by Kayla Horacek
The mores in California family law are changing. Highly litigious clients, as well those who favor settlement, are now faced with new realities and options. To that end, it is important that all represented parties retain counsel who are aware of these possibilities and can explain them to his or her clients. There are various examples of this progressive thinking which should be explored by all parties involved in a family law proceeding. What follows is only a glimpse into some of the new developments in family law litigation and settlement.
The Full Monty
In a family law proceeding involving support and/or property division, both parties are required to reveal all of their financial information to one another, under penalty of perjury. The goal behind this policy of full disclosure is to place each party in the most informed position possible in order to settle or litigate their matter. This disclosure requires that each party complete and exchange various court forms and charts detailing all benefits and obligations, whether they are claimed to be of a community or separate nature. Furthermore, California family law places a continuing obligation upon a husband and wife to independently update and augment these disclosures.
This transparency is nothing new. The policy of full disclosure is written into the California Family Code, and has been the legislative mandate for many years. For whatever reason, however, courts were not inclined to penalize a party for their failure to disclose relevant financial information during a pending divorce.
In 2007, one California family court chose to enforce the high standards for truthfulness mandated by the legislature. It found that a party had waited several months to disclose relevant financial information to the other during their divorce proceedings, in direct defiance of the disclosure statutes. At the end of the day, the offending party ended up paying $250,000.00 in sanctions for his behavior, which did not include attorney's fees for the other party amounting to $140,000.00.
Take Home Tip: When you hire a family law attorney to represent you during your dissolution action, and arguably, during an action for support, ensure that they are familiar with the strict disclosure requirements imposed upon you. Provide your attorney with EVERYTHING related to your assets, debts, and income early and continuously.
The Custody Marathon
For most people engaged in a dissolution action, financial concerns are only a small part of the struggle. The vast majority of family court litigants also have children. Thus, they must grapple with the emotionally charged world of custody negotiation.
In the most egregious custody disputes, particularly when one party alleges some kind of substance abuse or an outright inability to care for a child, the court will often appoint some kind of expert to assist it in fashioning a plan in the best interests of the minor(s) involved. This expert is a custody evaluator--a psychologist/psychiatrist with extensive experience in child development. The financial circumstances of the parties will determine whether a court psychologist or a private expert is utilized, as the latter is almost always significantly more expensive.
Many parents are now enlisting the services of another kind of professional designed to guide them through this evaluation process--the "custody coach." This person is typically also some sort of therapist who is intimately familiar with the world of custody disputes and litigation. A parent hires a custody coach in an attempt to prepare for the various exercises, tests, and observations which he or she will undergo as part of the custody evaluation. The coach is likely to provide a litigant with feedback on appropriate behaviors, language, and writing samples before they are seen by the evaluator.
Take Home Tip: When determining whether to hire a coach, consider the fact that such a person may not be seen favorably, as he or she may arguably hinder a genuine evaluation of your parenting abilities. Also, when choosing between coaches, retain someone who has an extensive working knowledge of the procedures used by a private custody evaluator, as well as California custody law. If you cannot afford a custody coach, but need pointers, your attorney should have a handful of helpful hints for you. At the very least, he or she should be able to explain the evaluation process.
Another trend in California family law combines two terms rarely seen in the same sentence-- collaborative and divorce.
In the collaborative divorce, the parties agree to stay out of the courtroom, and focus on obtaining a global settlement. Initially, each party retains an attorney familiar with this type of practice and commits to settle the matter without litigation. Depending on the issues in the case, various other professionals then become involved. For example, in a high asset case, a forensic accountant may provide an evaluation for the parties. In a contested custody case, a therapist and/or evaluator may make a recommendation for a custody plan in the best interests of the child(ren). In a case with novel issues, an appropriate expert may offer feedback in order to educate the parties and their counsel to allow for a fair settlement. Assuming all aspects are negotiated and agreed to, the parties' attorneys can then memorialize the understanding in writing. If done properly, this agreement will have all the force and effect of a litigated Judgment of Dissolution.
Take Home Tip: When searching for a divorce attorney, consider the collaborative approach if you and your spouse have an amicable relationship, and are truly committed to avoiding the stress, delay, and public nature of litigation. Be prepared for a potentially high retainer for collaborative services, as you will likely be hiring your own attorney, as well as other professionals to evaluate your matter.
This article was written by Kayla Horacek. Portions of article appear in the November 2008 issue of Pasadena Magazine