In our last blog post on this subject we explored two differences between a mediated divorce and a litigated divorce.  The first two differences we mentioned were 1) you can have a mutual decision about who is going to be the Petitioner and when the Petition is filed to begin the court portion of the divorce case; and 2) the parties can confer and even work together on doing the Disclosure documents (Schedule of Assets and Debts - FL-142, FL-150, and FL-140).  

In this blog post we are going to look at matters that may need immediate decisions made such as support and custody/visitation of the children.  When people are in transition from a married couple living together to two household units there are a number of matters to be figured out.  The issue that almost every couple has is the division of the incomes of the parties and the payment of the obligations.  In my mediation sessions, I ask the parties to ‘pencil out’ their expenses or anticipated expenses if they haven’t moved yet.  A good tool for this is page 3 - Expenses - of the Income & Expense Declaration.  That is a very basic list of expenses so you can also look at your expense records and see what you are spending your money on.  

This is a time of reckoning for both parties.  Often, if one of the parties doesn’t want the divorce and feels like a victim, the negotiation of how to allocate the income of the parties for short term living expenses and moving has an emotional charge on it.  Likewise, there are complex emotions surrounding where the children will spend their time.  These issues are best discussed with the mediator – a neutral third party, rather than preparing paperwork with (usually) ugly, hurtful, and emotional allegations.  These emotions are often said out loud to each other in my office, and often need to be said.  But this can be part of the process of the separation of the family and it is much safer to have them said in my office with the three of us than in court papers which are public documents where anyone can go to the courthouse and read them.       

When the parties reach an agreement on how to handle the finances and children for the short term, we can write out a temporary agreement.  We can adjust it as time moves forward and the circumstances of the parties change.  

This scenario is vastly different from the one in which the parties file motions with the court and put their often ugly and angry allegations about each other into public court documents.  There are often many court appearances to resolve even simple issues that can run into the thousands of dollars.  

We are here to help and answer your questions about the process.  

Contact Us to Learn More.

Email us at Debra@DebraCrawfordAnnis.com, or call us at 831-372-3900 or text us at 831-275-5291 (275-LAW1).  

​We offer free consultations.  We believe that this is a benefit to both you and the attorney.  In the consultation you have a chance to ask your questions about your situation and the attorney can explain the law and procedures that you will be facing in your situation.  Sometimes we can offer practical solutions that don’t involve going to court.  We can also advise you on the most efficient way to handle your case and explain how particular attorneys in our community work and what that will mean for your case.  

Another benefit of the free consultation is the opportunity for you to meet with Debra one on one so that you can get to know each other and see how you will work together.  A family law matter is a very personal matter and you must feel comfortable with each other.  Debra has been through a divorce and understands how emotional this can be.  It is sometimes surprising how emotional it is to be in the lawyer’s office even if you think you are ready for it.  We can offer ideas to help you through this time – whatever stressful situation you are facing.  

As an attorney and a mediator, Debra can explain what the effect of each method of proceeding will have on your case.  Debra can also analyze your situation and help you decide which method will work best for you.  

Debra explains the different ways we help people – mediation, full representation, and ‘unbundled services’ which can be anything from document preparation to helping you prepare for court.  

One of the biggest advantages that Debra offers is practical solutions to your case.  While some attorneys will advise you to run to court, Debra may help you communicate with the other party in a more effective manner to avoid the extra fees.  Debra can also advise to as to whether, given your history with the other party, court may be your only solution.  

Contact us via email f you want to take advantage of your free consultation with Debra. 

831-372-3900; Toll Free 800-248-2218; Text 831-275-5291 -- 275-LAW1

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