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DIVORCE: BEFORE YOU GET A LAWYER

How would you like to have a brand new Lexus or BMW in your Garage right now?  How about a new addition to the home or your ideal family vacation?

Many divorcing people say they can’t afford these luxuries, yet they are willing to spend tens, and even hundreds of thousands of dollars on lawyers, appraisers, custody evaluators and other experts.  And here’s the rub:  in the vast majority of cases, having two lawyers fight your custody, support or property division in court is completely unnecessary!  Most couples can use mediation to avoid the emotional trauma of the court battle, and save enough money to put their children in private school, or do a room addition to their house.

DIVORCE LITIGATION IS AN ALL CONSUMING FIRE:

Divorce litigation is self perpetuating, consuming your money, relationships and sanity, much as a brush fire consumes forest trees, homes, animals and everything else in its path.  Many sparks ignite this fire—such as service of attorney-prepared divorce papers on an unsuspecting spouse, notices of court appearances or conflict arising during legitimate attempts to work things out.  Once ignited, each court appearance serves as further fuel, stoking raw feelings, leaving parties emotional wrecks, unleashing primal fears of loss and often creating a desire for revenge.

The biggest mistake most divorcing couples make is to assume that it is necessary to immediately run to an agressive lawyer and begin this process.  Don’t get me wrong; I applaud my hard-working colleagues, the attorneys helping divorcing people navigate the shark-infested waters of the family court system.  As a lawyer myself, I represent divorcing and separating people before the courts.  And if you have been served with a summons and petition, you must file your answer to that petition within the specified time period.  An attorney can provide this valuable service for you.

But all too often, through the process of posturing (taking extreme positions to gain negotiating advantage) and “take no prisoners” litigation, well-meaning family lawyers only pour gasoline on the fire of family conflict.

MAKING THE BEST DECISIONS EARLY ON:

In my experience, no one makes the decision to break up their family lightly.  A leaving spouse is almost always moved to this action by circumstances they have deemed intolerable.  And, a left spouse is often caught in a whirlwind of anxiety over the possible loss of relationships and even their own survival.  Either way, divorcing parents are usually asked to make life-changing decisions in an atmosphere of emotional chaos.  How can a person make good decisions when faced with this situation?  In my experience, everyone can make good decisions, and everyone must make good decisions.

A.      Get Support:

A good first step, especially for left spouses, is to seek out others in your situation.  One excellent resource for finding support and learning how to make good decisions early on are the conflict and co-parenting classes that the courts use to help couples already locked in the litigation battle.  Dr. Deena Stacer has an excellent course in Rancho Bernardo called the High Conflict Intervention Program.  Another excellent program is Brook Olsen HHP’s High Conflict Diversion Program.  These courses are located in the San Diego area, and are used by the courts to help couples engaged in the worst kind of divorce conflict.  Courts actually order couples in conflict to attend these courses and submit proof to the court that they graduated from the program.

You may be asking, if I am not already in conflict, why should I attend a class like this?  Well, what would you give for a crystal ball that could predict what will happen in your divorce struggle and co-parenting endeavor?  In these courses, you’ll hear the stories of those who have gone before you, and have the wounds to prove it.  You’ll be directed to resources that will help you in a time of great upheaval.  You’ll receive instruction from experienced providers on how to handle problems with your soon-to-be-ex.  And, you’ll see where the mines are so that you won’t step on them yourself!

Other support options are meetup groups and other support groups offered online, or through local churches and philanthropic organizations.  Make connections and begin the task of constructing your post-divorce world.

B.      Get Informed:

Next, you’ll want to become an expert on your own rights and obligations under the California Family Code and your local rules of court.  There are excellent classes available through local community colleges and other organizations.  My own class, co-taught by Tammy Ferreira, a Certified Divorce Financial Analyst, is entitled California Divorce:  Staying Out of Court and Out of the Poorhouse.  Our next class is coming up on November 20, 2010 at 9:00 am at the San Marcos campus of Palomar College.  To register for our class, go to Palomar College’s Venture web page.

Other excellent low-cost resources include the Second Saturday program, a primer on divorce for women.  My friend and colleague Robert McFarlane also teaches a men’s class with a similar format to Second Saturday.  You can register for the Divorce Workshop for Men by contact Mira Costa College’s Community Services Office at (760) 795-6820.  For the times and locations of this class, visit the home page of http://www.wife.org/.

There are many excellent books for non-attorneys facing divorce, but my two favorites are Nolo Press’s How to Do Your Own Divorce in California and a concise and well-written book by Ed Sherman entitled Make Any Divorce Better.

C.      Choose Mediation:

There are several alternatives to the court battle, but my favorite is mediation.  Here’s why:

The vast majority of cases can resolved without each side getting a lawyer or setting foot in court, provided that they are informed of their rights and obligations.  In the typical case, an experienced divorce attorney can predict the outcome within a range of possibilities.  But lawyers are trained to “issue spot,” that is, to bring up every conceivable argument for a position.  They take tests in law school which present a series of “what if’s” and are asked to spot the legal issues.  In essence, the law school experience trains us lawyers to nitpick.

Lawyers posture.  We negotiate by taking the most extreme positions and then compromising somewhere in the middle.  While this can be an effective negotiating strategy in some cases, it most often serves to inflame the parties’ emotions and give the parties unrealistic expectations.  Add the huge expense of represented divorce, and you create an environment where problem solving is nearly impossible.

In mediation, we remove the win-lose aspect of divorce, uniting husband and wife against divorce problems.  Because conflict during divorce negotiations is natural, it is important that the negotiations take place in front of professionals trained to keep your discussions from derailing into name calling and blaming.  Mediators are experts, not only in the financial and legal aspects of divorce, but in conflict resolution.  A mediator will be vigilant for the spark that can lead to the blaze of divorce conflict, and can snuff out that spark when it arises.

At the Law Offices of Thomas D. Ferreira, our mediation model has been perfected over numerous cases, and in consultation with other mediators.  As mediators, we often talk to one another, sharing experiences and learning from one another’s mistakes.

Our model is a 3-stage process, taking the couple from the filing of the initial Petition for Dissolution of Marriage, all the way to your judgment without setting foot in a courtroom.  You avoid the polarizing effects of court hearings, and model collaborative problem solving to your children.

Mediation typically costs about 1/10th of the typical litigated divorce, and results are typically better. 
They are better because in mediation, the parties can explore proven strategies to actually make the pie bigger, rather than just dividing a limited pie.  Certain tax savings and strategies for retaining benefits (such as health insurance and derivative Social Security benefits) are simply not available through the litigation process, but are made possible through mediation.

Mediation is also completely confidential, avoiding the public audit of your finances in open court, and the airing of your family’s problems in public.  In a confidential setting, parties are liberated to explore options based on full information, knowing that what is disclosed in mediation cannot be used against them in court.

A final benefit of mediation is that the agreement reached is voluntary, and is reached by the parties, not imposed by a decision maker.  When people collaborate on resolution of divorce and parenting problems, they are less likely to have conflict in the future, and are more likely to comply with agreements.  Our model emphasizes building a new form of trust between the parties, trust built through finding constructing win-win solutions to problems, and then complying with agreements.

CONCLUSION:

If you are embarking on the path of divorce, you need to make good decisions early in the case, for the benefit of your finances and your children.  The best outcomes come when the parties have support from others going through what they are going through, are fully informed of their rights and obligations under the family code, and when they are able to resolve differences without resorting to court battles.

Thomas D. Ferreira is a credentialed mediator, able to assistance to the parties based on shared interests—interests in saving money, reducing conflict and anxiety, and creating the best post-divorce world for the children.

For more information or to schedule a consultation, visit http://www.myfamilylawoffice.com/ or call 760-990-4752.  I wish you the best of luck as you embark on this difficult and life-changing journey.

Best regards,

Thomas D. Ferreira.

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.

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  1. When times come that couples have to live separate lives, things have to be made right legally. It is good that technology has made things easier with divorce services available online.

  2. Hi Thomas: Thanks for the great information on your site. I appreciate you referencing me as a great resource, and I appreciate all of your referrals. Let me know how I can help you. Keep up the good information.

    Dr Deena Stacer

  3. Hi Thomas: Thanks for the great information on your site. I appreciate you referencing me as a great resource, and I appreciate all of your referrals. Let me know how I can help you. Keep up the good information. Check out my blog with more articles, links to resources, books parents can read and ideas to help parents get closer to their children, at http://www.ParentsInConflict.Info.

    Dr Deena Stacer

  4. And, thank you for your kind comments. I feel fortunate that you provided my initial education on co-parenting after divorce. Many of my philosophies and attitudes about divorce and co-parenting come from you, and I feel a debt of gratitude. Have a very happy holiday and prosperous new year!

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