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Podcast #45 Now Live On iTunes (Step By Step Guide To Divorce, part II)

Our latest podcast is now live on iTunes, please click HERE to listen to podcast #45 (Step By Step Guide To Divorce, part II). Listen to Step By Step Guide to Divorce, part 1 HERE.

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”

Trends in Family Law

People are astonished to learn that when Ron started practicing law in 1970, the family code was maybe a quarter inch of pages in the California Civil Code.  In the 1980’s the Family Code was two or three hundred pages.  Today it’s 850 pages and growing.  It’s about three inches thick and we get new statues twice a year.  We get new cases, which interpret the code, almost weekly.  Family law is one of the most highly litigated areas in civil law, and one of the most often appealed.  So it’s hard to say what the law is. You can say what it was. You can say what it is today. But who knows what it’s going to be tomorrow? That’s why we need Certified Family Law Specialists who can look at the law and give us an idea, not only of what the law is, but what the trends in the law are.

What are some of the current trends? One thing everyone’s talking about is, what is the future of a young child? If you have young children, the real issue is the movement of people. The economy is definitely changing where people are living. We have people moving to where they grew up or where they have the most family available to assist them. We’re seeing a lot of cases where a parent has to move for financial reasons, and in Los Angeles, even a move across town can completely disrupt a visitation schedule.  If you have to go court because you need to move ten miles for work, it’s up to the judge to decide whether or not the move is in your child’s best interest.  So in some cases the laws have to change to accommodate the current situation and your lawyer needs to know what the most recent changes in your favor are.

We’re seeing exponential growth in what is considered an asset. Thirty years ago it was a mere expectancy to have a pension plan. Today, it’s a major asset and can be missed if you’re not careful.  The same is true for insurance policies. Where once an insurance policy was just a term life policy, it now has some kind of value to it. It never had a value before, but now we can look at it and there are ways to value it.  Another area would be electronics and websites and artificial rights. When you own a copyright or trademark or patent, or you own software or you own music, it’s worth something now.  Once upon a time it wasn’t worth a lot, but look at Michael Jackson. Not a lot of cash flow, but an incredible amount of earning potential in a catalogue of music. We’ve both handled those kinds of cases where someone comes in and they have to value something that’s very difficult to value. It takes expertise outside of even the best lawyer to sit down and run through a catalogue of what those residual rights are worth. You have to have trusted neutral experts who can give you the best valuations.

When Ron started practicing in 1970, mothers always got custody, in every case. The only way a father could get custody was to prove that the mother was unfit. The mother had to be unfit. That law lasted through the eighties. It was taken out in 1976 but the judges continued to follow it as though it were there. It wasn’t until 1982 that we got joint custody. That was a huge change. We’ve seen huge changes in the law, but we still see disparities.

Not just a lawyer

An article this week in the New Zealand Herald got me thinking.  The author writes, “Lawyers know about conflict and extreme positions and applying rules and measuring out assets and applying formulas and assessing risk. What lawyers don’t seem to know about is that there is really only one answer to everything.  Forgiveness.”

In a way, she’s right.  Yet what she says is basically what those of us practicing collaborative law have been trying to say all along.  Divorce is a crisis of huge proportions.  It’s messy, it’s complicated, it’s painful.  While traditional lawyers are trained to defend their clients according to the laws, collaborative lawyers are trained to help families in crisis reorganize their lives with dignity, honor and peace.  The goal of Collaborative Divorce is to begin as two, end as one, and still feel whole.

Recently I heard a woman say that it was too late to begin the collaborative process because she’d all ready hired a traditional lawyer.  It’s never too late to turn things around and seek peace.

If you or someone you know has questions about the collaborative process, send us an email by clicking here:  Info@TheLawCollaborative.com.  You can also call our toll free number (888) 852-9961, and please feel free to visit our information center.  We’re here to help.

The Seven Options for Divorce: Number Three

The third option for divorce is a Collaborative Divorce.  It’s like mediation on steroids.

Collaborative Divorce is similar to mediation in that it’s protected by the evidence code.  Everything is confidential, privileged, private, and can’t be used in court against you.  What makes it different is that it creates a team of people who will help you get through what can be a very painful process, as painlessly as possible.  Collaborative Divorce calms the waters.  It allows you to take stock in yourself before you get into the process.

In a Collaborative Divorce you are surrounded by a team of experts, appraisers, mental health professionals, actuaries, real estate people, people you need to access so that you can reorganize your life, maximize your tax position, divide your assets peacefully, and become successful co-parents.

When you go to court, you get distributive bargaining.  Judges are limited by the rules, by the statutes, by the code sections.  The judge makes the best decisions in accordance with the law.  When you have a Collaborative Divorce, you make the best decisions for your family.

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