Hi, Thomas Ferreira here, your attorney and mediator here in Carlsbad California for divorce cases and child custody cases. And this is part two of my blog series of “Five Things You Must Do When Appearing in Court”.  And this series is for people who, let’s face it, it’s nerve-wracking to appear in court. It’s a formal setting, people are watching, and they put the Judge way up on this high dais, and in a way, the surroundings are meant to say, “hey, this is a formal setting, this is serious”. And of course, you want it to be that way.

At the same time, you have to understand who the Judge is. The Judge is a human being, he or she is flesh and blood, just like you are. And he or she has problems that they want to solve in every case. And as a little tip, it’s always helpful to go and watch your Judge in action, go to the hearings, before your hearing is scheduled, go to a request for order hearing, and just watch. Watch the things that please the Judge and watch the things that tick him or her off. You’d be surprised what you can learn. But todays blog is on being proactive.

Be Proactive

If you react to the other sides’ arguments, it’s not as persuasive as if you have a plan going in and you’re are proactive. What does it mean to be proactive? It means to know what you want going into that hearing, and then ask the Court for what you want and provide reasons why the Court should give you what you want. The Court has read your declaration, they have the basic facts. Ok, so when you approach the Court, you have to see the Court in the context of “what problems is this Judge trying to solve?” You go into Court, you want to win, you want a certain result, right? And maybe you want to humiliate your ex too, I don’t know. That by the way is not a good motivation, and it will pull you off track. But you have to see the problem from the Judges point of view.

The Court, the Judge, sometimes we call the Judge the Court, and so forgive me if I do that. The Court wants to make the right decision in your case. The Court wants the parties to be problem solvers, the Court wants the parties to get along and cooperate in the solving of problems and when you have a divorce case, you have this set of problems. You have children, you have the house, you have the property, you have the support and so forth. Let me give you a very simple example to explain what I mean, by being proactive.

Sometimes people can’t agree on who should move out of family homes. So, you’ve got dad living on the couch. Sometimes I still live on the couch, but only when I tick off my wife. But anyway, maybe you’ve moved down to the couch as a permanent thing, and you’re thinking, “wow, this is my house, I’m on the mortgage, I’m on the title, I should be able to live in my own house.” And that may well be true.

So, you file a request for order, asking that she move out of the family home. And you come into Court, you’ve given the facts, and now you’re ready to make your argument, and what are the problems, as this Court, this Judge, looks over the top of their eyeglasses down at you from the dais, what is on their mind. Well, for one thing, they are concerned about your property rights. The Court doesn’t want to take away the right of somebody to enjoy the use of their own property. At the same time, in divorce cases, there are ways of reimbursing a party, which is beyond the scope of this and I won’t get into it. But essentially, the biggest concern the Court has in this situation, is they don’t want to read about this case in the newspaper.

They want to prevent an incident of domestic violence. And you’d be surprised how often this dispute over who should move out erupts into violent episode that gets someone arrested. So basically, the best argument is, if mom or wife doesn’t move out of the marital residence, there could be conflict. And that conflict could escalate, so it’s best for all parties.

The Court is also concerned, however, that that person has a place to live. So, the problem is, we live on a planet that has gravity, and everybody has to stick somewhere. And in California you have to pay a considerable amount of rent to stick somewhere. So, if you really want to get the other person moved out, have a solution to that problem in your hip pocket. Tell the Court “look, we have a fund, we have an IRA that we can get a loan from, or we have a cash asset, or we have something we can easily cash out that would give her first and last months’ rent. And some furniture and so forth.”

Problem Solve

 I remember when I was going through my divorce, I was hoping that my ex wife would move out of the house. And the problem was, she didn’t have any place to go. So, without knowing anything about family law, I knew that to get her out of the house, one of the things that would make it really easy, is if I provided the first and last months’ rent, since I was the monied spouse. If I also provided some furniture, because she had the kids half the time and she needed bunk beds and all this stuff. So basically, I didn’t know how much support I was going to pay, but I wrote her a check, this is for, you didn’t get furniture and all the things that you need to get set up. If you tell the Court that you are willing to do that, the Court is going to look at her and say, hey why don’t you move out?

 On the other hand, the Court wants to be fair to the parties, so if you’re the one that’s creating the problem, lets say that you are in her shoes and you want the Court to let you stay in the marital residence. An argument you can make is, hey he’s been violent in the past and I’m concerned for my safety and the safety of the children. The Court is very concerned about child safety. The Court is very concerned about child welfare. So, these are arguments that will ring true. And you want to make them proactively, instead of just reacting to what they are saying. And you want to solve that problem for the Court. Show in your argument how giving you the relief you want makes sense. Ok, here’s another example. You go to Family Court services and you get a lousy report. And let say you’re dad and the report says the custody in this case will be every other weekend and a weekday overnight, Friday to Saturday. Well, you want more time.

Fairness Isn’t a Good Argument

 First of all, “I want 50/50 because its fair” is not a persuasive argument in Family Court, it’s just not a persuasive argument. Again, one of the problems that the Court wants to solve, well first of all, the Courts concerned primarily about the safety of the children. So, if there’s some issue there, you can move the dial. Secondly, the Court wants to ensure that this trial has two parents. That these children will never feel abandoned by one of their parents. If one parent has all the parenting time, and the other parent is just a visitor, the children can sometimes feel abandoned. So, if you hit that point, it’s going to be persuasive to the Court. Because the Court wants to make sure that the kids have two parents that love them. And that they have lots of time with both parents.

Another thing that the Court really, really, really wants is for the parents to cooperate. Cooperation is something that most freshly separated people have a hard time doing, lets face it. But if you are the one that’s willing to cooperate, and willing to solve problems, and all the other party can do is just attack you and be a nay-sayer, and call you a liar and so forth, you’re probably going to win. Because you’re solving the problem that the Court has. You’re cooperating with the other side. Here’s a tip, if the other side’s being a jerk, you’re winning. Let them be a jerk, you bring your halo to the Courthouse. And make sure that you are willing to cooperate and be a problem solver in Family Court. Ok, so what have we learned?

We want to be proactive, we want to be prepared. We want to make specific arguments, that are going to help the Court to solve the problems, which in most request for order situations are temporary problems. Where are the parties going to live, how are they going to be supported, where are the children going to live, how are we going to make sure that they have a relationship with both parents? Let the other side be a monkeys-butt, and you bring your halo. Ok, so next time, we are going to talk about how not to be reactive. That’s kind of the opposite of being proactive. So, until next time, I’m Thomas Ferreira, and I’ll see you on the flip side.

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This series assumes that you have already filed and served your responsive declarations or your request for order—that you’ve done the written paperwork and presented all the documentary evidence that you need to present.

Your task now is to persuade the judge once you’re in court.  There are certain “do’s and don’ts,” a certain secret sauce, and when you see attorneys doing this you can tell that they’re being effective.

But it’s like anything else—you can do it and do it well, and I’m going to teach you how to do that.

PREPARING BEFORE THE HEARING:

You want to prepare for the hearing in advance so that you know what you’re going to say.  Read through your declarations and your evidence.  Look at the photos and other items that you are offering to the court.  Tease out those facts that support the result you want.

MAKE PROACTIVE STATEMENTS.

Work backward from the result you want to the facts that support that result.  And be proactive in your arguments.

Being proactive means that you ask for what you want and you don’t react to what the other side is doing.  They’re going to ask for what they want.  Don’t worry about them.

Write down the three major points you want to make.  For example:

1.  I want more time with our children in the parenting plan.

2.  I want to reduce my support payment.

3.  I want to have unsupervised visits with the children.

Next, set out the child-focused facts that support these positions.  It’s okay to write out your your remarks in advance if you’re nervous.

The opposite of being proactive is focusing on the other party’s arguments, things like “she constantly withholds the children from me,” or “he says bad things to me in text messages, and etc.

Or, the simple phrase of “gal darnit, it’s just not fair.”  As an aside, “it’s not fair” is almost never a good argument in family court.

A better way to approach that is to make your arguments through the eyes of the child.  Something like this:

Your honor, this child has a warm, tight relationship with me and it’s clear that he misses me.  And it’s really important to him as he getws older that this child have a father in his life

Now I know that this court has ordered supervised visits.  What I’m asking this court to do is to remove that supervision because it taints the interaction that I have with the child and makes everything more difficult.

And, your honor, I have done my anger management class, I have entered a 12-step program.  I have done (fill in the blank) that the court wants me to do.

I’ve been doing this supervised visit for three months and I believe it’s time to have unsupervised visits with our kids.

That’s a more persuasive argument than “mom is withholding them,” and she’s manipulative, and she’s always nasty in text messages and the like.

Make your arguments in a positive way and this will be more persuasive to the court.

The court wants to see that you “get it,” which means that you see the case the way the court sees it, that is, through the eyes of the child, and through the problems that court is trying to solve, such as support.

Next time I’m going to talk about how to be proactive rather than reactive when you are speaking in front of the judge.

Thomas D. Ferreira, Esq.

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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.

The post UNBUNDLED SERVICES GIVE YOU PROFESSIONAL LEGAL HELP WITHOUT THE HUGE ATTORNEY PRICE TAG appeared first on Carlsbad Divorce Mediator and Legal Document Assistant.

Please join the founder of Divorce Life Solutions, Thomas D. Ferreira, Esq., and Tammy R. Ferreira, Certified Divorce Financial Analyst for an information-packed seminar on how to do your divorce right.

At this seminar you will learn:

• How to cooperate in raising your children after divorce
• How to save huge money and avoid nasty litigation
• How to ensure short-term and long-term financial security after the divorce
• Basic pitfalls of California divorce and how to avoid them
• What actions you can take to insure long-term protection for you and your children

Mr. Ferreira will answer common family law questions and suggest strategies for coping with divorce.

Date and Location: Wednesday, October 24, 2012, 9am-12pm. Register for only $39 by calling (760) 990-4752 or by using the following link: http://www.palomar.edu/venture/

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