Trade Secrets of Divorce in California 1

 

“The Trade Secrets of Divorce in California.”
By
E. H. LA VELLE, III
Certified Family Law Specialist
Certified by the State Bar of California
Board of Legal Specialization  

I have been practicing family law for more than twenty years.  I have been certified by the State Bar of California, Board of Legal Certification, as a Family Law Specialist for sixteen years (as of October 2010, of the 227,991 lawyers in California, there were only 1,151 attorneys in California who were certified family law specialists).  I have summarized below three cases that I handled that illustrate the types of problems people encounter and how knowing “the tricks of the trade” can make a very significant difference.  

 The first example is Jane. Jane’s best friend finally convinced her to see an attorney.  When Jane came into my office it was obvious that she was very upset.  One of the fears that Jane had was that her husband would find out where she was.  As Jane became more comfortable, she explained that not only had her husband been abusive to her, but had threatened that, if she tried to do anything about it, he would take her children away.  While Jane knew that she could call the police, she had no idea what would happen, and was afraid to risk losing her children.  We explained to Jane that there are laws designed to protect her, and that we could apply for a domestic violence restraining order that included an order giving her custody of the children and an order excluding her husband from the family home, without him ever knowing that the application had been made. Obtaining a domestic violence restraining order was the beginning of a new life for Jane and her children.

Another example is John’s case.  John had been married for only a few years.  When John came to see me he had been divorced for a period of about six months.  John explained that during his marriage he had strayed and felt very guilty.  As a consequence, he agreed to the entry of a judgment that awarded to his wife all of the property.  In addition, John agreed to a Judgment that ordered him to pay spousal support in the amount of $5,000 per month.  John explained to me that after six months he didn’t feel nearly so guilty, and that he didn’t even make $5,000 per month.  John, of course, wanted to set aside the judgment and renegotiate the terms.  Because John’s wife used a paralegal instead of a competent attorney to create the judgment, and because of our knowledge of the law, we were able to set aside a judgment that John had agreed could be entered, and John was able to start over.

A final example is a pair of cases that I took to trial almost simultaneously.  In one case, I represented Dad, who had an order for alternating weekend visitation.  Mom had moved approximately 40 minutes further away, to take a better job.  In that case, I was successful in obtaining a new custody order granting Dad custody and Mom alternating weekend visitation.  In the other case, I represented Mom, who had joint physical custody with her ex-husband, who had their child in his care 50 percent of the time.  At the beginning of the case, both parents lived in a small town where a great number of their relatives resided.  Mom had developed a relationship with a partner who lived on the east coast, and Mom wanted to modify the existing order so that she could take her son with her when she moved to join her partner on the east coast.  In that case, I was again successful in achieving my client’s objective, as she was granted custody of her son for most of the year, and was permitted to relocate with him to the east coast.

Divorce often comes at a time when a family is going through crisis –- financial as well as emotional.  Sometimes the emotional crisis can further aggravate the financial one by “upping” the expenditure of attorneys’ fees and costs.  For example, a vindictive spouse, or one who is just plain upset, can refuse to negotiate in good faith, or act to provoke numerous court appearances or otherwise delay the proceedings.  Obviously, such a situation, if it occurs, is beyond your control, and we have to cope the best we can through the mechanisms provided by the court.  Frankly, it can be expensive and wearying.  However, this process will be made much easier if you select the right attorney.

SELECTION OF THE RIGHT ATTORNEY FOR YOU AND YOUR CASE

-  Select an attorney whose practice is focused on the area of law in which you need help.  The real estate attorney who did a great job for you may not know anything about family law.  Some attorneys handle divorce cases occasionally to “fill in the gaps” and that is probably not the attorney who you want.

-  Meet the attorney.  If he or she is not someone that you are comfortable with it is probably mutual, and if there is a strained relationship the attorney will not be as effective as he/she could be.

-  Inquire how many cases the attorney has tried.  An attorney who has not tried any cases, or who does not try cases, is limited in the tools available to him or her, and the other side will know it. 

-  If told that the attorney has tried many cases, inquire how many were the type of case that you have.  Trying personal injury cases or criminal cases is very different than trying divorce cases or custody cases.

-  All other things being equal, choose an attorney who regularly practices in the court where your case will be heard.  While the laws are the same throughout the state, how a particular judge runs his/her courtroom varies from judge to judge, and knowing how that judge operates can be very important.

-  Do not assume,  just because an attorney has presented a seminar, has a radio talk show, or advertises on television, that that attorney is the best qualified attorney to represent you.  In many instances you only get one chance, so be prepared to take advantage of that chance and get it right the first time, because there may not be a second time.

You are capable of helping to minimize legal expenses by bearing these suggestions in mind:

1.  Remember the high cost of telephone calls.  Before you phone, gather all your questions and information for one phone call--a longer call will cost less than a number of shorter calls.   

2.  Remember that an attorney’s services are primarily legal.  Certainly, unless your attorney understands the underlying nature of your interaction with your spouse, he/she cannot represent you as well as he/she might otherwise.  Also, involvement in a family law matter is one of the greatest stresses in a person’s life, so it is to your legal advantage that you cope with this stress effectively.  For example, unless you are thinking clearly, some of your decisions, such as whether you settle the case or not, could ultimately be extremely costly.  For these reasons, I will spend some time 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 you can avoid being one of the players.  However, at some point my listening to your experiences will fail to generate a return to you commensurate with the added costs that will appear on your monthly statement.  Divorce is in part a grieving process, and seeking psychological help may provide further support in making clear decisions and avoiding the games of your ex-partner.  

3.  Participate as effectively as you can in your own case.  Your time is likely to be less expensive to you than ours.  Therefore, we will ask that you obtain as much of the information and documents for your case as possible, consistent with its proper and expeditious handling.  You can also control costs by making photocopies as soon as possible of all your important financial records, including deeds, titles to your vehicles, insurance policies, tax returns, bank statements, statements reflecting obligations, and other such documents.  

4.  Organize the papers involved in your case, and ordinarily bring them to all conferences and hearings.  This will help to ensure that time is not wasted during meetings.  

5.  Organize your questions and concerns before you meet with us.  Since you are paying by the hour, be prepared for each meeting and stay on the subject, so that your concerns may all be discussed at one time rather than on separate occasions.  

6.  Think positively toward the settlement of the case.  I cannot remember a case where a husband and wife had identical recollections about their acquisition of assets or anything else in question during the divorce proceedings.  Legal bills mount up rapidly if the parties argue about minor issues, so pick your battles carefully in an effort to minimize disagreements.  Because a judge can often dispose of a case in a way that displeases everyone involved, it is almost always best to settle the case if one can obtain a reasonably fair agreement.  Therefore, when we have enough information to analyze the most important issues in your case, I will seek your authority to attempt to negotiate a settlement.

7.  Both parties must disclose the identity of all assets and liabilities and all earnings and obligations, as well as all investment opportunities.  The California Family Code requires that individuals involved in a dissolution action must disclose the identity of all assets, liabilities, earnings, obligations, and investment opportunities.  These disclosures must be made shortly after the service of the petition, and again 45 days before the first trial date set, as well as at any time during the proceedings that additional information about these financial matters becomes known to you.  If you are in doubt as to whether something should be disclosed, you should communicate such information to me, and I will advise you as to whether or not the information must be disclosed.  To the extent that disclosure is required, I will prepare the documents disclosing such information.  The California Family Code essentially requires disclosure of any information which would cause you to pay a dollar more or a dollar less in the division of assets and debts. The consequences of failing to disclose such information are that the judgment may be set aside at some point in the future; the non-disclosing party may be required to pay all of the other party's fees and expenses incurred in compelling disclosure; the non-disclosing party may be prevented from presenting evidence related to any asset or liability which should have been disclosed; and, pursuant to the California Family Code, the non-disclosing party may forfeit his or her entire interest in the undisclosed asset.  Thus, complete and accurate disclosure is essential.










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