Birnie - Mediation and Alternate Dispute Resolution
Tate Birnie and Brittany Birnie Greene can assist you in estate planning, probate, family law, mediation and related matters. If you need legal assistance in another area, we will try to refer you to a specialized attorney in the Sonoma County area.
FREQUENTLY USED TERMS:
The two parties in a divorce are called the Petitioner and the Respondent. The Petitioner initiates the court proceedings. Either party may be the Petitioner as long as that party has resided in the State of California for at least six months prior to filing the action, and within the County for three months immediately prior to filing.
Dissolution: (another term for Divorce) Termination of marital status, including division of marital assets and debts.
Marital Settlement Agreement: A document that sets forth the division of the parties’ property, support and parenting arrangements.
Qualified Domestic Relations Order (QDRO or DRO): A court order which defines the rights of the parties in the division of employee pension or retirement benefits. This document is drawn up once the divorce is final.
FREQUENTLY ASKED QUESTIONS ABOUT THE DISSOLUTION PROCESS
Do I need an attorney?
In a marital dissolution there are two sides, often with differing opinions, rights and responsibilities under the law, and in dispute with each other. An attorney acts to resolve the matter quickly and effectively and protects the client from being taken advantage of. Having an attorney will ensure that you know your rights and responsibilities under the law before you make any decisions that will affect your legal position or financial situation. It is an attorney’s job to inform you of your options and help you make the best choices throughout the legal process.
Do you offer free consultations?
We offer initial consultations at the per hour rate of the attorney who will be handling your case. We use this time productively; a client receives information regarding his or her matter in the first meeting.
What services do you offer?
We offer a wide range of family law services. Both Tim Birnie and Brittany Birnie Greene offer their services as mediators, and they are both available to act as consulting attorneys for clients who are in mediation with a different mediator. Brittany Birnie Greene also handles collaborative practice cases, matters that are to be negotiated with opposing counsel or an opposing party, and litigation cases. Our office focuses on alternative dispute resolution methods, as we believe that dissolution does not have to be an adversarial process, in which there is a “winner” and a “loser” in court. Rather, we feel that mediation, collaboration and negotiation often lead to more beneficial outcomes for both parties and their children.
What is the difference between mediation and collaborative practice?
In mediation, there is a neutral third party present with the parties (and if requested, the parties’ attorneys). The role of the mediator is to facilitate communication between the parties, help the parties understand the relevant facts and legal information, and, if possible, to reach an agreement (known as a Marital Settlement Agreement).
In collaborative practice, each party has their own legal representative, and all four participants (both parties and their attorneys) meet to discuss the needs of the family and how to resolve the issues in the dissolution. This method requires that the parties sign an Agreement to Collaborate, which lays out the ground work for the process and incentives the parties to remain in the process rather than litigating their matter.
I have a quick question. Can you answer it over the phone?
We strive to maintain consistent and open communication with our clients and are willing to discuss a client’s issues and questions over the phone. Yet, even simple questions are seriously affected by the surrounding facts and issues. Therefore, a “quick question” can sometimes lead to a longer discussion of your situation with an attorney who has experience in analyzing the essential information needed to be able to give you correct advice. We cannot give you legal advice unless you have retained our office to represent you in your matter.
What is the standard procedure for dissolution in California?
Commencing the action. A dissolution action starts when one spouse files a petition and a summons with the court. The petition requests that the marriage be terminated. The filing spouse is known as the “Petitioner.” The other spouse is the “Respondent.” The summons puts the Respondent on notice that the action has started. Together these documents are known as the Petitioner’s moving papers. Once filed with the court, the moving papers are served on the other spouse, usually within 30 days. After service of the initial moving papers the divorce can then proceed one of two ways, uncontested or contested.
Uncontested divorce. If a divorce is uncontested, the parties reached an agreement outside of court. The attorney will prepare the necessary paperwork for the court to process. Even if the parties arrive at an immediate agreement the State of California requires a six-month waiting period (starting when the other spouse is served) in which to finalize a divorce.
Contested divorce. If there are issues in dispute which the parties cannot resolve themselves, the Respondent has thirty days to respond once served with the moving papers. These “responsive pleadings” include a response (which answers the allegations in the petition). When the responsive pleadings are filed with the court, the case is “at-issue.” Some or all issues can be heard by the judge in a courtroom in a contested divorce.
Financial Disclosures. In all cases the parties must prepare and serve on the other party financial disclosures, including an Income and Expense Declaration, a Schedule of Assets and Debts and a Preliminary and Final Declarations of Disclosure. The Income and Expense Declaration contains financial income information pertinent to the person submitting it; it gives the judge an idea of the relative income of the parties for support purposes. The Schedule of Assets and Debts is a disclosure of all the property and debt rights obligations of the parties. Both parties MUST file a declaration with the court declaring that they have exchanged their preliminary declaration of disclosure. The Final Declaration of Disclosure can be waived by mutual agreement of the parties.
Discovery. Information and facts usually come from the attorney’s own client; however, sometimes the client does not have all of the information necessary to fully understand an issue in dispute. Once the case is “at-issue” there are formal procedures and devices that facilitate the fact gathering process, including written questions (“interrogatories”), requests for documents and other physical evidence (“demand for production and inspection”), face to face interviews of the spouses by the opposing attorney (“depositions”), as well as other techniques. In some family law cases, opposing attorneys often work together by conducting informal discovery and exchange of information. Informal discovery can often reduce the cost of litigation.
Temporary relief. In many cases there is a need for immediate court action, in the form of orders that require the other party to do or not do something, such as restraining orders, child support, spousal support, etc. These orders remain in effect until more permanent orders are issued. The temporary requests to the court are usually made by an “order to show cause” or a “notice of motion.”
Trial. Only a small percentage of cases actually go to trial. Negotiation of settlement agreements is the most common method of resolving the issues in a dissolution action. Of course, if settlement cannot be reached, a case can go to trial. Courts discourage trial for two main reasons: first, there are not enough courtrooms to try all divorce actions; second, legal fees are much higher in trial cases because trial requires substantial attorney time resulting in higher fees and costs.
What's the difference between a legal separation and a divorce?
The work needed for each is essentially the same. You do not need to wait for six months to get legally separated, but you remain legally married even after you have reached all other necessary agreements.
Sometimes a legal separation agreement is a better choice if you want your marital status to continue after property is divided, for instance for health insurance or religious reasons.
What are the grounds for divorce?
California has a “no-fault” system. The no-fault system eliminates specific categories of behavior and specific acts of misconduct as grounds for divorce. Therefore, the only legally recognizable grounds for divorce are irreconcilable differences or incurable insanity.
In the case of irreconcilable differences, there must be an irremediable breakdown of the marriage. This category is broad by design. There is little chance of blocking a divorce based on irreconcilable differences.
At the time the divorce case is filed, if one spouse is proven to be incurably insane, the marriage can be dissolved. Ordinary expert medical testimony will be required as will an actual court trial.
I just got served with divorce papers. What should I do now? What if I don't do anything?
If you do not respond to a petition for divorce, you could lose your legal rights regarding support and property. To protect your rights, you should consult an attorney to help you file your response.
If you proceed in mediation, we may recommend proceeding without filing a Response, with the consent of your spouse. This avoids paying an additional filing fee to the court.
How much does it cost to get a divorce?
It depends on the client’s willingness to be an active participant in his or her own representation and/or mediation. We encourage clients to be forthcoming with information and to provide us with all of the documents that will be needed to resolve the issues in dispute, including financial statements, tax records, deeds for real property, etc. Another way we keep costs down is by having experienced legal assistants and paralegals do high quality work for our clients at a lower cost.
The frame of mind of the spouses is also a significant component in terms of cost. By law spouses must deal fairly and in good faith with one another. Where the spouses are hostile or resentful, two things occur: first, the dissolution takes longer to conclude; second, attorney’s fees will increase because more attorney time and effort will be required. The general rule is: the more items in dispute, the higher the fees will be.
How long does it take to get a divorce?
In California, marital status can not be terminated until a minimum of six months from the date the opposing party is served with divorce papers or signs a Notice and Acknowledgement of Receipt. However, a dissolution action can take longer depending on the complexity and number of issues in dispute.
I am worried about the effect of the divorce on our children. Is there something I can do to help my children through the process?
Many parents overlook the effect that a divorce can have on their children, sometimes resulting in substantial emotional harm. Children can often suffer without any noticeable signs. Sonoma County requires Family Court Services mediation to work out parenting plans. Parties also have the option of private mediation or co-parent counseling.
What will happen with our children? Who will get them in the divorce?
Child custody and visitation is often the most disputed issue in a divorce – and the most emotional. The court must base its child custody and visitation decisions on what is in the best interests of the children. This gives the court broad discretion and what each parents wants will be considered by the court. However, parental preferences will not control the court’s decision.
There are two types of custody: legal custody and physical custody. Joint legal custody means that both parents share the right and responsibility to make decisions regarding the children’s health, education and welfare. Joint legal custody can be granted without joint physical custody. The law encourages parents to share child rearing rights and responsibilities.
Physical custody refers to the amount of time the children spend with each parent. Joint physical custody means both parents spend “significant periods” of time with the child ensuring that the children have “frequent and continuing contact with both parents.” Primary physical custody means the children reside with one parent and are under that parent’s physical supervision but they have some visitation scheduled with the other parent.
How much child support will I get?
California child support is based upon a California mandated formula. The support ordered depends on many factors, including the following: the incomes of both parties, the time-share percentage each parent has the child(ren), costs of child care, health care expenses, and extraordinary expenses associated with the children. The family courts and most attorneys have a computer program that calculates support. The formula amount can be changed only when there are unusual circumstances. The court can consider the earning capacity of a parent in lieu of their actual earnings.
Child support lasts until the child is 18, unless the child has not graduated from high school, in which case it lasts until the child has graduated from high school or turns 19, whichever occurs first. If a child is physically or mentally disabled the court can retain power to make a parent support that child past the age of majority.
How much spousal support will I get?
Spousal support is intended to maintain the supported spouse’s marital standard of living. Either party may be ordered to pay spousal support. Temporary spousal support can be granted while the case is pending and is based primarily on need and ability to pay.
Determination of permanent, or post-Judgment, spousal support is determined by many factors including: earning capacity of the parties, marketable skills of the supported party, ability to pay of the supporting party, age and health of the parties, tax consequences to each party, the balance of hardships to each party, and other factors the court determines are just and equitable.
The stated goal of the California Legislature is that “the supported party shall be self-supporting within a reasonable period of time.” In marriages of less than 10 years the presumption is that spousal support should be granted for a term of half the length of the marriage. In marriages of more than 10 years, it is an abuse of discretion for the court to set a future termination date. However, spousal support terminates by operation of law on the death of either spouse or the re-marriage of the supported spouse.
How should we divide our property?
California is a community property state. It is presumed that any property acquired during marriage is community property and that each party has an undivided one-half interest in the property. Community property is all property acquired by a married person during marriage while domiciled in California. Even out-of-state property acquired by a spouse during marriage is included under the community property system. Each spouse has 50% ownership interest in community property, including equal management and control rights.
Separate property is that property that was owned by a spouse prior to marriage, marital earnings and accumulations while living separate and apart, certain personal injury damages, property acquired during the marriage by gift, bequest, devise or descent, and the rents, issues and profits of any separate property. Courts will consider several factors to determine characterization of property as community or separate including title.
Community property is divided 50/50 at divorce. Courts will tend to divide the property in-kind. Parties can reach their own agreements using any approach including trade-offs for equal value; one values, the other chooses; appraisal; alternate selection; sale and division of proceeds; etc.
How do California’s family law rules apply to my Registered Domestic Partnership?
All of California’s family law rules apply to state-registered domestic partnerships for same sex couples and opposite sex couples over the age of 62. The rules of community property apply to all income and assets acquired after registration. Terminating a domestic partnership is accomplished through the same judicial process as in dissolution of marriage; the same rights and responsibilities apply. However, California does not recognize marriages between persons of the same sex. Note that the federal tax benefits and burdens that apply to married couples do not apply to registered domestic partners; thus, we always recommend that registered domestic partners also seek the advice of tax specialists regarding the impact of dividing property in a dissolution.
I just moved to California. Can I get a divorce here?
You must be a resident of California for six months, and a resident of the county in which you file for the three months immediately preceding the filing of a divorce.