Should I Settle or Battle in Court?
If today, you were to walk into department L-67 of the Lamoreaux Justice Center in Orange California, where the Honorable Judge James Waltz presides over a heavy family law calendar, you would notice on the wall a framed quote by Abraham Lincoln, who before becoming President of the United States of America, worked as an attorney. The quote reads:
“Discourage litigation. Persuade your neighbors to compromise whenever you can. As a peacemaker the lawyer has a superior opportunity of being a good man. There will still be business enough.”
I wholeheartedly agree with this quote. Generally speaking, settlement is the preferred manner in which to resolve all family law disputes. Settlement in family court is best for several reasons. But, I will only list a couple.
First, parties that settle their cases get through the divorce process quicker. The average divorce in California is said to take more than one year to be finalized. Family Courts are also notoriously busy and overcrowded. Disputed matters can take months to be heard by a Judge. Yet, I have settled very complicated cases in a matter of weeks from the initial client interview. I have also seen basic cases drag on for years.
Having a skilled family law attorney is essential to negotiating a fair and equitable settlement agreement. The attorney will help you to identify the issues, how those issues are impacted by the law and what positions are reasonable in terms of settlement. The attorney also ought to know your Judge and his or her leanings based on prior experience. Armed with that knowledge, you then can make an informed decision and can more effectively “choose your battles”.
Second, parties that settle their cases also spend less money on their divorces. Family law attorneys bill by the hour. The more work an attorney does on your behalf, the more you will pay them. However, an experienced family law attorney’s guidance and advice can save you more than just money. Use your attorney’s time with great discretion. Do not waste your retainer fee on whimsical matters. Remember, every action you take in Family Court costs money. Every petition or response has a filing fee. So does every request for order, or notice of motion, absent certain exceptions. There are also process server fees, expert witness fees, fees to obtain information through discovery, etc. Simply stated, every step you take (or don’t take) in Family Court will cost you money, so pick your steps carefully. Do not stop because you may sink. Follow the direction of a wise and able attorney. You will get through the divorce process sooner and will spend less money doing so.
However, settlement is not always possible. If every medical issue could be resolved without invasive surgery, no one would ever go “under the knife”. There are some issues that are not appropriate for settlement and require immediate legal “surgery”. For example, where an immediate threat of harm exists to the parties or their children, such as where domestic violence, substance abuse, or kidnapping has occurred, the most appropriate course of action is to seek immediate orders of the court. Or, if your spouse takes an unreasonable position that is unsupported by the law or facts, and you would get a better deal from the Judge, than the matter ought to be litigated. Again, an experienced family law attorney, especially one with extensive litigation experience, who knows the Judicial Officer presiding over your case, will be able to guide you through the decision of whether to settle or litigate.
President Lincoln’s counsel to “discourage litigation” is sound advice. He was Commander in Chief during the Civil War, the bloodiest war America has ever known. Yet, he accomplished peace as soon as it was possible. In his first inaugural address President Lincoln stated: “We are not enemies, but friends. We must not be enemies. Though passion may have strained, it must not break our bonds of affection. The mystic chords of memory will swell when again touched, as surely they will be, by the better angels of our nature.”
How will our property be divided upon divorce?
California is known as a “community property” state. Community property laws and principles are rooted in Spanish common law, which recognized that the contributions and obligations of the spouses during marriage had equal value and ought to be shared. Marriage was recognized as partnership of equals, regardless of individual roles. California law was strongly influenced by Spanish common law.
Today, marital property is divided according to similar rules and principles. The community estate commences on the date of marriage and ends upon the “date of separation”. Generally speaking, property acquired during marriage, whether asset or debt, is divided equally between the parties during the dissolution process. Community property is defined by the Family Code as “all property, real or personal, wherever situated, acquired by a married person during marriage while domiciled in this state”.
However, all property owned by a spouse before marriage, or acquired during marriage by gift, bequest, devise, or descent are known as “separate property”, as are the rents, issues, and profits of that property, and are not subject to division upon divorce.
Appropriately dividing marital property is much more complicated than identifying whether the property is “community” or “separate”. There are many rules, exceptions and formulas that can apply to any given case. Often, experts such as a forensic accountant, a special master, or a real estate appraiser are hired by a party or appointed by the court to assist characterizing property incident to a dissolution or legal separation.
Brett R. Wishart has extensive experience representing individuals from all walks of life. He has successfully handled cases from the most basic to those requiring the division of multi-million dollar estates. He will assist you in identifying and characterizing your property so that you receive what you are entitled to under the law.
Do I need an attorney for my divorce?
Yes, you do. Believe me. I know, you think I’m saying that because I am an attorney, right? Wrong. If you or your child had a very serious medical or dental condition that required immediate surgery, would you ask “Do I really need a surgeon?” or “Do I really need a dentist?” No, you wouldn’t ask that. In fact, you would want to find the very best health practitioner available as soon as possible.
Family law issues, such as divorce, separation, annulment, child custody, visitation, support, alimony and restraining orders, require no less professional attention than does a serious medical condition. Sure, you can go it alone and try to save some money. You could also try to operate on yourself and your child. But how well do you think you would do? A skilled attorney will guide you through the process, will advise you of the law, will help you make informed decisions and will save you from what could otherwise be legal suicide. While there is no Novocain in family law, a good lawyer will help the process be less than painful than it otherwise would be.
How much does divorce cost?
This is probably the most frequently asked question of family law attorneys. Simply answered, “It depends”. Filing fees, service fees, retainer fees and hourly rates are easy enough to determine. However, no attorney can accurately predict how much a divorce will actually cost. Anyone who alleges otherwise is not worth the free consultation they are giving you.
To illustrate the point further, imagine that you need to travel from Los Angeles to Orange County. Pretend that you have never made this journey before and that you have no means of self-transportation. So, you hire a cab. As you step into the cab, you ask “How many times will you hit the brake as we make the drive?” Even though the cab driver has traveled this very route before, it is an impossible question to answer accurately without guessing. Traffic conditions, weather, the driving patterns of other drivers, road rage, and unanticipated hazards will change from day to day.
Similarly, family law matters have various moving parts and are even more difficult to predict. How much time and attention will your case require? How willing are you to compromise with your spouse or partner? Does your attorney know the law and work well with others? What positions and arguments is the other attorney making? Are they supported by the law, or driven by emotion? Will your matter require litigation? Is the judge available to hear your case on the date set? These are just a few of the many questions that could impact the cost of your case.
As a result, most family law lawyers bill by the hour. They also charge a “retainer fee”, which is a lump sum that is deposited into an account and is billed against as the work is performed. The hourly rates vary from $250 an hour on up to more than $1,000.00 per hour and more, depending on attorney experience, knowledge, skill, and demand. Likewise, retainer amounts vary from a few thousand dollars to tens of thousands of dollars, on up, depending on the nature of the case, the complexity of the issues and the work anticipated. Many cases necessitate additional retainer deposits.
While it may be impossible to tell how much a divorce will actually cost, it will certainly cost more without competent legal help. Family law matters are paid for with far more than just money. Far too often, children end up paying the price for their parent’s improperly handled case. A good attorney will assist you through the process in a cost effective manner.
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