Alternate Dispute Resolution

    With conflict running rampant in our World, let’s think about some alternative methods of resolving lawsuits. Instead of the “scorched earth” method of trial by judge and/or jury, there are gentler methods available for dispute resolution. These are called alternative dispute resolution (ADR) and they substitute the processes of arbitration and/or mediation for traditional litigation.  

    Arbitration is like a miniature trial where an “arbitrator” – usually a retired judge or practicing lawyer – decides the outcome of the case typically based upon written statements of witnesses and the testimony of the parties. In a binding arbitration, the decision of the arbitrator becomes the judgment of the court. In a non-binding arbitration, either party can ask for a new trial (trial de novo) within the time prescribed by law. However, if they fail to do so within that time, the decision of the arbitrator becomes the judgment of the court. The cost of arbitrating a case is less than taking the case to court, but the arbitrator makes the decision – not the parties. This leads us to an even more cooperative method of dispute resolution:  mediation.  

    Mediation is where a “mediator” – who may be a retired judge, lawyer, psychologist, or other professional mediator – meets with the parties in order to help them reach a mutual agreement regarding the outcome of the case. The goal of mediation is for the parties to reach an agreement which is satisfactory to them.  Mediation can last one session or can go on for many sessions in a complicated matter. If there is a factual dispute the parties cannot resolve without outside expertise, they can agree to hire a neutral expert to make a determination, such as a business valuation, in order to facilitate settlement. A skilled mediator can help parties negotiate innovative and satisfactory results. Mediation can be accomplished without the parties directly speaking to each other with all contact done by the mediator if necessary. If an agreement is reached in mediation, it can become a court order or be confidential at the agreement of the parties.  

Questions?

​    With the recent verbal fireworks surrounding the primary process, it is interesting to look at the First Amendment and what is and is not protected speech. Many people just spout words thinking everything is protected by the First Amendment.  This is not the case. 

    My focus was “hate speech” which we are hearing a great deal about.  Hate speech IS protected by the First Amendment, it may, however, be a crime.  Additionally, if the hate speech constitutes “fighting words,” it is not protected.  Fighting words are speech that may be used to inflame someone and that will likely result in physical retaliation.  This can include words that can incite violence or encourage the commission of illegal acts.  To see whether words are “fighting words,” we ask whether an average person would view the language as being inherently likely to provoke a violent response.  So, Hate Speech is protected by the First Amendment unless it can be categorized as Fighting Words.  Be careful – just because it’s protected by the First Amendment doesn’t mean it’s NOT a crime.      

    Another category of speech that is NOT protected by the First Amendment is Defamation – Slander and Libel.  This is making false statements about someone, particularly in their business which may damage their reputation.  This is another big topic in the election.  If a statement is true, the person against whom the statement is made cannot sue as it isn’t defamation.  This is the old adage, “truth is a defense.”  If the statement is false, however, the publisher of the statement can be sued and damages awarded to the injured person.  

    Other non-protected speech is child pornography, copyright violations, and certain threats.  

    The First Amendment is a much litigated topic and is one of the paramount principles of our great nation.  

    Contact us.  

Divorce Mediation Guidelines
The Mediator should be neutral.

The Mediation participants should be cooperative.

Each party should respect the interests and needs of the other party.

Neither party to a mediation should be pressured by the other party or the Mediator.

Each party should fully disclose all assets, debts and important information concerning the community property.

The mediation process should be efficient and consume less time than a contested divorce.

The mediation should be significantly less expensive than a contested divorce.

Any decisions by the mediation participants should be informed.

The results of the mediation should be fair to both parties.

The agreement resulting from the mediation should be understandable to the participants.

Contact Us For More Information. 

Child Custody is often the most difficult issue in divorce and separation.  Parents who are in pain and/or denial often are unable to put the best interests of their children first -- before their own hurt, anger, and need for retaliation.  The Mediation setting promotes greater understanding between the parents and increases their ability to see beyond their own issues to what is best for their children.  Mediation provides a forum for the parents to air their problems and issues without the involving the children directly. 

Prior to your Mediation session you should become familiar with child custody terminology and guidelines. 

Some reference material is attached for your information.  There is also information on Cal Divorce 123.

Child Custody Terminology.  Joint Custody, Physical Custody,  Timeshare. 

Child Custody Guidelines. 

Debra Crawford Annis Law & Mediation Offices
Historic Osio Rodriguez Adobe
380 Alvarado Street
Suite 202
Monterey, CA 93940
831-372-3900
800-248-2218 toll free

May those whose hell it is
To hate and hurt
Be turned into lovers
Bringing flowers.

Shantideva, Eighth-century Indian Buddhist teacher.

In his book The Five Things We Cannot Change ... and the Happiness We Find by Embracing Them, David Richo discusses the concepts of Retribution and Restoration.  He points out that restoration (vs. retaliation) leads to closeness between the wounded and wounding people.  He suggests using dialog instead of running from the conflict.  He states that as adults we should know that losses happen sometimes and that we can survive them.  A spiritually evolved adult, says Richo, "is not satisfied with the glee of retaliation but wants the joy of loving-kindness. ...  The healthy psyche is inherently geared to release compassion when it sees pain and defeat, just as it releases forgiveness when it sees repentance."  He defines repentance as contrition, amends, and a commitment to not repeat the offense. 

Richo lists the following attributes of Retribution and Restoration (pages 37-38):

    The world would be a much better place if we could practice restoration instead of retribution.  This is what mediators attempt to do. 

MARITAL SETTLEMENT AGREEMENT CHECKLIST　

FACTUAL RECITALS

Identity of parties and minor children

Statistical facts of marriage

Dissolution proceeding contemplated or filed

Each party's employment (or, in the case of an unemployed party, employment background, skills, etc.)

Each party's current earnings

Each party's age

Health of parties

Finality of agreement, or issues left unresolved

PROPERTY DISPOSITIONS

Identity, value and disposition of community and quasi-community property

Identity, value and disposition of noncommunity property joint tenancy and tenancy in common interests

Confirmation of each spouse's separate property interests

REA waivers (waiver of survivorship benefit rights in other spouse's ERISA pension)

Waiver of rights in deceased spouse's estate

Sale of property (and/or deferred sale re, e.g., "family home award")

Warranty: disclosure of property

Warranty: value of property

After-discovered property

Disposition of furnishings and personal effects

Allocation of debt responsibility; "hold harmless" clauses

REIMBURSEMENT CLAIMS

SP contributions to the "acquisition" of CP

Payments on debts

Property improvement payments

Contributions to education and training　

CUSTODY AND VISITATION

Sole custody (legal and/or physical)

Joint custody (legal and/or physical)

Other custody arrangement: shared custody; split custody

Reasonable visitation; or defined visitation

Removal of child from jurisdiction– State, County of Monterey

Child's surname

CHILD SUPPORT

Guideline minimum child support requirements

Spouses' recognition of guideline limitations where agreement is for less than the mandatory minimum

"Family home award" as component of child support

Payment schedule": weekly, monthly, or other; when payments under agreement shall commence

Duration of child support (effect of emancipation or adulthood)

Special support considerations: health insurance, medical and dental payments; special educational needs, etc.

Right to claim dependency exemption; waiver of exemption by custodial parent

Agreement to support adult children

SPOUSAL SUPPORT

Amount of support

Payment schedule: weekly, monthly, or other; when payments under agreement to commence

Combined spousal and child support option ("family support")

Payment of debts as payment of support

Satisfaction of state and federal tax requirements for deductibility to payor

Modifiability of spousal support

Duration of support; reservation of jurisdiction

Waiver of spousal support

Pendente lite support

FEES AND COSTS

Attorneys'/mediator’s fees and costs of litigation

Experts' fees

Costs

TAX PROVISIONS

Tax returns (separate or joint returns during the separation period?)

Tax refunds and deficiencies; indemnification provisions

Allocation of dependency exemption

Designation of spousal support as nonincludible, nondeductible for federal tax purposes

GENERAL PROVISIONS

Effect of reconciliation

Effect of invalidity

Law applicable

Mutual releases

Modification, revocation or termination of agreement

Costs of enforcement; waiver of costs of enforcement

Execution of instruments

Execution formalities (notary, recordation, etc.)

Effective date of agreement

Independent legal representation (or acknowledgment of voluntary and knowing refusal to obtain independent legal advice

Persons bound

Parties

Counsel

General Instructions for Dissolution Cases. 

Joint Tenancy Assets. If you hold property in joint tenancy with your spouse, your spouse will automatically succeed to your interest in that property if you die first. You may wish to convert such joint tenancy assets into tenancy in common ownership (upon proper notice and procedures). This will destroy the automatic right to succeed to your interest in that property on your death, and will ensure that the property passes under your will or to those entitled by law if you died without a will. You should also be aware that there may be state and federal tax consequences involved in determining whether or not to change an asset from joint tenancy to tenancy in common.

Estate Planning. If you have a will or trust, it may not be affected by any action in the dissolution of your marriage. Further, any such will or trust will not necessarily be affected by any judgment entered by the court in this matter. You may wish to consider making a new will, or at least revoking the current will.

Creditors. You should be aware that you will continue to be liable to third persons from whom you and your spouse have obtained credit for all sums now outstanding. This holds true even if the court later orders your spouse to make all payments due to that creditor, for the court cannot in this proceeding cut off or materially affect the rights of existing creditors nor force the creditor to look exclusively to your spouse for payment.

This applies to those creditors you have lines of credit with, for example, (1) Charge card companies, (2) banks at which you have lines of credit or to whom you have given continuing guarantees, and (3) others whom you or your spouse have dealt within the past in such manner as to give them the impression that either spouse can commit the other to a transaction. An example of this group would be landlords and suppliers of goods and services. All such persons or firms will usually have the right to assume until they are informed to the contrary that each of you continues to be responsible for all debts incurred by the other. For example, your spouse may continue to charge on accounts, even if restrained from doing so by the court, and you will still be bound and required to pay the creditor. Therefore, you should take action immediately to notify all creditors by both telephone and then in writing that you will not be responsible for future charges or debts incurred by your spouse. Keep a record of the communications with your creditors, including the date and to whom you have directed your communications. Please note all applicable account numbers on your correspondence to creditors and use certified mail, return receipt requested when possible. If you need assistance, please notify an attorney immediately.

Beneficiaries. It is advisable to change the beneficiaries on your life insurance before you are restrained by the court (when you file your divorce or are served with divorce papers). You may wish to consider checking the beneficiaries on your life insurance policies at this time to determine the present status. This also applies to retirement plans or other "fringe benefits" at your place of employment.

Closing Accounts. To avoid possible embarrassment to your spouse and increased friction in your relations with your spouse, you should let him or her know what accounts and credit lines you are closing. Also, prior to separation, if you have not yet separated, secure your account records, notes, stocks and bonds and all other important documents which relate to your case. If you close accounts or have a large sum of cash, be safe and put such money in personal traveler's cheques.

Separate Monies. It is important that separate property monies you receive in the future be kept separate and identifiable. If you receive monies from earnings after separation, or from another separate property source (e.g., from the sale of an asset you owned before marriage, or from a gift or inheritance), keep them in a new account in your name only. The reason for this is that when separate property is mixed with community property the entire fund may be deemed community property. Certain monies or property received after separation may also be community property.

Separate Property. To the greatest extent possible, pay all debts on separate property from separate property sources. For example, if you own a separate property piece of real estate with a mortgage thereon, make the payments from post separation earnings. This will assist in maintaining the position that the asset is, and remains separate property.

Debra Crawford Annis
Law & Mediation Offices
www.DebraCrawfordAnnis.com

Click here for printable form. 

Divorce Flow Chart. 

Some of the most common questions I receive are about the divorce process and how it works.  Here is a Divorce Flow Chart that illustrates the paperwork needed and the divorce process.  This chart shows what documents are needed at each stage of your divorce proceedings. 

Debra Crawford Annis
Divorce Flow Chart