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Dividing the Pots & Pans

When you’re getting a divorce, how do you figure out who gets the pots and pans? Who gets the china, the knick-knacks, the photo albums, the lamps, the dishes, the electronics, and the furnishings? How do you divide the myriad household items collected over years of marriage?

Honorable Judge Robert Schnider (Retired) began his career as a family law attorney in 1971. He was among the first group of lawyers to become a Certified Family Law Specialist when the California State Bar created the designation. Judge Schnider is unique in the family law court system because his entire career has been focused on family law matters. Where most judges assigned to the family law department have backgrounds in criminal law or something else unrelated to family matters, Judge Schnider knows family law inside and out.

When asked how he dealt with dividing the pots and pans in his courtroom he said he never objected to dividing the furniture.  He developed a method he said often led parties to settling their property issues.  He required that parties create one list that set forth every item they wanted him to rule on.  The list would contain the numbered items, any party’s contention the item did not in fact exist, each party’s contention as to who had the item, each party’s contention as to separate property or community property, and each party’s contention as to fair market value.  If they wanted to include purchase price they could, but purchase price wasn’t as important as the current value.

The parties could start off with two separate lists if they wanted, but what they presented to the court had to be one combined list.

Of course, this exercise involves a lot of work that can’t be foisted off onto the attorney. Judge Schnider admitted that more often than not, parties would get mad in the middle of this exercise and exclaim that it was a waste of time or that the judge was being a jerk, but then they would become reasonable and settle the case.

On the rare occasion they did not, Judge Schnider said he could usually try the case in a few hours and often rule from the bench, keeping the attorney fees down.  There was the occasional case where he spent several days with testimony about the physical condition of each item, the provenance of many items, the market research regarding values, et cetera, but those were the exceptions.

A theory that changed laws

During his period in the appellate court, Justice Donald King was probably the most prolific family law judge in California. He’d been a superior court judge in San Francisco and he wrote scores of family law opinions. And he did something else that was quite extraordinary: Every summer while the appellate court was closed, he would  volunteer to sit pro tem* in the San Francisco Superior Court. Then, he did something even stranger. He told the supervising judge, “I want the worst cases you have. Give me all the cases that no one else wants.” So he started getting all these terrible, highly emotional contested divorce cases.

Justice King had been a superior court judge and so he had a theory about family law. He believed that people generally have more divorce than they have money and when they run out of money they still have lots of divorce left.  At the end of the case, the client hasn’t paid the bill, so the lawyer sues the client for unpaid fees. Now, clients can always think of something the lawyer could have done, should’ve done, failed to do, forgot to do, so the clients respond with a lawsuit for malpractice and suddenly you have all these lawyers and clients litigating. As a result you wind up with lawyers who are so fearful of a lawsuit against them for malpractice, they file every subpoena, serve every document, go through interrogatories and requests for admissions and they build their cases on the basis of “I don’t want to ever be guilty of any kind of malpractice. I’ll do everything I possibly can.”  Thus you have the California Divorce Industry.

When Justice King was a superior court judge, he saw all these lawyers coming in two or three years into a case, with boxes and boxes of receipts and cancelled checks, records and documents, and all this stuff. He began to wonder, what would happen if I could get into the case at the front end, before the lawyers have spent all these hundreds of thousands of dollars on discovery? He started bringing the lawyers in at the beginning of cases and he would say, “Counsel, tell me about your case. What are the facts as you understand them to be? What is your approach? What are you going to demand, what are you going to need, what will help you solve all the problems that you’re facing?”  And he would turn to the other lawyer and he would begin a conversation. Then he’d say, “You know what, let’s just use one accountant. We’ll use a neutral account. Can we pick an accountant that we both know and trust? Why don’t we just use one appraiser?” In this way he started limiting the discovery, managing the discovery, and he was so successful he was settling 70-80% of his cases and having happy clients and happy lawyers as a result.

In the mid-nineties the California Bar Journal published an article about Justice King’s case management theory and that led to the birth of statute 2450. Family Law Code Section 2450 gives fourteen new powers to judges that they don’t otherwise have.  Under 2450 a judge can have short-cause hearings by telephone, they can appoint mediators, it’s just remarkable.  How does it work? Your lawyer files a Case Management Stipulation, a 2450 Stip, and then you agree to see the judge when he’s got some time on his schedule.  Then you get in front of the judge, in private, and you use the judge as a sounding board. It’s almost like a mini trial for free.  I’m a big advocate for 2450 and I believe it needs to be used more.  I’ve talked to all the new judges about it, as well as the guys who’ve been hearing family law cases for years, and they are all in favor of it. They really like the approach.  Click here to read more about family code section 2450.

*pro tem = pro tempore, a latin phrase meaning “for the time being”

The Seven Options for Divorce: Number Seven

Alec Baldwin wrote a book last year called A Promise To Ourselves, decrying “the corrupt California divorce industry” (his words).  He describes a nightmare divorce that lasted eight years and cost over three million dollars, after a ten-year marriage to Kim Basinger.   That is the seventh option:  Litigation.

A few years ago there was a case all over the newspapers.  A short marriage; a two-year-old child.  Dad was voluntarily giving Mom $50,000 a month in child support, but the mother wasn’t satisfied.  Mother wanted $350,000 a month in child support for the two-year-old.  Why?  Because Dad could afford it.

The couple spent over a million dollars – each – on the Order to Show Cause Hearing.  At the end of the day, after hearing all of the evidence and testimony, after concord jets and race horses and all the other evidence put in for a two-year-old child, the judge raised the support from $50,000 a month to $60,000 a month.   A hundred thousand for a million.  That’s litigation, straight up, all the way.

The good news is that you have options.  You don’t have to spend your life’s savings on legal fees or spend years fighting in court.  It’s your money, it’s your family, it’s your choice.

Option 1:  The Kitchen Table
Option 2:  Mediation
Option 3:  Collaborative Divorce
Option 4:  Arbitration
Option 5:  Negotiation in the Shadow of Litigation
Option 6:  Rent-A-Judge
Option 7: Litigation

The Seven Options for Divorce: Number Six

Your sixth option is Rent-A-Judge.  If California were a business, it would be bankrupt.  The courts are under-funded and over-crowded.  The lines waiting for trial dates go on and on.  The supervising judge in the family law department is anxious to get rid of cases.  Any time two attorneys stipulate to file an application for Rent-A-Judge, the court will immediately appoint a retired judge in good standing as a judge pro tem*.

But how does it work?  The court appoints a retired Superior Court judge, an appellate court justice, or a Supreme Court justice, and you rent their time.  In most instances they apply the same rules they would if they were sitting in a courtroom.  They may even work in a courtroom.  But if Angelina and Brad Pitt decided to get married and then decided to divorce, they wouldn’t go to court.  They’d hire a retired judge and they’d have their divorce at Chateau Marmont and it would be catered.**

Los Angeles County is host to a “Rent-A-Judge” program wherein retired Superior Court judges are available as arbitrators or will sit as judges on a private basis.  In the “Rent-A-Judge” program you try your case in a conference room just as you would in a court room, but without the delays and interruptions you experience with a judicial officer who is subject to the interruptions of a heavy caseload.  If you know you have a case that will be in court for a long time, this option can save you a lot of money.

Option 1:  The Kitchen Table
Option 2:  Mediation
Option 3:  Collaborative Divorce
Option 4:  Arbitration
Option 5:  Negotiation in the Shadow of Litigation
Option 6:  Rent-A-Judge
Option 7: Litigation

* temporary judge

** The Law Collaborative does not represent either of the Jolie Pitt’s and is in no way making any claims about the state of their relationship.  It was a harmless, fictional example.

The Seven Options for Divorce: Number Four

The fourth option for divorce is Arbitration, which is quite different from our first three options.  The Kitchen Table Divorce is casual, creative, quick and inexpensive.  Mediation is a cooperative effort between individuals to reach a mutual agreement based on consensus and compromise.  Collaborative Divorce provides you with a team of professionals that rally and support you, ensuring that all your needs are met.  Though Arbitration is similar to mediation, it is more like litigation in that the parties present their respective positions, evidence, testimony and witnesses to a trial of fact.

Arbitration is a settlement technique in which a third party reviews the case and imposes a decision that is legally binding for both sides.  The arbitrator may be a retired judge, an experienced trial lawyer, or some other professional selected from a panel of competent arbitrators, such as the American Arbitration Association.  Arbitration can be either voluntary or mandatory and can be either binding or non-binding.  The principal distinction between mediation and arbitration is that whereas a mediator will try to help the parties find a middle ground on which to compromise, the (non-binding) arbitrator remains totally removed from the settlement process and will only give a determination of liability.

Arbitration is most commonly used for the resolution of commercial disputes, but it is desirable in divorce cases when agreement cannot be reached but the parties still wish to save the costs and expenses of litigating through the usual judicial system, which has built-in delays and attendant increased costs.  The Los Angeles County Superior Court sponsors an arbitration program and a “Rent-A-Judge program wherein retired Superior Court judges are available as arbitrators, or will sit as judges on a private basis.  But we’ll talk more about Rent-A-Judge in a later post.

Option 1:  The Kitchen Table
Option 2:  Mediation
Option 3:  Collaborative Divorce
Option 4:  Arbitration
Option 5:  Negotiation in the Shadow of Litigation
Option 6:  Rent-A-Judge
Option 7: Litigation

Reduce Your Legal Fees

The dissolution of a marriage often comes at a time when a family is going through a financial as well as emotional crisis. Sometimes the emotional crisis can make the financial one worse by increasing the attorney’s fees incurred and costs expended. For example, if a spouse is vindictive or just plain upset, he or she can refuse to negotiate in good faith, or act in such a way as to provoke numerous court appearances or otherwise delay the proceedings. When this happens it is usually beyond our control, and we have to cope the best we can though the mechanisms provided by the court. Frankly, it can be extremely expensive and frustrating.

However, you can help to keep your fees and costs to the minimum for your case by following these simple rules:

1. Remember that talking to me on the phone is expensive. My time and skill in the law are all that I have with which to make a living, and I must charge for the time I spend on the telephone just as I charge for research, document drafting, and court appearances. Therefore, you can save yourself a great deal of money by not always asking to speak directly with me. As a general rule, discuss your needs first with my paralegal, my law clerk, or my accounts manager, or my front desk administrator. If legal advice or intervention is needed immediately, they are trained to recognize it and will bring it to my attention, as soon as possible. Furthermore, if I am in court or working on a research project, or otherwise unavailable at the time, a detailed message through my staff will get my attention a lot faster than simply asking me to call you back. Better yet, my assistant can often handle the problem right then and there. If you wish information on a court date, the status of service or filing of papers, or other similar information, they can help you as well as I can and at much less expense to you. My account manager can answer all of your billing questions, again at less expense to you. Finally, if you merely wish to leave some information such as an address, telephone number or some figures that I have requested, please leave the message with my staff or with the answering service if they are available.

2. Remember that I am trained as an attorney, not a counselor. Certainly, unless I understand the nature of your relationship with your spouse, I cannot represent you as well as I might. For that reason, I will spend some time with you exploring this interaction, especially toward the beginning of the case. From what you tell me, I may be able to point out some of the “games” that are being played and how to avoid being one of the players. A dissolution or other family law matter can be one of the most stressful times of a person’s life, and it is to your best legal interest that you cope with the stresses. If you are not thinking clearly, you may be inclined to make decisions on whether or how to settle the case that will be very expensive in the long run. However, at some particular point, I will have learned what I need to help you legally, and I will be giving you the best advice I can on how to cope with the legal and practical aspects of the case. From that point on, my listening to your non-legal experiences with your spouse, your spouse’s faults and other matters will usually appear on your monthly statement. Generally, this will be the case after the initial consultation or first court hearing.

3. Participate as effectively as you can in your own case. Your time is likely to be less expensive to you than mine, and you will certainly be more familiar with many of the details. Therefore you will probably wish to obtain and organize as much of the information and documents for your case as possible. For example, in a case involving child or spousal support, the required income and expense forms are long and complex and require extensive background information and documentation. Experience shows that if you use your best efforts to complete these forms and provide the information and documents before the appointment at which we will discuss them, you will save up to two hours at that appointment and will be able to most clearly and favorably present your evidence to the court. If my office has to do all the work involved in preparing these forms and organizing the information, your case will become more costly. If there is a delay in preparing and filing such documents, the other side could apply to the court for sanctions in the form of a money judgment against you, use the delay in answering as an excuse to postpone court dates, request that the court prevent you from having your evidence submitted, or invoke other penalties.

4. Organize your questions and concerns so that they may all be discussed at one time rather than on separate occasions. It is generally much less expensive to have one long discussion rather than several shorter ones.

5. Think about settling the case instead of going to trial. Under the best circumstances, a trial’s outcome is uncertain. It is very unusual for husband and wife to recall things in the same way, especially the circumstances and understandings involved in acquiring assets or incurring debts. Because of such factual disputes and because there are numerous unsettled areas in the law, neither I nor anyone else can accurately estimate the odds of any particular outcome, nor can any single result in the case be guaranteed, if trial is necessary. For these reasons, trial is generally not in a client’s best interest if it can be avoided, and it is almost always best to settle the case if we can obtain a reasonably fair agreement. Therefore, as soon as we have enough information to evaluate the issues, I will usually seek your authority to negotiate a settlement.

Despite this, my usual office practice is to file a request for a trial date fairly early in the proceedings. This has the effect of putting an externally imposed time limit on negotiations. Even if the case may not actually be tried on the first assigned trial date (usually because the court schedule is overcrowded), there is an incentive to negotiate and achieve the best settlement for you. We present the position that we are prepared to try the case, unless we receive an acceptable offer. Just because we have filed a request for trial date, you do not need to assume that your case will go to trial or give up on trying to think of constructive settlement possibilities.

6. Particularly if your spouse has an attorney, please do not try to settle any major issues directly with your spouse unless you have discussed your proposals with me first. You have hired me because of my knowledge of the technicalities and practicalities of California Family Law, and if you try to negotiate major issues yourself you may unwittingly waive substantial rights, fail to provide for certain common contingencies, or otherwise damage your case. On the other hand, after discussion I frequently advise clients to attempt to settle who is to receive items of furniture, furnishings, appliances, and other personal and household items directly with your spouses. “Trying the Tupperware” issue usually results in spending more money to divide these items than it costs to replace them.

7. Please call the office if your address or telephone number changes, so that we can reach you. Sometimes it is important that I talk to you within a few hours, and it is most helpful for us to have both a home and a “daytime” number.

8. Please call the office if there are any important changes in the facts or your circumstances. These changes can drastically affect the case, the best strategic approach to it, and our position. I may not be immediately available to talk to you, but I will do my best to return all calls that require a response or have them returned by my staff. If you need to speak to me, I will be happy to accommodate you as soon as possible. I only want you to remember the financial realities; my time is billed at a much higher rate rather than that of my staff. Just as I give attention to your case when I am working on it, I have other cases that also require full attention when I am working on it, I have other cases which also require full attention when I am working on them.

9. In all cases, tell us the truth and provide complete and accurate documents, even if you fell that it is embarrassing or may not be information you want to share. Having to work without full and accurate information almost always leads to performing work over and over again that should have been finished the first time and unpredictable, to say the least, hearing in court.

I don’t want you to have the feeling of “Don’t call us, we’ll call you”. On the contrary, there will be times, perhaps many, when you will need to speak to me. I urge you to do so when necessary. Please bear in mind that, in the most literal sense, my time is money and if you always insist on speaking to me you will probably be wasting your money. Again, my assistants and my accounts manager are trained to recognize when your case requires my immediate attention and to assist you at other times. Most legal matters move slowly. Unless a threat of physical violence or other irreversible and immediate harm is present, there are few situations that require immediate action (or in which immediate action is even possible).

Similarly, while you can leave messages with my answering service evenings and weekends, and while I can usually be reached in a real emergency, there is almost no action I can take until normal business hours that you cannot take yourself. You will have copies of existing court orders. With very few exceptions, new or different orders cannot be obtained after court hours. Please try to be patient, organized, and bear in mind which services can be provided best by myself, by my staff, or by someone else.

TLC, Bringing peace to the legal process.

How much does a divorce cost?

That’s a great question, and very often the first question a lawyer hears from a potential client.  Mr. Ron Supancic answers that question in this short, informative video.