Kathleen O'Connor Attorney at Law
A Certified Family Law Specialist with over twenty years experience practicing family law in Los Angeles.Archive for separation
CHOOSING A PROCESS APPROPRI ATE FOR YOU Kathleen M. O’Connor, Esq.
CHOOSING A PROCESS APPROPRI ATE FOR YOU
Kathleen M. O’Connor, Esq.
Once you decide to separate from a spouse or partner, your most significant decision is choosing the process which is appropriate for both of you. The choice of Mediation, Collaboration or Litigation impacts you and your children emotionally and financially. The choice will affect your relationship with your children and your partner.
This blog discusses the process available to assist you to obtain an enforceable judgment. It refers to divorce for convenience only. The process apply to termination of domestic partnership and establishment of a parental relationship.
You decided you are leaving your spouse. The decision has not been easy. You need a clear agreement about children, finances and assets. You may feel scared, fearful for the children, angry, and confused. The easiest and safest decision seems to be to follow the lead of family members or friends. Listen to them. They care about you. But remember that how they ended a relationship may not be appropriate for you and your children. This is a summary. Read other material so you understand the benefits and risks of each process to you.
How we divorce has changed in the last 15 years. There are other ways to handle ending your relationships other than relying upon the win/loose decision of a court.
There are four processes available for you to consider. These process can overlap with each other. You need to decide which process is appropriate for your family. Couples now choose Kitchen Table, Mediation, Collaboration or Litigation. Which you choose depends upon the level of domestic violence, the level of communication, the level of trust, and mutual ability to make decisions. It is not dependent upon the level of income or assets or debts.
You and your spouse can make all of the decisions about your children, and your futures. You do not need to relinquish that decision to a court. A court will enter as an enforceable court order, the agreements which you reach for your family. So although the court is available to make decisions after considering credible, factual and reliable evidence, it is not the only way to end your relationship.
Kitchen Table.
During your relationship, many decisions were made at the kitchen table. Deciding upon child custody arrangements and dividing property can still be done at the kitchen table. This process works for simple assets and couples with very low conflict. Be careful to have an experience attorney review your agreement so that you know you have divided all the assets, and properly handled the support of the children and their access to both parents.
Mediation.
A trained mediator will assist you and your spouse reach decisions necessary to provide for the children’s custody, support, and divide your property. A trained mediator may be from a background of law or mental health. Each profession brings strengths to the process. Mediation works well where couples are able to reach decisions, are honest about assets and want to settle. The mediator must remain neutral.
Collaboration.
A team of lawyers, coaches, and neutral financials assist you to identify interests which are important to your. The process uses the skills of a multi-disciplinary team to reach an agreement which meets mutual interests of you, your spouse and your children. As in mediation, the process encourages respect, re-building of trust, and recognition that you have a different but continuing relationship with your partner. Each spouse has a collaboratively trained attorney, but the attorneys will never appear in court on behalf of either spouse.
Litigation.
You hire an attorney whose professional responsibility is to advocate for you. The impact of the divorce on your children may not be a concern of your attorney. Most cases which use the litigation process end with an agreement of the attorneys and parties. This process relies upon credible, factual and admissible evidence. Although the process may end with compromise if the judge makes the decision, there will be a winner and a looser. This pace of litigation often depends upon the availability of the court.
Domestic Violence
If there is any domestic violence in your relationship – and certainly if the violence has been long term – you must stay safe and protect your children. Litigation may be your best alternative.
Introduction to the Collaborative Process
After years of practicing family law, I could barely pick-up a file. I had bought into the cultural assumption that divorcing spouses fought to assert their legal rights and to protect their future. I was there to encourage them to hang in there. Their lives were put on hold while they sorted out their children, assets, support, jobs, and waited and waited for a judge to hear the case and then waited and waited for the decision.
While the adults pursued this battle, children carted their belongings between households, avoided questions, ducked barbs directed at a parent they loved. They kept a good face — or different face — for each parent. Each parent believed the child was unaffected by the escalating conflict.
Children were not insulated from the conflict. Stories of nightmares, regressive behaviors, falling grades, different friends, or police at the house increased with the length of the conflict. After the case finished, the client was left to put the pieces together.
Everyday I was working with hurt, disappointed and scared people. They feared for their future and feared for the future of the children. The legal process was not designed to allay their fears, to give hope for the future or to protect their children when they could not.
For most families, litigation was a destructive and wasteful use of emotional and financial resources. It failed to recognize that parents have a future with their children and their spouse. Most of all, spouses failed to recognize that life is short and precious. There was cancer, heart attacks, and accidents. It bothered me that clients had spent time litigating not understanding that there was not a lot of time left.
I embraced collaborative practice to reach out to all families with hope and a message. This is your family. You need to care for it. You may not be able to live with your spouse; but you cannot dissociate yourself from your spouse and your shared history, experiences, joys, excitement and sadness. Collaborative process supports the future of your reorganized family and maximizes the options for everyone. It gives the family a process which preserves relationships.
Quoted in Collaborative Divorce Handbook: Effectively Helping Divorcing Families Without Going to Court, by Woody Mosten (2009 Jossey-Bass)
Kathleen O'Connor Attorney at Law 