Most people, and many lawyers, don’t realize that there are at least seven different options if you’re thinking about getting a divorce in California. Some options are quick and inexpensive. Some are drawn-out and gruesome. Fortunately, you can choose which kind of divorce is right for you and your family.
1. The Kitchen Table. In a Kitchen Table Divorce, the couple sits down at the kitchen table with a pad of paper and a pen and they create a plan. They say, “Here’s what we’re going to do about the kids, here’s how we’re going to pay the bills, here’s what we’re going to do with the property, and we’ll split the cost of whatever it costs to hire someone to put this all in writing.”
With this kind of divorce a couple doesn’t need to hire attorneys and they certainly won’t ever see the inside of a courtroom. California has a new professional: the Licensed Document Assistant or LDA. LDAs are not paralegals, they’re not lawyers, and they don’t give you advice. If you and your spouse have an amicable relationship and know exactly how you want to divide your assets and debts, and what you want to do about the kids, you can hire an LDA, tell them what you want, and they’ll fill out the forms for you. It’s the fastest, cheapest, most efficient way to get a divorce.
2. Mediation. Mediation is a form of Consensual Dispute Resolution. In Mediation, the couple sits down with a neutral mediator who helps them negotiate the terms of their divorce. The mediator is not an advocate, cannot give legal advice, and ought to advise you to seek independent advice from a lawyer so that you can be sure you know exactly what you’re agreeing to.
The great thing about a mediator is that they can present options, alternatives, and different scenarios. There’s creativity in mediation. A mediator will invite you to decide how your divorce is handled and then will help you draw up a deal called a Memorandum of Understanding. Once you have your Memorandum of Understanding, you can take it to an attorney if you want to, or you can have it filed with the Superior Court. If the mediator you hire happens to be a lawyer, you can have him or her draw up the agreement and file it in court for you.
3. Collaborative Divorce. Collaborative Divorce is similar to mediation in that it is protected by the evidence code. Everything is confidential, privileged, private, and can’t be used in court against you. What makes it different is that it involves a team of people who will help you get through what can be a very painful process, as painlessly as possible. Collaborative Divorce calms the waters. It allows you to take stock in yourself before you get into the process.
In a Collaborative Divorce you are surrounded by a team of experts, appraisers, mental health professionals, actuaries, real estate people; people you need to access so that you can reorganize your life, maximize your tax position, divide your assets peacefully, and become successful co-parents. When you go to court, you get distributive bargaining. Judges are limited by the rules, by the statutes, by the code sections. The judge makes the best decisions in accordance with the law. When you have a Collaborative Divorce, you make the best decisions for your family.
4. Arbitration. Arbitration is quite different from our first three options. The Kitchen Table Divorce is casual, creative, quick and inexpensive. Mediation is a cooperative effort between individuals to reach a mutual agreement based on consensus and compromise. Collaborative Divorce provides you with a team of professionals that rally and support you, ensuring that all your needs are met. Though Arbitration is similar to mediation, it is more like litigation in that the parties present their respective positions, evidence, testimony, and witnesses to a trial of fact.
Arbitration is a settlement technique in which a third party reviews the case and imposes a decision that is legally binding for both sides. The arbitrator may be a retired judge, an experienced trial lawyer, or some other professional selected from a panel of competent arbitrators, such as the American Arbitration Association. Arbitration can be either voluntary or mandatory and can be either binding or non-binding. The principal distinction between mediation and arbitration is that whereas a mediator will try to help the parties find a middle ground on which to compromise, the (non-binding) arbitrator remains totally removed from the settlement process and will only give a determination of liability.
Arbitration is most commonly used for the resolution of commercial disputes, but it is desirable in divorce cases when agreement cannot be reached but the parties still wish to save the costs and expenses of litigating through the usual judicial system, which has built-in delays and attendant increased costs. The Los Angeles County Superior Court sponsors an arbitration program and a Rent A Judge program wherein retired Superior Court judges are available as arbitrators, or will sit as judges on a private basis.
5. Rent A Judge. If California were a business, it would be bankrupt. The courts are under-funded and over-crowded. The lines waiting for trial dates go on and on. The supervising judge in the family law department is anxious to get rid of cases. Any time two attorneys stipulate to file an application for Rent A Judge, the court will immediately appoint a retired judge in good standing as a judge pro tem (temporary judge).
But how does it work? The court appoints a retired Superior Court judge, an appellate court justice, or a Supreme Court justice, and you rent their time. In most instances they apply the same rules they would if they were sitting in a courtroom. They may even work in a courtroom. If Angelina and Brad Pitt decided to get married and then decided to divorce, they wouldn’t go to court. They’d hire a retired judge and they’d have their divorce at the Chateau Marmont and it would be catered.
Los Angeles County is host to a Rent A Judge program wherein retired Superior Court judges are available as arbitrators or will sit as judges on a private basis. In the Rent A Judge program you try your case in a conference room just as you would in a court room, but without the delays and interruptions you experience with a judicial officer who is subject to the interruptions of a heavy caseload. If you know you have a case that will be in court for a long time, this option can save you a lot of money.
6. Negotiation in the Shadow of Litigation. The first three methods of divorce allow the parties to control the process, control the cost and control the outcome. It’s your money, it’s your property, they’re your children, it should be your choice. But most people aren’t aware of the first three options, or they don’t even consider them. Many lawyers don’t bother to tell people about the first three options, and very few people are interested in option four, so most of the time people end up going with the default position. We call it “Negotiation in the Shadow of Litigation.”
In the default position you’re working with traditional lawyers who file traditional papers, bang the case around for two or three years, file Orders to Show Cause, Ex Parte hearings, and after all your money is gone, they settle the case.
7. Litigation. Alec Baldwin wrote a book called A Promise To Ourselves, decrying “the corrupt California divorce industry” (his words). He describes a nightmare divorce that lasted eight years and cost over three million dollars, after a ten-year marriage to Kim Basinger. That is litigation.
A few years ago there was a case all over the newspapers. A short marriage; a two-year-old child. Dad was voluntarily giving Mom $50,000 a month in child support, but the mother wasn’t satisfied. Mother wanted $350,000 a month in child support for the two-year-old. Why? Because Dad could afford it.
The couple spent over a million dollars – each – on the Order to Show Cause Hearing. At the end of the day, after hearing all of the evidence and testimony, after concord jets and race horses and all the other evidence put in for a two-year-old child, the judge raised the support from $50,000 a month to $60,000 a month. A hundred thousand for a million. That’s litigation, straight up, all the way.
The good news is that you have options. You don’t have to spend your life’s savings on legal fees or spend years fighting in court. It’s your money, it’s your family, it’s your choice.
Interesting Fact: In Los Angeles, the court actually favors Consensual Dispute Resolution. If you come in with a mediation or a collaboration, you go to the top of the list with regard to processing and entering judgments, whereas litigious cases are going to wait up to six months for the clerks to get to them, because they’re so backed up and under staffed.