What if it was possible to get a divorce without going to court? If you could end your marriage without all the hurt feelings and animosity, would you? Divorce mediation provides the opportunity to dissolve a marriage without putting children in the middle of a conflict, and without terminating a good relationship between both parties. It provides the means to co-parent successfully with your ex while both of your personal interests are looked after. What is divorce mediation though, and is it right for you?
What Is Divorce Mediation?
When people think of divorce, they imagine hostile court hearings and expensive legal fees. Divorce mediation is an option two parties can choose that is cost-efficient and less conflict-oriented. In this method, two parties hire an impartial third party to negotiate an agreement between them. In this mediation, the mediator will walk you through a series of complex issues, taking both of your interests into account, and will help you agree on a settlement. Mediation aims to reach an agreement that satisfies both parties’ needs and wants, maintains an amicable or neutral relationship between the exes, and avoids the expensive legal fees from divorce litigation. Mediation is also popular because of the privacy it provides. There are no public records of what goes on in mediation sessions.
People tend to favor mediation because it gives them more control over their divorce and how different matters are handled. Some of the matters a mediator will help you with include:
Child custody and child support
Spousal support
Property division
Divorce mediation also helps with overall communication between a couple. If a couple is getting a divorce, it’s common that their communication methods are strained and ineffective. Having a divorce mediation lawyer trained in mediation and communication can vastly improve communication between two parties. Sometimes you just need a neutral third party to see things fairly.
When Mediation Isn’t Right For You
There are many instances in which mediation is a great decision. However, there are also plenty of circumstances in which mediation is not an option. One of the most common instances where mediation is not recommended is in the case of domestic violence. Because of the nature of the relationship between a domestic violence victim and an abuser, there is a heightened risk of tension turning violent. There’s also an increased risk that the abuser will intimidate the victim or threaten them, and they will agree to terms that aren’t actually equatable.
If one party does not want to get divorced, mediation may not be an option. Mediation relies on both parties being open and willing to communicate and separate. If one party is resistant or unwilling to do this, mediation isn’t an option.
If you have questions on whether divorce mediation is right for you, you can contact an experienced attorney at Lonich Patton Ehrlich Policastri. We’re located in San Jose, CA, and serve surrounding areas. Our lawyers are trained in mediation and collaborative divorce and can help you through this difficult time as easily as possible. We offer free 30 minute consultations, in person and virtually. Set yours up here.
https://www.lpeplaw.com/wp-content/uploads/2021/06/divorce-mediation.jpeg600900Gina Policastrihttps://www.lpeplaw.com/wp-content/uploads/2021/05/LPEP_PC.pngGina Policastri2021-06-02 20:37:492021-12-22 19:47:03What Is Divorce Mediation And Is It Right For You?
Despite the dramatization of divorce, it doesn’t always have to be a messy, contentious process. Often, couples who are in agreement that a divorce is in the best interests of both parties can finalize the divorce agreement without a long trial. If you and your spouse both agree to negotiate a fair and equitable settlement, then learn about collaborative divorce vs mediation. One may be the best path for you. It will cost significantly less — as divorce litigation can result in a much more expensive divorce. It will also help you and your spouse avoid a long and stressful litigation process.
Who Collaborative Divorce vs Mediation Will Benefit
For some couples, the formal court litigation process is necessary. Collaborative divorce and mediation work best for the following types of spousal situations:
Both spouses should agree that a divorce is in their best interests.
Both spouses should agree to negotiate a fair and equitable decision that is a compromise of both spouse’s needs.
If the spouses share children, both spouses should have a relatively similar idea of a custodial arrangement that is in the best interests of the children.
Both spouses should agree to be transparent about financial information and property assets.
Before deciding between collaborative divorce vs mediation, it is important to understand what both options can mean for your divorce settlement.
What is Collaborative Divorce?
Collaborative divorce is the process of negotiating a divorce settlement in a four-way conversation with both spouses and their collaborative mediation attorney.
Many people chose collaborative divorce because it may save them from going to court, but still requires qualified collaborative divorce lawyers to represent their interests. Oftentimes, collaborative divorce requires a third-party accountant and a child custody specialist so that they may determine an equitable division of property and a child custody arrangement that is in the children’s best interest.
Once the spouses and their attorneys reach an agreement, the details are presented to a judge in a trial setting, in which the judge quickly reviews and typically approves the divorce settlement. Since the spouses reached an agreement before the court hearing, the process is usually shorter and less stressful than typical divorce litigation.
What is Divorce Mediation?
Divorce mediation is the division of property that is facilitated by a divorce mediation specialist.
The divorce mediation specialist does not need to be a qualified divorce attorney, however, couples with high-asset-net-worth are advised to hire a divorce mediation lawyer.
In this scenario, the mediator speaks to both spouses to obtain background information. Next, the mediator meets with both spouses and goes through the formal mediation process in which both couples share their perspectives and interests. The mediator’s goal is to allow both parties to express their interests and create an equitable compromise. The mediator also ensures that one spouse does not overpower the other spouse during the mediation process.
Although an independent divorce attorney is unnecessary in mediation, some spouses wish to have an attorney who they can speak to after the mediation meetings. Additionally, some spouses feel that they are unable to promote their interests on their own and bring their personal attorney to the mediation meetings. If your spouse brings their attorney, it is highly recommended that you do so as well.
How to Determine If Collaborative Divorce vs Mediation Is Right for You
If you are still uncertain if you and your spouse should choose the collaborative divorce or mediation process, then it is recommended to speak with a qualified divorce attorney.
LPEP is a reputable law firm in San Jose specializing in high-net-worth divorce proceedings. Contact our office today for a 30-minute free consultation so that we can advise you on how to protect your interests without a stressful trial.
https://www.lpeplaw.com/wp-content/uploads/2021/05/collaborative-divorce-vs-mediation.jpeg457684Riley Penningtonhttps://www.lpeplaw.com/wp-content/uploads/2021/05/LPEP_PC.pngRiley Pennington2021-05-06 19:57:042021-12-22 19:47:33What's the Difference In Collaborative Divorce vs Mediation?
Divorce doesn’t always have to be ugly. If you’re going through a divorce or considering one, you probably share the fear of angry confrontations and animosity that divorce brings with many other couples. While mediation can be a good option for couples who want to minimize the negative effects of a divorce and handle the settlement on their own, it isn’t for everyone. Mediation can even negatively impact one of the spouses as it does not rely on the fair assessment of a lawyer for help. Collaborative divorce is an ideal option for couples who want to maintain some sort of relationship, and effectively and fairly divorce with the help of legal counsel. What is collaborative divorce and how does it work?
What Is Collaborative Divorce?
Collaborative divorce is when both parties seeking a divorce acquire individual representation. Then, through a series of 4 way meetings, the couple and their attorneys will work together to reach a fair and amicable settlement. Collaborative divorce is for couples who wish to avoid going to court or avoid building any extraneous animosity between them. The end goal is to have both parties happy with the settlement, rather than one happy and one unhappy.
The Job of Your Divorce Attorney
Collaborative divorce attorneys have specific job responsibilities they must follow to help their clients. They must be trained in negotiations and conflict resolution. They serve to advocate for their clients, maintain level-headedness, and reach a fair agreement. It is in the best interest of the attorney to help their client reach an agreement through collaborative divorce. Otherwise, if an agreement is not reached, the attorney or the attorney’s firm cannot represent the client in court. If you hire a collaborative attorney, and you withhold or pass false information to them, the attorney is required by law to inform your spouse and their representation and to remove themselves from the case. It is in your best interest to remain honest and forthcoming with your attorney, as they are there to represent and help you.
Many people appreciate the collaborative process as it can utilize the help of outside parties such as mental health professionals (among others). Your attorney or your spouse’s attorney have the ability to bring in an outside authority if they feel it will help the process of reaching an agreement. Both parties will be fully aware of the outside party’s presence and their intentions before entering the meeting. This is so both parties can prepare with their attorneys, and this goes for every meeting, not just the ones with an outside authority. As an agreement is reached, it is the responsibility of the collaborative divorce attorney to draft the settlement into a legally binding document. For an agreement to be reached, both parties must agree on all consecutive issues. There has to be unanimous agreement on each issue for a settlement to be reached in collaborative divorce.
If you are willing to negotiate with your partner, want to maintain a good relationship, and want to save money, a collaborative divorce may be the right option for you. Our experienced attorneys are skilled in the art of negotiation and conflict resolution. We want to help you and your soon-to-be ex spouse resolve your differences and come to an agreement that is best for both of your interests. Set up a free 30 minute consultation to discuss your options. Set yours up here.
https://www.lpeplaw.com/wp-content/uploads/2021/04/collaborative-divorce.jpeg300900Mitchell Ehrlichhttps://www.lpeplaw.com/wp-content/uploads/2021/05/LPEP_PC.pngMitchell Ehrlich2021-04-21 16:22:592021-12-22 19:47:45What Is Collaborative Divorce?
Divorce is very nuanced. There are many things to consider which can make an already difficult situation more challenging. Lonich Patton Ehlich Policastri has put together a comprehensive guide of the most commonly asked questions. Get an answer to your divorce question now.
1.What Is The Difference Between Divorce Mediation And Divorce Collaboration?
Mediation is when a neutral third party is hired to facilitate resolution of issues between two people during a divorce. The mediator helps with paperwork, mutual communication between all parties, and securing 60%-70% of goals or desires are met for each party.
Collaboration is a binding contract between both parties and their attorneys stating neither will go to court. If this contract is breached, the parties will have to fire their attorneys and start the process over. Attorneys can help clients identify what’s important to them and how to work through issues. It is common to have non lawyer professionals involved in collaborative divorce. Mental health professionals, divorce coaches and financial specials can add clarity to emotions and difficulties that arise during the resolution of a marriage.
2. How Much Does It Cost To Get Divorced?
This is probably the most common divorce question. The answer is different for everyone. It depends on what issues you have. Do you have children? If so, you will need to deal with the issue of custody. How will your property be divided? Do you own a business together? What if one of you needs spousal support? Is there a post nuptial or a prenuptial agreement? All of these factors impact the cost of your divorce. The best way to find out what cost you’re looking at is to call an attorney. If you live in San Jose, Lonich Patton Ehrlich Policastri offers a free 30 minute consultation that can answer tough questions like this.
3. How Long Will A Divorce Take?
The answer for this divorce question is similar to the question above. It depends on your unique situation. The attorney you work with will need to know of any estate plans, businesses or property you and your spouse own. They will also need to consider any children and custody agreements involved. It depends on how much you and your spouse agree upon. If you go through mediation or collaboration, it could take less time than going through litigation.
4. How Is Property Divided In A Divorce?
In California, this comes down to two rules: Community property and Separate property. Separate property is anything you acquired before your marriage and that hasn’t been commingled or shared between the two parties during the marriage. If you owned a house before your marriage and have kept it separate from community property, that is added to your separate income when division begins.
Community property is anything acquired during the marriage or shared during the marriage. This includes a family home, cars, debts or anything earned or gifted during the marriage. Community property is divided during the dissolution of the marriage. This doesn’t mean it is necessarily divided in half. If you have two assets of equal value, one person may receive one while the other party receives the other; an example being a house and a retirement savings plan.
5. What Are My Rights During A Divorce?
You have rights protected under the Bill of Rights. You have the right to a fair trial; the right to a safe trial free of harassment from a spouse or their attorney. You have the right to see your child unless a court states otherwise. Speaking with an experienced attorney such as the ones at Lonich Patton Ehrlich Policastri is the best way to learn about your rights during your divorce. Get your questions answered in a free 30 minute consultation.
6. How Does The Court Decide On Child Custody During A Divorce?
Child custody is decided based on many factors. Often, during the case, temporary custody is assigned. This allows the child to have a stable routine they can depend upon and prevents their lives from being upended. Judges can be hesitant to change this plan when deciding on permanent custody as they don’t want to remove that stability from the child’s life. Temporary custody can be an indicator of the end result of child custody, but it isn’t guaranteed. Once divorce is filed, the state your child currently resides in becomes their home state. If a parent wants to move out of the state or relocate, this can affect the outcome as well.
Judges consider the wellbeing of the child over everything else. This means they will look into any history of mental illness, drug abuse or addiction, and financial stability (to name a few). Courts tend to favor the spouse who is able to put their differences and issues from the divorce aside for the betterment of the child. This means the more level headed you are, the better.
7. Does My State Have A Separation Requirement?
This is a crucial divorce question to research before filing. In San Jose, CA, there is no separation requirement. You must have lived in CA for 6 months before filing for divorce however. Once you have filed, you must wait another 6 months before the finalization of your divorce. If you file for legal separation in the state of California, there is no waiting period making it a great option for those who haven’t lived in the state for 6 months.
If you don’t know if your state has a separation requirement, the best way to find out is to research your state laws or contact a local divorce attorney.
8. How Do I File For Divorce?
This is another common divorce question clients ask. To be eligible for a divorce in CA, you must have lived in the state for 6 months. When it comes to counties, you must have lived in the specific county you file in for 3 months.
Before no fault divorce existed, a spouse had to provide a reason for the dissolution of marriage. This typically involves extramarital affairs or domestic violence and the practice is still common in some states. In California, all divorces are no fault which means one party can simply want a divorce from the other without providing a “fault.” This means that wrongdoing has no impact on the division of assets according to the judge.
After filing, there’s a 6 month waiting period for the finalization of divorce. You and your spouse can work collaboratively to make a plan for child custody and property division without legal assistance and if that doesn’t work you can seek help from a mediator. This is where you might consider collaborative divorce or mediation. The last option is divorce litigation which is also the messiest. This should be a last option if you and your spouse cannot agree on anything.
You may not need to go to court if you are able to resolve issues and division of assets through mediation or collaboration. This is an ideal situation and all papers can be filed with the court with a judgement on your case sent in the mail. Sometimes you may still be required to show up for a hearing in these cases.
If you opt for divorce litigation, the matter will be handled in court and this can be pricey. If you can avoid litigation, it’s in the best interest of everyone involved. However, at LPEP Law, they know how contentious divorces can get and understand not everyone will be able to settle their issues out of court.
10. How Do I Decide On A Divorce Lawyer?
You should make sure your divorce attorney specializes in family law and divorce cases. You want someone who has handled a myriad of divorce situations and will work to get you the best possible outcome.
Ask how many years of experience they have. If you’re going to court, do they know the court and the judges who preside there? Are they board certified? These are all important questions to ask when deciding on a lawyer.
The underuse of the mediation process seems to be largely attributable to the fact that many people are unaware of what a mediation session is and how beneficial it can actually be. In family disputes, mediation can be extremely rewarding, saving parties time, money and sanity.
The rules of mediation: you create them
In mediation, parties are not bound by many of the rules that govern judges’ decision making. As a result, parties can reach solutions that might not otherwise be available from a court. For example, if there is a dispute over child support or child custody, rather than having a judge decide the amount of support or amount of visitation based on guidelines and factors required by statute, parties are free to negotiate an amount or time deemed reasonable to both.
The outcomes: you decide them
In mediation, you are free to discuss with your spouse what is important to both of you and try to reach a mutually acceptable agreement. It differs from litigation in that parties avoid the uncertainty, time and stress associated with going to trial. Parties are able to hear and understand the other’s point of view and with the guidance of a mediator, this enables parties to reach a middle ground . Because the mediator does not have the authority to make decisions, it is ultimately the parties making their OWN decisions over their OWN lives.
However, a good mediator should have some family law experience and be able to offer practical guidance to the parties. A mediator with family law experience can offer parties insight as to what might and might not be granted in court, ensuring that no request is unreasonable or disadvantageous to the other spouse. This can make the mediation session much more productive.
Progress: in the mediation room and beyond
Lastly, even if you don’t settle all your divorce issues, chances are you did resolve some. Even having resolved one issue is progress. Further, the tenants of mediation promote cooperation and communication. Thus because parties are provided the opportunity to resolve their own case, mediation tends to reduce hostility and preserve ongoing relationships.
While divorce mediation works in many situations, it is not always appropriate. Litigation is often the best option in situations where there is domestic violence, one party refuses to cooperate in making required disclosures, or communication between the parties is impossible. If you have any questions about divorce mediation and would like to speak to an attorney, please contact Lonich Patton Erlich Policastri for further information. Keep in mind that each individual situation is unique and results discussed in this post are not a guarantee of future results. While this post may include legal issues, it is not legal advice. Use of this site does not create an attorney-client relationship.
https://www.lpeplaw.com/wp-content/uploads/2021/05/LPEP_PC.png00David Pattonhttps://www.lpeplaw.com/wp-content/uploads/2021/05/LPEP_PC.pngDavid Patton2016-10-10 11:54:102021-12-22 20:12:39Mediation: Taking control of your divorce
Mediation allows parties to work in a collaborative environment and reach an agreement satisfying to both sides. The enclosed article suggests mediation as a first step in solving problems and reaching voluntary agreements. Instead of using mediation as a last resort, the article recommends using it as the first step to work out solutions. In particular, using mediation, a less formal alternative than court, makes it less likely that parties will react defensively or overstate their claims. Although the article discusses mediation in a business context, the following three suggested requirements for a successful mediation also serve well in divorce mediation:
(1) a willingness on the part of all the relevant parties to work together to resolve the problem or deal with the situation;
(2) the availability of a trusted “neutral” with sufficient knowledge and skill to manage difficult conversations; and
(3) an agreement on procedural ground rules (i.e., confidentiality, timetable, agenda, good faith effort, etc.)
While divorce mediation works in many situations, it is not always appropriate. Litigation is often the best option in situations where there is domestic violence, one party refuses to cooperate in making required disclosures, or communication between the parties is impossible. If you have any questions about divorce mediation and would like to speak to an attorney, please contact Lonich Patton Erlich Policastri for further information. Keep in mind that each individual situation is unique and results discussed in this post are not a guarantee of future results. While this post may include legal issues, it is not legal advice. Use of this site does not create an attorney-client relationship.
https://www.lpeplaw.com/wp-content/uploads/2021/05/LPEP_PC.png00David Pattonhttps://www.lpeplaw.com/wp-content/uploads/2021/05/LPEP_PC.pngDavid Patton2016-03-07 11:06:522021-12-22 20:19:273 requirements for a successful mediation
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