DARE TO RESOLVE YOUR FAMILY LAW MATTER WITHOUT GOING TO TRIAL?
Although keeping it "in house" seems like the logical way to resolve family law issues, many people cannot get past their own anger and bitterness and push a total stranger in a black robe to make personal decisions about their assets, debts, house, and even their children.
If you are thinking twice about having your familial issues aired in open court in front of not only a judge, but a bailiff, court reporter, court clerks, attorneys and anyone who can walk in off the street, then perhaps you should consider resolving your divorce in an alternative way.
Not to mention, besides saving face, alternatives to trial can save parties time, energy, aggravation and MONEY.
Refereed to as Alternative Dispute Resolution or ADR, comes in a number of varieties. The most common are negotiation, mediation, arbitration, neutral evaluation, and collaboration.
NEGOTIATION
In negotiation, parties or their attorneys directly communicate with each other in an effort to reach an agreement. Sounds old school but why knock it until you've tried it? If negotiation does not work there are other forms of dispute resolution you may try.
MEDIATION
In mediation, a neutral mediator tries to help parties work out their differences in a confidential process whereby the parties or their attorneys present their sides and participate in discussions and negotiations in an attempt to resolve their conflict.
ARBITRATION
Much like mediation, in arbitration, the parties typically through their attorneys make presentations to a neutral third party, arbitrator. These presentations may include an introduction of supporting documents and witness testimony by the parties for the arbitrator's review and decision.
The biggest difference between mediation and arbitration is that the arbitrator's decision may be binding upon the parties. If the parties agree to enter into binding arbitration before the process begins, the decision is meant to be final and generally not up for appeal. On the other hand, if the arbitration is not binding, the case may proceed to trial if one party does not agree with the decision.
NEUTRAL EVALUATION
In neutral evaluation, sometimes also known as a settlement conference, each party makes a brief presentation to a neutral evaluator, in some instances this role is played by a judge, who then offers the parties his/her perspective on how a court would likely rule on the dispute. While this evaluation is not a binding decision, it informs the parties as to the likely success of their arguments and/or positions and can assist the parties in further negotiations and reaching an agreement.
COLLABORATION
In the collaborative law process, both parties agree to use attorneys committed to resolving the dispute amicably through cooperative negotiations. All meetings, conferences, negotiations, settlement discussions, etc. are to remain out of court. The parties may share in the use of a joint accountant, psychologist, and other experts to assist them reach a resolution in every aspect their case. Unfortunately, if a dispute arises that cannot be settled, and one party wants to pursue litigation, both parties must seek new attorneys and start the process again, this time utilizing the court system.
Since there are a number of variables to consider in deciding how to go about resolving your family law matter, contact a family law attorney to assist you in evaluating your best chances of success with your case strategy.
Wednesday, November 2, 2011
Thursday, October 20, 2011
EdLawConnect: Disability Related Bullying or Not? Knowing the Di...
Please check out this amazing blog on Disability Related Bullying by Attorney Englebrecht!
EdLawConnect: Disability Related Bullying or Not? Knowing the Di...: By Adam Newman , Partner and Geneva Englebrecht , Associate Cerritos Office October is National Bullying Prevention Month and recent media...
EdLawConnect: Disability Related Bullying or Not? Knowing the Di...: By Adam Newman , Partner and Geneva Englebrecht , Associate Cerritos Office October is National Bullying Prevention Month and recent media...
Saturday, August 20, 2011
Best Interest of the Child
What constitutes the best interest of the child standard?
The best interest of the child standard is one of the most difficult standards to define in family law because it varies according to the court and the nature of the hearing.
The standard is used in a slew of cases, including guardianship, paternity, divorce, child custody and support, parental termination, child placement, and adoption.
In determining the best interests of the child, the U.S. Supreme Court has considered the following factors in cases of parental separation or divorce:
a child's emotional growth, health, stability, and physical care.
The Uniform Marriage and Divorce Act has echoed these factors and added that a court in custody cases should also consider:
a child's wishes, his adjustment to his home, school, and community, and his interaction and interrelationship with his parents, siblings, and any other person who may significantly affect the child's best interest.
California family law gives its courts "the widest discretion to choose a parenting plan that is in the best interest of the chid." When determining the best interest of the child, relevant factors include:
the health, safety and welfare of the child, any history of abuse by one parent against the child or the other parent, and the nature and amount of contact with the parents.
The best interest of the child standard is one of the most difficult standards to define in family law because it varies according to the court and the nature of the hearing.
The standard is used in a slew of cases, including guardianship, paternity, divorce, child custody and support, parental termination, child placement, and adoption.
In determining the best interests of the child, the U.S. Supreme Court has considered the following factors in cases of parental separation or divorce:
a child's emotional growth, health, stability, and physical care.
The Uniform Marriage and Divorce Act has echoed these factors and added that a court in custody cases should also consider:
a child's wishes, his adjustment to his home, school, and community, and his interaction and interrelationship with his parents, siblings, and any other person who may significantly affect the child's best interest.
California family law gives its courts "the widest discretion to choose a parenting plan that is in the best interest of the chid." When determining the best interest of the child, relevant factors include:
the health, safety and welfare of the child, any history of abuse by one parent against the child or the other parent, and the nature and amount of contact with the parents.
Friday, April 15, 2011
An Ounce of Prevention
"An ounce of prevention is worth a pound of cure."
How does this old adage translate into family law?
Well, if you are thinking about entering into a premarital agreement, it means thinking through the terms of the agreement and following the present day protocol or law in your state to a "T."
Before asking an attorney to draft a prenuptial, ask yourself, what are your goals? What are you trying to do? Whom and what do you want to protect? What are you willing to give to get such protection?
Your agreement should not be boilerplate language because chances are your circumstances and relationship are not boilerplate.
You should be prepared to discuss everything from your educational background to your assets and debts with the attorney who will draft or review such an agreement with your goals and interests in mind.
Your agreement requires two legal elements to survive:
Both parties must enter into the agreement voluntarily and without duress, fraud, or undue influence.
An agreement is unenforceable if it was not execute voluntarily unless the party against whom enforcement is sought was represented by independent legal counsel or expressly waived in writing such representation after being advised to seek such counsel.
Also, an agreement is not voluntarily executed unless the party against whom enforcement is sought had not less than 7 days between the time that party was first presented with the agreement and advised to seek independent legal counsel and the time the agreement was signed.
Lastly, an agreement is not voluntarily executed unless the party against whom enforcement is sought, if unrepresented by legal counsel, was fully informed of the agreement's terms and effect as well as the rights and obligations he/she is giving up by signing the agreement. The explanation of the party's rights and the agreement itself must be in the unrepresented party's proficient language. This explanation of the rights and obligations relinquished must also be made in writing and delivered to the party before signing the agreement. The unrepresented party must also execute a declaration that he/she received the information required by law.
Thus, it is highly recommended that both parties each have his and her own attorney at the time of signing the agreement (this is not a conspiracy by attorneys but obviously a measure of prevention).
UNCONSCIONABLE
In general, an unconscionable agreement is so unfair or unreasonable as to shock the average person. A court will determine whether the agreement is unconscionable if it is later contested.
An agreement is unenforceable if it was unconscionable when entered and before execution of the agreement, the party against whom enforcement is sought was not provided a fair, reasonable, and full disclosure of the other party's property or financial obligations or did not voluntarily and expressly waive the right to such disclosure.
Thus, the parties should expect to disclose all assets and debts.
In sum, following the California Family Law code section 1615 to the Nth degree will provide for an enforceable premarital agreement based on the ounce of prevention needed to withstand what the future may bring.
How does this old adage translate into family law?
Well, if you are thinking about entering into a premarital agreement, it means thinking through the terms of the agreement and following the present day protocol or law in your state to a "T."
Before asking an attorney to draft a prenuptial, ask yourself, what are your goals? What are you trying to do? Whom and what do you want to protect? What are you willing to give to get such protection?
Your agreement should not be boilerplate language because chances are your circumstances and relationship are not boilerplate.
You should be prepared to discuss everything from your educational background to your assets and debts with the attorney who will draft or review such an agreement with your goals and interests in mind.
Your agreement requires two legal elements to survive:
- Both parties must execute the written agreement voluntarily, and
- The agreement cannot be unconscionable when entered.
Both parties must enter into the agreement voluntarily and without duress, fraud, or undue influence.
An agreement is unenforceable if it was not execute voluntarily unless the party against whom enforcement is sought was represented by independent legal counsel or expressly waived in writing such representation after being advised to seek such counsel.
Also, an agreement is not voluntarily executed unless the party against whom enforcement is sought had not less than 7 days between the time that party was first presented with the agreement and advised to seek independent legal counsel and the time the agreement was signed.
Lastly, an agreement is not voluntarily executed unless the party against whom enforcement is sought, if unrepresented by legal counsel, was fully informed of the agreement's terms and effect as well as the rights and obligations he/she is giving up by signing the agreement. The explanation of the party's rights and the agreement itself must be in the unrepresented party's proficient language. This explanation of the rights and obligations relinquished must also be made in writing and delivered to the party before signing the agreement. The unrepresented party must also execute a declaration that he/she received the information required by law.
Thus, it is highly recommended that both parties each have his and her own attorney at the time of signing the agreement (this is not a conspiracy by attorneys but obviously a measure of prevention).
UNCONSCIONABLE
In general, an unconscionable agreement is so unfair or unreasonable as to shock the average person. A court will determine whether the agreement is unconscionable if it is later contested.
An agreement is unenforceable if it was unconscionable when entered and before execution of the agreement, the party against whom enforcement is sought was not provided a fair, reasonable, and full disclosure of the other party's property or financial obligations or did not voluntarily and expressly waive the right to such disclosure.
Thus, the parties should expect to disclose all assets and debts.
In sum, following the California Family Law code section 1615 to the Nth degree will provide for an enforceable premarital agreement based on the ounce of prevention needed to withstand what the future may bring.
Friday, February 25, 2011
In All Seriousness
Taking legal action such as filing for divorce is serious and should not be done to test, punish or seek revenge.
If you file for divorce or respond to such a filing, you should be prepared to willingly assist in your case's timely preparation by responding to your attorney's questions, obtaining necessary information, and following all your attorney's advice.
Divorce proceedings typically require a lot of preparation by both the client and his/her attorney because of the very intimate nature of the proceedings. The client houses a good majority, if not all, of the information required and all financial information in divorce must be disclosed to the other party.
In addition, the client typically has free access to all such information which becomes expensive to obtain another way. If the client is not willing or able to do some homework or openly assist his/her attorney with readily available information, the client in effect makes strong advocay difficult for the attorney, prolongs the proceedings and may create a weaker case.
Keep in mind that it's your case and you must live with the consequences. You cannot expect anyone to take your case or life more seriously than you do.
ALWAYS consult an attorney to determine all your legal options and the attendant consequences when faced with any legal action.
If you file for divorce or respond to such a filing, you should be prepared to willingly assist in your case's timely preparation by responding to your attorney's questions, obtaining necessary information, and following all your attorney's advice.
Divorce proceedings typically require a lot of preparation by both the client and his/her attorney because of the very intimate nature of the proceedings. The client houses a good majority, if not all, of the information required and all financial information in divorce must be disclosed to the other party.
In addition, the client typically has free access to all such information which becomes expensive to obtain another way. If the client is not willing or able to do some homework or openly assist his/her attorney with readily available information, the client in effect makes strong advocay difficult for the attorney, prolongs the proceedings and may create a weaker case.
Keep in mind that it's your case and you must live with the consequences. You cannot expect anyone to take your case or life more seriously than you do.
ALWAYS consult an attorney to determine all your legal options and the attendant consequences when faced with any legal action.
Thursday, February 10, 2011
Get It In Writing
Agreements are only as good as the paper they are written on. If you want your agreement with your spouse to stand a chance in family law court, get it in writing, specifying all the details, supported by the intent of the parties, and executed by both parties which means that both people must sign and date the same page of the document. Have an attorney review the written agreement with you first and all the consequences of entering into such an agreement. Finally, have the court enter it as an order.
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