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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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. Learning how to write declarations for divorce court is an important skill for any lawyer or anyone trying to represent themselves and persuade their judge. 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 learn how to write their own declarations or affidavits for divorce court 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, 2011, 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, 2011 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 more detailed instructions on How to Write Declarations the Court Will Read? You can purchase Thomas’ e-book by clicking here. (This e-book has been updated in 2017).

Thomas D. Ferreira, Esq.

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Here’s a little secret about California’s child custody laws: Like other “family” laws, child custody and visitation laws are not designed to be fair to parents. Instead, the basic principle of child custody laws is known as the “best interest of the child’ standard.

When making decisions on your child custody matter, your family law judges are concerned with:
• The child’s safety.
• The child’s health.
• The child’s education.
• The child’s protection from an abusive, or inadequate or drug-using parent.
• The child’s frequent and continuing contact with both parents.
• Stability and continuity in the child’s life.
There is a glaring omission here—what about the interests of the parties before the court, also known as the parents?

Here’s what I mean: Ask people with families why they decided to have children, and you’ll get answer’s like these:
• I have wanted to be a mother since I was a little girl.
• I wanted to pass down a legacy for my family.
• I have a passion to teach and mentor young people.
• I love children and find them fascinating.
I can’t think of anyone who wanted children because having them would serve the child’s “best interest.” I myself had children when I was older, and I can tell you that I didn’t know what love was until that little baby smiled back at me. He’s 13 now and my heart still breaks with love for him.

Here’s another secret: raising children can and should be fulfilling and meaningful. Can you have a meaningful and fulfilling relationship with your children after divorce? What if you got the short end of the custody stick and have weekends or even just a few daytime visits?

The answer is an emphatic “YES!” I have found that the key to a satisfying life with your kids lies not in seeking court orders and submitting your situation to outside decision makers and evaluators.

Instead, take the energy you would spend litigating, and spend it on making your world a great place for your kids. Step up and help with homework, do something fun, or just be there when your kids need a shoulder to cry on. Such parents tend to wind up getting better court orders than those seeking “fairness” anyway.
Until next time…

Love your family,
Protect your finances, and
Reach for your future!

Thomas D. Ferreira, Esq.

The post CARLSBAD DIVORCE LAWYER AND MEDIATOR REVEALS A SECRET ABOUT YOUR CHILD CUSTODY CASE appeared first on Carlsbad Divorce Mediator and Legal Document Assistant.

Thomas Ferreira here with the seventh post in my series on achieving financial security without a lawyer. Today I want to talk to you about the most powerful tool in your tool kit for saving money and getting great results in your divorce case: Mediation.

If you have entered the strange alternate universe of divorce and child custody, then I have a question for you: How many of you want a fair result from your division of assets? How many of you want strong relationships with your kids? How about support orders that give your kids what they need but don’t leave you destitute?

In short, you want a divorce result that you will be happy with down the road, one that preserves your relationships, gives you financial security, and isn’t totally lopsided in favor of your ex.
What you don’t want is a huge battle with your ex that leaves you broke, alienated from your kids and with a bunch of court orders you hate and never agreed to in the first place.

But often people unwittingly choose the second option by engaging in conflict or hiring aggressive family lawyers. Many of you will hire champions of justice who will ask the court to solve your problems by making arguments to a third-party judge who knows little about your family. Others of you will start off trying to cooperate, but find out that their ex won’t agree to anything. They wind up making their pitch to the same third-party judge, and often are surprised that the judge sided with their ex—and also surprised by their attorney’s bill. A typical attorney bill for divorce is $25,000 on each side by the time it’s over. That’s $50,000, enough for a fancy new car, or a couple of years of private school tuition for your kid.

I’ve often said that there is a certain almost magical quality to mediation. I have people who swear that it won’t work, and by the end of session one they are agreeing and even being nice to each other for the first time in a long time. Tammy Ferreira and I have done hundreds of cases together, and each one seems impossible at first. It shouldn’t surprise any of you that people come into our office angry, hurt and mistrustful of their soon-to-be-ex. Most people think their case is the impossible case. In my experience, almost any case can be changed from high conflict to high trust through mediation.

You see, the best way to resolve problems is by having a discussion. You know your own finances and your family better than any judge will. But here’s what happens: You start your conversation like two boxers in round one who are sizing up each other. Then, someone lands a punch, causing the other to become defensive. Conversations between divorcing people often go downhill from there, spiraling into conflict and sometimes even violence.
As mediators, we are trained to keep conversations from going off the rails. We always look for win-win, solutions, that is, those decisions that benefit both people. We know exactly what to do when a party feels attacked or the conversation becomes heated.

Here’s something your attorneys won’t tell you: most of your cases are not that difficult. Dividing assets and calculating support can be done with 7th-grade math. Parenting plans can be designed to ensure that your kids have quality parenting time with both parents. The hard part is finding the sweet spot of resolution between two angry, hurt or scared individuals.

I’ve often said that mediation is the sanest way to resolve divorce cases. A typical mediation costs about a tenth of a fully litigated divorce, or about $2,000 to $2,500 per party. And, the results are your results, arrived at voluntarily, and not imposed on you by an outside person.

You can mediate with me and Tammy, or if you prefer we’ll refer you to another mediator. But by all means get to a mediator. It’s the best way to …

Love your family,
Protect your finances, and
Reach for your future!

Thomas D. Ferreira, Esq.

The post USE MEDIATION TO DIVORCE FOR ONE-TENTH OF THE COST AND ACTUALLY BE HAPPY WITH THE RESULT appeared first on Carlsbad Divorce Mediator and Legal Document Assistant.

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.

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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.

Until next time…

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

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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.
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 well being 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 on the link below. 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.

The post CARLSBAD DIVORCE LAWYER AND MEDIATOR ON THE SECRET TO FEELING CONFIDENT IN DIVORCE COURT appeared first on Carlsbad Divorce Mediator and Legal Document Assistant.

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 evacuation, using the Gordon Model Multiple.  Or if spousal support is in 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:

Here the lawyers have neatly divide 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:

An “intangible” is something that’s worth something to a divorcing spouse that can’t be directly measure 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 to thinking about solutions that benefit Husband, Wife, the children, 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.

The post The Value of Intangibles in Divorce Negotiation appeared first on Carlsbad Divorce Mediator and Legal Document Assistant.

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.

The post TWO STEPS TO GET ANY SPOUSE INTO DIVORCE MEDIATION (NO MATTER HOW RELUCTANT THEY ARE) appeared first on Carlsbad Divorce Mediator and Legal Document Assistant.