What are the benefits of divorce mediation?

o First, divorce mediation tends to be a lower-cost option. Generally, each party is paying for their own attorney. That means that the family is paying the hourly rate for two attorneys to facilitate finalizing their case. With mediation, the parties are paying for only one mediator, so theoretically, it is half the cost.

o Next, divorce mediation allows the parties to work as a team to accomplish their divorce. The non-litigious atmosphere usually leads to a more amicable end to the relationship. The parties can approach their divorce as a mutual, healthy business decision instead of a war.

o Divorce mediation provides flexibility for the parties. There are many things that a judge would not have the legal authority to order. For example, a judge cannot order a spousal support buy-out—there is no statutory authority to allow him or her to do so. However, sometimes that makes the most sense in a case. Perhaps one of the parties needs this money upfront to purchase a new home following the divorce. The parties can both agree in mediation to work toward this goal, and can stipulate to a spousal support buy-out.

o In many cases, mediation will accomplish finalization of a case much more quickly than handling the case in family court. In San Diego, the courts are dealing with budget cuts, so hearings are often set months in the future. If a case proceeds to trial, it is not uncommon for this to occur one to two years after the divorce was initially filed. With mediation, sometimes within a matter of weeks the parties can file for divorce, fulfill all the legal requirements, negotiate the dissolution terms and submit a final judgment. The parties will then just have to allow the six-month waiting period to run.

Mediation certainly is not right for everyone. It generally won’t work for people that are not open to compromise. It is difficult in cases involving domestic violence. It can increase the overall costs and timeline if mediation ultimately does not work. But for those that are interested in working together through the dissolution process, it is often a smart option.

-Tess Reutzel, Esq.

The information in this article is for general information purposes only. Nothing in this article should be taken as legal advice for any individual case or situation. This information is not intended to create, and receipt or viewing does not constitute, an attorney-client relationship.

First, a spouse will file a Petition for Dissolution of Marriage, along with other required legal forms, and will serve the packet upon the other spouse to initiate the case.  In California, there is a six-month waiting period from the time the initial paperwork is served to the time that the parties can become legally divorced, so this is the time when the waiting period will begin running.  A spouse can also immediately ask the court for interim orders for custody, visitation, child support, spousal support and other issues that will need to be resolved pending the final divorce judgment.

The next step is the exchange of information.  The parties to a divorce must complete and exchange legal forms and back-up documentation that provides the financial information of the marriage.  These documents are not filed with the court.  This step is in place to ensure that both sides have a full picture of the marital assets and earnings, and can use this information to effectuate an informed settlement.  Married parties have a fiduciary duty toward each other, so both spouses must act in good faith when providing this information.

The last stage is finalizing the divorce.  In my practice, I typically will set a 4-way settlement conference with the other spouse and his or her attorney so that we can discuss the issues and brainstorm settlement options.  If we are successful in doing this, we can draft an agreement that will be signed by all the parties, and the Court will enter this agreement as the Judgment of Dissolution and the case will be finalized.  If the parties are unable to informally settle, the court will send the parties to a Mandatory Settlement Conference, where a family law attorney is appointed to act as a mediator and help the parties settle.  If the parties cannot reach settlement during this conference, the Court will set a trial date.

Since all divorces will have their own, unique issues, the process will of course deviate from one case to another.  However, most spouses seeking a divorce will need to address at least these three steps.

- By Tess Reutzel, Esq.

* The information in this article is for general information purposes only. Nothing in this article should be taken as legal advice for any individual case or situation. This information is not intended to create, and receipt or viewing does not constitute, an attorney-client relationship.

Instead, it is best to seek court intervention.  If there is no court order for child support, the custodial parent should file a motion to obtain one.  Then, if the other parent is employed, he or she can ask that the other parent’s wages be garnished so that support is paid directly by the parent’s employer.  If there is already a court order in place, the custodial parent can file a motion asking for an arrears judgment, which accrues interest at a legal rate.  There are then various methods to enforce that judgment.

There are likely other issues that are specific to your case that should be addressed. Therefore, it is always best to seek the advice of legal counsel to determine how best to collect child support.

- By Tess Reutzel, Esq.

* The information in this article is for general information purposes only. Nothing in this article should be taken as legal advice for any individual case or situation. This information is not intended to create, and receipt or viewing does not constitute, an attorney-client relationship.

Arguably, one of the scariest parts of going through a divorce is trying to determine whether you will be able to make ends meet throughout the process and after the divorce is finalized.  With so many transitions taking place in a person’s life, it becomes important to form a budget.  But before a party is able to do that, he or she will need to determine what support should be expected.

As such, one of the first questions I hear from my new clients is, “How much child support will I have to pay?”  “How much spousal support will I have to pay?”  Or, “How much child and spousal support will I receive?”  This is determined by numerous family law statutes.

Child Support in California is determined by a guideline formula, and except in unusual cases, is not left to the discretion of the court. This formula is a complicated algorithm, but family law practitioners have access to computer software that will perform this calculation. The primary factors within this formula are the time each parent spends with the children and the respective income of the parties. There are also items that will affect support slightly, such as mortgage interest and property tax payments, health insurance premiums, and other tax deductions.

Spousal support is a whole different ballgame. While child support is almost always based upon the guideline calculations, spousal support is completely within a judge’s discretion. While the same computer software as was developed for child support contains a spousal support calculator, a judge is not obligated to order this. In fact, for a parties’ final divorce order, a judge is technically not even supposed to consider the guideline spousal support number.

Instead, the court is required to analyze factors set forth in Family Code Section 4320. These factors emphasize the needs of the supported party and the supporting party’s ability to pay. The court’s goal is to enable the parties to maintain the marital standard of living. However, given that there will be basically the same income available to support two separate households, this is often impossible and both parties will need to make some lifestyle changes.

All in all, child and spousal support orders are probably always going to be too high for the paying spouse and too low for the receiving spouse. Divorcing parties simply are going to have to make changes in their spending habits to enable the family to sustain two households. Therefore, it is important to know what to expect early on in your divorce to be able to adjust accordingly.

- By Tess Reutzel, Esq.

* The information in this article is for general information purposes only. Nothing in this article should be taken as legal advice for any individual case or situation. This information is not intended to create, and receipt or viewing does not constitute, an attorney-client relationship.

Clients often contact me after they have moved out of the home, and after they have therefore made mistakes that will make the divorce process a more difficult one.  Oftentimes, I wish my clients would have called prior to their move so I could have given a few tips to make the transition easier on the family.

As such, here is a list of items a person should consider before moving out of the home or filing for divorce:

1. Take along copies of important financial documents. During your divorce, you will need to provide documents showing what assets or debts you brought into the marriage, any accounting of how those assets were used to purchase other items during the marriage, statements reflecting the balances of your accounts at the time of separation, your tax returns, etc. Requiring your spouse to provide those documents with formal requests is time-consuming and expensive.  As such, you should take a copy of all these items before leaving the home. 
2. Ensure you have enough money to live off of for a few months. Once you have filed for a divorce, automatic temporary restraining orders (what we in the legal field call “ATROs”) take effect. These ATROs prohibit you from making any financial changes or transactions without written approval from the other side. While you can ask for child or spousal support, it is usually several months before a judge will be able to make that decision. As such, try to ensure you have enough funds to survive in the meantime. Keep in mind that these funds will later be allocated to you in the overall property division. 
3. Clients calling when considering a separation often ask if they may take their children. The answer to this question is really best made on a case-by-case basis, so it is best to call an attorney for help making the decision. However, if you take the children with you, ensure that you are cooperative in providing the other parent with time with your children. Unless you have a very good reason, a judge will not be impressed if you have not allowed the children to see their father for the past two months. 
4. Update your wills, trusts and estate planning mechanisms. The ATROs mentioned above also prohibit you from making changes to your estate planning mechanisms during a divorce. As such, you will want to ensure these documents reflect circumstances that are acceptable until your divorce is finalized.

There are likely other issues that are specific to your case that should be addressed. Therefore, it is always best to seek the advice of legal counsel prior to your move.

- By Tess Reutzel, Esq.

* The information in this article is for general information purposes only. Nothing in this article should be taken as legal advice for any individual case or situation. This information is not intended to create, and receipt or viewing does not constitute, an attorney-client relationship.