The field of family law is evolving. Every family has options when it comes to moving through the divorce process. While the decision should be made on a case-by-case basis, with not every case best situated for a particular process, it’s important that families know they have options.
Everything I chat about is legal education and information, not legal advice and it does not create an attorney-client relationship between us. I am a licensed attorney in the State of California, but I am not your attorney unless a written Retainer Agreement exists with Nicole Cheri Oden Law. You should consult an attorney in your area to make sure you’re taking the right steps for you and your family.
When people hear the word “divorce,” they typically think of litigation (i.e., the Court-based contentious process with the Judge making the decisions). Litigation can be both emotionally and financially draining.
In litigation, parties can file motions with the Court and seek temporary orders (such as spousal support, child support, restraining orders, attorney’s fees and costs, etc.) for relief pending a final trial. A typical litigated divorce can take between 6 months and 1 day to 5 years, although the various California counties attempt to process divorces within 2 years.
And there are some situations where this type of divorce is necessary. However, 95% of family law cases settle before they reach trial. There are other options.
Limited Scope Representation.
In Limited Scope Representation (or Unbundled Legal Services), an attorney handles only portions of your divorce (while the you handles the other portions). Think a la carte menu.
Limited Scope Counsel can act as Consulting Counsel to assist a party in mediation or a Collaborative Law matter.
Limited Scope Counsel can also:
- Draft pleadings,
- Assist with settlement negotiations,
- Offer legal strategy and hearing preparation,
- Appear for specified court-appearances, or
- Handle a particular issue (such as property division while you handles child custody, as an example).
The Collaborative Law process is an out of court option that uses a team-based approach. The parties commit to the process by executing a written agreement that indicates they will use good faith in negotiations and disclose all relevant documents and information.
Each party is represented by collaboratively-trained counsel. Other members of the team may be a:
- Financial Neutral (accountant or financial advisor to help provide a clear picture of the family’s finances, which is especially helpful for complex estates);
- Communications Coach (mental health professional for support in having hard conversations); or
- Child Specialist (mental health professional for assistance with parenting plans).
The Collaborative Law process can be cheaper than traditional litigation – unless the parties decide to pursue litigation. The hallmark of the Collaborative Law process is if either party resorts to the traditional litigated model, Collaborative counsel must withdraw and the parties must retain new counsel (the exclusionary provision of the Collaborative Agreement).
The cooperative process can be similar to Collaborative Law BUT with the option of court intervention if negotiations are at a standstill (and without the exclusionary provision).
A cooperative case can involve a team or be structured as lawyer to lawyer negotiations.
Mediation is an out of court option that features a neutral facilitator.
The most common misconception about mediation is that the mediator acts as an attorney for both parties. She or he doesn’t. The mediator educates about common court practices and general family law principles and facilitates discussion between the parties.
The mediator does not make decisions, but guides the couple to make their own decisions.
Mediation can result in a resolution that is both faster and more cost effective. And it allows both parties to be in control of the final outcome. HOWEVER, for mediation to be successful the couple must be reasonable and able to compromise.
Divorce is not black and white. Every family is different. So, choosing a divorce process that makes the most sense for your particular situation is an important conversation to have with your family law attorney.
If you’re ready to chat about process for your divorce case in the state of California, schedule a consultation here.
This post is an attorney communication under Rule 1-400 of the Rules of Professional Conduct of the State Bar of California and Business and Professions Code Sections 6157-6159.2.