California Divorce Tips for Success

Ten Tips for
Divorce Success

Provided by Diane Mercer
Attorney-Mediator and Tara Fass, Therapist-Mediator,
copyright 2003, Peace Talks Mediation Services, www.peace-talks.com.

10 Tips You Should Know Before You File for Divorce

1. Between 85% and 95% of all divorce cases settle before they go to trial, so it makes sense for many couples to try mediation rather than taking an adversarial position.

2. Before you file for divorce, think about your goals for the ultimate outcome of your case. You can only make good decisions in choosing how to file, whether or not to try mediation, how to select an attorney, and how to proceed if you know where you want to end up when it’s all over.

3. Be aware of your motivations. If your top priority is your children, make sure that your decisions are really in their best interests, not just yours.

4. If you choose to represent yourself, get enough information from the court to do it well. Consider hiring a lawyer by the hour to consult with you about special issues and to review your settlement. If you cannot afford a lawyer, your local Bar association has lawyer referral programs or a Legal Aid Society who may be able to help.

5. Only you can make the best decisions that will determine your future. Gather information, speak to trusted friends and qualified professionals, and use self-reflection to decide what’s best for you. You’re living with the decisions you make, but your lawyer, the judge, and your best friend are not.

6. If the issue you’re fighting about won’t matter in 5 years, it probably doesn’t matter now, so let go of it.

7. Address your legal questions to your lawyer, and your psychological questions to a counselor or therapist.

8. If your goal is "justice" or to "tell the judge my story", keep in mind that no-fault laws, court over-crowding and pressure on judges to reduce court dockets may mean that you get little time or opportunity to testify. If you do get a chance to testify, the judge will make a decision that affects the rest of your life after hearing 5 minutes to a few hours’ of testimony. Do you really want a stranger to make your decisions for you?

9. It’s easy to get caught up in the stress of court procedures, or to become entrenched in a specific position. Periodically take time to reassess whether your actions are consistent with your ultimate goals.

10. No matter how much it may feel like your divorce will go on forever, there is an end. And no matter how hard it is to believe, when one door closes, another door opens.

1. Get referrals from trusted friends and relatives, the local bar association, or other lawyers. Ask several sources, and soon you’ll start to hear the same names over and over again. Personal referrals are usually best; it’s impossible to judge quality on advertising alone.

2. Know what style you’d like in a lawyer: do you want a lawyer who’s mediation-friendly? Litigation-oriented? Experienced in dealing with child custody issues?

3. Come prepared with a list of questions to ask the lawyer, and write down the answers.

4. Make sure the lawyer you pick has plenty of experience with divorces, and is up-to-date on the most recent changes in the law.

5. Does your lawyer listen to your questions and answer them thoughtfully? Does your lawyer treat you with respect, and give you the opportunity to state your goals and priorities? How your lawyer treats you in your initial consultation is a good indication of how your lawyer will treat you in your case.

6. Is the fee affordable? Can you honor the fee agreement? If not, continue to shop around. Fee issues during the middle of your case will only increase your stress level during the divorce.

7. What is the lawyer’s policy on returning phone calls? Failure to return phone calls is the #1 complaint when dealing with lawyers.

8. Does your lawyer discuss the pros and cons of your decisions, and provide you with the information necessary to make good decisions? No matter how talented your lawyer, he or she cannot substitute his or her judgment for your own. After all, it’s your family, and your life.

9. Is your lawyer easy to talk to, and do you think that he or she has time to devote to your case? If the lawyer is "too busy" to answer your questions, your case will likely take a back see to the "more important" clients.

10. Is your lawyer familiar with the court in which you’ll file your case? Does he or she have experience appearing before the judges who are likely to rule in your case? Knowing the personalities of the local judges is an important part of a lawyer’s ability to advise you as to what’s best if you’re going to be in court.

1. Separation and divorce means a new living situation and a new set of rules for everyone. Give yourself and your children a fair chance to adjust. Change doesn’t happen overnight.

2. Kids need to know what to expect. Where will I be this weekend? Who will pick me up from soccer? Get a calendar, and mark down what the children will be doing each day, and post it in a prominent place in the house.

3. Be flexible. There will be a time when you need a favor, too.

4. Be dependable. Your children count on you following through with your promises to spend time with them.

5. Communicate with your ex-spouse, and allow him or her to be involved in extra-curricular or social activities too. If the child has a birthday invitation during the other parent’s time, pass along the invitation to the other spouse promptly.

6. Don’t schedule activities during time the child will be with the other parent without discussing and agreeing upon the activity first.

7. Don’t make unkind remarks about the other parent in the child’s presence. Your children love both of you, and you hurt your child when you speak poorly of the other parent.

8. Don’t make the children your messengers. If you have news to deliver, parenting time to schedule, or a check to drop off, do it yourself. Don’t put your children in the middle.

9. The children’s needs will change over time. Be prepared to change with them, and to take their developmental needs and added maturity into account when reassessing your parenting plans.

10. Remember that the children are your children for the rest of your life, not just until they are 18. There’s a lifetime of family activities that you’ll want to attend, and your ex will want to attend, too. Cultivate a relationship with your ex—the child’s other parent—such that you can be comfortable sitting in the same room for events like class plays, graduations or weddings.

1. Have there been any incidents of physical or verbal abuse? If so, separate in order to avoid future situations which could spark violent incidents.

2. Are you able to communicate on basic issues such as mowing the lawn and paying bills? If not, even small things may escalate tensions unnecessarily, making life miserable.

3. Is there a reasonable housing alternative for the spouse who will be moving out? If you have children, is that housing alternative close enough to the children’s school and neighborhood that spending time with both parents is easily arranged? If you stay a bit longer, can you make a permanent move, avoiding a temporary move in the meantime?

4. Can you afford to separate? Or do you need to live together to economize and save for the day of inevitable separation? If you stayed together for a few months, could you pay off some of your jointly accumulated debt?

5. If you have children, are you able to behave civilly to your spouse? If you cannot model positive, adult behavior in front of your children, you risk increasing the stress they experience from the divorce. You also risk alienating them from you. Even if you feel your spouse causes the problems, not you, consider separating for the good of the children. What’s best for them is not always what’s cheapest or most convenient for you.

6. Do you want to keep the house after the divorce, and your spouse does not (or vice versa)? Consider encouraging your spouse to move out by "giving" him or her the deposit for an apartment from marital funds, without asking for reimbursement at the end of the divorce.

7. Will moving out of your family home trigger an unanticipated consideration? The biggest tax issue is the capital gain exemption for profits on the sale of your family home. In order to qualify for your $250,000 exemption, you’ll need to live in your family home for at least 2 of the last 5 years. For example, if you bought your house 22 months ago, moving out now will disqualify you for this tax exemption if the house is sold.

8. Can you both respect each other’s privacy while staying in the same home? Can you stay emotionally separated while living together, without being tempted to "spy" on each other? Are you at the emotional point where you won’t react to phone conversations you accidentally overhear, and you won’t be tempted to steam open your spouse’s mail? Will staying together create a situation of mistrust, making it more difficult for the two of you to resolve your divorce settlement later?

9. Are you able to agree on how bills and house expenses will be paid during the waiting period before your divorce is finalized, as well as temporary division of parenting time parenting time with your children? Assuming you’ve considered items 1-8 above, and you’re able to agree on how to handle things on a temporary basis, separation may make sense. If you don’t agree, and resolving these issues will require more time for decision-making, consider staying together.

10. Is there a legal presumption in your local court about separating that the judge will consider as part of your final divorce? Most states have abolished "abandonment" laws, and other presumptions concerning separation, but before you make such an important decision you’ll want to ask a local attorney about the specifics of your jurisdiction.

1. You must disclose everything you own and everything you earn. Failure to do so could result in your case being re-opened for fraud, and ruin your credibility.

2. If your income varies year to year and season to season, use an average of your income over time. Be prepared to explain why the period of time you chose was appropriate, and be prepared to show how you arrived at your numbers.

3. If you don’t know how much an asset is worth, find out. Using "0" for an asset, or "not valued at this time" won’t protect you from having your case re-opened when a different value is found—or even from a claim of fraud. Use appraisers, realtors (for real estate), even E-Bay to value your property properly.

4. Keep your disclosures up to date. If your income changes, or a stock price fluctuates, update your disclosures.

5. Provide documentation when possible. Receipts, cancelled checks, and bills of sale are helpful in determining value.

6. If your income has decreased recently, be prepared to explain and provide proof that your explanation is correct. If your department has abolished overtime, ask your supervisor to provide a copy of the new policy. If your commission structure has changed, be prepared to explain how.

7. Save your pay stubs, pension statements, bank statements, tax returns, and other financial documents, and put them in chronological order. You may be asked to verify the numbers you put on your financial disclosure.

8. Check your withholding taxes and make sure they reflect your actual tax liability. If you’re over-withheld (you receive a sizeable tax refund each year), the opposition will probably figure that out. If you’re under-withheld (you owe tax at the end of the year) your child support or alimony may be calculated using too high an income figure.

9. Make sure your budget is accurate. Use your check book register and keep track of your day-to-day expenses for at least 2 weeks, and make sure that your financial disclosure accurately reflects your lifestyle. You can only ask for what you need if you know what you spend.

10. Don’t attempt to liquidate accounts or you risk violating a court order. Most courts have automatic orders limiting your expenditures during a divorce to "ordinary and necessary living expenses". If you spend more than usual, be prepared to explain why.

Mediation can work for almost any divorcing couple or parents with custody conflicts. While cooperating couples may choose mediation from the outset, even families with high conflict divorces can benefit from mediation. Because litigation encourages acrimony and conflict, it’s actually the high conflict divorces that can benefit most from mediation.

Mediation works because:

1. You determine the schedule and the issues. Because you set the schedule, mediation is much faster than litigation--you don’t have to rely on the court’s schedule.

2. You control the cost, which is typically less than 1/3 of the cost of a traditional divorce case.

3. You have the flexibility of taking time to consider how a decision will affect your future. You can agree to "try out" agreements to see how they work, and make changes as you learn more about how these agreements work in practice. You make the decisions you’ll be living with—not a judge.

4. Because you participate in each decision, the outcome is tailored to your family. When you litigate and have a judge make decisions for you, the outcome can be unpredictable, as well as impractical for your family.

5. Mediation is healthier for you and your family, since part of mediation is learning to communicate better, which is especially important when children are involved. Agreements made in mediation have a higher degree of compliance and success than those negotiated in the courthouse, because you control the outcome.

6. Mediation is confidential and private. You can discuss the issues that are important to you in the privacy of the mediator’s office, rather than a crowded courthouse hallway. A mediator’s files are confidential. Court files are public records that anyone can see.

7. You can always choose to litigate if mediation is unsuccessful. It’s much more difficult to choose to mediate (but not impossible) after litigation has fueled the fire of conflict and made it more difficult for you to communicate and trust each other.

8. You can choose your mediator, but you cannot choose your judge. Because you can choose your mediator, you can decide what kind of mediator will work best for you. Would therapist be helpful in determining custody and parenting plans? Would an attorney with some financial planning background be helpful in deciding how to divide assets? You can also choose to include several professionals in your mediation as consultants.

9. It’s the mediator’s job to make sure that everyone gets a chance to express all of his or her concerns. If your spouse has been overbearing in the marriage, or you’ve been too shy to express yourself, the mediator will help balance the power between the two of you. In court, it’s too often a matter of whose lawyer is the squeakiest wheel.

10. For all these reasons, mediation is less stressful for you, your children, and your family.

1. Does either of you want to keep the house? If so, can either of you afford to keep the house considering that you’ll have to pay the mortgage, tax, insurance, utilities and upkeep expenses by yourself? If you pay child or spousal support, you’ll pay these expenses on top of your support payments. If you receive child or spousal support, will you be able to make the payments even if the child or spousal support payment is late? Will making the payments on the house leave you with so little money that you’ll have to eat ketchup sandwiches, or find another part time job, leaving you too little time or energy for parenting or leisure time?

2. Can you keep up with the routine maintenance on the house? Will you feel like mowing the yard by yourself after a hard day at the office? Can you take time off from work to wait for the washing machine repair service?

3. Are there repairs that need to be made? When the inevitable roof leak or furnace failure happens, can you either make the repairs yourself or afford to hire someone?

4. Does the house hold too many sad memories?

5. Is the house really suited to your needs? Will your voice be echoing in empty hallways, making you feel lonely? Will you be forever cleaning empty rooms?

6. If you want to keep the house "for the children", are you sure that keeping the house is really in their best interests? If finances are such that you’re always struggling to make the mortgage payment (see #1 above!), are you really serving their best interests? If the maintenance is such that you’re always consumed with household tasks and you don’t have time to spend with your children, that’s a consideration as well. If you later find that you cannot manage the home and either have to sell it or face foreclosure, the children’s lives will be disrupted again. Does it make more sense to downsize now, given your circumstances?

7. If your home has equity, and you cannot or choose not to trade the equity against another asset (i.e., you take the equity in the house and your spouse takes another asset of equal value), can you pay your spouse his or her share of the equity in the house? Do you qualify for a refinance loan so that your spouse can be paid right away? Does a refinance loan make financial sense at this time, given interest rates and the cost of the refinance? If you can’t pay your spouse his or her share of the equity right away, is he or she willing to wait? Are you able (and willing) to make provisions for a later payment which are reasonable? Can you build in reasonable security to make sure that the person who is assuming responsibility for the mortgage payments makes the payments as required?

8. Is the house a source of arguments between you and your spouse? Will either of you keeping the house cause so much resentment that it will be the source of ongoing and heightened conflict?

9. If you (or your spouse) keeps the house, and you have children, will the other parent be able to find reasonable living accommodations close enough to the house so that it’s convenient for both to pick the children up and drop them off at home or school? Remember that the children will have friends and social events close by their school and neighborhood. A 20-mile commute each way will be tiring for everyone involved.

10. Is the market favorable right now for selling? Waiting 3 months may take you into a season in which people buy more actively (e.g., spring and summer). On the other hand, waiting a year may result in selling during a time of higher mortgage rates, when people will pay less for houses similar to those that sold the year before.

1. Divide your personal property without the help of your lawyer or the court. Unless domestic violence is involved, it’s not cost-effective to use lawyers or the court’s time to divide your furniture and personal belongings. By the time you’ve fought about it, you could’ve purchased all new things!

2. Make an inventory of your household items, and decide what you’d like from the list, assessing each item’s priority.

3. Speak with your spouse (again, provided domestic violence is not involved) about what he or she would like from the inventory. Are there items which you can agree upon? If so, that part is settled.

4. Try and divide things based on what you both actually need. Courts rarely award money in lieu of a share of personal property, so unless you and your spouse agree on a buy-out for a specific item (or even the whole house full of furniture), you will receive personal property, not cash.

5. If you can’t agree on how to divide your list of items, try flipping a coin, or drawing straws. One person picks first, the other second, and so on.

6. Try and divide the items sensibly. If your spouse has the children 75% of the time, maybe he should get the Nintendo. If you need a computer for your business, that may take precedence over your child’s desire to use the internet.

7. Gift items from family members ordinarily go back to the spouse to whom they were given. Grandma’s hope chest goes to her grandchild, not her ex-grandchild-in-law.

8. Gift items between the two of you go to the original recipient. You don’t get back the diamond Valentine’s pendant from 1995 just because you’re splitting up now.

9. If pets are involved, try and make your judgment based on where the pet is better off. Does your spouse have a shorter workday, while you work 14 hours straight? Fido probably needs walks more often than you can realistically provide.

10. If it won’t matter in 5 years, let it go. Are you too focused on a few specific items that won’t change your life? Maybe each item is a symbol for something else….and it’s time to let go.

Diana Mercer

Diana Mercer, Esq. is an Attorney-Mediator and the founder of Peace Talks Mediation Services in Los Angeles (www.peace-talks.com). A veteran litigator, she now devotes her practice solely to mediation. Outgoing and down-to-earth, she makes clients and attorneys feel at ease in solving litigation disputes in civil cases, from divorces to employment law and real estate.

She is the author of Your Divorce Advisor: A Lawyer and a Psychologist Guide You Through the Legal and Emotional Landscape of Divorce (Fireside 2001). She’s an Advanced Practitioner Member and Approved Trainer for the Association for Conflict Resolution (ACR).

Tara Fass

Tara Fass is a Licensed Marriage and Family Therapist   Tara has been a child custody mediator since 1994, and before joining Peace Talks Mediation Services in Los Angeles, CA, she was a Los Angeles Superior Court Child Custody Mediator and Evaluator in the Conciliation Court Office. She has also taught a Co-Parent Education Program with the Los Angeles Superior Court and maintains a private psychotherapy practice.

In addition to her professional mediation and training experience, Tara also has taught classes for parents going through divorce on how to negotiate the best possible divorce from a child's point of view. Tara has lectured on the subjects of co-parenting and blended families on the graduate school level and has presented on the topic of "Transformational Mediation" and “Preparing Clients for Custody Mediations” for therapist and attorney professional organizations. Family law mediation is Tara’s second career; she previously taught elementary school.