As an experienced Bay Area family law professional, I’m a big supporter of mediation. I’ve spent countless thousands of hours in contentious courtroom divorce proceedings, and it’s not the ideal way to go if you’re moving forward with divorce. Last month, we focused on the differences between divorce mediation and DIY Collaboration (filling out your own paperwork and filing it with the court). 

There is another option, which is called collaborative law processes for divorce – or collaborative divorce proceedings. This option works well for individuals or couples who prefer retaining independent counsel – but still want to minimize overall expenses, courtroom drama, and unnecessary stress. 

Mediation vs Collaborative Law Processes: Which Is Best?

First, we’ll define each option, and then we’ll present scenarios where collaborative divorce may serve you better than mediation practices. Regardless of which one you choose, both options reduce total divorce expenses, protect the confidentiality, and keep you out of the ugly world of courtroom divorce litigation.

Mediation

As the name implies, divorce mediation is designed to help couples navigate their divorce with fairness and integrity while minimizing the negative emotional spectrum and stress. It’s highly recommended for couples who have children as the stress and tensions inherent in courtroom battles put a detrimental strain on children.

In this scenario, the couple meets with a family law mediator. The lawyer serves as a neutral party who listens to both sides, reviews the assets/financial accounts, and provides his/her input on how a judge would weigh on any existing conflicts or requests. In addition, family law mediators prioritize the well-being of children, so they also help with custody and child support agreements. 

The idea of mediation is to provide a safe and comfortable space for both parties to review the facts and where legal disputes can be discussed – and hopefully resolved – to both parties’ satisfaction. Mediation is also much more affordable than the fees associated with courtroom proceedings. While divorce and family law issues are often heated and tragic, my goal is to keep both parties calm and rational so that they can make agreements based on facts and reason rather than emotion.

Collaborative Divorce Processes Using Lawyers

Collaborative divorce processes using lawyers share the same goals, but each party has individual legal counsel. In this model, you hire your divorce attorney, and your spouse hires theirs. You let both lawyers know you’re interested in pursuing collaborative divorce proceedings. 

Both parties and their respective collaborative family law attorneys sign a contract stating their intention to use cooperative dispute resolution techniques, rather than combative tactics, to negotiate the gamut of divorce issues. We call this contract a “participation agreement.”

Now, over a series of scheduled meetings, you’ll come together much the same as you would in mediation, but your lawyers are there to represent your best interests. While things may get more contentious than in mediation (but not always), divorce attorneys also know your goal is to stay out of the courtroom, minimize conflict, and (again) minimize the negative impact of divorce on children’s wellbeing.

Scenarios When Divorce Collaboration Using Lawyers Is Best

Here are some scenarios when you may want to consider using individual lawyers for a collaborative divorce process.

You don’t completely trust your partner

If you don’t trust your partner or s/he has a history of being manipulative, hiring your lawyer may be the way to go. Your lawyer supports your process as you gather the paperwork, documentation, and other evidential items required to move forward. And their office will handle all of the legal forms necessary for divorce proceedings.  

If you suspect your partner is hiding assets, leading a dual life, or you’re wary of being able to negotiate without your advocate, lawyer-facilitated divorce collaboration is ideal.

You are the one who wanted a prenuptial agreement

If you led the prenuptial agreement charge, odds are you had family assets or personal acquisitions you wanted to keep out of the communal pot. Despite their role in the legal marriage arena, prenuptial agreements are not always the most secure documents. If there’s a prenup to protect, your lawyer knows how to manage that while working collaboratively with the other side.

You run your own business

If you didn’t take the necessary steps to protect your business interests from the marriage’s legal “community property” state, it could be at risk. If you aren’t careful, your spouse could have all kinds of legally sound grounds to maintain partial ownership of the business or force you to buy them out to continue running it as your own.

Tensions or anger levels are elevated

If the anger or tension levels are at an 8 – 10, and you fear this may threaten the mediation process, a collaborative divorce with attorneys is a good middle ground. This allows you both to honor the mediation and minimal conflict goals you share while minimizing the risks of arguments or old energy that may find its way into the picture without your own representatives there to help keep you both in check.

There are atypical complications (abuse, mental illness, addiction, etc.)

If your spouse (or yourself) has a history of domestic violence, abusing your children, or addiction, lawyer-led divorce collaboration ensures you and your children’s wellbeing and protection are the top priority. However, it supports the two of you moving forward with as much integrity and minimized tensions as possible. These scenarios may entail different protocols, documents, or agreements around child custody and visitation agreements. If any of these pertain to you, we recommend meeting for a consultation with a family law professional before making any agreements with your spouse around mediation or collaboration. Your attorney can help you determine which option is the wisest and safest.

Contact the Law Offices of Gerard Falzone to learn more about your divorce proceeding options. My goal is to facilitate your divorce with the least amount of stress, anxiety, financial burden, or negative outcomes possible. I’m happy to hear your side of things or meet with you both, to determine whether mediation or lawyer-led collaborative divorce proceedings would be best. Contact me to schedule a free consultation. (510) 521-9500.

Regardless of how toxic or dysfunctional a marriage may be, signing divorce papers is a very final step. Once a divorce is final, there is no going back without getting remarried all over again. So, it makes sense that some people have a harder time signing the final docs. 

Sometimes spouses are vindictive and spiteful, so their refusal is another way to get back at you. But then, there are cases where one person truly doesn’t believe divorce is the answer, in which case they’re honoring their personal values and feelings. 

Your Spouse Won’t Sign Divorce Papers? Here’s What To Do

Either way, a spouse’s refusal to sign divorce papers doesn’t mean you can’t get a divorce. Here are the steps to take to keep things moving forward.

Ask to meet with a mediator

The media has done a lot of damage when it comes to depicting what the average divorce actually looks like. For some, the idea of standing in a courtroom, spending thousands on lawyers, battling over child custody, etc., is a nightmare they refuse to participate in. That’s understandable, and there are ways to avoid that altogether.

First and foremost, if your spouse refuses to acknowledge the papers s/he was served, send a very neutral email or text requesting to meet with a divorce and child custody mediator. This is a much more affordable and straightforward way to move through a divorce with a minimum of drama. Read Mediation in Family Law Disputes to learn more about how mediation might be the right way to get your spouse in a more cooperative and collaborative state of mind.

Do NOT escalate the situation

There is absolutely no point in escalating the situation, especially if children are involved. Plus, it will do no good. Instead, keep a calm, neutral, and steady approach. Your spouse has been served, which is a legal action in and of itself. If s/he refuses to acknowledge that or follow the instructions, you have the right to move forward with a “Default Divorce,” in 30 Days.

Stay calm, breathe deep, get the support you need for you and your children, and remember that California is a “no-fault,” divorce state. There is absolutely no “power” in not signing, and it does not give your spouse the upper hand in any way. In fact, it could be viewed otherwise. For example, the California Family Law Court states:

In a “true default” case, you are giving up your right to have any say in your divorce or legal separation case. Before you choose this option, make sure you read the papers your spouse or domestic partner filed very carefully. What your spouse or partner asked for in his or her papers is probably going to be what the court orders. 

Your spouse’s refusal to respond or sign the documents as they are sets the Default Divorce in action. It does not alter how assets would be divided, child custody visitation and payment, or any owed spousal support. If your spouse and you are unable to come to an agreement, the court will decide for you.  

Nobody can prevent you from getting divorced, but you will have to abide by the court’s timeline to get to the other side.

If your spouse won’t sign divorce papers request a default divorce

Once your spouse is served, s/he has 30 days to respond. The judge automatically sets a Default Divorce hearing when a spouse doesn’t respond. There is nothing you need to do but show up to the hearing. Not responding means your spouse also waived his/her rights to contest any of your requests. 

At your hearing, the judge will decide on all counts and typically goes along with whatever the petitioner (you) requested since your spouse neither agreed to nor contested your petition and requests. In some cases, failure to acknowledge the divorce may actually compromise your spouse’s child custody/visitation situation. 

For example, if you requested an 80/20 child custody situation, and the court agrees, your spouse will only have the children 20% of the time and most likely owe you child support – ordered by the courts. Had s/he responded, she could have said, “No way, I want 50% custody of my children,” which is almost always honored by the courts (unless abuse of some kind is in question). In that case, you’d only have your child(ren) 50% of the time and may not receive any child support at all.

Regardless, once your divorce moves into the Default category, the judge determines:

• Division of property
• Child custody and support payments
• Division of assets
• Alimony (spousal support)

Schedule A Consultation With A Family Law Attorney

Either way, it’s always wise to schedule a one-time, fee-based consultation with a family law attorney. That is especially the case with a contentious, apathetic, or unresponsive spouse. We provide all the guidance you need to proceed on your own and ensure things are fairly handled. 

The Law Offices of Gerard Falzone have served Bay Area couples and families for more than 30 years. Mediation is always our first stop, but we are also here to represent your interests in a family law court. Contact us to schedule a free, 30-minute consultation or to schedule fee-based appointments to ensure your divorce moves forward as quickly, and with the least amount of stress, possible. Call our East Bay Office at (510) 521-9500 or contact our Marin County Firm at (510) 521-9500.

They say there is no such thing as a simple or easy divorce, and we have to admit this is mostly true. However, when it comes to mediation vs. the courtroom, we can honestly say that the courtroom should be avoided at all costs whenever possible.  

As a Bay Area family lawyer with more than 40 years of experience, I’ve seen over and over again how these 5 myths of divorce litigation lead people to make the wrong decisions.

Divorce Litigation Myths

I want to share these myths so individuals and couples have the information they need to make the right choice for how to proceed with a divorce. 

Myth 1: You have to go to court to get divorced 

This is not true at all. Couples who are mostly amicable and are in complete agreement around how assets should be divided, child custody and visitation agreements, and so on can often move through the paperwork with the help of a paralegal or a single consultation in a lawyers office. Others are able to more calmly and fairly navigate their divorce through mediation channels. 

You only need to go to court if you are in dispute and cannot come to an agreement on a final divorce agreement/settlement. 

Myth 2: You don’t need a lawyer in the courtroom 

This is legally true, but it is absolutely one of the worst mistakes a person can make. While individuals are technically “allowed” to represent themselves in court, it is never a good idea. First and foremost, a single error on the legal paperwork, missing a filing deadline, etc., can give the upper hand to the other side and cause you to look irresponsible and unprofessional.  

The legal process is not as straightforward as it should be, and legalese on court documents can be overwhelming – even the most educated individuals. In my post, 8 Reasons You Shouldn’t Divorce Without A Lawyer, some of my top reasons include: 

• You aren’t “fluent” in divorce law 
• The copious amount of paperwork is challenging 
• Your version of equal may not be as equal as you think 
• It’s an emotional roller coaster 

The emotional point is not one to overlook. I’ve had clients who cry every time in my office appear as knife-edged stoics in court, and I’ve had men who never showed any signs of emotional regret fall apart in the middle of divorce litigation proceedings. You do not know what you will feel or experience until you are in the courtroom, which means you need a legal professional standing by your side to keep things professional, organized, and moving forward. 

Myth 3: You’ll come out on top because your spouse cheated on you 

California is a no-fault divorce state. There are only two grounds by which residents of California can file for divorce. The first is “irreconcilable differences that have caused an irremediable breakdown of the marriage,” and the second is, “a permanent legal incapacity to make decisions.” In almost all cases, divorces are filed under the former, “irreconcilable differences…” 

This means that shy of any illegal activities (domestic abuse, child abuse, etc.), the judge cannot factor your spouse’s infidelity or other unsavory behaviors into the proceedings. The fact that your spouse had an affair does not give you a leg up in any way. This is why working with a lawyer is the safest way to ensure you keep things in the black-and-white realm of the divorce litigation arena, even when you are understandably floundering in the shades of gray. 

That said, your spouse’s poor decision making in regards to alcoholism, drug use, a revolving door of sexual partners in the home while your child(ren) is present, etc., can affect the terms of your child custody and visitation agreement. As a result, your lawyer can help you attain the safest and most healthy outcomes for your children and the family in ways that representing yourself may not achieve. 

Myth 4: The wife always gets alimony 

This is not true at all anymore. In fact, in marriages where both parties are capable wage earners, without any major discrepancies in income, alimony is a far less common court order in California these days.  

If there are major discrepancies or the husband has been the at-home care provider for the family, there is a good chance that the husband will be paid alimony for a set period of time until he has time to find suitable employment and the children have time to adjust. Husbands who aren’t aware of that often make the mistake of not pursuing it, which makes it worth your while to at least consult with an attorney before you head into the courtroom. 

Myth 5: Everything will be split 50/50 or by who is on title 

This is not true either. People often confuse the idea that California is a “community property” state with the idea that everything is split 50/50. They also mistakenly believe that if their name is on the title of a car, toy, property, etc., then it is theirs. Both of these beliefs are false.  

Community property only applies to assets that were acquired during the marriage but excludes anything that was an inheritance or gift. So, your husband’s family dining room table is his if he wants it, even if you’ve used it throughout your entire marriage. If your wife’s name is on a car title, but the car was purchased during the marriage – it is viewed as joint property from the court’s perspective. Equally available to be divided are retirement accounts, investments, financial accounts, and any debts you’ve accumulated – including credit card debt charged on your spouse’s card.  

Also, your spouse could have hidden assets or assets s/he’s secretly squirreled away to hide them from you. Legal experts have a network of professionals to track these things down and bring them to light. Your courtroom litigated divorce could shine a light on things you never knew about, whereas a family law consultation and mediation sessions can ensure everything is brought to the table and fairly distributed with far less stress and without any of the drama. 

Let Us Help You

Are you thinking divorce litigation in the courtroom is your only option? Give me a call at the Law Offices of Gerard A. Falzone, (510) 521-9500 or (415) 482-7800 for a free phone consultation. We work for our clients every day to minimize the financial, emotional, and energetic costs associated with divorce proceedings, and we’ll do the same for you. 

Researchers spend a great deal of time evaluating what makes things work – and what doesn’t. When it comes to the dissolution of marriages, psychologists and legal professionals have determined that there are universally common risk factors for divorce.  

Knowing what they are, and remaining vigilant when one or more rears its head in your own marriage or domestic partnership can ensure you get the help and support you need before things fall apart.  

Are You Experiencing Any of the 9 Most Common Red Flags in Your Marriage? 

The following are nine of the most common risk factors for divorce. If you are already past the point of no return, we highly recommend consulting a family law specialist who focuses on mediation, which can save you thousands of dollars and help to create a smoother transition for you and your children. 

Extramarital affair (lack of commitment) 

By and large, the two most likely reasons for divorce are cheating and/or a lack of commitment by one or the other spouses. These two reasons alone account for roughly 60% to 70% of all divorces. 

Your parents got divorced 

If you were raised in a household with parents who got divorced, you are more likely to get divorced yourself. And, of course, the same is true for your spouse. Interestingly, it is not necessarily because your parents provided a model of divorce.  

Researchers who studied more than 20,000 adults who had been adopted as children found that the child’s likelihood of getting divorced was linked more closely to their biological parent’s models than their adoptive parent’s models. They believe it is due to genetically linked personality traits such as impulsivity and neuroticism (tendencies towards anxiety, self-doubt, depression, and other negative feelings. 

Different drinking habits 

If you are a big drinker, and your spouse is not, it can cause problems. The University of Buffalo, NY reviewed couples who were not heavy drinkers, couples who were both heavy drinkers, and couples where either the wife or the husband was a heavy drinker. Those with mismatched drinking habits, 45% to 55% got divorced before their ninth anniversary, compared with a 35% divorce rate for couples who had the same drinking habits/patterns. 

Getting married too young OR waiting too late 

Couples who marry in their late teens and early 20s, as well as those who wait until after age 32, are more likely to get divorced. 

You spent $20,000 or more on your wedding 

A 2015 study out of Emory University showed a direct correlation between the money spent on a wedding and a couple’s divorce rate. Those who spent $20,000 or more were 3.5 times more likely to get divorced. On the flip-side of the wedding coins, couples who spent $1000 or less are the least likely to end their marriage. 

Less income (as well as less education) 

We’re going to put these two factors together. Studies consistently show that couples who have at least a four-year degree are more likely to stay married. They also show that the lower the income or the more money problems a couple have, the more likely they are to split up. Since education and income are linked, it makes sense that a lower level of education and a lower income are both risk factors. 

You lived together before you were married 

This one may seem surprising since you would think the familiarity and comfort level of already living together before marriage would eradicate any of the initial hurdles of moving in after marriage. But, the reality is that studies have consistently found couples who lived together before they were married have higher divorce rates.  

We aren’t really sure why this is the case, but researchers suspect it might be that those who were raised without strong religious connections are more likely to live together before tying the knot, and being raised without a religious background is also a risk factor for divorce. 

Poor communication is another risk factor for divorce

These two go hand-in-hand. Individuals who do not have the skills to express their feelings verbally, or who are not good communicators are more likely to either argue and cause conflict, or shut-down and not deal with the emotional challenges and issues that arise in a marriage or long-term partnership. So, when communication skills are poor, arguing and conflict escalates, and one or both individuals are more likely to want a divorce. 

Keep in mind that combative partnerships are detrimental to everyone involved, including children. Consulting with a divorce mediator can be the best way to work through the issues together and with as little harm done to the children as possible. 

Have a child before marriage (or within the first year of marriage) 

Couples who got married after they got pregnant or after the birth of their baby, as well as couples who have a baby within the first year of marriage, are more likely to get divorced than those who marry first and wait longer to bring children into the mix.  

We’re Here To Help

Are you struggling to keep your marriage together? A pre-divorce consultation with a family lawyer can be a helpful way to evaluate your situation and determine which next steps make the most sense for you. Contact the Law Offices of Gerald A. Falzone to learn more.