Recently in Divorce Mediation Category

September 26, 2011

California Divorce Resolution - Settlement Through Negotiation

Justia-photo-114 negotiation.jpegThe Los Angeles Times reported the news as to the Mel Gibson and Oksana Grigorieva settlement. Gibson and Grigorieva had been involved in a nasty and escalating family law case involving claims of domestic violence, the release of tapes to the media where Mr. Gibson reportedly was caught up in angry ranting, claims that Grigorieva was an unfit mother and therefore should have restricted child custody rights, etc. Mr. Gibson and Ms. Grigorieva were never married however they had a child together therefore the case came before a family law judge regarding custody and child support issues.

As a San Diego Certified Family Law Specialist attorney, my office has found that settlement skills are just that - techniques that are learned. There are many conferences, handbooks, and programs which specifically teach settlement skills. In California family law, the specific legal effort to settle a case and to avoid litigation is known as "alternative dispute resolution". How did this case, between Mel and Oksana, which started out so conflicted, with so much anger, result in a quick settlement which allow for Oksana's use of one of Mr. Gibson's home (to raise their child), and a reported case settlement of $750,000 to Oksana? How did this case head towards resolution out of court when cases such as the divorce between Jamie and Frank McCourt continue to return to court with one contested motion after another?

I am told by settlement experts that a case does not settle until both sides of the case are highly motivated to end the dispute. I have seen that some cases settle for the right reasons and some do not. For example, in a child custody case, the issue of the child's welfare must be examined prior to a settlement. Businesses and property need to be appraised. Support should be based on an examination of earnings. Settlements which come about for the wrong reason (for example, one party is bullied into the agreement), often come back into the court systems more conflicted than previous to the settlement.

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August 8, 2011

What Is The cost Of A California Divorce?

Justia-photo-106 mccourts.jpegIn a recent Los Angeles Times article journalist and sports writer Bill Shaikin discloses that Jamie McCourt might petition the divorce court to ask for the sale of the LA Dodgers baseball team. If you have not been following this case, the McCourts, Jamie and Frank, are involved in what might be the most expensive divorce in California history. They own the Los Angeles Dodgers baseball team as well as numerous properties in California. This blog has posted several articles regarding this case. We correctly predicted that Jamie would be successful in her motion for spousal support and we predicted that Jamie would be successful in her motion to set aside the pre marital agreement.

As a San Diego Certified Family Law Specialist attorney it is my field to follow legal trends in divorce law and family law in general. In recent months reports have described this case as financially destructive. The Australian just reported that this case could cost $35 million in legal fees. My office recently represented a spouse in a high income case. This couple had successfully sold businesses for millions and in one case for over a hundred million dollars. The case quickly was analyzed and successfully resolved. One of the spouses stated that one should never become emotional about business or financial issues.

So, where did this all go wrong for the McCourts? Both Frank and Jamie McCourt have expert, top rated, legal teams. I especially like the way that they have associated attorneys into the case to pull legal talent into their side of the case. Association of counsel is a practice that I use in some of my cases. However a quick scan of news articles* on this case show that the case is continuing to generate pre trial motions rather than to wrap this case up with a trial, or better, end this case with a successful mediation or negotiation. (*LA Times reports that Frank may request the court to lower Jamie's spousal support order; and, myfoxLA.com reports that the McCourts are heading for a mini trial as to the characterization of marital property.)

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October 1, 2010

San Diego Divorce Report of Celebrity Filing

Justia-photo-65 Nancy Wilson.jpegThe San Diego Union Tribune reports that a well known couple, married for more than 20 years, has filed for divorce. The couple is rock singer Nancy Wilson and director Cameron Crowe. The purpose of this blog will be to discuss the actual Petition for Dissolution of Marriage filed by Nancy on September 16, 2010, and the raised issue of filing for a divorce in a cooperative way leading to mutual resolution rather than resolving the case in court on a contested basis.

As a San Diego Certified Family Law Specialist attorney for more than 30 years, I have resolved cases out of court (for example, through mediation) and through the contested process involving trial. I have recently posted blogs on mediation and vigorously contested divorces (for example, here) and there is no question that resolving a case on an uncontested basis is the best way to go for most divorcing couples. However, here is the math for California divorce: It takes two to marry (so far in the State of California), one to dissolve the marriage, and two to dissolve the marriage in an uncontested fashion.

The Petition in this case indicates that Nancy has hired an attorney who does not engage in divorce litigation. Specifically, the attorney describes himself as a "collaborative law" attorney. "Collaborative law" definitions are somewhat in dispute however the phrase is generally defined as an attorney who will resolve the case on an uncontested basis and involve other professionals, as needed, such as CPAs or psychologists, to address the issues in the specific case. Most of the cases in my office are resolved by mutual agreement. It is our belief that resolving a case with a Marital Settlement Agreement is preferable for our clients; however, there are also situations when it is in the client's best legal interest to litigate.

While the Petition was filed just recently, the Petition states that the date of separation was on 6/15/2008. The date of separation is a significant event in Family Law as it signifies a change as to the characterization of money and property (for example, money earned after the date of separation is generally the separate property of the earning spouse). The Petition lists two children. (This blog does not discuss the names and ages of children involved in divorce cases.) Later in the Petition, Nancy requests "joint" legal and physical custody of the children. This means that the parties intend to "co-parent" the children. It does not necessarily mean a 50/50 sharing of custody.

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September 29, 2010

California Divorce -- Got Mediation?

Justia-photo-65 mediation.gifAn AP story written by reporter Greg Risling stated that the McCourt trial will head immediately into mediation after this week of testimony. The legal issue of this trial is the characterization of the LA Dodgers. In other words are the Dodgers the separate property of Frank McCourt or the community property of both Frank and Jamie McCourt.

As a San Diego Certified Family Law Specialist I am trained in divorce litigation (including trials) as well as divorce resolution (including mediation and arbitration). In a trial, the finder of fact is the judge (California divorce does not permit jury trials), and the judge will then apply California family law to the facts resulting in a decision. At the end of this trial the judge will rule that the LA Dodgers are either owned jointly by Frank and Jamie or solely by Frank McCourt. Mediation cannot force a conclusion to a case as resolution in court; however, mediation should be a tool in every lawyer's toolbox.

Mediation hearings are usually less formal than trials. In a trial, one side of the issue will prevail; however in mediation, compromise is encouraged so that both sides secure something. Trials can be tremendously expensive as the attorneys pore out their skills in their legal research, procedural maneuvers, evidentiary objections and courtroom training into the trial. Mediation is typically not as expensive as witnesses are usually not called and the primary skill involves negotiation techniques.

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