
Posted by: admin
California has a six-month “cooling-off” period prior to entry of a judgment in a marital dissolution case, meaning that a judgment terminating the marriage cannot be entered until at least 6 months after the date the other spouse was served with the petition for marital dissolution has passed. However, nothing happens automatically when the 6 month time period is reached, and the court does not automatically terminate the marriage after 6 months. Entry of a judgment requires either a formal Marital Settlement Agreement be entered into by the parties as part of a judgment package filed with the court, or otherwise by court orders made at trial.
Posted by: admin
Yes. Until a judgment is entered in your divorce case, you cannot legally remarry. However, in cases where the issues are heavily contested, it it possible to seek a “Bifurcation of Marital Status” wither by agreement or court order whereby the Court separates the issue of marital status from the rest of the case, restores the parties to the status of single persons, and reserves the remaining issues for further determination. Bifurcation of marital status enables the parties to remarry while they continue to negotiate and litigate the remaining issues of their divorce.
Posted by: admin
A California divorce cannot be ordered by the Court until at least 6 months after the other spouse was served with the initial Summons and Petition, i.e. a “cooling off” period that cannot be shortened or waived. Moreover, nothing will happen after those 6 months in ending your marriage unless you and your spouse enter into a written judgment agreement or otherwise take the divorce to trial. In other words, a judgment can only happen with either an agreed-upon judgment or going to trial. Until that time, neither party can legally remarry.
In situations where the parties have not resolved all issues or one or both parties seek to be divorced in order to remarry, a party can seek a “bifurcation” of marital status, wherein the court terminates your status as a married couple but reserves jurisdiction over all other issues of the marriage until further agreement can be reached or the case goes to trial.
Posted by: admin
For couples who have been married for less than 5 years, have no children together, will not seek spousal support from each other, have very little property or debts together, and can mutually agree on how to divide their property and debts, a California “summary dissolution” is a simplified alternate to a regular divorce. Such couples can complete and file special forms together with the court and will not need a court hearing to finalize their divorce.
Legal Requirements:
1. The parties have been married for 5 years or less.
2. The parties have no children from their relationship.
3. Neither party owns a home of other real estate property
4. The value of all community property totals less than $25,000.
5. The combined total debt of the parties is $5000 or less.
6. The parties mutually agree to waive spousal support from the other.
Posted by: admin
Joint legal Custody means that both parents share the right and responsibility to make the decisions concerning the health, education and welfare of the child (Family Code 3003). In making an order for custody concerning both parents, the court may grant joint legal custody without granting joint physical custody (Family Code Section 3085).
Family Code Section 3003 does not spell out any details of exactly what “Joint Legal Custody” entails, and so it is highly advisable that any court orders in your case include a detailed listing of the specific rights and responsibility of both parties as they pertain to legal custody. The specified rights and responsibilities include the following provisions:
1. The parents must confer in making decisions on the following matters:
- Enrollment in or leaving a particular public or private school or daycare center.
- Participating in particular religious activities or institutions.
- Beginning or ending of psychiatric, psychological, or other mental health counseling or therapy.
- Selection of a doctor, dentist, or other health professional (except in emergency situations).
- Participation in extracurricular activities.
- Out-of-country or Out-of state travel.
2. The parent who has the physical care of the children at any given time shall have the routine decision-making rights and responsibilities during these periods of time; however, all major decisions pertaining to health, education and daycare shall be made jointly by the parents. No prior consultation is required between the parents regarding emergency medical or dental treatment, routine checkups, or minor illness. However, the other parent shall be notified immediately in the case of an emergency. A sharing of routine health information is encouraged.
3. In the event that controversy arises regarding major medical decisions, both parents shall first consult together and if no resolution is reached, meet and confer with an expert in the field related to the dispute, e.g. the child’s doctor, teacher, counselor, etc. If the consultation does not resolve the dispute, the parents shall return together to Mediation at the courthouse in an attempt to reach an agreement. Finally, if the dispute continues, if shall be submitted to the Court for a decision, and until then, the existing orders shall remain in effect.
4. Neither parent shall enroll the children in activities that require a commitment from the other parent or interfere with a previously agreed upon Court-ordered schedule without mutual approval. Parents are encouraged to attend their children’s activities. Parents are responsible for keeping themselves advised and for advising each other of all school, athletic, and social events in which the children participate.
5. Pursuant to Family Law Code Section 3025, both parents shall have the same access to psychological, medical, dental and school records pertaining to their children and shall be permitted independently to consult with any and all concerned professionals. The names of both parents shall be listed on school and extracurricular cards to be contacted in case of an emergency.
6. Each parent shall notify the other of the name, address, and telephone number of each health practitioner who examines or threats the children; such notification to be made within one day of the commencement of the first such treatment or examination.
7. Neither parent shall submit the child to any psychological/psychiatric testing or evaluation or to any extended course of medical, dental, orthodontic, psychiatric or psychological treatment/counseling without first obtaining the consent of the other parent.
8. Both parents are required to administer any prescribed medications for the children.
9. Each parent shall be entitled to reasonable telephone communication with the children at reasonable hours. Each parent shall not interfere with the children’s right to privacy during such telephone conversations.
10. Neither party shall change the surname of the children or cause surnames to be changed on medical, dental, school, DMV records or other legal documents without the consent of the other parent or order of the court.
11. Either party may travel out of the state of California with the minor children.
12. Should either parent move from their current residence, they shall advise the other parent of their now address and telephone number with two days prior to the move.
