Alternative Ways To Proceed
At one time if spouses wanted to get divorced they had only one choice to make – which lawyer were they going to hire. Over the last 25 years, however, new alternatives have developed to the point where a person who is contemplating divorce has an entire spectrum of choices.
The most commonly selected alternative to a lawyer is self-representation. Under the law, a spouse can decide to represent himself or herself in the court process. The decision to represent yourself has been fueled primarily by two factors:
- The advent of court forms promulgated by the California Judicial Council.
The California Judicial Council is an official California body, consisting of judges, legislators and attorneys, that is responsible for improving the statewide administration of justice in California. One of the Judicial Council’s duties is to create court forms for use by courts, attorneys and the general public. With the advent of court forms, which are now available online, filing a dissolution case is much simpler than in the past.
For many people, the cost of hiring an attorney is prohibitive. Family Law attorneys customarily charge between $250 and $450 per hour for their services. Many wage earning people simply cannot afford to pay those fees.
These and other factors have had a profound impact on the use of attorneys in family law courts. In fact, in many counties, a significant majority of cases have at least one of the spouses who is not represented by an attorney.
People should consider their options very carefully before deciding to be unrepresented in their dissolution case. In fact, in most cases which involve minor children, family businesses, pensions or real estate, deciding to go it alone can be very risky. There are various useful resources for people/person who elects not to retain a lawyer.
Most bookstores have a considerable inventory of books and manuals that provide information about doing your dissolution yourself. One of the better works in this field is Doing Your Own Divorce in California, by Nolo Press.
- Family Law Information Center.
Every courthouse in California that handles family law matters has a Family Law Information Center. This office provides many services to self-represented spouses:
- Instructional information regarding the preparation of documents in family law matters.
- Court forms and information regarding local court rules.
- Referrals to the Family Court Services, the District Attorney’s offices, the Family Law Facilitator’s Offices, various nonprofit family law organizations, guardianship clinics and other community agencies.
- Instructional self-help videos with corresponding form packets.
- Family Law Facilitator.
Family law litigants can also utilize the services of the Family Law Facilitator. This is an experienced family law attorney who is employed by the superior court to help parents and children involved in family law cases with child, spousal and partner support problems. The family law facilitator provides educational materials that explain who to obtain and to enforce court orders for child support, spousal support and partner support. The family law facilitator also provides litigants with assistance in filling out court forms, calculating support, and contacting governmental agencies and community resources.
- Legal Document Assistants
A Legal Document Assistant [“LDA”] is licensed by the state of California to assist self-represented people in preparing court documents. An LDA is only permitted to prepare documents at the direction of the customer and is specifically prohibited from providing any legal advice. An LDA is also permitted to provide self-represented people with general published factual information that has been written or approved by an attorney, pertaining to legal procedures, rights or obligations.
California’s Family Code provides a streamlined procedure for people with simple cases to get their marriage terminated with a minimal amount of time or effort. If specified criteria are satisfied, the couple can file a joint petition for summary dissolution. In general, this is permitted only if:
- There are no children from the relationship.
- The marriage lasted five years or less, as of the date the petition is filed.
- Neither party has owned any real estate or does not have a lease interest that exceeds one year from the date the petition is filed.
- The consumer debt, excluding the balance owed on an automobile, does not exceed $4,000.
- The total fair market value of community property assets, excluding all encumbrances and automobiles, including any deferred compensation or retirement plan, is less than twenty-five thousand dollars ($25,000), and neither party has separate property assets, excluding all encumbrances and automobiles, in excess of twenty-five thousand dollars ($25,000).
- The parties have entered into a written agreement that divides their community property and debts, and all deeds and title changes have been completed.
- The parties waive their rights to receive spousal support from each other.
- If all of these criteria are satisfied, all the couple has to do is prepare and file the Joint Petition (another Judicial Council form).
In a mediation dissolution, the spouses meet with a neutral mediator, whose job is to assist the couple to work out the resolution of the issues involved in their case. The mediator is a neutral person who utilizes mediation techniques helping the couple to negotiate the terms of their dissolution of marriage case. Utilizing established negotiation techniques, the mediator discusses the areas of disagreement with both spouses, To the extent that agreements are reached, the mediator will usually prepare a Memorandum of Understanding, which outlines the agreements and the areas in which the spouses have not been able to come to terms.
The advantage of mediation over self-representation is that the spouses are able to sit down with a trained professional to hammer out the terms of their settlement. It is often the case that people who are divorcing find it difficult or impossible to discuss the terms of their settlement by themselves, without ending up in an argument. A skilled mediator can help the couple to efficiently work through the difficult areas of disagreement.
In collaboration, each spouse retains the services of an attorney who has received specialized training in mediation and collaboration techniques. At the beginning of the case, the spouses and their attorneys sign a written agreement in which they commit themselves to a peaceful, nonadversarial resolution of the dissolution case. The agreement further provides that, in the event the negotiations break down or either spouse wishes to end the collaboration process, the attorneys must withdraw from the case and the spouse much each hire new attorneys to take the case to court.
In most collaborative dissolutions, the spouses also retain the services of divorce coaches. These are mental health professionals who give the spouses the ongoing emotional support that people going through a divorce often need. Where there are minor children, the spouses will also jointly retain the services of a third mental health professional to function as a “child specialist.” This professional is focused on the needs and well-being of the minor children.
Finally, the spouses will usually retain the services of a financial specialist. This is either a certified divorce financial analyst, certified financial planner or certified public accountant, who works with both spouses in working out support and other financial issues.
Like mediation, the goal of collaboration is to work out a marital agreement without involving the court or the judge. In both models of dispute resolution, the couple does not turn the important decisions in their lives over to a judge. On the other hand, because of the number of professional people involved, collaboration is usually more expensive for the couple. Collaboration is generally recommended for a spouse who is anxious about negotiating directly with the other spouse.