Tag Archives: Divorce

How to Interact with Your Mediator

30 Jan

Have you decided to utilize a mediator to navigate you and the opposing party through your family law matter? Are you ready to come to an agreement but not sure what to expect and how to interact with your mediator? The helpful tips below can assist you in your upcoming experiences in mediation.

What will be the main focus of mediation?

  • The number one goal is to determine what is best for all parties, and when children are involved, the resolution of custody and support matters will focus first and foremost on the best interests of the children.
  • That the parties mediate in good faith with no secret agendas.
  • Each party remembers and adheres to the idea that mediation is not the place to make the other party look bad.
  • If one party becomes hostile or accusatory about unrelated issues, the other party should not buy into these issues. Instead, the non-accusing party should tell the other party, in front of the mediator, that he or she is there to talk about fair settlement of the marital estate and/or co-parenting only.

What should I expect from the mediator?

  • To stay neutral, reduce tension, and help both parties communicate.
  • Not to decide who is “right and wrong,” or force either of party to agree to something that makes him or her uncomfortable.
  • To explore options and creative solutions to settling the issues of contention.
  • Not to contact either party outside of the mediation in order to avoid being influenced.
  • To make each party aware that he or she cannot represent either party, give legal advice or provide counseling. This applies even if the mediator is a lawyer or therapist.

What are some other helpful tips for choosing and interacting with a mediator?

  • Before choosing a mediator, interview several about their training, experience, style, and fees.
  • Always ask if the mediator has experience in Family Law and your specific issues.
  • Be sure to choose someone with the training, experience and cultural sensitivity to help resolve your specific issues.
  • Know that choosing male and female co-mediators can help ensure gender balance and prevent perceived unfairness.

In the end, remember that negotiating agreements isn’t always straightforward. It may seem at times that the mediator is working on issues that should be covered at a different point in the process. Always be aware that you may need to gather additional information at various points. But the mediator should always help you to stay on track and consider new and unique options. A good mediator encourages each party express opinions, positions, and items of importance, and will help the parties listen to each other in ways that will make a resolution more likely.

How Will My Social Security Benefits be Affected by Divorce?

31 Aug

Many individuals considering divorce have concerns beyond simple property division, and worry about how to protect their social security benefits. Though social security benefits are similar to pension plans, which are dividable as community property in the State of California, Federal law overrides California law and keeps social security benefits from being divided as marital community property. Upon a divorce, social security benefits are designated as the separate property of the spouse who accrued the benefits throughout his or her employment.

However, current AND former spouses may qualify for derivative social security benefits, which are benefits earned through the current of former spouse’s employment. There is a limitation of the qualification for these benefits in that the marriage must have been at least of 10 years duration. Parties seeking divorce who have not quite been married ten years and wish to qualify for such benefits in the future may consider legal separation as an alternative. For more information on legal separation, please see “Legal Separation as an Alternative or Precursor to Divorce”.

Though social security benefits are mandated to be assigned as separate property by Federal law, under California dissolution law these benefits ARE considered income for the calculation of support. All sources of income are considered in California when looking into support awards. For this reason, if you are seeking a divorce and have questions about support and social security, it is important that you seek legal advice. Call today for your free consultation!

Legal Separation as an Alternative or Precursor to Divorce

16 Aug

What is Legal Separation?

The term “separation” is frequently thrown about when a marriage relationship comes to an end. There’s moving out and moving on, which constitutes a physical separation. But there is another, more formal, form of separation. Couples who wish to have their assets and lives divided by law, yet maintain the status of a “married” couple can instead seek a legal separation. Legal separation allows these couples to separate their lives formally, but maintain married for religious, financial, or other personal reasons. This can be beneficial in maintaining health insurance coverage, or qualifying for derivative social security benefits.

As with a standard divorce, a person or couple seeking a legal separation must file a petition with the court and serve this petition and summons onto the other party. From this point, the couple may use the legal system to obtain property division and other orders, such as custody and support orders. However, a final judgment of legal separation will only be granted if both parties consent to it, or if the responding party does not appear.

How Does Legal Separation Differ from Standard Divorces?

Most importantly, when a party or couple seeks dissolution of marriage, the action will end in a termination of the marriage. However, along the way the marital property will be divided, as with legal separation. In this respect, the actions are similar. However, there is a major difference between these actions with regards to a standard residency requirement. With divorces, a judgment of final dissolution cannot be entered unless at least one of the parties was a resident of California for six months, and of the county in which the petition for dissolution was filed for the three months preceding the filing. This causes difficulty for new residents seeking to get a speedy divorce and to benefit from court orders relating to the case. In contrast, there is no residency requirement to seek a judgment of legal separation.

When Would Seeking Legal Separation be Beneficial to Me?

As stated above, any person or couple wishing to seek legal services to formally separate from his or her spouse, but remain married in status, should talk to an attorney about legal separation. If a person seeking legal separation later changes his or her mind and decides that dissolution is preferable, the petition for legal separation may be amended. All orders pertaining to the legal separation proceedings remain in effect once dissolution is sought, and will not be reopened.

In addition, legal separation can prove a helpful tool for couples who wish to obtain a judgment of dissolution, but do not meet residency requirements. In addition to the residency requirement, there is a mandatory six month period from the service of the divorce summons (or appearance of the responding party) before a judgment of dissolution can be entered. Coupled with the residency requirements, parties to a divorce potentially may have to wait a year before it can be finalized. These individuals can use legal separation as a tool for speeding up the process. By filing a petition for legal separation, and later amending the petition to seek dissolution once the residency requirement is met, a party can start the clock upon service of the original summons for legal separation. More simply, a judgment of dissolution can potentially be obtained six months from date the service of the summons for legal separation, not the later date of the amended petition for dissolution. Seeking a legal separation with plans to later amend the action also allows the parties to seek temporary orders in their open court case. This is particularly useful if there are custody issues, or either party is seeking support. Filing for legal separation will also place automatic restraining orders on each party, preventing them from disposing of any assets. This protects and maintains property for later division in the dissolution proceedings.

As always, individuals are urged to contact an attorney before making any decisions about the future of your marital and family status. For more information and potential representation, please call or email for your free thirty minute consultation today!

Mediation vs. Collaboration – Get Answers Here!

4 Aug

Web-savvy individuals who have researched alternatives to divorce proceedings may already recognize these terms. But what exactly do they mean? Would either of these methods work for you?

Advantages

Mediation and collaboration can be highly useful tools in settling divorces and their related financial matters. The key to and characterization of both methods is cooperation. All parties involved, from clients to attorneys, have a goal of resolving matters through cooperation. These methods of resolving divorces, which serve as alternatives to traditional divorce litigation, allow the parties involved to define their dispute own their own terms. Because of this alternative nature, parties interested in resolving issues through cooperative methods often are able to define the scope of their dispute “outside the legal standard” and achieve results that would not have occurred through traditional court proceedings. This idea of cooperation creates a major benefit for clients, as it allows them to join together instead of seeing themselves as opposing parties in litigation, if so desired. Mediation and collaboration can help assist parties in dissolving their legal relationship, while salvaging their interpersonal relationship. This is especially beneficial when minor children are involved.

Mediation and Collaboration – What’s the difference?

Mediation occurs through a facilitated conversation involving opposing parties who work with a neutral third party who assists with the exchange of information and ideas. The key to the facilitator’s role is to promote resolution of the issues facing the opposing parties. Mediation is a very good way for parties to save money, which is key in our tough economic times. Court fees are typically expensive and add up quickly, especially when attorney appearances are involved. In mediation, the parties present the issues for discussion with the mediator, which leads to a greater stake in the outcome of the case. A greater stake leads to greater cooperation.

Stephanie P. Feilzer, Attorney and Family Law Mediator can assist you by providing legal counseling before and attorney support during mediation. She is able to counsel clients willing to appear alone with a mediator and opposing party, and is also happy to accompany clients to mediations that involve two attorneys in addition to a neutral counselor. She uses knowledge of law and procedure to assist you in reaching a resolution that reflects both the law and your desired outcome. In addition, Ms. Feilzer can provide Family Law mediation services for you and the opposing party.

In collaboration, attorneys and their clients agree and bind themselves to a written agreement to avoid court litigation. Through this agreement, the parties and attorneys agree to work cooperatively, which in turn maximizes benefits for the parties and family. In collaborative work, issues are resolved through a series of informal meetings involving both parties and both attorneys. At times, the parties will agree to bring in neutral experts to help facilitate the discussion of particular issues. For example, a financial analyst may be brought in to develop a continuing financial plan for after dissolution. Or, often a psychotherapist will be brought in to give advice and help the parties transition from married to single life. It must be noted, however, the most collaborative practice models provide that if either party decides that the process is not working, neither party will be allowed to continue working with the same attorney when the matter returns to traditional court litigation. This may not always be the most convenient model, but it does provide a strong incentive to settle outside of court.

Ms. Feilzer is happy to assist clients in collaborative procedures, and will ensure that our clients understand the process from the beginning. She will meet with the other party and attorney, and go over the collaborative contract to ensure that the principles of collaboration are represented. She recognizes that this method of resolving issues allows the client to have to most control over the process and outcome, as courts will not be there to assist when disputes occur. She is committed to the continued four way meetings until the matter is settled.

Is Mediation or Collaboration Right for Me?

Agreement is key in mediation and collaborative practice. In order for a dissolution to occur without going the rigid, expensive court route, the parties must agree to proceed with either of the alternative resolution procedures. Successful mediation and collaboration involve honesty, trust, and a cooperative attitude. A party wishing to use these procedures should be willing to see resolutions in terms best for the family as a whole, rather than just from his or her own perspective. If any of these attributes or goals matches you and your case, please call today and ask about mediation and collaboration services! Ms. Feilzer is excited to serve the Stockton community with these helpful services.