Sep 19

Self-Represented Divorce Strategy number 6: Unbundled Services Give You Professional Help Without the Huge Attorney Price Tag

This is Thomas Ferreira, your divorce and child custody lawyer and mediator in Carlsbad, California. I just got back from back-to-school orientation for my boys. I took this task on even though my ex-wife has the kids this week, applying my core strategy of being nice and building trust.

Now I’d like to move on to a subject on many of your minds: What do I do when I feel like I’m in over my head, especially if I have a family court date coming up? It may surprise you to learn that even seasoned family lawyers can be nervous before court. And, what about your written presentation. Don’t most judges make a tentative ruling before a family law or child custody hearing based on what you present in writing? You may be wonderful at explaining your case to others, but poor writer. Or maybe you write like a Pulitzer Prize winning journalist, but you get tongue-tied and flabbergasted as soon as you’re before the court. If that’s you, let me introduce you to a wonderful and well-hidden secret in family law: You don’t need to hire a lawyer to handle every aspect of the case. Hire a lawyer to do those things that you need, and manage the rest of the case yourself.

Ghost-Written Motion Papers:
One way to use a lawyer effectively and inexpensively is to have the lawyer “ghost-write” your court papers. Did you know that an expert family lawyer can write your papers for any motion, and you don’t have to disclose who did the work? You ask the lawyer to prepare your motion or Request for Order, and give the lawyer the facts. The lawyer will then write a persuasive declaration and written argument championing your cause. The paperwork is then filed by you. You get a professional work product without having the lawyer sign on as your attorney of record.

In California, I draft moving papers for request for order hearings (“RFOs”), domestic violence proceedings and even trial briefs. I can ghost-write RFOs or Responses to RFOs in your divorce case for a flat fee of $700. Prices may vary based on complexity of the matter, but I will normally require a $3,000 deposit (10 hours of professional time) to handle the same RFO from start to finish. You know your case better than anyone. You know your finances and your relationship to the children, and are in the best position to argue your RFO. And, you’ve put your best foot forward with a top-flight declaration, legal brief (“points and authorities) and list of exhibits

Spot Appearances:
If you’ve followed our advice in the past and organized your exhibits and evidence, you may just need someone to argue the motion in court. An attorney can sign a “Notice of Limited Scope Representation” and be your attorney of record for just that appearance. I find that many times people spend their entire war chest early in the case, and find themselves facing a child custody or family law trial without an attorney. If you’ve got a fight on your hands, it’s sometimes effective to save your best ammunition for the final battle. Have a lawyer draft your moving papers, your exhibits, and then make the appearance at your trial. Make sure you make arrangements with the attorney well in advance of the trial date, as most attorneys are reluctant to jump into a case in the weeks leading up to a trial.

Unbundled Services as Part of a Comprehensive Plan:
Unbundled representation is not always the best way to go, and I advise you to consult with a lawyer early on to create a comprehensive plan of action. If you’re using attorney services as needed, you are responsible to build the case file and the record without the lawyer’s help. It’s best to establish a relationship with a lawyer who has familiarity with your case. Don’t expect a lawyer to jump in and try your case one week before the trial date.
Remember, too, that the best case is a settled case. Try to avoid court battles when possible so that you can …

Love your family,
Protect your finances, and
Reach for your future!
Thomas D. Ferreira, Esq.

Disclaimer: Thomas D. Ferreira is an attorney licensed only in the State of California. The information set forth in this blog or on our websites are not intended to create an attorney-client relationship, nor are they intended as legal advice on your specific matter. This information is not intended to apply to cases or jurisdictions outside the State of California, and those viewing this information outside of California, or having business before jurisdictions outside of California, should consult a local professional or lawyer. The information in this blog is not a substitute for the advice of competent counsel, and is not intended, nor should it be construed, as a guarantee, warranty or prediction regarding the results of your legal matter.

Jul 25

The Philosophy of Divorce

This is Thomas Ferreira, your family law attorney and mediator in Carlsbad California. Today I want to tell you about a philosophy of going through a divorce, child custody, support or other family law matter.
If you are already in the thick of family law litigation you will recognize some of the things I will discuss in this post. For those of you at the very beginning, you may feel like your at the edge of a black abyss, staring down into unknown depths and wondering what’s in store for you.

What I’d like to do is shine a light into the abyss, and give you some philosophy you can use right away as you start this journey in California family law court.

1. It’s Not What You Think.
Most people think divorce court or child custody court is always the way it is portrayed in the movies. That is, by its nature nasty, adversarial and dominated by lawyers and judges. But the truth is, in a large majority of the 138,121 divorce filings in fiscal year 2014-2015, about 70 percent of the cases had at least one self-represented person at the beginning, and by the end of the case about 80 percent did. That’s a lot of self-represented folks.

2. Change your thinking about your case.
When thinking about a core philosophy of moving through divorce, I’m tempted to cite the episode of Seinfeld where George decides he is going to do the opposite of his normal inclination for every decision he makes. Straight off, he goes up to an attractive female and says, “Hi, I’m George Costanza, I’m unemployed and I live with my parents.” This may not be a good real-life guide to our family law system, but for many of you it may be a good thing to have in your head as you consider your options.

The temptation is strong in divorce and child custody to take actions that are hurtful to the other side and destroy trust. After all, you are divorcing or breaking up. It’s natural to send emotional attacking messages. It’s natural to seek the most aggressive lawyer you can find to make them pay or protect your rights. This is literally what most people do. I know a man whose divorce case cost him and his ex-wife over half a million dollars. The case was eventually tried in 6 full days, and the court rendered a verdict transferring a huge portion of his wealth to his ex. He struggles with bitterness over the result, and over the effect all this has had on his children.

If I could sum up the philosophy I have used to move through the system for countless clients and through my own case, I would say, “If you want to do well in the divorce system, take every opportunity to build trust between you and your soon-to-be-ex.
This seems counter-intuitive, so let me explain. If you’re nice to the other, understanding their decision, helping them with the children, and following through on commitments and obligations, you’ll build trust over time. If you have the trust and confidence of the other, you won’t need aggressive lawyers, who really only make things worse and more expensive. You’ll be able to agree. You’ll be able to look at the big picture, and resolve your case. In my own case, my current wife and practice manager, Tammy, has taught me much about this. She is kind to my ex-wife, helping her with our kids and the kids from my ex-wife’s second marriage. This kindness has engendered a trust that helps my ex and me when we have disagreements. We have, with a few exceptions, been able to move through the process without court intervention.

A second philosophy that I have covered in other posts is that the family court is ill-equipped to solve most of the problems that come before it. There is a guy that I met recently that I see nearly every time I am in court. He keeps coming back, thinking that the court can solve his problems. He is like the proverbial person who keeps doing the same thing over and over again while expecting a different result.

The take away here is that if you can sum up the courage and self-control to be nice to your ex, you’ll end up with more money and more happiness after the process is over. And the second take-away is that often the court cannot solve your problems.

So, tune in for next week and until then,

Love your family,

Protect your finances, and

Reach for your future!

Thomas D. Ferreira, Esq.

Disclaimer: Thomas D. Ferreira is an attorney licensed only in the State of California. The information set forth in this blog or on our websites are not intended to create an attorney-client relationship, nor are they intended as legal advice on your specific matter. This information is not intended to apply to cases or jurisdictions outside the State of California, and those viewing this information outside of California, or having business before jurisdictions outside of California, should consult a local professional or lawyer. The information in this blog is not a substitute for the advice of competent counsel, and is not intended, nor should it be construed, as a guarantee, warranty or prediction regarding the results of your legal matter.

Apr 11

HOW TO WRITE DECLARATIONS FOR DIVORCE COURT HEARINGS: TIPS FROM AN EXPERT CHILD CUSTODY AND DIVORCE LAWYER

In today’s economy, many separated and divorcing people face being their own lawyer at a California child support, child custody or alimony (spousal support) hearing. Whether your case is set in Vista, San Diego, El Cajon or Riverside, You may wonder, “how do I get support or child custody if I don’t have a huge war chest?” Increasingly, fathers and mothers in divorce cases must write their own affidavits or declarations in support of their positions on child custody, child support, alimony and property issues.

Here’s the rub: Family Court judges are lawyers, trained to understand legal arguments. Even if you are before the court In Pro Per (literally “on behalf of myself”), you are expected to write a lawyer-like declaration, and to present accurate, neat, lawyer-like pleadings.

I have had private conversations with judges who tell me that they dread seeing the unrepresented child custody, child support and alimony cases come before them. Though you may not think so, these hard-working judges really do care about the well-being of your children and they want to make a fair decision in your case. You will get more time with your children, and a better child support or alimony award, if you make the judge’s job easier. Here are some tips:

1. When drafting Request for Order (RFO) declarations, stick to the facts and avoid conclusions. Preparing declarations is a little like writing a newspaper article. Stick to the what, where, why, when and how. Avoid conclusions like “she is an unfit mother,” or “he is an emotionally abusive father.” It is better to let the facts do the talking. The more specific you can be as to the exact date, time, place and circumstance of each individual instance, the better. Instead of making a conclusion, set forth the facts that will lead the judge irresistibly to your conclusion.

2. Break your narrative into short, numbered paragraphs. Nothing will give your Family Court judge an Excedrin headache faster than long, run-on paragraphs. When I write declarations, I number each paragraph, and I break each incident down into a brief paragraph setting forth the “what, where, why, when and how” of the incident I wish to describe. Here’s an example:

“On April 11, 2017, Ms. Jones pleaded guilty to charges of driving under the influence of alcohol/drugs, driving with a blood alcohol content of greater than 0.8% and-and-run with property damage. At the time of the arrest in the latter case, February 12, 2017 at 11:00 PM, Ms. Jones was driving, presumably while intoxicated, with the minor children in the backseat of her car.”

3. Proofread your work. The more professional your work product, the better. Have a friend, preferably a good speller, review your work. Take the time to do your writing well, and if you know someone who is a good writer, have them ghost-write your declaration. Make sure your work is easy to read and understand, and you will increase the chances that the judge will rule in your favor.

4. Hire an expert lawyer, such as Thomas Ferreira, to draft your moving papers. I am an excellent writer, deeply familiar with type of writing that Family Court judges expect. Also, I am able to be objective, writing your request for child support, increased time with your children or spousal support in a way that will impress the judge without sounding shrill. And, current Rules of Court do not require that an attorney performing “unbundled services” reveal that he is the actual author of the papers. You are free to present your papers to the court as your own.

Following this advice, you should be able to make a winning argument at your child custody or support hearing. Please not hesitate to contact me if you have any questions about how to draft winning declarations.

Would you like a free template for your declaration? CLICK HERE: Free Declaration Templates

Would you like even more help in drafting a persuasive declaration? Click here to purchase Thomas’ instructional ebook on How to Write Declarations the Court will Read!.

Thomas D. Ferreira, Esq.

Mar 29

WANT TO FEEL CONFIDENT IN DIVORCE COURT? CARLSBAD DIVORCE ATTORNEY/MEDIATOR REVEALS A HUGE SECRET

Thomas Ferreira here, your divorce lawyer and mediator in Carlsbad California. Everyone thinks that the secret to winning in divorce court or family court (if you are an unmarried parent) is to have the best lawyer. That’s what the lawyers want you to believe.

Preparation for Prodigious Pro Pers

I wish I had a dollar for every self-represented litigant that I saw wipe the floor with one of household name attorneys. I get a front row seat to these hearings as I’m waiting for my client’s case to be called.
These prodigious pro-pers have one thing in common: they are well-prepared. They have given thought to what they want the court to do, and they have all the relevant information at their fingertips. Their presentation has a central theme, and they seem to have an answer for every question from the court.
At the heart of preparation is the organization of information. If it’s easy to find the information, you can produce it to the court, to your ex, to your ex’s lawyer or other divorce professionals. To lay the ground work for preparation, you need two things:

• A tabbed and indexed file folder with all the documents relevant to your case; and
• A spreadsheet (Excel is tried and true) with all of the relevant information.

What is the “relevant information” you need to collect? Where issues are primarily financial, the answer is deceptively simple: it’s everything you:

• Make (yours and your spouse’s income from all sources, including employment, self-employment and passive income, such as rent and investment dividends)
• Spend (Yours and your spouse’s budget, including fixed monthly expenditures, such as rent or mortgage, car payments and the like, and average expenditures such as groceries, entertainment and eating out)
• Own (all documentation and information related to what you and your spouse have, including land, homes, cars, investments, retirement accounts, expensive jewelry or artwork and the like, and documenting when these items of property were acquired and the source of the funds to purchase them.)
• Owe (All of you and your spouse’s debts, including the mortgage, car payments, credit cards, personal loans, loans from friends and family).
I also suggest that divorcing men and divorcing women keep a tallied spreadsheet documenting, with totals:
• All child support and spousal support paid or received each month;
• The amount of time, in hours, that the minor children spend in your care.

With regard to child custody, it may be a good idea to compile documents regarding how the kids are doing, such as report cards, awards, and lists of people who can attest to the wellbeing of the kids.
I’m giving away two spreadsheets that I created to assist you in compiling this information, which you can get FOR FREE by clicking HERE. Do this at the outset, before the court battle even starts, and you’ll be will on your way to …

Love your family,
Protect your finances, and
Reach for your future!
Thomas D. Ferreira, Esq.
Disclaimer: Thomas D. Ferreira is an attorney licensed only in the State of California. The information set forth in this blog or on our websites are not intended to create an attorney-client relationship, nor are they intended as legal advice on your specific matter. This information is not intended to apply to cases or jurisdictions outside the State of California, and those viewing this information outside of California, or having business before jurisdictions outside of California, should consult a local professional or lawyer. The information in this blog is not a substitute for the advice of competent counsel, and is not intended, nor should it be construed, as a guarantee, warranty or prediction regarding the results of your legal matter.

Mar 16

It’s True: You Really Can Divorce Inexpensively While Achieving Your Dreams And Here’s How…

This is Thomas Ferreira, your Carlsbad Divorce Lawyer and Mediator, with this week’s edition of the Carlsbad Divorce Lawyer and Divorce Mediator Blog.  I’m excited to announce that our blog has been named as number 35 at Feedspot’s Top 100 Blogs and Websites for To-Be Divorced and Divorcees.  I would encourage you to click on the link and explore the great transformative stuff on other blogs and websites.  The more you know, the better you’ll fare on this journey of divorce.

My (divorced) mother recently asked me this question:  Why are divorces so expensive?  Her answer was, “because they’re worth it!”

She should know, given the riches she forked over to attorneys who gladly took her money and fed her resentment toward my father.  I love my mother more than life itself, but she would have been well served to read this page before she plunked down those hefty retainers.  Sadly, I was a young law student at the time of her divorce and had little to offer her other than the standard lawyer technical gobbledygook.

10 years ago I was a devoted husband to my young bride, with 2 toddler boys.  I had been practicing in the field of workers’ compensation defense for about 19 years at the time, having tried hundreds of cases before the California Workers’ Compensation Appeals Board and other tribunals and courts.

Then, suddenly, I became a litigant when my now ex-wife announced that she wanted a divorce.  My world turned upside-down.  What should I do first?  I knew nothing about California divorce law, but I was a lawyer, and I thought, well, I can figure this out if anyone can.

My first stop along the way was Dr. Deena Stacer’s high conflict class.  That’s a class the court often orders when parents can’t get along.  I was not ordered to take the class, but found out about it through a mutual friend.

The class was a godsend!  I certainly learned how divorce litigation generates the worst forms of self-defeating behaviors.  I created Divorce Life Solutions out of a passion to help others avoid shooting themselves in the foot during divorce and child custody litigation.

One epiphany was that the litigation itself was devastating to the people involved, decimating to their financial security and destructive to their happiness.  I also saw litigants spending tens, and sometimes hundreds of thousands of dollars walking down that path.  Sorry, mom, but it’s not worth all that.

I decided to turn lemons into lemonade and you can, too.  I have discovered ways to use legal services in targeted ways that avoid the thousands involved in having a divorce specialist on retainer.  I have learned a set of behaviors that can transform your divorce from a grueling scorched-earth battle to a transformative experience where you achieve your dreams.

So, yes, you can save huge dough and avoid the pain and heartache of divorce litigation—simultaneously!

Look at some of the past issues for some great tips.  I have some tools that will help you to chart your course if you will subscribe to my blog.  But more importantly, I have hard won wisdom from having succeeded in creating my own great post divorce life, have a wonderful and satisfying relationship to my boys (now aged 12 and 13) and truly achieving my dreams.  I did it and you can to.

So, tune in for next week and until then,

Love your family,

Protect your finances, and

Reach for your future!

Thomas D. Ferreira, Esq.

Disclaimer: Thomas D. Ferreira is an attorney licensed only in the State of California. The information set forth in this blog or on our websites are not intended to create an attorney-client relationship, nor are they intended as legal advice on your specific matter. This information is not intended to apply to cases or jurisdictions outside the State of California, and those viewing this information outside of California, or having business before jurisdictions outside of California, should consult a local professional or lawyer. The information in this blog is not a substitute for the advice of competent counsel, and is not intended, nor should it be construed, as a guarantee, warranty or prediction regarding the results of your legal matter.

Mar 08

EXPERT CARLSBAD DIVORCE LAWYER SHARES THREE STEPS TO FINANCIAL SECURITY IN THE EARLY STAGES OF DIVORCE.

Thomas Ferreira here, your expert divorce lawyer and mediator in Carlsbad California.  Last week I went over how to gain some calm and equanimity when you are facing divorce.  Now it’s time to take a good hard look at what it’s going to take.  This blog will help you formulate your escape plan, whether you are leaving or are being dragged into this process involuntarily.  I propose these three steps:

STEP ONE:  DECIDE IF DIVORCE REALLY YOUR BEST OPTION:

If you are the victim of intolerable cruelty, constant angry attacks or, God forbid, physical abuse, it’s time to get out.  Contact your local domestic violence shelter.  They have experienced counselors who can help you escape frank abuse.

For the rest of you, I’m not going to judge the reason for the breakup, but I will say that most people have soluble problems.  I have written in other contexts that one should always count the costs.  Divorce is financially devastating, emotionally painful to you, your spouse, your friends and your extended family, and generally harmful to children.  True, children are harmed when marital conflict descends into deep disrespect of the other or violence.  But consider the long term effect, and that most marital problems are temporary and soluble.  Be sure this is the last resort, because once a divorce announcement is made or a petition filed, it’s nearly impossible to go back.

STEP TWO:  HAVE A CONVERSATION WITH YOUR EX:

If divorce is really inevitable, it is vital that you keep the carnage to a minimum.  A compassionate conversation with the soon-to-be-ex is important, because of what I call the “trust tax.”

The trust tax is the cost of doing business in a low-trust environment.  Consider international disputes that result in warfare.  Each nation demonizes the other and feels justified in defeating them by any means possible.  Warfare results in mass death and financial ruin.

To prevent a divorce that looks like international warfare, be compassionate, even if you are the left spouse.  It helps to understand that the leaving spouse is not a demon out to ruin your happiness.  In every divorce there is responsibility on both sides, no matter how minimal, and it helps to own your own part emotionally, even if you don’t express it.  You need to see your soon-to-be-ex in human terms.

From the children’s perspective, a high trust co-parenting relationship is vastly superior to a low trust, high-conflict one.  If staying together is impossible, you’ll need to be able to cooperate for the sake of the children.

Whn having this conversation, plan to discuss:

  • Where are each of you going to live while this gets sorted out.
  • What should the temporary parenting schedule be?
  • Who will pay which bills?
  • What support arrangements are necessary?
  • Should we try mediation to resolve all the issues?

STEP THREE:  HAVE A FINANCIAL PLAN TO GET THROUGH THE EARLY STAGES:

If you are going to do a “cut and run” divorce, and avoid difficult conversations or mediation, get ready to spend.  A litigated divorce with divorce lawyers on each side is going to cost you about $20,000 or more for each party.  If you don’t have that kind of dough, see step two above.

I recommend having $3,000 to $5,000 on hand, or a credit card that can be charged in that amount, before initiating the legal process.  You’re going to need some professional help down the road even if you file your own petition.

Consider your budget and how you intend to support yourself during the process.  Leaving without a plan is a sure formula for disaster.

Before you raid the joint accounts, consider the effect that will have on trust.  Remember that the cost of your divorce will be inversely related to the level of trust that you are able to build with your ex.

Hoping this advice helps easy your journey down this rocky path, I urge you to:

Love your family,

Protect your finances, and

Reach for your future!

Thomas D. Ferreira, Esq.

Disclaimer: Thomas D. Ferreira is an attorney licensed only in the State of California. The information set forth in this blog or on our websites are not intended to create an attorney-client relationship, nor are they intended as legal advice on your specific matter. This information is not intended to apply to cases or jurisdictions outside the State of California, and those viewing this information outside of California, or having business before jurisdictions outside of California, should consult a local professional or lawyer. The information in this blog is not a substitute for the advice of competent counsel, and is not intended, nor should it be construed, as a guarantee, warranty or prediction regarding the results of your legal matter.

Feb 28

YOUR FIRST STEP TO FINANCIAL SECURITY AFTER DIVORCE—COMING TO TERMS WITH YOUR FEELINGS

Ten years ago last November my then wife (now my ex-wife) announced her desire for a divorce.  Today I am self-employed and happy, remarried, spending lots of time with the kids, and getting ready for a basketball game at their school (I am an assistant JV coach!).  I did it and you can, too.

Last week I summarized 12 steps to financial security during and after the divorce, and here’s the first one:  getting a handle on your emotions.

If you want financial security you need to have equanimity, that is, self-possession and calm amid the crapstorm.  In child custody cases you’ll need to be imperturbable when the other parent tries to throw you off center.  For financial issues you’ll need to channel your inner mathematician, someone who can make wise decisions under pressure.  You need the ability to bring the joy, even when others try to tear you down.

You really can be calm, and even joyful during your divorce process. I’ve lived this and watched countless others live it too.  Here are some ideas about how to get through the post-announcement doldrums.

Bad emotions will cause you to make bad mistakes.  Among these mistakes are:

  • Sending nasty text messages and e-mails that can be used against you later;
  • Posting nasty things on social media;
  • Dumping your case on an aggressive divorce attorney and creating a plan for revenge rather than for happiness;
  • Purposefully withholding your children from the other parent;
  • Getting arrested for domestic violence.

Understand that whether you’re leaving or being left, this is going to be emotionally difficult.  It’s the nature of the beast.  But you can come out ahead if you can see a happy future, one in which you are achieving your highest values and aspirations.  It’s hard to see it now, but you can see it.

I would urge you to write out a detailed description of what your post-divorce life looks like, as though it’s already happened.  Write about that big house by the ocean that you finally have, and the great school district where your kid are now getting straight As.  Write in detail about how you finally wrote that “Meditation through Painting” book, got a spot on the Oprah Winfrey Show, and went on to make seven figures selling instructional videos.

Talk about your dreams as though you’ve already accomplished them.  This will set your subconscious to work on making your dreams into reality.  Dream big, and read your dream sheet out loud to yourself every day.

By contrast, nothing can destroy hope faster than dwelling on what is lost, plotting revenge, or trying to hold on to the past.  Don’t dwell on what a jerk your ex is.  Instead, think ahead to the great life you are now creating.  Don’t let anger or resentment set in—these will cause you to make bad decisions.

Keep in mind that the best revenge is always living well.  Reach for your dreams; it will drive your ex crazy.  Then, when your ex tries to draw you into conflict, all you’ll hear is “blah, blah, blah.”

Next week I’m going to talk about your divorce plan of escape.  Until then,

Love your family,

Protect your finances, and

Reach for your future!

Thomas D. Ferreira, Esq.

Disclaimer: Thomas D. Ferreira is an attorney licensed only in the State of California. The information set forth in this blog or on our websites are not intended to create an attorney-client relationship, nor are they intended as legal advice on your specific matter. This information is not intended to apply to cases or jurisdictions outside the State of California, and those viewing this information outside of California, or having business before jurisdictions outside of California, should consult a local professional or lawyer. The information in this blog is not a substitute for the advice of competent counsel, and is not intended, nor should it be construed, as a guarantee, warranty or prediction regarding the results of your legal matter.

Feb 24

CARLSBAD DIVORCE LAWYER AND MEDIATOR SPILLS THE BEANS—12 WAYS YOU ACHIEVE FINANCIAL SECURITY WITHOUT A LAWYER!

Thomas Ferreira here, your divorce attorney and mediator in Carlsbad, California.  It’s been nearly 10 years since my divorce was final.  I owned a home and had two young children of the marriage.  My current wife of about 6 years (also my office manager and financial analyst and general partner in crime) got her divorce at the same time.  Together, we created Divorce Life Solutions(tm), dedicated to the proposition that you can get through this process with your financial security intact.

Most divorce and child custody lawyers will spend their free consultation (or one that they will charge your credit card $350 for) convincing you of how much you need them.  According to the standard pitch, you are in extremely deep voodoo, and the only way out is to hire them to fight for you.  And the more you fight, the more money they make.

Tammy and I founded Divorce Life Solutions(tm) to help people avoid the biggest mistakes divorcing people make.  The truth is, your divorce case can and should settle without expensive litigation.  That’s not going to happen if you simply dump your shoebox of documents on the lawyer’s desk and say “fix this.”  Here’s the secret sauce that will save you huge bucks and lead to financial security, and to a secure relationship with your kids:

  1. Understand and deal with the immediate emotional trial caused by every divorce.
  2. Develop a plan of escape.
  3. Get all your papers together in a neat, tabbed binder.
  4. Spreadsheet everything you make, spend, own and owe, with realistic numbers based on the past.
  5. You can do most of the legal paperwork yourself.
  6. Use unbundled attorney representation so that you only pay for what you need.
  7. Use an experienced, trained divorce mediator to assist with difficult negotiations.
  8. Pursue long-term goals and let go of the need for fairness and revenge.
  9. Don’t use dollar services to fight over penny issues.
  10. Take charge of your own financial life when the proceedings are done.
  11. Take the time, energy and money that you would use in the court process and devote it to your relationships with your children.
  12. Life is too short to be angry and bitter—be joyful in your life; it will drive your ex crazy!

Consider Mabel, who lawyered her way into full custody of the kids and a hefty alimony award and spent $50,000 on her lawyer, half of which the court ordered her ex-husband to pay.  Mabel’s ex seldom saw his children, who are now surly, disrespectful teenagers.  Mabel’s ex paid his $3,000 per month support order for 2 years and abruptly announced that he would pay no longer.  Since he was willing to go to jail or live on a park bench rather than pay the support, he quit his 6-figure, 60 hour per week job and hung out a shingle as a handyman.  After that, he had no wages to garnish and has spent through his retirement account.  A couple of years later he unexpectedly dropped dead of a heart attack.

Now consider Julie, who decided to take charge of her life and avoid litigation.  She urged her ex to try mediation and resolved her case for about $4,000 in mediation fees.  She agreed to a step-down spousal support (alimony) order and went back to school to achieve her childhood dream of being a registered nurse.  Now, her ex is not her favorite person in the world, but he pays his support on time and is a huge help with the kids.  One day, the ex got drunk and drove his car into a ditch, rendering him paralyzed from the waist down.  Not to worry; July is now making $120,000 per year working for Tri-City Hospital as an RN, a job she finds greatly fulfilling.  In the process she has set an example to her children of how to take responsibility for your own life and make yourself a success by the sweat of your own brow.  And, she is immune from the consequences of her ex’s irresponsible behavior.

Which mother would you rather be?  I am in the process of writing an e-book for sale that will go into greater detail about the best way to divorce with your financial security intact.  Stay tuned, and until then…

Love your family,

Protect your finances, and

Reach for your future!

Thomas D. Ferreira, Esq.

Disclaimer: Thomas D. Ferreira is an attorney licensed only in the State of California. The information set forth in this blog or on our websites are not intended to create an attorney-client relationship, nor are they intended as legal advice on your specific matter. This information is not intended to apply to cases or jurisdictions outside the State of California, and those viewing this information outside of California, or having business before jurisdictions outside of California, should consult a local professional or lawyer. The information in this blog is not a substitute for the advice of competent counsel, and is not intended, nor should it be construed, as a guarantee, warranty or prediction regarding the results of your legal matter.

Feb 07

The Value of Intangibles in Divorce Negotiation

Some of you are in the throes of nasty divorce or child custody litigation, and some of you are headed there.  Here’s something that may seem counterintuitive at first, but I’ll make sure and explain what I mean.  Here goes:

Sometimes it’s better to settle for less.  You may be thinking, wow, did a lawyer just say that?  Yes, you heard that right.  I don’t mean getting less value; I mean getting more value.  If you’re wondering how accepting less money or less support could possibly lead to your getting more value, read on.

Win-lose—the paradigm of our litigation system:

Attorneys have minds like steel traps.  If there’s a closely-held business we need a professional evaluator to apply the discounted cash flow method of evaluation, using the Gordon Growth Model.  Or if spousal support is an issue we need an in depth analysis of all 14 of the Family Code section 4320 factors.  Each lawyer argues and fights to push the needle in their direction on each individual issue, and such issues are resolved one-by-one in isolation.  On the spousal support question, we might spend half an hour on Husband’s income, half and hour on whether and how much income to impute to Wife, whether it’s legitimate to consider unearned stock options as income available for support, and on and on.  Here is a diagram of a typical result for such a negotiation:

Screenshot (3)

Here the lawyers have neatly divided an asset, such as a business, into equal 35 percent shares for each of the divorcing parties.  It’s certainly even, but the combined shares of Husband and Wife are 70 percent.  The red area is the attorney’s cut.

The win-win paradigm of mediation:

One way to make the pie bigger it to cut out the divorce attorney’s share by doing your own legal work—but this has a high degree of difficulty.  And, we can do better than that. The chart below illustrates how intangible values can actually make the pie bigger:

Screenshot (4)

An “intangible” is something that’s worth something to a divorcing spouse that can’t be directly measured by a professional evaluator or lawyer.  How much money would you pay to have a good relationship with your children?  If you have a complicated and nasty hearing coming up, how much would you pay to avoid it?  Here is a partial list of intangible values:

1.  Avoiding painful hearings and trials.

2.  Teaching respect and tolerance of others to your children by example.

3.  Teaching children to respect their mother or father.

4.  Having happy, well-adjusted children.

5.  Moving on with your post-divorce life.

6.  Having an asset that has sentimental value.

7.  Living in proximity for co-parenting.

8.  Being able to co-parent peacefully and civilly.

9.  Fairness and equity.

10. The dignity of being self-supporting in a career you’ve always wanted.

I’m not suggesting that you always put these intangible items on the table during negotiations.  But it helps to consider them when deciding how much to offer and when to settle.  And, it starts you thinking about solutions that benefit Husband, Wife, the children, and the extended family and friends.

Many people lose their sanity and happiness during painful and expensive divorce litigation.  But as the most wise person to ever live said, “What profiteth a man if he gain the whole world and lose his soul?”  Remember to…

Love your family,

Protect your finances, and

Reach for your future!

Thomas D. Ferreira, Esq.

Disclaimer: Thomas D. Ferreira is an attorney licensed only in the State of California. The information set forth in this blog or on our websites are not intended to create an attorney-client relationship, nor are they intended as legal advice on your specific matter. This information is not intended to apply to cases or jurisdictions outside the State of California, and those viewing this information outside of California, or having business before jurisdictions outside of California, should consult a local professional or lawyer. The information in this blog is not a substitute for the advice of competent counsel, and is not intended, nor should it be construed, as a guarantee, warranty or prediction regarding the results of your legal matter.

Feb 02

CAN THE COURT REALLY HELP? SAGE WISDOM FROM YOUR CARLSBAD DIVORCE LAWYER AND MEDIATOR

I see it all the time—someone goes into family court for a solution to their problem, and finds that everything is worse after the hearing than it was before. If you need proof, go and watch any Request for Order calendar at your local California Superior Court’s family division.

This is not to disparage our truly fine family law bench.  Where I practice, mostly in North San Diego County at the Vista location, I am often amazed the compassion and understanding that our family law jurists bring to their decisions.

But the overwhelming majority of people who find themselves in our courtrooms have unreasonably high expectations of what a court can do to help in any given situation.  To see why, I’d like to take you on a little journey through the minds of the people involved.

Let’s start with you.  In the universe of your relationships to your soon-to-be-ex and to your kids is a body of information or truth about what is happening, and what is good for your family.  A subset of that truth is your understanding of what’s going on.  Another subset is what your ex understands or believes is going on.

Screenshot (2)

Visualize your understanding of what’s going on in your case as a window, the larger blue area in the diagram above.  You then go to your attorney, spending an hour (at a cost of $350) for an intake.  You present documents like text messages, pictures, tax returns and the like.  This information, recorded in your case file and in the lawyer’s brain, is a smaller window inside the larger window of everything you know.  Your child custody or family law attorney can’t see everything in your window; he/she must look through the smaller window of his/her knowledge of your life.

Now comes a 20-minute Request for Order hearing.  The tools that your divorce lawyer has to present the case include written declarations that you sign, documentary evidence that he/she will lodge with the court on your behalf and maybe two or three sentences from you during the hearing.

The lawyer must expand, as much as possible the judge’s window on your life, but by necessity that window is very, very small.  That’s why it’s so darn difficult for your judicial officer to get your case exactly right or see it from your point of view.

The moral of the story is that you and your ex have the biggest windows into your lives and family, and are therefore in the best position to make those important decisions about how to share childrearing responsibilities, how to divide your estate, how you will be supported, in short, how you will accomplish your goals for your post-divorce life.  This is your family, and the decision maker should be you, and not your lawyer, or the person who has the smallest window, the judicial officer.

In mediation we take the time to explore how you and your ex can accomplish your goal of divorcing inexpensively, avoiding expensive and upsetting hearings, and accomplishing your goals.  In mediation you don’t have to follow the California legislature’s or the judicial officer’s view of how your family should be constituted.  If you come in to our free workshop this coming Saturday (February 4, 2017) at 1:00, we’ll show you how to do this.

Hoping to see you soon, I urge you to:

Love your family,

Protect your finances, and

Reach for your future!

Thomas D. Ferreira, Esq.

Disclaimer: Thomas D. Ferreira is an attorney licensed only in the State of California. The information set forth in this blog or on our websites are not intended to create an attorney-client relationship, nor are they intended as legal advice on your specific matter. This information is not intended to apply to cases or jurisdictions outside the State of California, and those viewing this information outside of California, or having business before jurisdictions outside of California, should consult a local professional or lawyer. The information in this blog is not a substitute for the advice of competent counsel, and is not intended, nor should it be construed, as a guarantee, warranty or prediction regarding the results of your legal matter.

Jan 18

TWO STEPS TO GET ANY SPOUSE INTO DIVORCE MEDIATION (NO MATTER HOW RELUCTANT THEY ARE)

If you are a regular reader of this blog you already know the value of divorce mediation, as compared to plunking down a big retainer for a divorce lawyer, trying to DIY it or burying your head in the sand. “But,” you say, “you’ll never get him in to mediation.”  Or, “there’s no way I can mediate with her—we’re just too far apart.”

As mediators, Tammy Ferreira CDFA(tm) and I are trained to handle objections, and we can usually get even the most stubborn parties to resolve the matter.  The magic happens when we show the person that a settlement actually benefits them.  In mediation we focus on solutions that benefit both parties.  These benefits can be big—thousands in attorney fees, staying away from stressful court appearances, or just being done.

Often more than half the battle is getting the other person through the doors of our mediation office.  Here is a two-step method that will work most of the time.

Step One:  Become a Mediation Nerd.

My now ex-wife announced that she was seeking divorce 10 years ago, and I knew nothing then.  I was fortunate to have a friend who taught one of the high conflict classes the courts order when divorcing parents can’t get along.  Here’s what I learned:

  • Realistically, a case of average complexity will cost about $15,000 to $20,000  for each lawyer, and I met people in the class who had spent well into six figures.  Our average mediation costs about $4,500 plus your court filing fees.
  • Most cases require multiple “Request for Order” hearings that are costly and upsetting.  Declarations are filed detailing all the nasty stuff you know about each other in a public record that anyone can see.  Mediation is a completely confidential way to divorce that keeps you out of court and out of the poorhouse.
  • Lawyers have a built-in conflict of interest.  It’s in both of your interest to resolve the case without court, but your lawyers make more money if they keep you fighting.  Mediators’ main interest is in resolving conflict and finding solutions.
  • In mediation you can explore solutions that benefit both of you.
  • If for some reason mediation doesn’t work, you can always go the court route.

You know what it’s like to talk to a nerd.  For example, watch how excited your tax accountant gets talking about how he can use the tax code to save you money.  A passionate advocate is an effective advocate.

Step Two:  Be a Broken Record.

I prefer voice communication when discussing these matters, though this may be difficult at your stage.  I find that if I can get the other person in my office or on the phone, I can usually get them to come in.  I am the world’s biggest mediation nerd, after all.

The big mistake most people make is allowing the conversation to stray into the details of the divorce, such as how you will share the children or the financial arrangements.  Our advice:  don’t bring up any issues in your case.  Your sole objective is to get them in to the mediation process.  If you’re as old as I am you remember vinyl long-playing records.  When broken, they would skip, and repeat a certain phrase or lyric over and over again.  Be a broken record by returning the conversation to the benefits of mediation.  Here are some examples:

Spouse:  I want 50-50 custody of our kids.  That’s what’s fair and even if I go to mediation I won’t accept anything less than 50-50 custody. (Note—you may be totally opposed to the 50-50 idea, but it’s best to acknowledge that it is a possible outcome if your goal is to get your spouse in the door.)

You:  Fifty-fifty custody might be a great way to share the children.  Let’s talk about that in mediation.

Spouse:  I don’t care what happens.  I’m not paying you alimony.

You:  It may be that you don’t owe any alimony.  The mediator can help us decide, and if you disagree you can always get another opinion from your own lawyer.

Note that in the above examples you acknowledge that their proposed resolution is not out of the question.  Then you make the record skip back to how great the mediation process would be.  This is not the time to stake out your positions in the case, as tempting as that may be.  Remember to stay true to the mission—getting your spouse to see the mediator.  It is important to deal with that person’s fear of loss, often the biggest obstacle to getting a party through the mediator’s doors.

Mediation is the single best method of getting your divorce.  Ask any divorce attorney how they would handle their own divorce case, and if they’re honest, they’ll tell you to settle quickly and avoid going to court.

Hoping this helps you to achieve your post-divorce dreams, I urge you to…

Love your family,

Protect your finances, and

Reach for your future!

Thomas D. Ferreira, Esq.

Disclaimer: Thomas D. Ferreira is an attorney licensed only in the State of California. The information set forth in this blog or on our websites are not intended to create an attorney-client relationship, nor are they intended as legal advice on your specific matter. This information is not intended to apply to cases or jurisdictions outside the State of California, and those viewing this information outside of California, or having business before jurisdictions outside of California, should consult a local professional or lawyer. The information in this blog is not a substitute for the advice of competent counsel, and is not intended, nor should it be construed, as a guarantee, warranty or prediction regarding the results of your legal matter.

Jan 10

HOW TO OVERCOME DIVORCE BRAIN IN THREE EASY STEPS.

Thomas Ferreira here, your Carlsbad divorce attorney and mediator serving all of North San Diego County (and some of Riverside County too!).

Let me wish you a happy new year and much prosperity and happiness in your post-divorce life.

But wait a minute, you say.  I’ve been toughing out the holidays, trying to get through, and I’ve needed a divorce for months.  How do I get started?  What do I say to my soon-to-be-ex.

Or, perhaps you are on the receiving end if the announcement, and having that “holy crap” moment.  Perhaps you feel overwhelmed by all of the legalities, or the practicalities of pulling apart.  Perhaps you’re feeling lightheaded and a little foggy.

I’m not a physician, but I know a case of “divorce brain” when I see one.  You’re at the beginning stage of your breakup, and you don’t know how to talk to your ex, talk to your kids, or who of the many attorneys to hire.  Here are some easy steps to deal with divorce brain.

Step One:  See the end from the beginning.

If you have divorce brain, it’s often caused by having to make life-changing decisions while feeling grief, anxiety or profound confusion.  In this state, it is tempting to throw the case in the lap of that family law specialist with the fancy office.  Hey, she must be good, else how could she afford that fancy wood-paneled office and army of employees?

That approach is usually a mistake.  Yes, research and find the best attorney or mediator, but that’s not the first step.  The first step is often backward, so that you can see the whole picture.

Hope is the gasoline in the tank of the human spirit.  But how to you have hope when your world is caving in?  It takes some work, but it can be done.

Find a quite place where you can’t be disturbed, and do some dreaming.  What would your post-divorce life look  like if you could have an ideal life without your ex?  Where would you live?  How would you raise your kids?  How much would you earn? What would you be doing?  Who would you be seeing?

Ahh, that’s better.  Now, put pen to paper and write out a description of your post-divorce life.  Think big.  What family traditions will you start with your children?  What career path will you take? 

Step Two:  Write out some specific  goals for your post-divorce life.

Where do you want to be in 5 years?  Ten years?  Write out specific goals for your:

1.  Income.

2.  Parent-child Relationships.

3.  New mate (or lack thereof).

4.  Hobbies (cuz you’ve got to have some art in your life).

5. Friendships.

6. Retirement.

Then put on some soft music (or white  noise).  Meditation music, new age or classical is best.  Imagine that you’re already there, enjoying the satisfaction of attaining each goal.  Then imagine that you are telling a friend the pathway you took to getting there.  Write this part out, and be specific.  Something like this:

I was scared at first, but I knew that I’d always wanted to be an investment advisor.  I looked on line and found a 1-year training program.  I worked really hard and graduated in the top of my class.  My first job made just $5,000 per month, but I stuck with it.  I started a blog online, and soon people were coming to me for advice from all over.  I started doing workshops giving financial advice and a year after I started, I filled up a hotel ball room with 500 people.  Man, I had those people in the palm of my hand.  I was giving them great information, and they were paying $100 per ticket.  After paying for the room I netted $40,000 for the speaking gig.  Wow it felt good to watch that money flow  into my bank account…

Step Three:  Now plan your divorce strategy.

Notice here what’s not likely to come up.  Hiring the most expensive lawyer isn’t going to get you there.  You may wish to try and build some trust with your soon-to-be ex and maybe get the case into mediation.  You’re not going to play out your marital conflict through the litigation.  You’re not going to hang on to  old promises and broken dreams.  You’re going to move  forward, settle your case, and get to work on your dream post-divorce life.

Remember, the best revenge is, indeed, living well.

Love your family,

Protect your finances, and

Reach for your future!

Thomas D. Ferreira, Esq.

Disclaimer: Thomas D. Ferreira is an attorney licensed only in the State of California. The information set forth in this blog or on our websites are not intended to create an attorney-client relationship, nor are they intended as legal advice on your specific matter. This information is not intended to apply to cases or jurisdictions outside the State of California, and those viewing this information outside of California, or having business before jurisdictions outside of California, should consult a local professional or lawyer. The information in this blog is not a substitute for the advice of competent counsel, and is not intended, nor should it be construed, as a guarantee, warranty or prediction regarding the results of your legal matter.

Oct 11

YOUR CARLSBAD DIVORCE LAWYER AND MEDIATOR SAYS: DON’T LET YOUR DIVORCE DEFINE WHO YOU ARE!

When clients come in for legal services, I often ask them where they are emotionally.  Some are calm and business-like.  Some are smiling and seem at peace with the marriage breakup.

But most are overwhelmed, afraid, confused, furious or some combination of the above.  I’d like to ask you, where are you today?  If the answer involves strong emotions, the tendency is to react to those emotions with short-term solutions.  If you’re afraid, you’re likely to defend your property and parenting time aggressively.  If you’re angry, you may instruct your attorney to pull out all the stops, and make life unpleasant for the other.  Many spouses go on a mad hunt for that hidden asset that they know is out there, or pursue the goal of “50-50 custody” by attacking the other’s parenting or manipulating the children.

It is often said that people facing criminal charges are bad people behaving at their best, while divorcing people are good people behaving at their worst.  Consider the guy who knocked over the local 7-11 store.  His lawyer will dress him in a business suit and tie, hide the tattoos, and tell him to speak gently and kindly.  Divorcing people are almost always every-day folks who are angry, overwhelmed, confused or afraid.  They act out these strong emotions by writing nasty court declarations, grasping at every penny the can, having conflict outside of court and even trying lobby the kids to like them better than they like your ex.

This is what almost everyone does, especially in the hard-fought cases.  But I have to ask you, is that really you?

I’d like to challenge you to take out a pen and paper right now where you’re sitting.  At the top of the paper, write a title “My Best Self.”  below that write down your 5 best qualities when you’re being your very best self.  Go ahead, I’ll wait.

Okay, what did you come up with?  When I do the exercise, what comes up for me is the following list:

1.  I am generous, sacrificing what I want those that I love.

2.  I am patient, listening with my heart as well as with my ears, and striving to understand the other.

3.  I am happy, looking forward to what each day will bring, and rejoicing in its abundance.

4.  I am forgiving, letting go of past wrongs and understanding that everyone makes mistakes.

5.  I am loving, forming and maintaining deep relationships with my friends and family.

When I went through my divorce 10 years ago, my fear and anger made me stingy, impatient, unhappy, spiteful and hateful.  My feelings toward my ex tended to bleed over into my other relationships, and I found myself trapped in a negative mindset.  I had to step back and ask, is that really me?

We all have a tendency to slip into negative mindsets at times, especially trying times like divorce.  When that happens, we must dust off our diaries (you do keep a diary, don’t you?) and take inventory.  Write down what you are currently bringing to the world.  Is it joy?  Positivity? Encouragement?  Are you being a great parent because you know how important you are to your kids?

Or are you being manipulative, penny-pinching, bitter and negative?  Be honest with yourself.

Divorce is a great time to take a personal inventory, and get on track to your life’s real purpose.  I don’t know you, but I can bet your life purpose isn’t to bring bitterness to the world, but to bring sweetness.  It isn’t to bring darkness, but light.  It isn’t to model stinginess to your children, but generosity.

You may not be able to control your ex’s attacking, bitter, resentful way of being in the world, but you can control your own responses to this transition called divorce.  Seen this way, divorce can be a time of reprioritizing, a time of changing course, a time to re-create your very best self.

In the hope that you’ve received some inspiration from this post, I urge you to …

Love your family,

Protect your finances, and

Reach for your future!

Thomas D. Ferreira, Esq.

Disclaimer: Thomas D. Ferreira is an attorney licensed only in the State of California. The information set forth in this blog or on our websites are not intended to create an attorney-client relationship, nor are they intended as legal advice on your specific matter. This information is not intended to apply to cases or jurisdictions outside the State of California, and those viewing this information outside of California, or having business before jurisdictions outside of California, should consult a local professional or lawyer. The information in this blog is not a substitute for the advice of competent counsel, and is not intended, nor should it be construed, as a guarantee, warranty or prediction regarding the results of your legal matter.

Sep 29

“WTF” AND OTHER RESPONSES TO OUR FACEBOOK ADVERTISING

This is Thomas Ferreira, your Carlsbad Divorce lawyer and mediator in Carlsbad, California.  Tammy (my wife and co-mediator) and I do a monthly workshop to provide an overview of the divorce process and also to help folks find the meaning in the pain they’re going through. We offer the workshop completely free, as a service to the community.  Our current workshop is this coming Saturday (see our video on the website homepage).

We advertise this free workshop on Facebook.  Some of the participants become customers, but mostly this is our way to give back some of the wisdom we have acquired in our own journeys.

Yet every time we post our video on Facebook we get the usual slough of negative reactions.  Mostly they convey the commenter’s disgust that we would dare to advertise our unique service on Facebook, what with families falling apart all over the place.  One commenter summed it up by simply posting “WTF”.

Far be it from me to promote divorce on Facebook.  I am a family man, involved in a healthy and successful parenting plan with my now ex wife, happily remarried, and accomplishing so much of my life’s work that it’s sometimes hard to find time to rest.  I am a married man by temperament, and for those of you who have marital bliss as I now do, God bless you.  Please scroll past our ad—our workshop’s not for you.

For the rest of you, I know that the decision to divorce is not being made whimsically or lightly.  I start from the premise that to divorce is to have to admit failure on a deep and personal level.  Divorce is almost always a financial and an emotional disaster, and it hurts kids.

I tell my seminar participants to think hard about their decision, as often times a divorce doesn’t solve the problem that the person hopes it will.  Most peoples’ problems are internal to them, not imposed upon them by other people, circumstances or the world.

But for many people, divorce is unavoidable.  In California, you don’t need a reason to divorce—if your spouse files a petition, you’re getting a divorce whether you want one or not.  Tammy and I both know this because we’ve both been there and have the receipts to prove it.

From the leaving spouse’s perspective, how much infidelity or abuse should you tolerate before concluding that the marriage should be dissolved?  I’d like to hear from our “WTF” people out there (you can write a comment to this blog below) if there is anything that your spouse could do that would cause you to end the marriage.  For example, how many extramarital affairs are you willing to tolerate?

Our free divorce workshop has helped numerous people to avoid the usual emotional and financial carnage of divorce.  Many will come to the workshop and learn that a divorce won’t solve their problems, and will be encouraged to persevere in their marriage.  Many others come to hear the transformative message that there really is life after the process is over.  We teach divorcing people to take stock of their life purpose and reflect on their personal values.  We encourage divorcing people to think long and hard about their long-term personal, family and financial goals.

Many divorcing people are reactive to the prospect of divorce, buying into the idea that once the marriage is over, the gloves come off.  We help divorcing people avoid that outlook and to adopt a healthier approach.  Our philosophy encourages parties to prosper and to salvage what is still good in their family relationships.  They are able to plan their divorce with an eye to what the future holds, instead of holding on to an irreparably broken past.

Now isn’t that outcome worth a little irritation on Facebook?

Love your family,

Protect your finances, and

Reach for your future!

Thomas D. Ferreira, Esq.

Disclaimer: Thomas D. Ferreira is an attorney licensed only in the State of California. The information set forth in this blog or on our websites are not intended to create an attorney-client relationship, nor are they intended as legal advice on your specific matter. This information is not intended to apply to cases or jurisdictions outside the State of California, and those viewing this information outside of California, or having business before jurisdictions outside of California, should consult a local professional or lawyer. The information in this blog is not a substitute for the advice of competent counsel, and is not intended, nor should it be construed, as a guarantee, warranty or prediction regarding the results of your legal matter.

Sep 23

MEDIATION: THE BEST WAY TO AVOID TOTAL WAR IN YOUR DIVORCE

Thomas Ferreira here, your family law lawyer and mediator in Carlsbad, California.

I know it will sound weird to many of you, but I just love reading history books.  It’s always good for divorced and divorcing people to have hobbies, and being an armchair historian is one of mine.  I find the human condition fascinating, and I continually wonder why perfectly rational and normal human beings are so willing to run towards one another in large groups with fixed bayonets, in the teeth of machine gun fire.  The explanation has to do with something historians describe as total war.

“Total War” may be described as a something that advanced, European societies, the birthplaces of “the enlightenment”, engaged in mostly in the 20th century.  The defining characteristic of total war is the mobilization of every social institution, from government, to churches, to schools, to industry and commerce, for the insurance of military victory.  Total war is marked by the mustering of vast armies of young men (mostly men), as many as 10 million or more, in a last-man-standing war of attrition.

Does this remind you of your divorce? (you were hoping I’d get to that).  Sadly, many divorcing people spend everything they have, including their financial and their emotional resources, in a scorched earth campaign to defeat one another.  As with Europe after 2 world wars, the conflict leaves the combatants exhausted, cynical (see the writings of Jean Paul Sarte) and grief-stricken.

When I do divorce, I am astounded at excellent lawyers who are so sure they will win the case.  You see, one unalterable facet of human nature is to see the situation from your own vantage point.  You’ll win for sure, because your cause is righteous.  God is on your side.  Wow, and look at your armies (the attorney) and your war chest.

Alas, war is always a win-lose situation.  War becomes total when the parties slowly realize that victory is not sure, and therefore must be pursued at all cost.  As combatants become “entrenched,” resolution becomes impossible because of the huge sacrifice that has already been invested.

This is what leads some divorcing people to spend $200,000 on each side, fighting over a business worth $400,000.  Children suffer.  Parties leave the process exhausted, impoverished, cynical, their family life ruined.  But it doesn’t have to be that way.

I would encourage divorcing people not to become to become too invested in the righteousness of their legal position (my ex-wife used to say that WAR stands for “we are right.”)  Trained as we are for court combat, we lawyers tend to become overconfident, and this tends to cloud our judgment.  Consequently, we tend to see our client’s position in an overly favorable light.

In my experience, in a trial between 2 top tier lawyers, one party still comes out the loser.

In July of 1914 the mass armies of Europe were itching to start a fight that each side was sure they’d win quickly.  Everyone thought the troops would be home by Christmas.  This belief, prevalent on all sides  of the conflict, led the mass armies of Germany to invade France through Belgum (the famous Schlieffan Plan), while the French and British Marched out heroically to meet them.  Once the initial huge investment was made, the combatants settled in for a long slough, 4 years of murderous trench warfare.

Isn’t it better to have a conversation?  In divorce mediation, professional mediators help you to have a discussion and analyze what you want, and why you want it.  A frank, mediated discussion nearly always leads to a rapid resolution of your case.  Given the tendency toward total war, what do you have to lose?

Remember to …

Love your family,

Protect your finances, and

Reach for your future!

Thomas D. Ferreira, Esq.

Disclaimer: Thomas D. Ferreira is an attorney licensed only in the State of California. The information set forth in this blog or on our websites are not intended to create an attorney-client relationship, nor are they intended as legal advice on your specific matter. This information is not intended to apply to cases or jurisdictions outside the State of California, and those viewing this information outside of California, or having business before jurisdictions outside of California, should consult a local professional or lawyer. The information in this blog is not a substitute for the advice of competent counsel, and is not intended, nor should it be construed, as a guarantee, warranty or prediction regarding the results of your legal matter.

Sep 13

DIVORCE LAWYERS AND WIN-LOSE THINKING

We have the late Stephen Covey to thank for the wonderful concept of “win-win thinking.”  Win-win seeks to find solutions that serve as many interests as possible.  Win-lose thinking sees the world as populated by 2 types of people:  winners and losers.  According to a win-lose paradigm, there is a finite amount of value, stuff or good in the world, and winners are the ones who get the biggest piece.  Losers are left with the smaller piece.

Sadly, the vast majority of divorce professional advice out there assumes the win-lose paradigm.  As lawyers, we are trained in this paradigm.  I have been to countless seminars teaching lawyers to “put the other side at risk.”  In this paradigm, the only consideration is what a court will ultimately do in a certain situation.  Many neutrals or mediators out there are retired family law practitioners or judges who see their role as simply helping the parties figure out who would win if the case went to trial.

For most of you, your family situation is a lot more complicated than running the support calculator or splitting the retirement account 50-50.  Consider a divorcing person who is retired and in poor health.  Many times such people will make their last years on Earth miserable fighting it out in court, when getting more money (what courts are good at deciding) really isn’t their most important value.  Often times, when people are close to retirement, a huge legal battle only serves to wipe out what’s left of their savings, at at time when they need every penny to reach their financial goals.

Too many lawyers see a divorce case as a game of brinksmanship, where the goal is to create enough fear and misery in the other party to force a settlement.  Lawyers are trained to work in a system with fixed rules and certain defined outcomes.  The paradigm of the legal system is “Petitioner versus Respondent,” or “Husband versus Wife” or “Kramer versus Kramer.”  Frankly, too many of my colleagues can’t see outside the box of this very limiting paradigm.

How to Think “Win-Win.”

Win-win thinking begins by making a list of the parties’ interests.  Here are some common interests in divorce cases:

  • Financial ability to create a home for the children;
  • Financial ability to retire at a given age;
  • Availability of health insurance or healthcare for all parties;
  • Frequent and satisfying contact between each party and the children;
  • Ability to live freely and independently from the control of the other party;
  • Ability to create your own family life after divorce;
  • Ability to have a satisfying career after divorce;
  • Avoiding the pain and expense of litigation.

Next, what are the resources available to maximize these values or interests?  These are sources of income, assets, friends, family, contacts, and the like.

Finally, brainstorm solutions without regard to what a court would do.  Think outside the box.  Remember, there are no stupid ideas when you’re brainstorming.

I recommend that you hire professionals who share a win-win attitude.  If your attorney refuses to problem solve, insisting instead that your case be a constant frontal assault against enemy lines, remember that you are in control of your case.  The attorney works for you and owes you a duty of loyalty.

And failing this, you have the right to get the other party on the phone and suggest that you cooperate to find solutions.  One solution is to find a win-win-thinking mediator to facilitate a discussion and help you solve problems.

I pray that you find solutions to your problems, because nothing is more painful than slugging it out with your ex in court, only to have a lousy solution imposed on you by an outside decision maker.  Remember to …

Love your family,

Protect your finances, and

Reach for your future!

Thomas D. Ferreira, Esq.

Disclaimer: Thomas D. Ferreira is an attorney licensed only in the State of California. The information set forth in this blog or on our websites are not intended to create an attorney-client relationship, nor are they intended as legal advice on your specific matter. This information is not intended to apply to cases or jurisdictions outside the State of California, and those viewing this information outside of California, or having business before jurisdictions outside of California, should consult a local professional or lawyer. The information in this blog is not a substitute for the advice of competent counsel, and is not intended, nor should it be construed, as a guarantee, warranty or prediction regarding the results of your legal matter.

Sep 07

SELECT YOUR DIVORCE LAWYER ACCORDING TO YOUR VALUES

If you or a loved one are facing divorce in California, deciding what help you need can be daunting.  There are so many lawyers out there.  Whom should you pick?  How about the one who promises to take the gloves off?  How about the pictures of gavels and cherry-paneled law libraries?  The one that charges the lowest retainer?  The one with the most experience?

When I went through my divorce 10 years ago my first inclination was to go for someone aggressive who could make my ex sorry she left.  But I was lucky enough to learn from some colleagues that such a strategy is a recipe for heartache and poverty.  My values placed my relationship to the children ahead of all else, with a strong second place given to avoiding attorneys fees and costs.  I got my case into mediation and settled without going to court.

Many divorce lawyers want to sell you their most expensive product:  litigation.  The sell usually relies heavily on fear of loss, with heavy doses of “you’ve got to protect yourself.”  They’ll show you all the problems and describe themselves as the solution.

Divorce lawyers have a classic, built-in conflict of interest.  If you settle quickly the case is much less lucrative for them.  On the other hand, if you have conflict, and a war chest to spend, the more conflict, the more the attorney makes.

Several years ago Tammy and I mediated a case that was reviewed by one of the top-tiered, certified specialist firms in San Diego County.  We had the case settled amicably, and all that was left was for the parties to get their financial disclosures and settlement papers reviewed by an outside lawyer.  We always recommend such a review in mediation cases because as neutral mediators, Tammy and I can’t tell you, the party, whether your settlement is a good deal.  I encourage parties to take the settlements for review with a lawyer who represents just them.

After seeing this lawyer, the person’s trust for the other party plummeted like a boulder dropped off a cliff.  The party left our office with a high level of trust in the settlement’s fairness, and with the ability to deal with the other parent intact.  After seeing the lawyer, however, the party was sure that the other spouse was hiding assets, understating their true income, and wanted to see years and years of the parties bank statements.

This is what can happen when you hire a lawyer who doesn’t share your values and goals.  In mediation, we try to follow the advice of countless divorce professionals who have been divorced themselves:  try as hard as you can to avoid court.  Court tends to polarize the parties, reduce trust, and worst of all, it places major decisions in the hands of decision makers who might not share your values and goals.

I’m not saying there’s no place for aggressive lawyering.  If your ex is a true scoundrel, or if your goal is truly revenge, and money’s no object, have at it.  If in your value system getting “everything you’re entitled to” is the highest priority, go with the lawyer who will leave no stone unturned.

But if your values run more toward preserving family and relationships, and you want to keep your transaction costs down, communicate those goals to your attorney.  If that attorney insists on a mountain of discovery requests, subpoenas and complicated motions, it may be time to find a different lawyer.  I find that most lawyers are set in their ways, and feel that they know how to play the game, if only they can get you to go along.

If you want to settle your case with a minimum of cost and heartache, avoid the gavels and the cherry-paneled walls.  Get your case into mediation, and at your attorney review, tell the attorney you have decided not to sweat the small stuff.  Until next time …

Love your family,

Protect your finances, and

Reach for your future!

Thomas D. Ferreira, Esq.

Disclaimer: Thomas D. Ferreira is an attorney licensed only in the State of California. The information set forth in this blog or on our websites are not intended to create an attorney-client relationship, nor are they intended as legal advice on your specific matter. This information is not intended to apply to cases or jurisdictions outside the State of California, and those viewing this information outside of California, or having business before jurisdictions outside of California, should consult a local professional or lawyer. The information in this blog is not a substitute for the advice of competent counsel, and is not intended, nor should it be construed, as a guarantee, warranty or prediction regarding the results of your legal matter.

Aug 30

ACCEPT WHAT YOU CAN’T CHANGE, CHANGE WHAT YOU CAN: WISDOM FROM A CARLSBAD DIVORCE(D) LAWYER

The divorce process sucks no matter how you slice it.  You’re thrust into a system you likely didn’t want to be in, where decisions are made by others and often are difficult or impossible to control.  The one person you thought you could count on forever is now your adversary.  The attorneys see your case as a game they play with each other, oblivious to the cost, and seemingly unaware that this is your family on the line.

The most maddening part of divorce is the lack of control over your own life.  Support obligations arise that eat huge chunks of your paycheck, leaving little for daily living.  You may be relegated to being a weekend parent to a teen who seems to hate your guts, who can’t see the sacrifices you have made as a parent.

You may be dealing with an ex that is always trying to twist things their way, trying to alienate the children, trying to avoid paying support or having their lawyer bury you in a pile of paperwork.

As a Carlsbad divorce lawyer, I have represented hundreds of people in your situation.  And, as a divorced lawyer I have faced and risen above this crapstorm.

The biggest key to success when you divorce or have child custody issues is to get out of the habit of blaming others.

Most people in family court make the same mistake.  When things aren’t working out for them they look for someone or something to blame.  It’s the judge who doesn’t understand what kind of person the father really is.  It’s the ex, poisoning the kids’ minds against you.  It’s her new boyfriend overstepping his role as the kids’ stepfather.  It’s the unfair system.  It’s the unfairness of divorce law.

Whatever the problem is, you’ll never solve it as long as you point to a cause outside of your control.  Here are some of examples of what’s outside your control:

  • How the judge perceives you or your case and what she ultimately orders;
  • Your ex’s parenting style;
  • The behavior of her new mate;
  • Your teen’s rebellious and surly attitude;
  • The amount of your divorce lawyer’s bill;
  • What your ex says about you to the kids;
  • Your ex’s house rules.

Is there anything about your post-separation family life you can control?  Absolutely.  How about these:

  • Your cooperation with the judge’s orders;
  • Your parenting style;
  • Your response to your ex’s new mate.
  • Your joy even when your teen is rebellious and surly;
  • How you use attorney services to get the most bang for your buck;
  • Your support for the other parent’s parenting
  • Your house rules.

Don’t forget the serenity prayer:  “God grant me the serenity to accept the things I cannot change, the courage to  change the things I can, and the wisdom to  know the difference.”

Here’s a clue regarding that difference-knowing wisdom:  The things we can control are usually internal to us:  our attitude, our effort, our drive, our behavior.

The things we usually can’t control are conversely external to us:  our ex, our children’s behavior, the amount of support ordered, opposing counsel, our expenses.  Remember the wisdom of St. Paul when he wrote:  “I have learned in whatever situation I am to be content.”  Phil. 4:11b.  Paul was writing from a Roman prison!

When you achieve mastery over your inner state, your attitude, you can walk into court with a smile on your face that makes your ex wonder what you’ve got up your sleeve.  Your attitude will win over your surly teen.  Who knows?  Maybe even your ex will start being nice.

When it comes to joy, I am reminded of something Brendon Bruchard said:  “the power plant doesn’t have energy; it generates energy.”  In the same way you can be more joyous, be more patient, be more cooperative, be a better parent.

Don’t waste your energy trying to change things that are outside of your control.  When you start doing that, you’ll start doing better in family court and you’ll be a much happier person.  Until next time,

Love your family,

Protect your finances, and

Reach for your future!

Thomas D. Ferreira, Esq.

Disclaimer: Thomas D. Ferreira is an attorney licensed only in the State of California. The information set forth in this blog or on our websites are not intended to create an attorney-client relationship, nor are they intended as legal advice on your specific matter. This information is not intended to apply to cases or jurisdictions outside the State of California, and those viewing this information outside of California, or having business before jurisdictions outside of California, should consult a local professional or lawyer. The information in this blog is not a substitute for the advice of competent counsel, and is not intended, nor should it be construed, as a guarantee, warranty or prediction regarding the results of your legal matter.

Aug 18

WHAT TO DO WHEN HE/SHE WON’T PAY THE CHILD SUPPORT: A CARLSBAD DIVORCE LAWYER’S PERSPECTIVE

After a brief detour last week, here is my next installment in my series on child support.  Many of you out there owe some child support arrears.  Many of you have a court order for child support, but the other parent just won’t pay. There are some parents who spend more than half their waking hours devising ways to outrun their child support obligation.  There are others who obsessively chase after that child support scofflaw at the expense of their happiness, sanity and their own parent-child relationship.

I have represented clients whose exes owe them over a quarter million dollars in back support.  Support arrears in the tens of thousands of dollars are not at all uncommon.  If you’re the parent whose struggling to make it with your job, with your kids in daycare, and with a parent who just doesn’t help, you’ve come to the right place.  This blog will point you toward some resources that will help you to get paid.

WHAT NOT TO DO:  WITHHOLD VISITATION WITH THE OWING PARENT:

I’d like to start off with a mistake that many parents make when the other parent doesn’t pay.  It’s tempting, as the custodial parent, to say, “hey, if he’s not stepping up to the plate he shouldn’t get to see his kids.”  This is a mistake because the courts are careful to separate the child custody issues from the financial issues.  The courts see the parenting plan as a child-focused way to have both parents involved in the child’s life.  Judges and custody mediators believe that it’s good for children to have access to both parents.

In fact, if you have a case going with the Department of Child Support Services, the regular family law judge will not even hear the child support issues.  Child support will be heard separately in the “support division,” a separate arm of the Superior Court devoted to cases being enforced by the Department of Child Support Services.

The family law judge, charged with deciding the child custody and visitation issues, is not interested in who’s financially better off or who is paying or not paying the support.  Raising the financial issues during a custody hearing can actually damage your custody case by making you look less “child focused” in the court’s eyes.

THE DEPARTMENT OF CHILD SUPPORT SERVICES IS YOUR ALLY IN COLLECTING BACK CHILD SUPPORT

The Department of Child Support Services (“DCSS”) is a government agency whose sole reason for being is collecting child support.  An application to establish a DCSS case can be made and submitted online.  Your case will be assigned to a case worker who will collect information and investigate the parties’ earnings.  (Note:  all links in this blog are for San Diego County.  Google your local county for its DCSS application.)

When you initiate a DCSS case, you will assign your right to receive child support to the county where you live, and that county will file a petition and a motion before the support division court to either initiate, modify or enforce your child support order.  Once the judge issues a support order, DCSS will take care of issuing the wage assignment or garnishment of the payor’s wages, known as an “income withholding order.”  DCSS can also request that the payor’s driver license be suspended pending the payment of arrears, and can even file a request that contempt of court charges be filed against the delinquent party.  The judge has the power to punish willful non-payment of support with 5 days in jail for each missed payment, known as a “count.”

A child support order has the effect of a “judgment” by the issuing court.  For each payment missed, the court tacks on annual interest of 10 percent, known as “post judgment interest.”  That’s why child support debt is so bad—it carries a very high interest rate, and to boot, it’s not discharable in bankruptcy.

In conclusion, while you’re killing him/her with kindness on the child custody front, you can still use DCSS as a took to get what you need from him/her.  Until next time,

Love your family,

Protect your finances, and

Reach for your future!

Thomas D. Ferreira, Esq.

Disclaimer: Thomas D. Ferreira is an attorney licensed only in the State of California. The information set forth in this blog or on our websites are not intended to create an attorney-client relationship, nor are they intended as legal advice on your specific matter. This information is not intended to apply to cases or jurisdictions outside the State of California, and those viewing this information outside of California, or having business before jurisdictions outside of California, should consult a local professional or lawyer. The information in this blog is not a substitute for the advice of competent counsel, and is not intended, nor should it be construed, as a guarantee, warranty or prediction regarding the results of your legal matter.

Aug 10

YOUR BEST WEAPON IN CHILD CUSTODY DISPUTES: KINDNESS.

Thomas Ferreira, your child custody and divorce lawyer in Carlsbad California here.  Last week I said I was going to go over some finer points about calculating child support.  I think I’m going to put that off until next week so I can share what could be the most powerful tool in your toolbox for prevailing in child custody disputes.  That tool is… kindness!

You’re all thinking, “Huh?  how can being kind help me get more time with my son or daughter?”  If that’s your thought, I invite you to take a look at what you’re doing now, and ask yourself honestly, is my strategy working?  Do I have the time I want with my children?

Have you ever been in court on your custody case, only to have the judge read you the riot act?  Maybe your the non-custodial parent (in most cases the father), and the other parent just won’t cut you a break.  They constantly insist on sticking to court orders that don’t allow you to have much time with your kid.  They make vital decisions without asking for your input.  Or they simply tell you what’s going to happen, using the court orders as a cudgel to beat you into submission.

If that’s your situation, the normal human tendency is to fight back.  “Hey, if she’s not going to be flexible about the schedule, why should I be flexible?”  You may even have tried taking her back to court on a modification, and are new stunned to discover that the judge is siding with the other parent!

KILL ‘EM WITH KINDNESS:

In most disputes between co-parents, courts will consider the willingness of the parents to cooperate.  But here’s the problem:  It’s just so tempting to send something nasty via text or e-mail.  Most people click “send” before letting their anger subside, and the nasty text then becomes exhibit “A” to their response to your motion.

The parents that get more time are the ones that the court believes will support the other parent and be wiling to compromise and cooperate.  Nasty communications will cause your judge to conclude that you are not willing to cooperate and that in fact you are the source of the problem.  So here are some tips:

  • Whenever you communicate with your co-parent, assume that the court is going to read the communication.  Before you click “send,” ask yourself how this communication makes you look.  Do you appear shrill and vindictive or child-focused, nice and cooperative?
  • In dealings with the other parent, show a willingness to deviate from the schedule or accommodate minor requests.  Unless the court orders are there to protect your children from harm (such as supervised visits), be willing to change them for the convenience of the other parent.  Work around their work schedule.  Allow them to spend extra time with extended family if they are in town for a visit.
  • Do not mechanically insist that court orders be followed to the letter.  See the previous bullet.
  • Non-custodial parents—don’t automatically insist on every minute of your parenting time even when it doesn’t make sense.  Courts believe that children benefit from cooperative parents, and solid research backs them up.
  • Be nice.  Even when they are nasty.  Don’t return tit for tat.  Respond to their nasty communications by ignoring the barbs, slings and arrows they shoot.  Stick to the facts and even say something complementary.  Be so nice that they wonder what’s wrong with you.

If you do this, when you get to court you’ll have all their nasty messages with your nice replies, and you’ll have the upper hand.  And even better, you’ll be able to just call her and say, “hey, my dad’s in town, and I was wondering if I could extend my weekend to Monday?”  If you’ve been nice in the past, she might just say, “Okay.”  Even if she’s mean about it, you’ll still be getting what you want.  And your kids will have the benefit of parents who don’t fight.

I’ll be back on child support next week, and until then,

Love your family,

Protect your finances, and

Reach for your future!

Thomas D. Ferreira, Esq.

Disclaimer: Thomas D. Ferreira is an attorney licensed only in the State of California. The information set forth in this blog or on our websites are not intended to create an attorney-client relationship, nor are they intended as legal advice on your specific matter. This information is not intended to apply to cases or jurisdictions outside the State of California, and those viewing this information outside of California, or having business before jurisdictions outside of California, should consult a local professional or lawyer. The information in this blog is not a substitute for the advice of competent counsel, and is not intended, nor should it be construed, as a guarantee, warranty or prediction regarding the results of your legal matter.

Jul 26

CALCULATING CHILD SUPPORT FROM THE SUPPORTED PARENT’S POINT OF VIEW

Last week I discussed child support arguments from the payer’s perspective.  But what about the struggling parent who is charged with caring for the child and providing financially?  What about daycare and medical care?  Am I entitled to help with ball shoes, or clothes, or fees for extracurricular activities?

To reiterate what I told the payers, basic guideline child support is calculated based on a formula in the Family Code, and you can get a rough idea of what you’re entitled to by using the Department of Child Support Services’ online support calculator.  Before you go there, have the following data ready:

1.  The number of supported children;

2.  The tax filing status and number of exemptions each parent takes;

3.  The gross earnings (or earning capacity) of the parties;

4.  Deductions such as healthcare costs, mandatory retirement and mandatory expenses; and

5.  The percentage of weekly hours spent by the parties.

If you don’t know the earnings of the other party, put in an estimate.  Use the Gross, before-tax monthly income in the calculator, not the net.  The program will account for the taxes, and if you enter an after-tax amount you will not get an accurate child support calculation.

But what about those little extras?  Child care?  Clothing? Extracurricular activities?

The basic child support number is meant to include ordinary child-rearing expenses such as housing, clothing, food and etc.  So if you go before the court arguing that dad has not bought a new pair of shoes for a year, know that it probably won’t matter.

But there are certain child support add-ons which are mandatory.  But you must ask for these at your child support hearing or make sure they are included in your child support order.  The mandatory add-ons are described in Family Code section 4062 as follows:

(a) The court shall order the following as additional child support:

(1) Child care costs related to employment or to reasonably necessary education or training for employment skills.

(2) The reasonable uninsured health care costs for the children as provided in Section 4063.

Whenever the law uses the word “shall,” it means that what follows is mandatory.  The court must award these costs against both parents.  You can expect, in most cases, to receive a mandatory reimbursement of half of child care costs related to employment or necessary education, and half of uncovered medical.  The court does have the discretion to apportion the costs between the parents, but the usual apportionment of mandatory additional support is 50-50.

But wait, there’s more.  Section 4062 has a subsection (b) which reads as follows:

(b) The court may order the following as additional child support:

(1) Costs related to the educational or other special needs of the children.

(2) Travel expenses for visitation.

The word “may” means that the court can award them, but it doesn’t have to.  But it doesn’t hurt to ask.

Generally, the court will award such educationally-related costs if they are “extraordinary,” that is, over and above the normal educational expenses.  They can include ball fees for that student that’s athletically gifted.  They could include a tutor for that student struggling with Attention Deficit Disorder or high-functioning autism.

It’s important to understand that both parents have a legal duty to financially support their children.  The court can impute income to a party that refuses to work or would rather live on a park bench than pay his/her support.

Next week I’m going to write about what to do if the other parent just won’t pay.  How do you get an order of child support, or enforce the one that you have?  Until next week,

Love your family,

Protect your finances, and

Reach for your future!

Thomas D. Ferreira, Esq.

Disclaimer: Thomas D. Ferreira is an attorney licensed only in the State of California. The information set forth in this blog or on our websites are not intended to create an attorney-client relationship, nor are they intended as legal advice on your specific matter. This information is not intended to apply to cases or jurisdictions outside the State of California, and those viewing this information outside of California, or having business before jurisdictions outside of California, should consult a local professional or lawyer. The information in this blog is not a substitute for the advice of competent counsel, and is not intended, nor should it be construed, as a guarantee, warranty or prediction regarding the results of your legal matter.

Jul 19

WHAT YOU NEED TO KNOW IF YOU ARE A CHILD SUPPORT PAYOR: SAGE ADVICE FROM A CARLSBAD DIVORCE LAWYER

Last week I gave you some basics on child support, so that you can understand what you’re up against.  I talked about the origin of the current confiscatory child support rates in the politics of bashing the so-called dead-beat dads.  But here’s the irony:  the divorce system tends to split up families without requiring the honoring of traditional family obligations, such as love, fealty and emotional support.  It physically separates the non-custodial parent (usually dad) from a potentially fulfilling parent-child relationship.  It then says, “pay your financial obligation to this child.”

If you’re that guy that would rather live on a park bench than pay your support, I can’t help you.  But if you want to step up to the plate and be a parent, there’s a part of the guideline calculation you can impact and control.  That side is the number of hours you have with your son or daughter.

Elements of the Child Support Calculation:

Let’s look at the data that go into the support calculation, which are these:

1.  The number of supported children;

2.  The tax filing status and number of exemptions each parent takes;

3.  The gross earnings (or earning capacity) of the parties;

4.  Deductions such as healthcare costs, mandatory retirement and mandatory expenses; and

5.  The percentage of weekly hours spent by the parties.

Control What You Can.

The more hours per week that you, the paying parent, spend with the child, the lower your support will be.  But, you say, “she’ll only let me see them on weekends.”  Or, “my court orders only give me 20 percent time (or less).

But here’s where your advantage lies:  Scientific studies have shown that, all other factors being equal, spending time with the non-custodial spouse (usually dad) leads to better adjustment of children to divorce, less delinquency, less drug use, better school performance, and, in short, better kids.  If you think about it, this should be obvious.  Much gang activity and disrespectful behavior toward women can be traced to fatherlessness among children.  Men teach boys how to be men and respect women.  Women teach their daughters how to be adult women.  But it is fathers who, by their conduct, can teach a young woman how a man ought to treat her.

Your family judges know this, and this is why the trend is toward joint custody arrangements.  Such arrangements, between adequate parents, are better for children than one involved parent and one garnished parent.

How to Push the Parenting Time Needle in Your Direction:

The best way to do this is to step up to the plate and be a parent.  Listen, your kids crave your attention, approval and discipline, even if they don’t show it outwardly.  So be a parent.  Volunteer at their school.  Offer to assist their basketball coach.  Get to know their friends.  Plan special events and trips with them.  Make memories.  It’s as simple as that.

It’s a win, win, win, because this focus benefits you, the paying parent, the child who gets a loving parent, and the other parent gets a child who is happy, healthy and easier to manage.  In my experience, courts are generally sympathetic to parents who rearrange their lifestyles around parenting.  They will tolerate a lower level of earnings and not impute higher income to you if you are really stepping up to the plate.

And you may just find that giving to your kids in ways other than money can produce a deeply satisfying relationship with them.  I’ve been able to do this in my own divorce situation.  You can, too.

It’s important to recognize that deepening your parent-child relationship is a marathon, not a sprint.  You’re not going to be able to just go to court after years of neglecting that relationship and get an order of 50-50 parenting time.  You have to lay the foundation by taking the parenting time you have right now, and using it to build that relationship.

Doing this, you’ll lower your payments, and get something in return that money can’t buy:  The love and gratitude of your kids.  I urge you to…

Love your family,

Protect your finances, and

Reach for your future!

Thomas D. Ferreira, Esq.

Disclaimer: Thomas D. Ferreira is an attorney licensed only in the State of California. The information set forth in this blog or on our websites are not intended to create an attorney-client relationship, nor are they intended as legal advice on your specific matter. This information is not intended to apply to cases or jurisdictions outside the State of California, and those viewing this information outside of California, or having business before jurisdictions outside of California, should consult a local professional or lawyer. The information in this blog is not a substitute for the advice of competent counsel, and is not intended, nor should it be construed, as a guarantee, warranty or prediction regarding the results of your legal matter.

Jul 15

WHAT PARENTS MUST UNDERSTAND ABOUT CHILD SUPPORT: A CARLSBAD DIVORCE LAWYER’S PERSPECTIVE

Thomas Ferreira, your child custody and divorce lawyer and mediator in Carlsbad, California, here.  Today I want to talk about child support.

Have you ever been laying awake at night wondering how much you’re going to have to pay in child support?  Or perhaps you’ve done some child support calculations and you’re wondering how to live on what’s left?  Whether you are married or are a never-married parent, child support is one of those unavoidable burdens, much like death and taxes.  But be of good cheer; there are some arguments and strategies that you may not have heard of, and this month I’m going to do a series on exactly how child support is calculated, and also some things you can do to either reduce your burden or collect what you need to raise those kids.

Let’s begin with the legal roots of the child support obligation.  In all 50 states, and all territories of the United States, the law recognizes the duty of parents to financially support their children.  About 20 years ago child support became a hot-button political issue, as candidates for public office and even for president made political hay from a perceived national concern over “dead-beat dads.”

This political pressure resulted in the system we have today, as the federal government forced every state to adopt guidelines governing exactly how much a non-custodial parent must pay a custodial parent in child support.  Even in joint custody cases, if you make more money than the other parent, you can expect to pay some support, and, if you’re doing really well and the non-custodial spouse is down and out, you could get hit with child support even if the other parent only has 20 percent time with the kids!

California’s state-wide guidelines are contained in Family Code section 4055.  Reading this code section is a cure for insomnia, and you would have to be a mathematician to figure out your support just by reading the statute.

Therefore, enterprising software writers have come up with computer programs to calculate child support.  When you go into a family law or support division courtroom in California, you’ll find that the judges have the support calculators loaded on to their laptops, and county law libraries will normally have the software as well.  In San Diego county, where I practice, the program of choice is called DissoMaster(tm) and I, like all  practitioners, own a license for this software.

If you require a child support calculation, contact my office and we can run a DissoMaster calculation for you.  If you’re reading this at midnight, try the online calculator by clicking here.

If you are a paying parent, it’s best to run support calculations while sitting down.  I have seen numerous cases of what I refer to as DissoMaster shock, a condition where a speechless parent first learns what the State of California will require them too pay.  The fact is, those little urchins are expensive, especially when they become teenagers.  Recognizing this, the guidelines provide for some rather high numbers.

The good news for payers is that all is not lost.  There are ways to reduce your liability for support.  But it’s difficult, as the guidelines are mandatory in the vast majority of support cases.

Therefore, in the posts to come, I’d like to discuss exactly what the law is, and in particular, how the court treats various claims of hardship in support cases.  But I’d like to go further and give you some arguments you can make in court, and some long-term  strategies that will help keep the money in your pocket.  Stay tuned …

Very truly yours,

Thomas D. Ferreira, Esq.

Disclaimer: Thomas D. Ferreira is an attorney licensed only in the State of California. The information set forth in this blog or on our websites are not intended to create an attorney-client relationship, nor are they intended as legal advice on your specific matter. This information is not intended to apply to cases or jurisdictions outside the State of California, and those viewing this information outside of California, or having business before jurisdictions outside of California, should consult a local professional or lawyer. The information in this blog is not a substitute for the advice of competent counsel, and is not intended, nor should it be construed, as a guarantee, warranty or prediction regarding the results of your legal matter.

Jul 05

WHAT EVERY WOMAN WANTS, WHAT EVERY MAN WANTS—A NORTH SAN DIEGO COUNTY DIVORCE LAWYER’S PERSPECTIVE

Thomas Ferreira, North San Diego County divorce lawyer and mediator here.  As I said in my last post, this job has given me an insider’s view into the cause of marital breakdown.  And marital breakdown is a heartache whether or not there are are children involved.

Have you ever had arguments with your husband or wife, and wondered, sometimes aloud, “what on earth does he/she want from me?” 

I can answer that question.  I’m on my third marriage (1 death and one divorce) and I’ve read just about everything on making marriage work.  After having worked for years in this field and seeing hundreds of divorcing couple, I can at last answer that nagging question, “what does he/she want from me?”.

WHAT EVERY MAN WANTS:

I’ll start with the men, because it’s easier to explain.  In marriages and relationships men crave the respect and admiration of their spouse/significant other.  That’s it, you ask?  Yup, that’s about it.

Consider the guy who gets up early for that trip to the office, and doesn’t get home until late at night  He neglects his hobbies and pastimes, to say nothing of his family.  What drives this seemingly irrational behavior?

If you said money or status, that could be it.  It could be that he’s just a workaholic.

But in my experience, that’s usually not it, or not the whole picture.  Usually a man craves to be a hero to his wife and his kids.  Your man is likely thinking, “I’m the one that sacrifices his desires, his hobbies and often his health to bring home the bacon.”  Ladies,  more than sex, more than a home-cooked meal, more even than peace and a good ball game, your man craves the reward of appreciation.  He wants his kids’ gratitude and veneration.  He wants his woman to see him as her night in shining armor.

But here’s what often happens in marriages.  The man is dreaming of coming home to his wife, after a triumphant but exhausting day at the office.  His main need is respect and admiration.  But she’s been home all day, or at her own job, and she has needs of her own.  Maybe she craves attention or has some stories to tell about her day.  When he’s not an attentive or can’t muster the romance she’s been craving, she gets frustrated and becomes critical.  As the couple does their dance of conflict, she will often say something that strikes at the heart of his self-image as a father, husband and provider.

I’ve seen this over and over again with couples I have worked with, and thought, if these two could just give the other what the other needs, they wouldn’t be in my office.

WHAT EVERY WOMAN WANTS:

Guys, here’s what the ladies are looking for:  a man they can respect.  What is it that a woman wants in her man?  Start with honesty and integrity.  She wants someone who leads his family, not in the “go get me a beer” sense, but who shows forth his integrity, his courage, his wisdom and willingness to sacrifice for the benefit of his wife and kids.

Guys, take the time to discipline your kids, and don’t leave that task to your wife.  Make sure, above all, that your sons and daughters show respect to their mother.  If you both have had a hard day, go into curiosity mode with your bride, asking her to elaborate on what she just said, listening patiently until she finishes her tale.  Show your wife that you’re willing to sacrifice materially for the family and don’t always insist on getting your own way.

By doing this, you’ll be the hero that she craves.  In the words of Rudyard Kipling,

If you can keep your head when all about you
Are losing theirs and blaming it on you;
If you can trust yourself when all men doubt you,
But make allowance for their doubting too:
If you can wait and not be tired by waiting,
Or, being lied about, don’t deal in lies,
Or being hated don’t give way to hating,
And yet don’t look too good, nor talk too wise…

This is the essence of the manhood that women crave.

BUT HE/SHE WON’T KEEP  HIS/HER SIDE OF THE BARGAIN:

It doesn’t matter.  Someone has to start.  Ladies, if you hold out high expectations and make him feel like your hero for just 5 minutes, he’ll jump down a dragon’s throat for you.  Men, if you shoulder your burdens without complaint and sacrifice self to care for her, you’ll win her back, or at least make her think twice about leaving such and outstanding husband and father.

Divorce is easy compared to making your marriage work.  But your marriage is the key to a meaningful and satisfying family life.  Here’s hoping you never have to come see me or any other divorce lawyer.

Love your family,

Protect your finances, and

Reach for your future!

Thomas D. Ferreira, Esq.

Disclaimer: Thomas D. Ferreira is an attorney licensed only in the State of California. The information set forth in this blog or on our websites are not intended to create an attorney-client relationship, nor are they intended as legal advice on your specific matter. This information is not intended to apply to cases or jurisdictions outside the State of California, and those viewing this information outside of California, or having business before jurisdictions outside of California, should consult a local professional or lawyer. The information in this blog is not a substitute for the advice of competent counsel, and is not intended, nor should it be construed, as a guarantee, warranty or prediction regarding the results of your legal matter.

Jun 29

Exposing the Real Cost of Divorce—A North San Diego Divorce Lawyer’s View

My mother once asked me, “Thomas, do you know why divorces are so expensive?”   I said, “no.”  “Because they’re worth it!” she replied.

I was 4 years old when she got her first divorce and 20 when she got her second.  I can say with confidence that mom’s divorces have not been worth it, at least not for me.

And it wasn’t for her, either.  My stepfather, who I call “dad” and who did most of the heavy lifting to raise me, is remarried, but my mother often speaks of him.  Sometimes she angrily berates his selfishness and rails against her continued financial dependence.  After 30 years she still blames her lawyer and the divorce settlement for that.  On balance my mother’s divorces didn’t solve the problems that she believed they would solve, and each divorce left a trail of ugly debris in its wake.

THE DIVORCE TRAP:

Have you ever felt that your spouse has simply killed all the love in your heart for him/her?  Perhaps you feel unmotivated to give for the family any more, because all you get from him/her is criticism.  Maybe he’s indecisive and you have to make all the important decisions.  Or he spends the whole day with his nose stuck in his iPhone.  Maybe she is spending you into oblivion, and whenever you try to talk about it she denies it and becomes defensive.

You may find refreshing that the young lady at the water cooler thinks you’re cute, and that she actually respects what you do.  When you’re unhappy, life can seem unbearable and bleak.  You may have already come to the conclusion that divorce is the answer to your family problems, or that the change will result in your personal happiness.

But I’ve seen over and over that divorce rarely solves any problems, and it creates some new ones along the way.  When you divorce, here are some things you can look forward to:

  • A divorce with children can result in hotly-contested litigation, even though California is a “no-fault” state.  It is difficult to get through a whole case for less than $10,000, and a $20,000 attorney bill is not uncommon—for each party.  Then, there are experts, evaluators, appraisers and the like.  There are filing fees with the court that run about $450 per party.
  • Every time you confront your spouse on an issue, you each get to write declarations saying the worst things about each other.  Get ready to be extremely upset in the days leading up to the hearing, and then for about 72 hours afterward.
  • You will have to divide retirements, your home, and other property acquired during the marriage equally.
  • In the end, you will have an award of spousal support (also commonly known as spousal maintenance or alimony) and child support.  Your family doesn’t go away; its members continue to need financial support.  And, you are about to lose the financial benefit of living together, and will need two homes, and often two sets of everything the kids need.
  • Divorce hurts children, plain and simple.  You can look forward to shuttling the kids back and forth between homes.  They do get used to it, but often the relationship between the kids and one parent will go south.  And, if you can’t show respect to the other parent, your kids learn that they need not respect their future mates.  The legacy you leave will likely be one of disrespect for authority, or women, or men, or all of the above.
  • Most divorced people I know will tell you that the divorce didn’t solve the problem.  They continue to have conflict over the kids or ongoing support obligations, and they have lost the support of that partner. Divorce leaves all of the negatives of the relationship without any of the positive.

SOLUABLE PROBLEMS:

In divorce mediation, I get an inside view of the end of marriage, and it’s not pretty.  Usually, each party blames the other, seeing in them the root cause of the breakup.  The body language is pointed fingers and rolled eyes.

But I see something else, almost every time:  tears of regret at the thought of breakup.  And, during the interaction I can almost always see what it was that made them “work” as a couple.  I can see how their personalities complement each other, or how they have complementary strengths and weaknesses.

Most of the “mental health” approaches treat marital problems as illnesses to be cured.  What I find is that I can often make much headway with a couple using standard mediation techniques.  Often times she doesn’t understand how that gesture of pointing her index finger in his direction while talking puts him on the defensive.  Or, he has never really understood that, despite his efforts, the relationship has not met her need for emotional intimacy or protection.

As a divorce mediator, it is my duty to direct the conversation back to business.  But I can’t help thinking that these folks don’t know that their problems are solvable.    And, I know for sure that divorce is not the solution.

You may question what good advice a divorce mediator and litigator can provide to help with marriage.  Mine and Tammy’s personal journeys have led from divorce, through all the struggles of the parenting plan and financial problems of divorce, to a happy remarriage.  And, we have had numerous couples come through our offices in need of help communicating, not help divorcing.

I’d like to take the next few weekly blogs to discuss some things you can do to save your marriage before you decide to end it.  Stay tuned for next Tuesday’s blog post, which will discuss what every person is looking for from their life partners.  Until then,

 

Love your family,

Protect your finances, and

Reach for your future!

Thomas D. Ferreira, Esq.

Disclaimer: Thomas D. Ferreira is an attorney licensed only in the State of California. The information set forth in this blog or on our websites are not intended to create an attorney-client relationship, nor are they intended as legal advice on your specific matter. This information is not intended to apply to cases or jurisdictions outside the State of California, and those viewing this information outside of California, or having business before jurisdictions outside of California, should consult a local professional or lawyer. The information in this blog is not a substitute for the advice of competent counsel, and is not intended, nor should it be construed, as a guarantee, warranty or prediction regarding the results of your legal matter.

Jun 22

CHILD CUSTODY SECRET: KNOWING WHEN THE COURT CAN HELP YOU, AND WHEN IT CAN’T.

Thomas Ferreira here, divorce and child custody mediator in North San Diego County.  I want to let you in on a strategic secret that can save you thousands in lawyer costs and untold grief.

I have a question for those of you who are divorcing, have a paternity case pending or a support case pending:

Have you ever had some disagreement with your soon-to-be-ex, and vowed that you were going to take him/her to court?  Maybe you then had second thoughts later, because court is expensive and complicated.  What is an appropriate issue to stand pat and file that Request for Order?  And When should you suck it up and go on with life?

If your children are in actual danger because of the other parent’s abuse or neglect, you’ve got to act.  But what if he’s usually more than 15 minutes late to the transition point, and never calls ahead to say he’s running late?

THE COURT IS A BLUNT INSTRUMENT:

Our court system comes from merry old England, and is designed primarily to transfer money from one pocket into another and to determine the guilt or innocence of those accused of crimes.  These tasks are “all or nothing” situations.  “The court finds that you operated your automobile in a negligent manner, causing the plaintiff to suffer damages.”  Or, “We, the jury, find the defendant guilty of murder in the first degree.”

In family law, the court is asked to manage an ongoing relationship.  Courts generally struggle with the management of relationships.  When children are involved in divorce or paternity proceedings, the court is asked to act as “super-parent,” to resolve disagreements when parents can’t agree on what’s best for the children.  But your judge wasn’t there to see what happened, and the evidence is often conflicting.  When the issue is trivial, the courts expect the parents to behave “like adults” and not involve the court in petty disputes.

The court is good at making sweeping decrees, such as “I am awarding joint legal custody to the parents, with primary physical custody to the mother.”  The court will usually adopt one of the form, recurring visitation schedules, such as a 2-2-3 or alternate weekends.  The court can find that visits with a parent must be professionally supervised if there are issues of gross neglect or abuse.

The court is less able to regulate more minor issues such as whether to enroll Junior in football or baseball, or whether he should be allowed to grow his hair long.  In family law, we lawyers sometimes call this type of issue a “garbage issue.”

THE CHILD WELFARE TEST:

My clients often ask me to file for emergency orders over hygiene issues or possible drinking and partying.  When doing so, I ask this question:  is there a Child Welfare investigation pending?  If not, why not?

In my experience, the trend in family law is to give generous parenting time to “non-custodial parents” (usually dads).  Before you ask for full custody of the children and no overnight visitation to the other parent, ask yourself if that other parent is “adequate.”  Not, “is she a good parent,” but is she an “adequate parent?”  Today’s family courts usually grant liberal, overnight parenting time to “adequate parents.”  An inadequate parent is one who has committed an act of child neglect, such as placing the child in danger, or perhaps one with serious substance abuse problems.

MAJOR IN MAJORS AND MINOR IN MINORS:

If you just don’t like the books dad reads to the kids, or think his new girlfriend is a bad influence, I have three words for you:  “let it go.”  This is not just good co-parenting advice; it is good litigation strategy.  If you are the tolerant one and support the other parent’s relationship to the children, you’re more likely be found to be the parent who supports “frequent and continuing contact” with the other parent.  I have handled many cases where a parent lost significant time with the children because they nitpicked about the other parent’s world.  You’ll do better if you support frequent and continuing contact with the other parent.

It’s a paradox.  If you want more time with Johnny, you have to be supportive of his parenting time with dad or mom, and not raise a bunch of ticky-tacky issues with the court.  The court wants you to cooperate in raising Johnny.  Save the big guns to deal with major problems, such as that move-away situation or problems of neglect and abuse.

This isn’t easy.  It requires large amounts of grace and patience.  But it pays off over the long haul.

And if you want to commiserate, you can join the Divorce Life Solutions Meetup group.

Stay tuned for next week’s blog, and until then,

Love your family,

Protect your finances, and

Reach for your future!

Thomas D. Ferreira, Esq.

Disclaimer: Thomas D. Ferreira is an attorney licensed only in the State of California. The information set forth in this blog or on our websites are not intended to create an attorney-client relationship, nor are they intended as legal advice on your specific matter. This information is not intended to apply to cases or jurisdictions outside the State of California, and those viewing this information outside of California, or having business before jurisdictions outside of California, should consult a local professional or lawyer. The information in this blog is not a substitute for the advice of competent counsel, and is not intended, nor should it be construed, as a guarantee, warranty or prediction regarding the results of your legal matter.

Jun 16

DIVORCE NEGOTIATION SECRET NUMBER 5: The Power of Trust

As a man changes his own nature, so does the attitude of the world change towards him.—Mahatma Gandhi

Today’s is a low trust world.  That’s why there’s so much bullying, fighting and litigation.  Don’t you wish you could live in a better world?  You can.  I’ve seen it happen in divorce cases over and over again.

How many of you have a hard time trusting your ex?  Or even worse, their new mate?  Holy smokes, why is this guy talking about trust?  I can’t stand that &@#%^$%!.

But you’re negotiating about important issues of child rearing, financial issues and the like.  You want to get through this without spending money on lawyer and expert fees.  Therefore, trust may be what you need.

High trust is like oil in the gears of any negotiation.  High trust reduces your legal and transactional costs exponentially.  Low trust leads to appraisal evaluations, child custody evaluations costing thousands, multiple court hearings and huge attorney’s fees.

Consider the store owner Bill, who orders 1,000 widgets from the factory.  He knows the factory owner Janet to be a person of great integrity.  He has placed hundreds of orders over the last 5 years, and each time he gets widgets of high quality, delivered on time.  Bill has always paid Janet on time, occasionally even paying a bonus for work well-done.

About a year ago about 10 percent of the widgets had a flaw that made them unsellable.  Janet immediately rectified the situation by refunding the money for the defective widgets and delivering salable widgets immediately.

Bill doesn’t need to hire a lawyer or write up a lengthy contract.  He knows he won’t have to involve the courts to enforce performance of the contract.  He needs to keep enough widgets in stock to satisfy his customer base.  Whenever his stock is getting low, he places a call to his supplier:  “Hey, Janet, I’m running low.  Can you get 1,000 widgets over to my warehouse by week’s end?”  Janet says, “Sure.  I’ll get the order ready as soon as possible.  Hey, my suppliers have raised their rates and I need to increase the cost by 10 cents per unit.  Is that alright with you?”  “Sure, Janet, that will be fine.”

When people can do business on a handshake, transaction costs go to almost nothing.  But how did Bill get there?  And more importantly for you, how can you get there with your ex?  Let’s break down what happened between Bill and Janet that led to the high trust.

  • Bill and Janet have a relationship that has spanned years.
  • Over those years both have been willing to make agreements and compromise.
  • Each time they have an agreement, both parties promptly do what they promised.

How do you build trust, or overcome mistrust in your relationship with your ex?  Here are some pointers:

1.  Be reasonable and willing to enter into agreements that benefit both of you.  The first half of the trust equation is a willingness to stretch yourself and reach agreements.  These normally aren’t perfectly aligned with your interests, but they are designed to maximize the benefits to both parties.

2.  Be trustworthy.  The other half of the trust equation is to follow through on what you said you were going to do.  Over time, if the support payments are made on time, or you’re there promptly at the exchange time and place for little Johnny, you become predictable, and the other starts to believe you can be counted on.

3.  Leave the past in the past.  Don’t bring up the issues that divided you.

4.  Think win-win.  Be a problem-solver and avoid complaining.  If you want to vent your feelings, call your best friend or your therapist.  When negotiating with your ex, try to find win-win solutions.

My final remark is that trust takes time to build, but it can be shattered in a second.  Try not to do or say things that will destroy the trust.  Start behaving in predictable ways.  Over time you’ll find that cooperation will get easier.

Abraham Lincoln is quoted as saying “A lawyer’s time and advice are his stock in trade”.  As a mediator, my stock in trade is really trust.  I exert effort to build and protect trust.  When negotiating divorce issues, you should too.

Love your family,

Protect your finances, and

Reach for your future!

Thomas D. Ferreira, Esq.

Disclaimer: Thomas D. Ferreira is an attorney licensed only in the State of California. The information set forth in this blog or on our websites are not intended to create an attorney-client relationship, nor are they intended as legal advice on your specific matter. This information is not intended to apply to cases or jurisdictions outside the State of California, and those viewing this information outside of California, or having business before jurisdictions outside of California, should consult a local professional or lawyer. The information in this blog is not a substitute for the advice of competent counsel, and is not intended, nor should it be construed, as a guarantee, warranty or prediction regarding the results of your legal matter.

Jun 07

DIVORCE NEGOTIATION SECRET NUMBER FOUR: Avoiding the “A” Bomb


Thomas Ferreira here for this installment of my five secrets to successful divorce negotiation.  Today I want to talk about dropping the “A” bomb.  The “A” stands for “attribution.”  Dropping an attribution can produce a 5 megaton explosion guaranteed to blow up your negotiations.

How many of you have been trying to influence someone, and had that person make some throw-away comment that leaves you feeling like you were kicked in the stomach?  It’s likely a belief they have about your character, a belief that challenges how you see yourself.  Here are some typical A-bombs: “…that’s because you have to control everything,” or “my goodness, you’re such a bully.”  Comments like “you are always so irresponsible with money” may contain a grain of truth, and that’s why they hurt so much.  No one likes to see themselves as irresponsible.

Three Levels of Communication:

When I mediate negotiations, I’m on the lookout for 3 levels of conversation.

The surface level is the factual conversation, or the “what happened” conversation.  Consider these frequent assertions that frequently occur in divorce negotiations:

a. The family home is worth $350,000.

b. You were arrested for drunk driving last year.

c.Seventy percent of the 401k is community property.

The next level of depth is the “how do I feel about that” conversation:

a. When I think about selling our home, it hurts to think of all the times we had there.

b. I feel ashamed that I drove the car after drinking, but I’m proud of the things I’ve done to atone for that mistake.

c. I’m afraid I won’t have the money to retire when I’m 65, and I’ll be out on the street begging for quarters.

The deepest level, and the one that holds the most power, is the character conversation:

a.  Family is more important to me than it is to you.

b. When I make a mistake, I face it like a man.

c. I am a prudent saver, not willing to rely on others or the government for a handout.

The character conversation involves how we see ourselves.  It is the foundation of our self-esteem, and when others attack us there, we defend ourselves like we’re fighting for our lives.  That’s because we are, in a sense, fighting for our lives.  After all, if I believe that I’m irresponsible, or that I’m a lousy parent, or that I never do anything good for the kids, those beliefs will drain me of drive to take responsibility, to take selfless actions, or to build a relationship with the kids.

My advice is to consider carefully the power of statements begin with the words, “That’s just like you…”, or “There you go again…” or “you always…” or “you never…”.  What follows these attribution phrases are fighting words, words that attack a person’s foundation of how they see themselves.  By contrast, when an attribution is aimed at you, stop for a second before becoming defensive.  Adopt a curiosity stance and ask them for more details about their proposed solution.  Steer the conversation back to business and away from the personal.

Here’s another technique for the seriously advanced negotiator.  Try a positive attribution, something like “I really appreciate how you’re stepping up to the plate.”  Affirming another person’s positive beliefs about themselves can disarm an otherwise angry and bitter foe, and turn them into a co-problem-solver.

Remember that making that other person your ally instead of your enemy can save you huge litigation dollars, and avoid the most painful and destructive part of divorce: going to court.  In showing some kindness to your soon-to-be-ex, you’ll be on your way to …

Love your family,

Protect your finances, and

Reach for your future!

Thomas D. Ferreira, Esq.

Disclaimer: Thomas D. Ferreira is an attorney licensed only in the State of California. The information set forth in this blog or on our websites are not intended to create an attorney-client relationship, nor are they intended as legal advice on your specific matter. This information is not intended to apply to cases or jurisdictions outside the State of California, and those viewing this information outside of California, or having business before jurisdictions outside of California, should consult a local professional or lawyer. The information in this blog is not a substitute for the advice of competent counsel, and is not intended, nor should it be construed, as a guarantee, warranty or prediction regarding the results of your legal matter.

Jun 01

DIVORCE NEGOTIATION SECRET NUMBER THREE: The Curiosity Stance

Thomas Ferreira here with the third secret to successful divorce negotiations.  I call it the “curiosity stance”.

How many of you have tried to negotiate your divorce or child custody case with your former partner, only to be met with “that won’t work because…” at every turn?  These four words can sound a death knell for creative, win-win divorce negotiation.  “We can’t sell the home because that’s where the children grew up.”  “I can’t agree to that support figure because that’s not enough money to cover my bills.”  “We can’t use the retirement account to pay our debt because we would be charged with taxes and penalties if we draw the money out.”

In my mediation training and years of assisting clients to resolve difficult issues, I have found it helpful to express curiosity about the other’s suggestions, even if I personally feel that they could never work in practice.  During such a process, a person sometimes will come to understand the reality of their position’s weakness.  Or, a solution will emerge that no one had previously thought of.  I have found that, often times, an important underlying interest of a party in negotiation is their desire to tell their story, vent their frustration, or just be heard by the other.  Once that’s out of the way, you can get down to business.

During brain storming ideas and solutions, I tell our mediation clients that there is no such thing as a stupid idea.  But what happens when a person seems stuck on a particular solution or idea.  They must  have the family home.  Or, they can’t touch that retirement account.  The fact is, many times the reasons for these positions are emotional.  In the language of interest, described in last week’s post, that person may have strong feelings on the subject, or entrenched beliefs about the consequences of a certain decision.

But you can’t get to the interests without knowing what’s behind these feelings and beliefs.  Instead of being curious, what people often do is vociferously and stridently to take the opposite position: “The only way to divide the home is to sell it and divide the proceeds.”  Or, “you’re going to have to dip into that retirement account to pay off the debt that it the result of your profligate spending.”  Or worse even, the parties attack each others’ character with statements like “if you weren’t so uncompromising all the time we might have been able to make this marriage work.”

Such statements provoke a defensive stance in the other, and destroy any hope of getting at that person’s real concerns.  Moreover, such statements are polarizing, causing the parties to dig further into their positions.  Litigation, anyone?

Instead, be curious about the other’s thinking and reasoning, and, also how they feel about certain results.  Use open-ended questions that get the other talking more deeply about the issue.  For example, “Talk to me about how keeping the home would work in practice.”  Or, “when you talk about selling the house, what comes up for you?”

When negotiating over important, high-stakes issues, it is vital to check your first impulse to lash out with “that will never work,” or “that’s the dumbest idea I’ve ever heard.”  Take a deep breath and ask some questions to get the person talking about their suggestion.  Allow yourself to be curious about where they are coming from and suppress the urge to push back.  You might just learn something that will make the negotiation easier than you thought.  Who knows?  You may find out that you need only the peel of the orange, and he only needs the center.

Thomas D. Ferreira, Esq.

Disclaimer: Thomas D. Ferreira is an attorney licensed only in the State of California. The information set forth in this blog or on our websites are not intended to create an attorney-client relationship, nor are they intended as legal advice on your specific matter. This information is not intended to apply to cases or jurisdictions outside the State of California, and those viewing this information outside of California, or having business before jurisdictions outside of California, should consult a local professional or lawyer. The information in this blog is not a substitute for the advice of competent counsel, and is not intended, nor should it be construed, as a guarantee, warranty or prediction regarding the results of your legal matter.

May 25

FIVE SECRETS OF SUCCESSFUL NEGOTIATION. Secret 2: The Magic of Converting Positions to Interests

Thomas Ferreira, divorce lawyer and mediator in Carlsbad, California here. 

Alchemy is the fabled art of turning base metals into gold. 

This week’s topic is absolute alchemy for those of you who are negotiating over issues of child custody, support or property division in divorce cases.  It is a technique that I learned during my training at the National Conflict Resolution Center for mediation, and it is a vital tool for any negotiator.  Successful negotiation requires a shift of perspective from the parties’ positions, to the vital interests at stake in the negotiation.  Making this shift allows you to find win-win solutions instead of trying to divide a finite pie into smaller and smaller pieces.

An Orange Parable:

Consider this exercise and try it with your friends.  The parties are in bilateral negotiations over which country will get a special genetically-rare orange (it’s cheating to cut it in half—each party in this exercise needs the whole orange to satisfy their respective country’s needs).  In one party’s secret facts, they are told that they represent a governmentimage of a country whose scientists have found a cure for an epidemic disease, running rampant in their country.  But they need a special chemical that’s found only in the peel of the orange.

The other party is given a different set of secret facts.  In their country, there is widespread famine, and the orange is a special orange that they need to help to create new foods to solve the starvation problem.  They are told that they must get the orange, because the salvation of their country lies in getting hold of orange’s center.

In negotiating exercises, the parties are set to negotiate for the orange, but they are not privy to the other side’s secret facts.  Most students came up with the obvious solution after a few minutes of discussion:  Hey, I need the peel, and you need the center.  Why don’t we share the orange,  and I will take the whole peel, and you can take the whole center.  Sadly, some students did not reach the solution because of the low trust and high stakes involved in the negotiation.  Sound familiar?

Here’s the alchemy of turning positions into interests:  Both parties needed the whole orange, and their position was that they had to have it.  Thus, there was no room for compromise.  That’s a lot like family law negotiations, where you can’t just divide a family home or a child into two pieces.  But compromise only seems impossible.

Most people come to settlement discussions with a classic win-lose approach.  This approach sees the negotiation as something you win by bullying your opponent and instilling in them a fear of loss.  Sadly, this is the dominant paradigm of attorneys when negotiating cases.  But a subtle paradigm shift can change the negotiation from win-lose to win-win, and open up possible solutions that no-one previously considered.

How It’s Done:

The secret is to go behind the positions of each party to tease out the parties’ interests driving their adherence to the position.  One important trick to doing this is to state the interest in neutral terms that do not convey some sort of moral “should” that biases the discussion toward one position or the other.  Here’s an example:

Positions:

Wife:  I want to live in the family home, and the court will probably give it to me.  Husband:  I want to sell the family home and divide the proceeds.  That’s what the court would likely order.

Interests:

Let’s brainstorm some ideas for interests associated with the parties’ positions.  I’m sure you can find more, but here’s a partial list:

  • The parties’ relative emotional attachment to the home.
  • The interest of the children in stability and continuity.
  • The ability of the parties to afford the mortgage payments on their own (financial security).
  • Other assets in the estate that could offset one party taking the home (ability to pay or refinance).
  • The effect of living in the family home on a party’s or the children’s ability to move on or let go of the past (post-divorce happiness).
  • The advantage that keeping the home might give to the staying party (interest in winning).
  • The ease and expense of getting the home ready for sale, and work required of the parties (convenience).
  • Fairness and equity.
  • The ability of a party to refinance and relieve the other party from the mortgage payment after transfer of the home (security).
  • The effect of sale versus a transfer to one party on the parties’ credit score/credit worthiness.
  • The effect on the sale or keeping the home on the parties’ and children’s overall financial wellbeing (Children’s interest in security).

This example is much like the orange, in that the parties have some shared interests and some that seem at first blush to conflict.  Once we have explored the interests behind the positions, it’s much easier to have a discussion about the course of action to take.  For example, if the wife has a deep sentimental attachment to the home, maybe there’s something that Husband is emotionally attached to that can be offered.  Often, for example, men have an emotional attachment to retirement accounts earned through their work lives.

Or, it’s possible that Wife has not thought through the effect of keeping the home on her ability to “let go” after the divorce.  I know that in my own personal experience, getting a new home was greatly symbolic of starting my new post-divorce life, and I wasn’t reminded of my old family life at the turn of every corner.  In short, selling the family home helped me to move on from the divorce.

There are various financial difficulties and risks associated with keeping the family home that override sentimental concerns.  It may be easier for Wife to swallow letting go of the family home when she realizes that paying that mortgage payment will eat up most of her spendable income and impair her ability to be self-supporting and self-functioning.

I find that in almost every negotiation, once we identify the parties’ interests behind the positions, solutions present themselves that the parties never would have even though of.  This is the essence of “win, win” negotiating.

Next time I’m going to tackle a negotiation stance that disarms foes and greases the settlement skids for real.  It’s called the “curiosity stance.”  Until then,

Love your family,

Protect your finances, and

Reach for your future!

Thomas D. Ferreira, Esq.

Disclaimer: Thomas D. Ferreira is an attorney licensed only in the State of California. The information set forth in this blog or on our websites are not intended to create an attorney-client relationship, nor are they intended as legal advice on your specific matter. This information is not intended to apply to cases or jurisdictions outside the State of California, and those viewing this information outside of California, or having business before jurisdictions outside of California, should consult a local professional or lawyer. The information in this blog is not a substitute for the advice of competent counsel, and is not intended, nor should it be construed, as a guarantee, warranty or prediction regarding the results of your legal matter.

May 17

FIVE SECRETS OF SUCCESSFUL NEGOTIATION. Secret 1: Know What You Want in Advance

Thomas Ferreira here, divorce and child custody lawyer and mediator in North San Diego County.  Today I want to share the first of five secrets to negotiating agreements with your ex.

How many of you out there can’t seem to get your ex to agree on anything?  Whether it’s the amount of support, whether to keep or sell the family home, or whether you want Johnny to stay with you through Monday instead of returning him on Sunday at 3:00, family law cases are fraught with difficult conversations.

Tammy Ferreira (my intrepid Certified Divorce Financial Analyst™) and I have successfully mediated over 300 divorce and child custody cases, and we have seen every negotiation style.  We know what works and what doesn’t work.  And this is critical, as if you cannot successfully negotiate solutions to divorce and custody problems, you’re probably going to have lots of court dates and spend a ton on litigation.

I want to share these secrets of successful negotiation so that you’ll get what you want, and what you need, in your case.  These secrets work even if you have an attorney.  And they’re not what you think.  The “art of the deal” in family law requires more than just posturing, threatening and bullying.  You have to think “win-win,” that is, start thinking about the problem from all angles, and find the solution that benefits both parties.  A mutually beneficial solution is so much easier to sell to the other person, because it benefits them.  Why on earth would your ex refuse a solution that benefits him/her, just because it also benefits you?

So here’s the first secret:

KNOW WHAT YOU WANT GOING IN TO THE NEGOTIATION.

If you are confident and poised during the conversation, you’re more likely to get a good deal.  I advise that before you make that call or attend that mediation or meeting, that you think long and hard about what you want.  This preparation should cover three areas:

1.  What are the facts on the ground?  If you are tackling financial issues, have a good idea of what the asset in question is worth, and what it’s worth to the other party.  For example, it’s easy to find some comparative sales (“comps”) on the marital residence and calculate the equity.  But do you or the other person have a sentimental attachment to the property?  Such an attachment is an intangible value that increases the size of the pie to be divided.  Your spouse may be willing to let go of something else to get that home.

2.  What specific outcome do you want?  Think also about the specifics of your desired outcome.  I am often surprised that parents haven’t thought through the exact parenting plan that they want for their kids, that is, the schedule that the children will have between the parents.  Decide in advance what you think would be ideal for your children, and avoid statements like “I want 50-50,” or “I want what is fair.”  Knowing the details of your desired outcome will give you confidence to ask for those details, and will push the needle in your direction.

3.  Know your BATNA.  “BATNA” stands for “Best Alternative to a Negotiated Agreement.”  What’s your bottom line?  At some point, it becomes better to take your chances in court than to agree to something that’s clearly unreasonable or unacceptable.

In determining your BATNA, it is important to understand the value of avoiding litigation.  There are other costs than money or parenting time.  Court tends to destroy trust and ability to work together.  Also, court is stressful and upsetting.  There’s value in avoiding it, and this needs to go into the calculations.

Next week I’m going to talk about the magic of turning positions into interests.  Until then,

Love your family, protect your finances, and reach for your future.

Thomas D. Ferreira, Esq.

Disclaimer: Thomas D. Ferreira is an attorney licensed only in the State of California. The information set forth in this blog or on our websites are not intended to create an attorney-client relationship, nor are they intended as legal advice on your specific matter. This information is not intended to apply to cases or jurisdictions outside the State of California, and those viewing this information outside of California, or having business before jurisdictions outside of California, should consult a local professional or lawyer. The information in this blog is not a substitute for the advice of competent counsel, and is not intended, nor should it be construed, as a guarantee, warranty or prediction regarding the results of your legal

May 10

HOW TO FIND THE RIGHT ATTORNEY (IT’S NOT WHAT YOU THINK).

The usual attorney sales pitch starts and ends with the attorney’s credentials, the attorney’s education and attorney’s accomplishments.  It proceeds through a proven sales formula involving fear of loss, a fear that is already front and center for most of you.

But if you’re like me when I got my divorce, you’re already feeling afraid and overwhelmed.  A consultation with many attorneys will make these feelings worse, not better, especially if they have the fear of loss strategy.

Many attorneys approach the initial consultation as more of a sales opportunity than a chance to help.  I hear many stories of divorcing people being asked to tender a credit card before an attorney will even even talk to them.

Listen, us lawyers do need to make a living. But when your family’s on the line, a great bedside manner can make a huge difference in your level of satisfaction after the judgment, when satisfaction really counts.

Make your choice based on your values and goals.

As with every other decision, your attorney selection should be governed by your own personal goals.  For some of you, making sure you don’t get taken advantage of is your primary concern, and money is no object.  If that’s you, look for the sites that tout credentials, certifications and an aggressive approach.  You’ll be able to tell these attorneys by looking at their websites, which typically feature pictures of law books, granite columns and gavels. These lawyers seek to create a certain mystique.  For these lawyers, get ready to put down a hefty retainer and to replenish that retainer frequently.

Elsewhere I have discussed the importance of taking stock of your values when making decisions, and this decision is no different.  Do you want to

  • Avoid conflict that can harm your ability to parent or let go?
  • Have some money left over to rebuild your family after the case is done?
  • Finish the case quickly?
  • Avoid the negative head rush of pain and anxiety of court hearings and trials?

If this describes your divorce goals, I recommend that you avoid the gavel and granite pillar law firms.

What is the lawyer’s style?

When I was practicing in the insurance and personal injury arena, I learned from my mentors that the best way to settle cases and increase client satisfaction is through taking aggressive actions, filing extreme pleadings, and in general creating risk for the other side.  I was taught to spare no expense in preparing every case as though it is going to trial, so that you can settle from a position of strength.

This is sage wisdom for most litigators, but it’s old school and and doesn’t work well when dealing with families.

The bullying approach, that of fostering fear to muscle your adversary into a resolution, is likely to increase costs as lawyers pursue extensive discovery, multiply motions and prefer going to court over a common-sense, problem-solving approach.  It is also likely to drag the case out and keep you emotionally stuck.  If you have children, the bully approach will harm ability to cooperate with your ex in child rearing.

Go with the attorney who cares about your family.

If your friend tells you that you have to get the attorney he used, ask him how much he spent on attorneys fees.  If the answer is over $10,000, consider choosing someone who will keep your costs down.  If it’s over $20,000, run like your hair is on fire.

I recommend that you go with the attorney who puts your family ahead of his or her own interest in dragging out the case.  Go with the lawyer who suggests win-win solutions during the initial consultation.  Go with an attorney who will keep you out of court and only involve the court when necessary.  Avoid those attorney’s who try to impress you with their own prowess—remember, your fees help pay for those granite columns.

I remain …

Thomas D. Ferreira, Esq.

Disclaimer: Thomas D. Ferreira is an attorney licensed only in the State of California. The information set forth in this blog or on our websites are not intended to create an attorney-client relationship, nor are they intended as legal advice on your specific matter. This information is not intended to apply to cases or jurisdictions outside the State of California, and those viewing this information outside of California, or having business before jurisdictions outside of California, should consult a local professional or lawyer. The information in this blog is not a substitute for the advice of competent counsel, and is not intended, nor should it be construed, as a guarantee, warranty or prediction regarding the results of your legal matter.

May 03

SECRET NUMBER FOUR FOR AN AMICABLE DIVORCE: Don’t Sweat the Small Stuff.

And it’s all small stuff, right?  Not necessarily.  In my own situation, with sons ages 11 and 12, my ex and I are currently co-parenting cooperatively, with the children living with me on alternate fortnights.  I am deeply involved in our children’s lives, as is their mother.  Therefore, I would expect that if either she or I were to, say, request the court’s permission to move with the children to another state, the other parent would vigorously resist this in court.

My point here is not to give in on everything for the sake of peace.  There are hills to die on, and for me, the prospect of losing my day-to-day contact with the boys would be one of those hills.

On the other end of the scale would be the boys’ haircuts.  Eight years ago, when they were in preschool, I came to the school to find the children’s head shaved slick bald.  Now my beloved co-parent probably had a good reason for doing this, but if she did, she didn’t share it with me.  Do I go to court to restrain her from further haircuts?  Do I write a threatening text or e-mail?  No and no.  Recite the serenity prayer (“God grant me the serenity to accept the things I cannot change…”) and let it go.

I see so many people endure painful, expensive court battles over a few thousand dollars in property equalization or support.  When Tammy and I do mediation, we tend to talk in round numbers and see the big picture.

My advice is to see the forest, and don’t get hung up on individual trees.

Very truly yours,

Thomas D. Ferreira, Esq.

Disclaimer: Thomas D. Ferreira is an attorney licensed only in the State of California. The information set forth in this blog or on our websites are not intended to create an attorney-client relationship, nor are they intended as legal advice on your specific matter. This information is not intended to apply to cases or jurisdictions outside the State of California, and those viewing this information outside of California, or having business before jurisdictions outside of California, should consult a local professional or lawyer. The information in this blog is not a substitute for the advice of competent counsel, and is not intended, nor should it be construed, as a guarantee, warranty or prediction regarding the results of your legal matter.

Apr 27

SECRET NUMBER THREE FOR AN AMICABLE DIVORCE: OPT OUT OF THE ADVERSARY SYSTEM

Here’s a declaration against interest if ever there was one:  I am an attorney with a family law and child custody litigation practice, and I am saying that, whenever possible, opt out of the traditional litigation system.  You see, a hard-fought litigation case can be a real plumb for a guy like me—as the more conflict you engage in, the more hours I bill on your case.  A case going to a family law trial is worth  about $50,000 or more to me.

There are plenty of attorneys out there willing to profit from your misery, but I want you to have an amicable divorce.  According to well-known divorce litigators J. Richard Kulerski and Kari Cornelison, this what divorce lawyers do in their own divorces:

They try to stay out of court. Despite their familiarity with the system, and despite any perceived advantage they are believed to have, they do everything they can to settle their case before it reaches the court system.

Divorce insiders try to resist the inclination to fight. They think going to court is a losing proposition. It wastes energy, time, and money and is a last resort; it is something they will consider only when there is no other choice.

I couldn’t have said it better myself.

If you are already up to your eyeballs in litigation, consider contacting your spouse and gently explaining why it’s not in either of your interest to keep running up the bill.  Contrary to popular belief, it’s perfectly permissible to call your spouse on the telephone, even if they have an attorney.

When calling, lead off by explaining why it’s in the other party’s best interest to call off the dogs.

After this, I recommend substituting in yourselves each as your own attorneys of record, and instructing your attorneys not to do further work on the case.  Then, find a mediator who can help you to resolve the issues.  Use your attorney for consultation on specific issues, and to review your settlement agreement once you have resolved the case.  If you can’t settle in mediation, you’re always free to go back to the traditional system.

It won’t work in every case, but I’ve seen it work in several cases I myself mediated.  One couple, two physicians, contacted us shortly after their first Request for Order Hearing to tell us that they’d each spent over $15,000, and were nowhere near resolving their case.  We were able to get their case settled and finalized within just a few weeks, at a huge savings to both parties.

One of the keys to making this work is to adopt a big  picture perspective, and I’m going to deal with that next week.

Until then, I wish you much amicability on your road to your new post-divorce life.

Very truly yours,

Thomas D. Ferreira, Esq.

Disclaimer: Thomas D. Ferreira is an attorney licensed only in the State of California. The information set forth in this blog or on our websites are not intended to create an attorney-client relationship, nor are they intended as legal advice on your specific matter. This information is not intended to apply to cases or jurisdictions outside the State of California, and those viewing this information outside of California, or having business before jurisdictions outside of California, should consult a local professional or lawyer. The information in this blog is not a substitute for the advice of competent counsel, and is not intended, nor should it be construed, as a guarantee, warranty or prediction regarding the results of your legal matter.

Apr 19

SECRET NUMBER TWO FOR AN AMICABLE DIVORCE: HAVE THE CONVERSATION

How many of you read the title to this post and thought “impossible?”  or “How do I have a conversation with someone who hates me?”

I’ll turn this around:  how can you find your mutual interest in resolving conflict if you don’t have a conversation?

Please understand that I’m not talking about situations that have turned violent or involve restraining orders.  If there is a domestic violence restraining order, it’s best to obey that order to the letter and speak through attorneys or other intermediaries.

But for the rest of us, if you are getting a divorce, it’s time to have a tough conversation.  It will be tough, because trust is likely at a low ebb.  But if you can identify your common interests going forward, you’re far less likely to build an armed camp, complete with a hired bazooka of an attorney.  Common interests include:

  • Avoiding the huge fees that accompany legal battles;
  • Avoiding the upsetting experience of repeated court confrontations between you and your ex;
  • Setting up respectful communication between co-parents;
  • Ensuring that you get to keep your parent-child and other family relationships;
  • Controlling the outcome voluntarily (instead of submitting problems to third-party decision-makers);
  • Finding win-win solutions to problems.

Divorce always involves difficult conversations.  For one thing, you have to talk to your kids in a way that reassures them of your commitment to love them, while being respectful of the other parent.

But perhaps the most important conversation is the one you have early in the process, with your soon-to-be-ex.  You need to get on the same page about resolving the estate, support and child rearing.  Here are some tips on how to approach the conversation:

1.  Left spouses, accept your spouse’s decision to end the marriage.  As a left spouse, I learned early on that once someone has decided to divorce, they are usually resolute and over the relationship.  As I tell my clients, assume that your spouse is “stick a fork in him/her, done with the relationship.”  Your pleading for reconsideration will not help at all, and will hurt by directing energy away from exploring shared interests.

2.  Leaving spouses, be resolute.  This does not mean that your soon-to-be-ex should find out they are divorcing from a process server.  It is important, when making “the announcement,” to consider the feelings of the other.  I recommend using what I call the “and stance.”  It goes like this:  “Mike, we need to talk.  I’ve decided that I am going to seek a divorce.  And  I’d like it to be amicable and peaceful, if possible.  And, I know that this may be coming as a shock to you. And I recognize that you think that we should be able to work things out.   And, I’m not changing my mind.  And,  I think we need to talk about how to proceed with this so that we don’t involve lawyers and wind up battling in court.  And, I know that this will have a big impact on our kids.  And I can see that you’re hurt. And,  I’m not changing my mind.

The “and stance” sets up the paradigm of cooperation from the start, while showing empathy.  It sets up the paradigm of “Husband and Wife versus the problems.”  It gets you out of the adversarial stance.

3.  Avoid rehashing what went on in the marriage.  If your spouse wants to go there, gently redirect them to the problems at hand, which are, saving money, avoiding conflict, avoiding court, co-parenting children, etc.

4.  By all means, avoid attributions.  By attributions, I mean statements that begin with words like “you always…”, “you never …”, or “That’s what you always do …”  Instead, start from a posture that assumes the basic decency of the other, and that you have some mutual problems to solve.  The truth is, your soon-to-be-ex can be your greatest ally in reducing costs and achieving mutually beneficial outcomes.

MEDIATION:

The problem we all have is that we are trying to have this conversation at a time of high emotion.  Often the situation can seem impossible, which is why I recommend the assistance of a trained mediator.  As a mediator, I am not just trained in the law; I am trained in the art of having difficult conversations.  I know how to handle the emotional minefield that is discussing divorce issues.  And I know how to keep the conversation on the rails for the benefit of the parties.  If you can get your spouse to just come in, we can almost always get you on to a cooperative footing.

Next week I will discuss some of the opt-outs of litigation, including mediation, in more detail.  Until then, I remain…

Very truly yours,

Thomas D. Ferreira, Esq.

Disclaimer: Thomas D. Ferreira is an attorney licensed only in the State of California. The information set forth in this blog or on our websites are not intended to create an attorney-client relationship, nor are the intended as legal advice on your specific matter. This information is not intended to apply to cases or jurisdictions outside the State of California, and those viewing this information outside of California, or having business before jurisdictions outside of California, should consult a local professional or lawyer. The information in this blog is not a substitute for the advice of competent counsel, and is not intended, nor should it be construed, as a guarantee, warrantee or prediction regarding the results of your legal matter.

Apr 12

FIRST OF FOUR SECRETS TO AN AMICABLE DIVORCE: Don’t Be a Hater.

Have you ever wished that your divorce case could be amicable?  That you could cut through the BS and the fighting and just get your ex to accept reason?

The difficulties are structural, that is, built into the nature of the divorce system.  It’s hard to have an amicable divorce when:

  • The spouses have strongly conflicting emotions regarding the family breakup;
  • The spouses are at different stages of acceptance about the divorce;
  • The divorce process requires an adversarial lawsuit in court with winners and losers;
  • The laws are not designed to achieve fairness or justice.

Having an amicable divorce is easy if there is no marital property, no children, the spouses are both self-supporting, in short, if there are no issues to fight about.  But for the rest of us, there are some strategies that, when used from the outset, will make an amicable divorce much more likely.  This is true even in large estates, marriages with children or where one spouse is in need of significant financial support from the other.

I can’t guarantee that you’ll have an amicable divorce, because much depends on the behavior and attitude of the other person.  What I can tell you is that there are certain attitudes and tactics that will make an amicable divorce much more likely, whether or not the other person also does them.  I’d like to take each one separately, so stay tuned for the next 4 weeks.

Here are 4 solid attitudes/tactics that will put you on the road to saving money and heartache on the road to dissolving your marriage:

1.  Don’t be a hater—try to see the situation from his/her point of view.

2.  Have a mediated conversation with the other person.

3.  Opt out of the adversarial system.

4.  Don’t sweat the small stuff.

Tactic one:  Don’t Be a Hater.

It should come as no surprise that most people’s exes are not their favorite person.  Many people I know harbor resentment and anger toward their ex for years and years following the divorce.

In the classic book by Dale Carnegie, How to Win Friends and Influence People, the author describes the famous bank robber Al Capone as feeling that he himself was misunderstood.  Though a hardened criminal and murderer, Capone saw himself as a good person.

I don’t know your ex—but I know this much about him/her:  He or she does not share your negative view of him/her.  He or she may think of himself/herself as the wronged party.

Even if the other person has destroyed your life with drinking, or has had multiple affairs, there is some level on which they feel justified and wronged.  It is vital to humanize that person, and not treat them merely as someone to be opposed at every turn.

Humanizing the other party is not the same thing as saying that everything they did was okay.  It’s operating on the proposition that everyone acts out of an ultimate motive to be happy, though some people have a twisted way of going about it.  If you are a leaving spouse, it’s important for you to understand the impact of your decision on the other, even as you remain resolute in your decision.  The other person may cling hard to what is left of their family life.  Many fathers will find new interest in the children that they didn’t have before the breakup.  Many will react with fear to the prospect of financial loss.  For many, money equates to survival.

If you are the left spouse it is often hard to think beyond the tragedy and loss you are experiencing.  But try to remember that no decision to divorce is taken lightly, and most people don’t pull the trigger on leaving until they feel that it is their only option.

By contrast, hating and fighting in litigation is self-reinforcing.  The satisfaction you feel at taking him to the cleaners is short lived, and often not worth the thousands in legal fees.  In my experience, the deeper the parties get in spending on litigation, the more they feel they have to keep going.  And, even after the trial and the court’s judgment, post judgment issues such as support and child custody guarantee the opportunity for future rematches.

I will repeat what I have said in earlier posts:  saving money on divorce depends on creating trust—not the trust that you had when you were married, but the trust that says that I’m not going to try and screw you, I’m not going to try and alienate the children from you, and I’m going to follow through on my commitments.

Deciding not to fight the divorce battle from two armed camps is not the same thing as waiving the white flag of surrender.  I’m not suggesting that you abandon your own interests for the sake of peace.  Such a peace is an illusion, coming as it does at your expense.

What I am suggesting is that you take steps at the outset to understand the other’s concerns so that you can talk more easily about the issues and ultimately opt out of the traditional litigated system.

Your kids and your wallet will thank you.

Very truly yours,

Thomas D. Ferreira, Esq.

Disclaimer: Thomas D. Ferreira is an attorney licensed only in the State of California. The information set forth in this blog or on our websites are not intended to create an attorney-client relationship, nor are the intended as legal advice on your specific matter. This information is not intended to apply to cases or jurisdictions outside the State of California, and those viewing this information outside of California, or having business before jurisdictions outside of California, should consult a local professional or lawyer. The information in this blog is not a substitute for the advice of competent counsel, and is not intended, nor should it be construed, as a guarantee, warrantee or prediction regarding the results of your legal matter.

Apr 05

THE MOST IMPORTANT INGREDIENT IN A LOW-COST AMICABLE DIVORCE: BUILDING TRUST.

This is Thomas Ferreira, your divorce and child custody lawyer and mediator serving your community, primarily in North San Diego County.  I want to tell you the one secret that will help you not to pay me huge attorneys fees (I  didn’t say that out loud just now, did I?).

How many of you readers have sought free advice from attorneys, only to be asked for a credit card before anyone will talk to you?  Or have you been to an attorney who has given you an honest estimate of the entire cost of his/her services?  If so, I hope you were sitting down.

Yes, legal fees are expensive.  But as the old joke goes, isn’t divorce “worth it?”  Perhaps.  But not  if you spend the $10,000, $20,000 or $100,000 on your lawyer’s fees, money that could have helped you create your fantastic post-divorce life.

THE SECRET:  TRUST

About 5 years ago I read a book that deeply influence me, a book written by the son of the late Steven Covey called The Speed of Trust.  Mr. Covey describes what he calls a “trust tax,” expenditures that become necessary because a party feels the need to be protected.  His example is a business deal transacted on a handshake.  If each party believes strongly that the other will deliver on his/her promises, there is no need for lawyers, appraisers, arbitrators and other dispute resolution experts.  Party A pays the fees pursuant to the schedule, and party B delivers the widgets by the due date.  No litigation necessary.

I had several cases over the past year of people who found themselves up to their eyeballs in litigation.   One couple were both physicians who had spent $10,000 each, and had not yet made it to their first Request for Order hearing.  They decided to substitute out their attorneys before any more  damage was done, and stop sweating the small stuff.  After one session of mediation and a flurry of paperwork, we had their case done in about 2 weeks, for about 10 percent of what they would have spent answering discovery, filing motions and trying their case.

But here’s what had to happen:  Both parties had to decide to opt out of the usual attorney-driven mess.  One party called the other (and not the other’s attorney) and said:  “hey, this is costing me a fortune.  Do you want to  keep doing this?”  The other party said, “this is costing me a fortune, too.  Let’s stop doing this.”

Most parties don’t know that they can call their soon-to-be-ex directly, without going through the attorneys.  The trick is to present it to the other person as a win-win, and have an alternate plan to to the court fight, such as mediation.

TRUST KILLERS:

In no order of severity, common trust killers in divorce are:

  • Telling the other party they are getting a divorce by means of serving divorce papers through a process server;
  • Filing motions over disputes that should be easy to talk through;
  • Sending nasty messages and communications;
  • Not following through on commitments or disobeying court orders;
  • Hiring aggressive attorneys who write nasty, threatening letters;
  • Attorneys propounding demands for production of documents with 50 separate demands, and another 30 special interrogatories.

These steps are often unnecessary, and the cost they produce is not only measured in attorneys fees, but in heartache and inability to co-parent.

WHAT TO DO:

First, if you are sure the marriage is over, have a conversation about your intentions.  We recommend that you be firm, as there is no upside to  trying to let the other party down easy.

Second, find a mediator, preferably one who has a collaborative approach and doesn’t think too legalistically.  Often times solutions can be found that don’t fit neatly into the Family Code, yet provide benefits for everyone.

Third, be willing to make  commitments and agreements.  Write them down so you’re clear, and get court orders by stipulation if necessary.

Fourth, and this is the most important:  Follow through on your agreements.  When a person is predictable and does what they say they’re going to do, it builds trust in the other, trust that can head off expensive litigation.

Hoping that you can find a way to build a new kind of trust—not the trust of married people but a trust that says, “I know the marriage is over, but I’m going to be predictable ad honor my agreements,” I remain …

Very truly yours,

Thomas D. Ferreira, Esq.

Disclaimer: Thomas D. Ferreira is an attorney licensed only in the State of California. The information set forth in this blog or on our websites are not intended to create an attorney-client relationship, nor are the intended as legal advice on your specific matter. This information is not intended to apply to cases or jurisdictions outside the State of California, and those viewing this information outside of California, or having business before jurisdictions outside of California, should consult a local professional or lawyer. The information in this blog is not a substitute for the advice of competent counsel, and is not intended, nor should it be construed, as a guarantee, warrantee or prediction regarding the results of your legal matter.

Mar 29

THE BEST OF ALL DIVORCE/CHILD CUSTODY WORLDS: SELF-REPRESENTATION WITH MEDIATION.

This is Thomas Ferreira, your family law mediator and lawyer in Carlsbad California.  Today I want to talk about how to involve a family law expert in your case while staying self-represented.

Are you facing child custody, divorce or another family law problem and wondering how you’ll get through the process without spending huge money on an attorney?  Or perhaps you’re wondering how on earth you’re going to afford an attorney.

If this is you, I’ve got some valuable information to share, information that can save you thousands and protect your sanity and happiness.

A recent paper on self-represented and represented divorce litigants discusses surveys of both represented and unrepresented family law litigants, and contains these surprising results:

  • Sixty-four percent of represented people hired a lawyer because they wanted an expert to represent them.
  • However, self-represented divorcees had the same level of positive reaction to their court experience as those with lawyers (64 % compared to 63%), but had fewer dissatisfied and very dissatisfied reactions (16% versus 29%).
  • Self-representeds were more likely to report that they understood the divorce decree.
  • Self-representeds were less likely to seek a modification of the judge’s decision.
  • 70% said they would represent themselves again.

What to do?  My advice is to get educated on the process first.  You need to know what you don’t know, and there are great resources that are available for free to get you started on understanding the process.  Our office will soon be offering a free video series on what I call the 4 “Ps” of a successful divorce experience:  Purpose, Planning, Process and avoiding Pitfalls.

You can use attorneys only when necessary—such as to appear for a hearing if you feel uncomfortable representing yourself, drafting a pleading or preparing settlement documents.  This is called “limited scope representation.”

Take advantage of workshops in your jurisdiction and go watch some court hearings at your local courthouse.  Our office offers free monthly workshops and webinars to give you the information you need.   That will help you gain confidence in handling representation.

I’ve said before that the most cost-effective way to use divorce experts is through the mediation process.  In mediation, you can meet with a lawyer or other professional whose role is to facilitate a conversation, not engage in battle.  Self-directed divorce and custody resolutions will better stand the test of time, keep you out of court, maintain your ability to co-parent and lead to vastly more satisfied parties.

Most mediators will do all your paperwork and the required financial disclosures.  The product of mediation is a divorce decree that is your own, and not the product of a third-party decision maker.

Mediation is the single best way to a successful result that benefits all parties and children.  For an absolutely free explanation of how this works, feel free to give me a call.

I am …

Thomas D. Ferreira, Esq.

Disclaimer: Thomas D. Ferreira is an attorney licensed only in the State of California. The information set forth in this blog or on our websites are not intended to create an attorney-client relationship, nor are they intended as legal advice on your specific matter. This information is not intended to apply to cases or jurisdictions outside the State of California, and those viewing this information outside of California, or having business before jurisdictions outside of California, should consult a local professional or lawyer. The information in this blog is not a substitute for the advice of competent counsel, and is not intended, nor should it be construed, as a guarantee, warranty or prediction regarding the results of your legal matter.

Mar 22

THRIVING DURING AND AFTER DIVORCE: KNOW WHAT YOU OWN AND OWE

Here’s a question:  Do you know you and your spouse’s net worth?  How close are you to retirement?  Do you have a dream job or career that you’d love to transition into, perhaps something that your spouse has been opposed to?  Do you fear that you’ll never be able to make it happen?

Perhaps you’re wondering how you will afford the legal fees and costs of a divorce, or whether, for the sake of your children,  you can afford to keep the home where your family lives.

Answering these questions up front, before you go into the battle, will save you thousands in attorneys fees and help you to think clearly when solving problems.  Moreover, those who are well organized and prepared tend to be more confident in court.  Imagine that you are appearing in court with all your information at your fingertips, while your opposition flounders and guesses.

When my now ex-wife made the announcement that she was leaving 10 years ago, my first stop was to the family filing cabinet, and my second stop to the local Kinkos.  I secured copies of these important documents:

  1. All refinancing documents and closing papers for the homes that she and I had owned, including the one we were living in;
  2. Fliers for the sale of those homes;
  3. Most recent pay stubs;
  4. Our last 3 years of income tax returns;
  5. The most recent deed and mortgage statements for our home;
  6. The most recent credit card and loan statements;
  7. The latest statements for my 401(k) plan (I did not have an IRA)
  8. Ownership and valuations of stock I owned in the firm I was then working for
  9. 6 months of checking and saving account statements;
  10. Car payment records and other secured debt
  11. Life insurance documents.

This is only a partial list.  The court form titled FL-142, lists the documents you should attach when you are doing your financial disclosures, and can be used as a worksheet for this planning.

Plotting out my estate helped me greatly when my ex and I sat down for divorce mediation.  You see, at the time of our marriage I already owned a home with very significant equity.  I was entitled to reimbursement for that value under Family Code section 2640.  Yet the mediator was ready to divide our home equity 50-50 between the parties.  I said, “nay, nay,”  and asserted my right to reimbursed for my separate contribution to the equity in our home.

Planning ahead can help you to be quick on your feet when an issue like this comes up.  So I advise putting all assets and debts on a spreadsheet, and knowing what’s in the estate, and its value, before initiating proceedings.  Click here to get a free asset and debt spreadsheet template.  Look at some of the comparable sales in your neighborhood or go on www.zillow.com to get a rough estimate of your home’s value (you’ll eventually need a professional appraisal if the issue comes up in court, but this will give you an idea).  Go to www.kbb.com to evaluate your cars.

Armed with this information, you’ll know what’s available to solve important problems, such as whether you can buy your spouse’s interest in the family home, or how to achieve your retirement goals.

I certainly wish you success and happiness along the journey you are taking.  There’s going to be some hard work involved, but with good planning, your work will definitely pay off!

Very truly yours,

Thomas D. Ferreira, Esq.

Disclaimer: Thomas D. Ferreira is an attorney licensed only in the State of California. The information set forth in this blog or on our websites are not intended to create an attorney-client relationship, nor are they intended as legal advice on your specific matter. This information is not intended to apply to cases or jurisdictions outside the State of California, and those viewing this information outside of California, or having business before jurisdictions outside of California, should consult a local professional or lawyer. The information in this blog is not a substitute for the advice of competent counsel, and is not intended, nor should it be construed, as a guarantee, warranty or prediction regarding the results of your legal matter.

Mar 15

THRIVING DURING AND AFTER DIVORCE: PLANNING FOR SUPPORT CALCULATIONS

I’m Thomas Ferreira, your divorce and child custody mediator and lawyer in Carlsbad, serving North San Diego County and Riverside County with family legal services.

Have you ever been laying awake at night wondering just how much support you’re going to have to pay?  Or maybe you’re cause of insomnia is how much support you should expect each month and how you’re going to make ends meet.

I was in precisely that situation back in 2005 when my wife and the mother of my two children announced that she wanted a divorce.  What I learned is that some advanced planning can make the difference between playing defense (handling the support question as it came up) and playing offense (knowing the situation I was facing and proactively planning my position).  Many family law litigants waste time and money having the court calculate their support.  A typical Request for Order on support can cost you $2,000 in legal fees, and the questions are often no more difficult than entering some figures into the DissoMaster support calculator.

If you can have a conversation about what each party needs and if you can get a calculation of your support, either on line or through a provider such as this office, you’ll be way ahead of the game financially and also you’ll be taking a huge step toward building trust with your ex, trust that you can use to help you get your case resolved cheaply and with minimal conflict and litigation costs.

What You’ll Need to Plan for Support—What You Make and What You Spend:

Spousal support (also referred to as alimony or spousal maintenance) is normally awarded where there is a disparity between the earnings of the spouses, and hence their ability to support themselves.  Spousal support is complex, and for a discussion of how it’s calculated, see my blog series on that subject.

In the vast majority of cases, child support is awarded according to a formula in the family code, usually referred to by the court as “guideline” child support.  The data you need here are the percentage of time that the child or children live with you (the number of hours during the week they are in your home or under your care divided by the number of hours in a week (168)), and the Gross income of each parent.  There are some other data pieces, but those are the biggest 2 factors.

To plan for support, you need an idea of what you earn and what you spend.  For planning on this, get your laptop and your latte, and create an excel spread sheet.  Contact my office and I’ll send you an excellent spreadsheet for this purpose.  Gather together the following papers, if you have access to them:

  • Pay stubs for your last 3 months of work;
  • A profit and loss statement and your accounting data if you are self-employed;
  • Your most recent federal and state tax returns;
  • your checking and savings account statements for the past 3 to 6 months.

Attorneys and judges use support calculators such as DissoMaster to calculate support, but you need the raw data.  In California family court, judges use the information from the Income and Expense Declaration (click the link to see the form) to give them the data to do the calculation.  So you’ll want to download that document and use it as a worksheet.  Enter average figures for all areas of your spending, including your monthly bills, utilities, food, clothing, entertainment, car expenses, educational expenses and etc.

But don’t stop there.  Whether you are a paying or supported spouse, you’ll need to know what you’ll need to move out, or to continue living in the marital residence, if that’s your plan.  So do a “needs” budget as well as a “current spending budget.”  I have a worksheet you can access for this by clicking here. This will help you to plan how you will survive and thrive following the breakup.

Whether you resolve your case through mediation, self-represent or hire a lawyer, this planning will be invaluable to keeping your costs down and making firm and wise decisions regarding your finances and children.  If you need assistance in this, please contact my office.  We offer a free initial consultation to help get you started. We can run the DissoMaster support calculator and tell you what you likely would pay or receive for spousal support and child support.

Whether you decide to use our services, I have a passion to help you succeed in your endeavors, and at least we’ll get you off on a solid footing as you move through the divorce process.

I remain …

Very truly yours,

Thomas D. Ferreira, Esq.

Disclaimer: Thomas D. Ferreira is an attorney licensed only in the State of California. The information set forth in this blog or on our websites are not intended to create an attorney-client relationship, nor are they intended as legal advice on your specific matter. This information is not intended to apply to cases or jurisdictions outside the State of California, and those viewing this information outside of California, or having business before jurisdictions outside of California, should consult a local professional or lawyer. The information in this blog is not a substitute for the advice of competent counsel, and is not intended, nor should it be construed, as a guarantee, warranty or prediction regarding the results of your legal matter.

Mar 08

THE HIGH COST OF LOW TRUST

There was a time in America when business was done on a handshake.  Businesspeople negotiated million-dollar deals and expected that the other person’s word was their bond.

A handshake is a low cost, low effort way to reach agreement, but it requires something usually lacking in divorce cases:  high trust.  The iron law of trust and cost is that where there is low trust there are high costs.

Consider what happens when divorcing parents can’t reach agreement.  In many cases a parent will seek to sabotage the other parent.  Lawyers contribute to this with nasty letters about that e-mail that was sent or that text message.  The parties come to court in armed camps ready for battle.  Repeated court intervention becomes necessary because the parents, wary and distrustful of one another, engage in the following low trust behaviors:

  • Divorcing couples lace their necessary communications with unnecessary, emotionally charged statements judging the other party;
  • Out of mistrust, a divorcing party will not cooperate by making reasonable concessions;
  • Once agreements are reached, a party fails to deliver on a promise, lowering trust further.

Ask family law practitioners what they would do in their own cases, and their number one response is to avoid court.  But what tends to happen is that the litigation takes on a life of its own, as the parties incur “sunk costs.”  A sunk cost is like a down payment on something that turns out to be not worth the price.  For example, if you spend $100,000 to build half a bridge, and it will cost another $100,00 to complete the bridge, but the bridge will bring only $50,000 worth of value, is it rational to complete the bridge?  The answer is “no.”  The value of the completed bridge is less than the cost of completing it, so the rational decision is to leave it half built and save the remaining $100,000.

What tends to happen in litigation is that as the parties spend more and more, they become more “invested” in the case.  It becomes harder and harder to get off the merry-go-round.

This is why I encourage divorcing spouses to have a conversation at the beginning of the case.  They should strive to see the matter from the other’s point of view, and let go of resentment.  Finding a good divorce mediator at the outset will allow the parties to create a new form of trust—not the trust that married people have in a committed marriage, but at least the trust that comes from a shared interest in staying out of court, saving money and raising happy and well-adjusted children.

A family law trial is a hugely expensive and painful way to resolve disputes that can be settled through a mediated discussion with your spouse or co-parent.  The handshake is strictly optional.

Very truly yours,

Thomas D. Ferreira, Esq.

Disclaimer: Thomas D. Ferreira is an attorney licensed only in the State of California. The information set forth in this blog or on our websites are not intended to create an attorney-client relationship, nor are they intended as legal advice on your specific matter. This information is not intended to apply to cases or jurisdictions outside the State of California, and those viewing this information outside of California, or having business before jurisdictions outside of California, should consult a local professional or lawyer. The information in this blog is not a substitute for the advice of competent counsel, and is not intended, nor should it be construed, as a guarantee, warranty or prediction regarding the results of your legal matter.

Mar 03

WHAT IS YOUR “BIG, GIGANTIC WHY?”

Thomas Ferreira, here, your Carlsbad divorce mediator and attorney.  I’ve been thinking back on my own journey as a divorced parent.  Have you ever felt like your world was coming to an end because, either your spouse has left you and taken the children with him/her?  Or, have you decided that you can’t tolerate the relationship any more and need a way out?

This year makes it 10 years since my ex left me.  I had 2 infant children with her.  I had invested all my hopes and dreams in that family.  My law firm at the time had sent me from a comfortable gig in Long Beach to San Diego to start a new branch, and I had just gotten started when my world fell apart.  How could I get through the process?  I didn’t know a single thing about family law.

This story has a happy ending, though it hasn’t come without some struggle.  But I figured it out, and so can you.  And I’d like to share with you the secret of how I was able to do it.  You don’t have to be a lawyer or hire one to do this.  It’s something that you can do in Starbucks with your soy latte and your laptop computer.

I had to discover the overarching, big, gigantic Why for my life.  Here is a brief synopsis of my journey in finding it.

Writing and Introspection

At my former law firm I commuted downtown on the Coaster, a commuter train running along a beautiful stretch of coastline between North San Diego County and downtown San Diego.  I had a firm-issued laptop computer to work with while on the commute.  I sat there on the train thinking, wow, I’m all alone with no friends in San Diego (I had moved here from Long Beach), with little by way of connections, with some family but few friends.  And now my family was falling apart.  How would I cope financially?  How would I stay connected to the kids?  Would I ever find love again?

So I decided to just start writing.  I opened a new Microsoft Word document and titled it My Perfect Post-Divorce Life.  In this life I was a hero to my two boys, who were 1 and 2 at the time.  I was a hero because I served them, I loved them, and I did everything I could to be a great dad and raise great children.

In this story, I was a self-employed entrepreneur, making good money and being a great example to my boys.  I had found a great wife and had a great new marriage.  I was physically fit, enjoying my hobbies of surfing and playing music.

And, I started to get excited.  I started thinking about what life could be, even after the divorce.  It was then that I formed the intention of creating a coaching and teaching business to help others in my situation.  It was then that I found my great, big, gigantic WHY.

How I Keep My Life in Perspective

In my home office is a 7-foot-wide whiteboard strip on the wall opposite my desk.  I use it to do my daily planning and to literally keep in front of me what’s important in life.  And there, in the lower left hand corner, in 4-inch-tall letters, is the great why that drives me.  Here it is:

I am a thought leader, shepherding a great wife, training up children into fine young men, and loving others into the Kingdom of Jesus Christ.

I hear some of you saying, “but I’m not a Christian and I don’t even believe in God.”  My reply to you is that the sentence above is about my  big, gigantic why.  Yours will be different, because you are not me.  I set it forth here as a huge, gigantic and universe-sized why, because that’s what you need to drive you when the struggle gets tough.  You’ll give up unless you have a driving, all-consuming purpose.

No-one can tell you what is your big, gigantic why.  But I’ll tell you this:  Financial security?  Too small.  50-50 custody?  Too small.  Getting a fair settlement of your estate? Too small.  Getting back at him/her for what he’s/she’s done to me?  Way, way too small.

The whys that are big enough are phrases that you would have your kids say about you at your funeral, or what you would have written on your tombstone.  Picture yourself on your dying day, reflecting on your life.  What are you most proud of?  What do you regret not doing?  This is a crossroads, a time to forge your new post-divorce life.  Don’t put this off.

What is it that makes life meaningful for you?  Do you dream of raising great kids that share your values and are resilient enough not to give up when the world pushes back?  Do you dream of serving others in a unique way?  Can your own divorce story someday inspire someone to fight through what you’re going through now?  Do you dream of making a fortune that will have you not just comfortable, but living an abundant life?

You’re getting a divorce.  Now’s the time to think big.  Get a banner and post your big “Why” where you can see it and remember it every day.  Let it drive you and inspire you to do something great.  If you do that, you’ll surely triumph over the courts, your ex or anything else that stands in your way.

I am and remain …

Very truly yours,

Thomas D. Ferreira, Esq.

Disclaimer: Thomas D. Ferreira is an attorney licensed only in the State of California. The information set forth in this blog or on our websites are not intended to create an attorney-client relationship, nor are they intended as legal advice on your specific matter. This information is not intended to apply to cases or jurisdictions outside the State of California, and those viewing this information outside of California, or having business before jurisdictions outside of California, should consult a local professional or lawyer. The information in this blog is not a substitute for the advice of competent counsel, and is not intended, nor should it be construed, as a guarantee, warranty or prediction regarding the results of your legal matter

Feb 17

WHY IS DIVORCE LITIGATION SO DOGGONE PAINFUL? THREE STEPS TO MAKING IT BETTER.

Hi, Thomas Ferreira here again, writing to you about surviving and prospering after divorce or other family law litigation.  In my office, we’ve had the usual spate of crises this week, and I am reflecting today about why it’s necessary in so many divorce and child custody cases to literally talk people down from the ledge.  I continually find myself in the middle of people making ghastly accusations against one another, and Superior Court judges admonishing otherwise law-abiding men and women about their support duties, or their duty of candor toward the court and one another.

The first step in prospering after divorce it to accept what you cannot change.

The divorce court is probably second only to the traffic court as being a persons first or only contact with the judicial system.  Yet, it may be the only place where a person can be sued even though they’ve committed no wrongdoing.

In criminal cases, people are summoned to court to defend an accusation that they have committed a crime.  In civil court, the defendant will be charged with negligently injuring the plaintiff or perhaps breaching a contractual obligation to the plaintiff.  The paradigm is right versus wrong, good versus evil.

By contrast, divorce cases usually involve otherwise law-abiding citizens, forced to use an adversarial system to settle what are essentially family issues.  The system is set up for the paradigm plaintiff and defendant, with both sides incentivized to paint the other party in the worst possible light.  Thus the attempts of courts to manage ongoing family relationships inevitably make those relationships worse and more divided.

The second step is to stop seeing your ex as your enemy.

It is said that criminal court cases involve bad people behaving at their best, and family law cases involve good people behaving at your worst.  If you don’t believe me, sit in on a regular family law calendar in Superior Court.

In matters of child custody, the children have a strong interest in cooperation.  The advice I give here might seem counter-intuitive, but here goes:  Stop trying to “win” the battle, and focus your energy on making a great world for your children.  Stop trying to push the parenting time needle in your direction, and start using the time you have to build solid parent-child relationships.

A funny thing happens when you stop trying to win.  You’re less manipulative with the children and more focused on their wellbeing.  Your focus becomes making your current family better, and that, in the long run, results in the court awarding you more time.

Even if there are no children, there are usually support obligations, and these can be resolved by refocusing your attention from the zero-sum game of litigation, and on to how to create the parties’ desired post-divorce life.  Supported spouses know intuitively that relying on an ex-spouse for financial security is not empowering.  Divorce is a time to refocus priorities on what you want for the future.  How do you take the resources in the marital estate (including the parties’ ability to earn) and leverage that into the life that you always wanted?  What have you always wanted to do for a living?  What is your ultimate contribution to society and how do you make that happen.

Seen that way, support becomes a tool to become free from control, financially independent and career-fulfilled.  This also benefits the paying spouse, as the supported spouse becomes self-sufficient and less in need of financial support.

The third step is thus to move on to the next chapter in your life.  Divorce will happen, whether you want it to or not.  It’s time to take stock of your life and decide what future you want.  The choice is to remain stuck in the old marital dependency or to move on to an independent and fulfilled life.

Hoping this inspires you to run the race with confidence to your ultimate life goals, I remain …

Very truly yours,

Thomas D. Ferreira, Esq.

Disclaimer: Thomas D. Ferreira is an attorney licensed only in the State of California. The information set forth in this blog or on our websites are not intended to create an attorney-client relationship, nor are they intended as legal advice on your specific matter. This information is not intended to apply to cases or jurisdictions outside the State of California, and those viewing this information outside of California, or having business before jurisdictions outside of California, should consult a local professional or lawyer. The information in this blog is not a substitute for the advice of competent counsel, and is not intended, nor should it be construed, as a guarantee, warranty or prediction regarding the results of your legal matter

Aug 28

ON THAT MIDNIGHT TRAIN TO GEORGIA—WITH YOUR CHILDREN.

Child custody move-away cases are nerve-jangling, even for us child custody lawyers and mediators who deal with them day in and day out.  I have been on a 2-week roll involving several “move-away” cases.  These are cases where a custodial parent has decided to move with the child to another county, or even another state.  Two of these cases involved moves to Midwestern states.  Legally, in move-away cases the law is not concerned with whether it is just or fair to allow mom (in most cases it’s mom) to move; in fact, the reason for your co-parent’s move is almost irrelevant.  As long as there is some rational basis, courts often don’t question the moving parent’s motivation.  The question is usually, in light of the other parent’s decision to move, does it make sense to place the child with the moving parent or the remaining parent?

That’s a tough call.  The moving parent will normally argue that they have been the child’s primary caregiver throughout the child’s life, and that it would injure the child to sever or strain that relationship.

The “remaining parent’s” chief argument normally centers around “frequent and continuing contact” between the remaining parent and the child.  “Frequent and continuing contact” is a buzz phrase, contained in Family Code section 3020, expressing the law’s preference that the custodial parent be that parent more willing to promote frequent and continuing contact with the other parent.

Move-Away cases are among the most complex in family law, and this is by no means an exhaustive treatment of the complex case law and factors that the court considers in move-away cases.  If you are facing this situation, contact me immediately for your free initial consultation so that I can help you apply this complex and confusing law to the specific facts of your case.

That said, the difficulty of the judge’s decision in this situation is like that of Solomon when confronted with the competing claims of 2 months over one baby.  And, the judge can’t simply divide your children in two.

In a nutshell, the judge has to weigh the harm to the child of severely straining the bond between one of the parents and the child.  If the court permits the move-away (by leaving custody with the moving parent), remaining parent must figure out how to commute or otherwise have a long-distance relationship with his son or daughter.  However, if custody is changed to the remaining parent, the harm is that a long-established bond with the custodial parent will be strained.

If it’s the custodial parent that’s moving, move-away cases are hard to defend, but you can increase your chances by taking the following actions before you are ever in court:

  • Don’t focus on the other parent.  Make sure your communication with them is unemotional and limited to “just the facts.”
  • Do not try to control the other parent’s behavior—unless it is a an issue calling for Child Protective Services intervention, let it go.
  • Focus on creating your own parent-child relationship.
  • Avoid any conflict with the other parent.

For my child custody clients, this is what I refer to as “playing the long game.”  You do this when there’s no litigation pending, to improve your position if something arises.  The “long game” is the process of being patient, of letting the other parent be the crazy, high-conflict parent, of focusing your efforts not on achieving fairness, but instead on using the time you have to give your child(ren) a loving parent.

I will go into greater detail on this in future posts.  Until then, love your kids, love your kids and, oh, by the way, love your kids.

Very truly yours,

Thomas D. Ferreira, Esq.

Disclaimer: Thomas D. Ferreira is an attorney licensed only in the State of California. The information set forth in this blog or on our websites are not intended to create an attorney-client relationship, nor are they intended as legal advice on your specific matter. This information is not intended to apply to cases or jurisdictions outside the State of California, and those viewing this information outside of California, or having business before jurisdictions outside of California, should consult a local professional or lawyer. The information in this blog is not a substitute for the advice of competent counsel, and is not intended, nor should it be construed, as a guarantee, warranty or prediction regarding the results of your legal matter

Aug 24

DON’T DO IT, MAN

As a divorce lawyer and mediator, you might expect me to be salivating over the hacking of Ashley Madison and the publication of its subscription list.  My friends and colleagues joke that we divorce lawyers and mediators should get ready for a wave of new business from those who will soon be outed to their spouses as being on Ashley Madison, a website devoted to hookups for married people.  As a happily (re)married man, it saddens me that such a site exists, and that so many (usually) men would take the chance of destroying their families for the temporary excitement of an affair.

If you have done just that, let me first say that I am first in line to help you mitigate the damage for the sake of the children and your post-divorce life.  There are precious few who can rebuild the trust in a marriage rocked by an extramarital liaison. The next best option is to choose a mediator or lawyer who can minimize the collateral damage and get your divorce on to a cooperative footing.  An affair is not the unforgivable sin, and I know many guys in parenting plans who have found fulfilling family and career lives following the breakup.

But if you’re thinking of sailing your ship into those waters, let me give you a preview of the ocean of hurt into which you are charting course.

The average California divorce with children costs more than $20,000 per party ($40,000 total) in legal fees and costs, and I’ve seen many spend much, much more.  Add to that the possibility of a need-based attorney fee awarded to your spouse, and that’s one expensive fling.

And, I don’t think most people are prepared for is the pain of seeing their former groom or bride across a crowded courtroom.  I handle divorce litigation for a living, but I still find it painful to see my ex in court, even after 10 years of separation from her.  The system is not designed to be fair and equitable; it’s designed to accommodate those who want a divorce, no matter what the reason.  In my litigation practice I see many decent people become basket cases of anger and fear on the day of their first Request for Order hearing.

If you’re already facing a breakup I have some good news.  You can get through this with your relationships in tact, and for much less money, by choosing mediation to resolve your case.  We’ve helped literally hundreds of clients divorce for about 10 percent of the average cost (about $2,500 per party) while saving their long-term family and career goals.

But if you haven’t yet taken the plunge into that shark-infested pool, my advice is count the cost, and ask yourself if it’s really worth it.

I remain …

 

Very truly yours,

Thomas D. Ferreira, Esq.

Disclaimer: Thomas D. Ferreira is an attorney licensed only in the State of California. The information set forth in this blog or on our websites are not intended to create an attorney-client relationship, nor are they intended as legal advice on your specific matter. This information is not intended to apply to cases or jurisdictions outside the State of California, and those viewing this information outside of California, or having business before jurisdictions outside of California, should consult a local professional or lawyer. The information in this blog is not a substitute for the advice of competent counsel, and is not intended, nor should it be construed, as a guarantee, warranty or prediction regarding the results of your legal matter

Jun 10

TV VERSUS REALITY AND HOW TO SUCCEED IN FAMILY COURT

When I’m representing clients in family court, I want them to succeed.  I’m looking for a “good day in court,” a result that solves the problems arising in a divorcing family, a result that leaves our client feeling that the court heard and considered their side of the issues.

Often our clients don’t realize how much a “good day in court” depends on their own attitude, that is, the client’s willingness to compromise and solve problems.  That’s because most people’s perceptions of the legal system come from movies and TV.  Whether the issue is child custody, alimony, child support or the division of property, the client’s perceptions, based as they are on the popular culture, tend to be distorted.  My goal for this blog is a reality check.

Good Versus Evil:

It is good to recall that TV cases are invented by a team of script writers to be entertaining, not educational.  Given the limits of television, a fictitious case will usually have a clear morality play, complete with a villain, a victim and a hero (sometimes even the lawyer gets to be the hero!).  The writers invent characters that you either love to love or love to hate.

Family law cases often reinforce this “good versus evil” view, as most family law litigants have a less than charitable view of their soon-to-be-ex.  Let’s face it:  we all tend to judge others when we feel betrayed (a left spouse) or abused (a leaving spouse) or when we have disagreements about the children (everyone).  But I find that those who have the most difficulty in family court are those who consistently see their ex as a villain and themselves as a victim.  And, conversely, those who are able to judge their soon-to-be-ex with charity will normally do better in family court, particularly if the issue is how to share parenting responsibilities.

An Important Disclaimer:

There are cases where there are clear villains and victims.  I once represented a woman who’s ex-husband was a methamphetamine addict who tried to burn her house down with my client and her children inside.  My client’s ex is now cooling his heels in the state pen.

The Moral of the Story:

The vast majority of cases in family court involve basically decent people who disagree.  Or, sometimes one basically decent person struggles with alcohol or substance abuse issues or mental illness.  In these types of family law cases, having a little charity for your court adversary helps you look more reasonable to the judge, and makes you able to solve even difficult problems calmly and rationally.

I urge my family law clients to be problem solvers.  You certainly want to avoid the perception that it’s about getting revenge against your ex (even if it is!).  Be willing to reach agreement instead of putting on the dog and pony show (a family law trial).  Doing so will save money and what is left of your ability to co-parent with your ex.

When litigating on behalf of clients, I am always prepared to do battle, if necessary.  As your lawyer, I owe it to you to present your absolute best case to the court.  But usually the best result is a resolution of your case that avoids the damage that my withering cross-examination will do to your ex and your co-parenting relationship.

Hoping you find this wisdom helpful, I remain …

Very truly yours,

Thomas D. Ferreira, Esq.

Disclaimer: Thomas D. Ferreira is an attorney licensed only in the State of California. The information set forth in this blog or on our websites are not intended to create an attorney-client relationship, nor are they intended as legal advice on your specific matter. This information is not intended to apply to cases or jurisdictions outside the State of California, and those viewing this information outside of California, or having business before jurisdictions outside of California, should consult a local professional or lawyer. The information in this blog is not a substitute for the advice of competent counsel, and is not intended, nor should it be construed, as a guarantee, warranty or prediction regarding the results of your legal matter.

May 28

REFRAMING SPOUSAL SUPPORT NEGOTIATIONS: THE LAW AND THE GOOSE THAT LAID THE GOLDEN EGG

Whenever I do mediation, I’m presented with adverse parties, many of whom are angry and upset that they are not at fault for the divorce, and yet are facing the imposition of tremendous financial burdens. In mediation, I assist divorcing spouses to reframe the discussions away from what is “owed,” and toward what each party needs to have a happy and fulfilling post-divorce life.

In my experience, a spouse who is dragged kicking and screaming into a support award will tend to resist payment with everything they’ve got.  If, for example, the paying spouse is a salesperson or executive whose earnings are based on their effort, a burdensome award can have the effect of “killing the goose that laid the golden egg.”  I see over and over again the sharp decline of supporting spouses’ earnings after a financially devastating award of spousal support (alimony).

In settlement discussions success or failure often rides on how the parties perceive, or “frame” the spousal support obligation.  When mediating, I find it invaluable for the supporting spouse to reframe his or her payment obligation, understanding it as rehabilitative, not compensatory.  If a payor understands the purpose of the award as helping the supported spouse get on his or her feet financially, the payor is often more willing to shoulder the burden and pay the award.  Conversely, I find that as a general rule, payors tend to resist payment that the other party demands as “compensation” for their home-making or career deferral.

I also find that giving the paying spouse a light at the end of the tunnel (one that is not the headlamp of an oncoming train) reduces or eliminates expensive and hurtful litigation, and creates a high likelihood that the supporting spouse will pay.

A willing payor is an intangible but real benefit, one that the receiving spouse is wise to consider before insisting on “what I’m entitled to under the law.”

Burdensome spousal support awards are like poison to the goose that lays the golden eggs, because they are made without regard to whether they are just.  California law awards spousal support (alimony) from moneyed spouses to less moneyed spouses based on Family Code section 4320.  But if you click on the link, you’ll see that the law does not take justice or fairness into account in making the award; such awards are made without regard to marital fault.

Can you imagine what would happen if a politician proposed a tax that would confiscate about half of a hard-working person’s take-home pay?  There would be a march on Washington.  Yet every day in California family court, former spouses are ordered to make this type of payment, which continues until the death of either party, the marriage of the supported spouse or further order of the court.  The ability of the supporting spouse to ask for a reduction or termination of the award is small consolation, as these awards are often hard to modify and/or terminate.

As I have said in previous posts, the traditional rationale for spousal support awards has been that a party who deferred his or her career to make a home and raise children should not have to give up the marital standard of living just because the other party wants a divorce.  But in a “no fault” system, the law gives no advantage to the person  who doesn’t want the divorce (a petitioner has the same right to spousal support as a Respondent does), nor does the breaking of marital vows have even the slightest effect in mitigating the award.

Therefore, a “stay at home” spouse in a long marriage can have a series of affairs, waste community assets and even practice extreme cruelty and the court will award that spouse an open-ended spousal support award.

Conversely, an “innocent” spouse who has worked 2 jobs and raised the kids single-handedly may find themselves paying a couch-potato spouse, when the very cause of the divorce is the latter’s unwillingness to pull their financial weight.

The good news is, there is a solution for those who go to mediation.  In mediation, our approach is to look at the long-term goals of the parties, and also at the resources in the estate (including the supporting spouse’s income and the career abilities of the supported spouse) that may be used to achieve those goals. 

The points I hope you’ll take away from this article are:

  • Supporting spouses have to come to grips with their perception (and resulting resentment) that the award is unfair.  In a long marriage with a large income gap, there will likely be a lengthy and burdensome spousal support order.  That’s just reality.
  • Supporting spouses must be careful not to “kill the goose that laid the golden egg.”  At some point of wealth confiscation, it’s just not worth it for the supporting spouse to persevere in a high-paying, but difficult and stressful job.

Reframing the question in terms of both parties’ post-divorce goals and ambitions, and what resources are available to achieve those goals, will make your case much easier to settle and incentivize the paying spouse’s long-term compliance with the resulting award.

Hoping this helps in negotiating a settlement of your divorce, I remain…

Very truly yours,

Thomas D. Ferreira, Esq.

Disclaimer: Thomas D. Ferreira is an attorney licensed only in the State of California. The information set forth in this blog or on our websites are not intended to create an attorney-client relationship, nor are they intended as legal advice on your specific matter. This information is not intended to apply to cases or jurisdictions outside the State of California, and those viewing this information outside of California, or having business before jurisdictions outside of California, should consult a local professional or lawyer. The information in this blog is not a substitute for the advice of competent counsel, and is not intended, nor should it be construed, as a guarantee, warranty or prediction regarding the results of your legal matter.

Mar 24

IS ALIMONY REALLY FAIR IN A NO FAULT DIVORCE?

While researching cases for premarital agreement, I came across a case in 2000 where the California Supreme Court was asked to rule on whether couples to be married could waive spousal support (alimony) in a premarital (or prenuptial) agreement.  The case is Marriage of Pendleton which you can find by going to the state’s case archive and typing in the citation 24 Cal. 4th 39.  The opinion’s author, Justice Marvin Baxter, found it necessary to discuss the current marriage contract which I alluded to in my last post.  He wrote:

“…the common law policy, based on assumptions that dissolution of marriage is contrary to public policy and that premarital waivers of spousal support may promote dissolution, is anachronistic.

I’d like to unpack this extraordinary statement about the divorce laws in layman’s terms.  Justice Baxter is saying:

1.  The courts used to follow a “common law” doctrine that the divorce laws should not be interpreted in a manner that encourages divorce.  “Common law” refers to the ancient law, handed down from our English forefathers, a law refined and honed over centuries by appellate case decisions.

2.  Justice Baxter believed that the rule against spousal support waivers has become “anachronistic,” a fancy word meaning behind the times, or not applicable to the present day.

3.  Therefore, it doesn’t matter that the ability to opt out of the standard marital contract (by means of a prenup) may encourage divorce; the times have changed, as divorce is no longer something the law tries to discourage.

Hold your horses.  If public policy no longer discourages divorce, why should a support obligation arise from a divorce as a continuation of promises made during the marriage ceremony?

The law is that the moneyed spouse must pay spousal support to the non-moneyed spouse according to the factors set forth in Family Code section 4320.  But during negotiations, it is important to understand the paying spouse’s feelings so that they don’t block our ability to resolve the issue.

The problem is, if “until death do us part” is an anachronism, it feels unjust for a party to continue a support obligation that arose from the marriage.

During settlement discussions related to spousal support, supporting spouses would do well to understand that the support obligation is not designed to be fair or achieve justice.

And, supported spouses would do well to acknowledge the supporting spouse’s feelings, even if they are legally irrelevant, so that you can get past the emotions and talk business.

Hoping this little tip helps you reach resolution of these difficult issues, I remain…

Very truly yours,

Thomas D. Ferreira, Esq.

Disclaimer: Thomas D. Ferreira is an attorney licensed only in the State of California. The information set forth in this blog or on our websites are not intended to create an attorney-client relationship, nor are they intended as legal advice on your specific matter. This information is not intended to apply to cases or jurisdictions outside the State of California, and those viewing this information outside of California, or having business before jurisdictions outside of California, should consult a local professional or lawyer. The information in this blog is not a substitute for the advice of competent counsel, and is not intended, nor should it be construed, as a guarantee, warranty or prediction regarding the results of your legal matter.

Mar 19

THAT’S NOT FAIR

It’s what I call the divorcee’s lament.  I hear it in court, mostly from self-represented litigants.  I hear it when I consult with clients.  I hear it in mediation.  Say it with me:  “that’s not fair!”

No, what’s happening in divorce court is not fair, and most people leave family court feeling like they’ve been handed a raw deal.

We expect our judicial officers to render fair and just verdicts.  Sadly, the problem is not the very honorable and hard-working members of our family law bench.  I am often surprised at the ability of judges and commissioners to sort through the garbage presented by the parties and hand down a result that is not just legally correct, but wise for the family before them.

The difficulty is, the judicial officer is charged with following the laws (mostly the California Family Code and Code of Civil Procedure).  Our law makers did not design a fair and just law; they designed a law designed to reduce conflict, enforce a duty of support, divide marital property and promote the best interest of children.  Considerations of fairness or justice are secondary.

Consider a typical marriage vow:

I, [name of bride or groom], take you, [name of groom or bride], to be my lawfully wedded [husband/wife], to have and to hold, from this day forward, for better, for worse, for richer, for poorer, in sickness and in health, until death do us part.

A vow is another name for a promise, a covenant, a contract.  It is a solemn promise to do something no matter what.  One would expect a just judge to enforce a promise like this.

But when you divorce, you find out what you really bound yourself to when you said “I do.”  I call this the standard marriage contract.  Here’s the Reader’s Digest version:

“You and I will continue to live together and mutually support one another financially and raise our children together until one of us decides the marriage has broken down. Once one of us makes that decision, the marriage will be dissolved, even if the other person feels the marriage has not broken down.  The financial duties of spouses to support one another financially shall continue as long as it takes for the spouse earning less to reach the standard of living we enjoyed as a couple, even if it takes the rest of our lives.  We shall live separate and apart, divide everything we got during our marriage 50-50, and our children will shuttle back and forth between our homes.  A judge of the California Superior Court shall be appointed as a super-parent to make sure each of us behaves in accordance with our children’s best interests.”

I’m not saying this to complain; quite the opposite—in divorce everyone does better when they accept the reality that family law is not fair.  Or perhaps more accurately, fairness and justice are only one of many concerns that the law addresses; they are not the law’s primary concerns.

It follows that spending your energy and money on obtaining a fair or just result means wasting your energy and money.

I would challenge you, reader, to think of divorce as a time to reassess your life’s priorities.  What type of parent have you always wanted to be, and how can you make that happen?  How can you divorce from your spouse without divorcing your kids, your friends and your family?  What have you always wanted to do for a living, but been to afraid to do it?  Have you always wanted to go back to school?  Travel?  Play the violin?  What resources are there in the  marital estate, and  how can you best employ them to make that happen?

You’ll find that once you have clarity on these points, the right decision at each point in the process will become self-evident.  Whereas, if you cling to fairness, you’ll always be wondering why your decisions have lead to outcomes that are inconsistent with your goals and values.

I remain…

Very truly yours,

Thomas D. Ferreira, Esq.

Disclaimer: Thomas D. Ferreira is an attorney licensed only in the State of California. The information set forth in this blog or on our websites are not intended to create an attorney-client relationship, nor are they intended as legal advice on your specific matter. This information is not intended to apply to cases or jurisdictions outside the State of California, and those viewing this information outside of California, or having business before jurisdictions outside of California, should consult a local professional or lawyer. The information in this blog is not a substitute for the advice of competent counsel, and is not intended, nor should it be construed, as a guarantee, warranty or prediction regarding the results of your legal matter.

Oct 28

CHILD CUSTODY SECRET NUMBER THREE: MOTIVATE YOUR CHILD TO SPEND TIME WITH YOU

Here is the fourth and final installment of The Best Free Advice on Child Custody Ever, and I’ve saved the best for last.  I give this advice not so much as a child custody lawyer, but as a parent.  And here’s the secret:

Your children will want to spend time with you when they have something to look forward to.  I call this technique “creating anticipation.”

Let’s say that you have parenting time with the children every other weekend.  Plan something cool for your weekend, like camping, or fishing, or a trip to the beach, or a museum.

Spend the first weekend together with your child or children researching the choices.  Involve them in planning the activity.  If you have a scheduled telephone call with them, talk to them about the activity and give them an active role in planning.

A great resource for finding activities is San Diego Family Magazine, or similar local publications, where there are lists of free and low-cost options for family outings.

 

 

The goal is not to usurp the other parent’s time.  Just plant the seed about the activity, and get them thinking about it and anticipating it.

Then make sure you follow through.  Trust must be forged through years of following through on promises, but it can be dashed in a day by a broken promise.  If you say you’ll do it, make it a priority.

I’m not suggesting that you be “Disneyland dad.”  Parenting is often a difficult chore, requiring boundaries and discipline. Sometimes the answer has to be “no.”  But establishing positive associations with your parental world will help you build solid relationships with your children.  And as family minister Josh McDowell once pointed out, “Rules without relationship leads to rebellion.”

Creating anticipation works well with block vacations.  Say you plan a week-long camping trip.  You can schedule time during your child visits where you determine the location.  Then, ask the children to think about what gear they will need.  Spend time looking at brochures, websites, books and other media.  Get them involved in the trip.

It is so important for the children to have both parents in their lives.  Take the time to build that relationship, and you’ll find that when it’s time to talk with the therapist or Family Court Services mediator, a tear will form in their eye as they think “wow, he’s such a great dad,” or “she such a great mom.”

Wishing you the greatest success in building relationships with your children after divorce or separation I remain …

Very truly yours,

Thomas D. Ferreira, Esq.

Disclaimer: Thomas D. Ferreira is an attorney licensed only in the State of California. The information set forth in this blog or on our websites are not intended to create an attorney-client relationship, nor are they intended as legal advice on your specific matter. This information is not intended to apply to cases or jurisdictions outside the State of California, and those viewing this information outside of California, or having business before jurisdictions outside of California, should consult a local professional or lawyer. The information in this blog is not a substitute for the advice of competent counsel, and is not intended, nor should it be construed, as a guarantee, warranty or prediction regarding the results of your legal matter.

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