Please reach us at chelsea@jagarfamilylaw.com if you cannot find an answer to your question.
A parenting coordinator, often called a PC, was previously known as a special master in California. Over the last several years, the role has evolved and is likely different from what litigants experienced just ten years ago. It is a unique role in that it transfers some of the power of a Judge (quasi-judicial) to a private professional that can make decisions in your case related only to child custody and visitation. These powers are often limited and are only available by stipulation of the parties. They cannot extend to financial and property issues in your case.
Parenting coordinators are most often used in high conflict cases. They originated as a way to relieve the backlog of cases in our judicial system. High conflict cases often result with litigants that return to court every few months to resolve seemingly minor disputes. By allowing these parties to appoint an outside professional, they are no longer overwhelming the court system, and have an opportunity to work with someone who can spend more time on their issues, rather than the 20 minute short cause calendar allowed in Family Law cases.
The goal is to coach high conflict parents on effective co-parenting, assist the parents in making joint decisions, and where necessary, resolving disputes between the parents related to the clarification, implementation, or adaptation of a court- ordered parenting plan.
If you feel your case would benefit from having a private decision maker regarding custody and visitation, speak with your attorney about your options. Both parties must consent to the appointment of a parenting coordinator. If you are unrepresented, but both parties agree, a parenting coordinator can prepare the necessary stipulation for their own appointment. However, I still recommend you consult with an attorney prior to the execution of the agreement.
At the beginning of the process to appoint your parenting coordinator you, along with the other party and your attorneys if you are represented, outline what powers your parenting coordinator will have in your case. The parenting coordinator has no powers other than those granted by the stipulation. Every case is different, but generally there are two levels of power.
The first level is where the parenting coordinator can make immediate orders that are binding on the parties when made. This may be something short term & practical, e.g. there is a wedding this weekend on mom's time, but it is dad's family, and mom will not agree to exchange weekends/time because she already had plans. This could also be something more long term, like a comprehensive holiday schedule. It could also be a clarification of an existing order, e.g. the order says to divide Christmas break, but does not say when and where the exchange should occur.
The second level generally involves more major changes to the parenting plan, e.g. expanding one parent's custodial time, but only permits the parenting coordinator to make recommendations, not immediately effective orders. Generally, the order appointing the parenting coordinator outlines the procedure for how their recommendations are processed. Often, if a party does not file the necessary objection within a certain number of days, the recommendations become orders.
Both levels of power are subject to review by the court and may be modified or reversed if the court finds it to be in the best interest of the child(ren).
A parenting coordinator does not have the authority to make any recommendations or orders which changes the designation of primary legal or physical custody, or which would effectuate a change in the primary residence of the child(ren).
Every parenting coordinator approaches each case differently. In general, the process starts with meetings, a request for a list of issues each party wishes to have resolved, what efforts have been made to resolve those issues and a game plan is made on how to tackle each issue. There are often multiple emails or meetings, sometimes there is fact gathering/investigation by the parenting coordinator, then a period of negotiation/mediation attempts with the parties and the parenting coordinator, and lastly if no agreement can be reached, an order or recommendation is issued in writing. This process may take several hours or a few weeks, depending on the issue.
Generally, the first session is a joint session where the parenting coordinator outlines the process, what to expect, and ground rules. We often ask what each parent hopes to accomplish as part of the process and express our goals. Many parenting coordinators ask that the parties at least attempt to resolve the issue between themselves, before bringing it to the parenting coordinator in future meetings.
Some parenting coordinators will never meet with the parties separately and will only have joint sessions. More often, the parenting coordinator will have separate sessions, but will give the other party a brief summary of what was discussed in the separate session. This is generally based on the level of comfort of the parties, whether there is a concern about bias, and sometimes based on the dynamics between the parties. It is not uncommon in high conflict cases for there to be one party that completely shuts down in joint sessions, or one party that dominates the conversation, making joint sessions entirely ineffective. For the parenting coordination process to be effective, we may also want to coach the parents individually on how to communicate better.
There are often collateral contacts with teachers, therapists, doctors, and sometimes friends/family. The parents are not present for these meetings/phone calls, but will often receive a summary of what was discussed.
There is nothing prohibiting a parenting coordinator from meeting with a child, if they feel it is necessary. However, there is great concern about further embroiling the children in the conflict, so it rarely occurs. The parenting coordinator will often speak with the child(ren)'s therapist instead, assuming one is in place. If minor's counsel is in place, they will also be consulted and involved. If there is no therapist or minor's counsel, then the parenting coordinator may order or recommend one be put into place. Interviewing a child about custody and visitation is a sensitive undertaking and should be handled in the least harmful way to the child as possible.
Most decisions of the parenting coordinator may be reviewed by the Court at the request of either party, if done in a timely manner. If both parents are dissatisfied with the process or the parenting coordinator, they can enter into a stipulation to terminate appointment of the parenting coordinator or to select a new parenting coordinator.
Like judges and custody evaluators, the parenting coordinator is protected by “quasi-judicial” immunity. This means that the parenting coordinator cannot be sued. The reason for giving the parenting coordinator this protection is that the parenting coordinator may make decisions that one parent may not like. If the parenting coordinator was afraid to make decisions because of the risk of lawsuits, no professionals would be willing to serve as parenting coordinators.
In mediation, no decision is reached unless both parents agree. The mediator facilitates decision making, but has no power to make decisions. By stipulating to appointment of a parenting coordinator, parents give the parenting coordinator the power to make decisions when the parents cannot agree.
As part of the stipulation for appointment, it must outline who is responsible for the fees and how those fees will be paid. Generally, the costs are divided equally between the parties, but the parties may stipulate to a different division, if they so choose.
Please reach us at chelsea@jagarfamilylaw.com if you cannot find an answer to your question.
The reality is, you may not. However, you may feel more comfortable having one. I have many consults where my sole purpose is to review or prepare one document, give an outline on how someone can proceed on their own, or refer them to more affordable services. I also have cases where the matter is simple enough someone could proceed on their own, but they do not want the added stress. Attorneys in the Bay Area are expensive. While I try my best to make my services affordable, sometimes those costs are unavoidable. In deciding whether you “need” an attorney for your dissolution/divorce/custody matter, you should ask yourself the following:
Only you can decide whether you need an attorney in your case. If you are unsure, schedule a consult and we can discuss what your options are.
When I meet with my potential clients, I like to give a broad overview of the process of divorce in California. While there are many small details that go into each step, I believe giving the big picture first helps everyone understand where they are going and focus on one step at a time. In general, you can expect 3 to 5 main components of a divorce. I am including the forms/outline of each step below for your convenience:
1) Appearances by Both Parties
a) Petition (FL-100) & Summons (FL-110)
b) Response (FL-120)
c) UCCJEA (FL-105) if there are minor children
2) Financial Disclosures by Both Parties
a) Declaration of Disclosure (FL-140)
b) Schedule of Assets & Debts (FL-142) or Property Declarations (FL-160)
c) Income & Expense Declaration (FL-150)
d) Last Two Years of Tax Returns
e) Declaration Regarding Service of Disclosures (FL-141)
3) Judgment (FL-180)
a) This may be reached by Agreement, through Litigation, or some combination thereof. Regardless
of how it is reached, this is the document that actually dissolves your marriage and returns you to
the status of single.
b) You may refer to Judgment Checklist (FL-182), for a complete list of all mandatory forms that
must be submitted with a Judgment.
4) Qualified Domestic Relations Orders (QDROs)
a) These are special orders, generally prepared by a separate expert called an actuary (some
attorneys do offer this service as well), which allow your retirement plan to be divided without
penalties and fees (see below – What is a QDRO?). In some cases, the Parties may agree to each
keep their own accounts, in which case this step would not be necessary.
5) Temporary/Pendente Lite/Modifications
a) Often, after a case is filed but before we can get to Judgment, many cases need temporary orders.
The most commonly requested orders relate to child custody, visitation, child support, and
spousal support. There are also circumstances after Judgment has been entered where you may
need a modification or an enforcement of a prior order.
b) These matters are addressed by filing a Request for Order (FL-300), along with any necessary
supporting documents and forms, to be placed on a “short-cause calendar” with the Judge. At
these hearings, your case is allotted approximately 20 minutes for the Court to hear argument
and make a decision. Being brief and concise is your friend.
At a minimum it will take six months for you to be returned to a status of single. There is a mandatory six-month waiting period in California. However, the documents to complete your divorce can be submitted at any time before or after this date.
How long it takes your case to be complete can vary greatly. I have cases where a Judgment has been submitted within two months of filing a petition. I have also had cases that continued in litigation for years. Often the complexity of the case and the level of animosity will greatly impact the length of your case.
California does not require the consent of your spouse to obtain a divorce. The Court will grant you a divorce, regardless of whether your spouse consents.
To file for divorce in California, you must have been a resident of California for the six months prior to filing. You will generally be required to file your dissolution in the county in which you have resided for the three months prior to filing.
A legal separation in California allows you to divide property and obtain orders related to custody, visitation, and support, while maintaining your legal marital status. We most often see this for reasons related to taxes, health insurance, immigration, or religious reasons. You do not need to have a legal separation to establish a “date of separation.”
When you file for a legal separation, you must complete the same process as you do for a dissolution of your marriage (see basic steps above). For this reason, unless there is a specific legal reason to proceed with a legal separation, most people will choose to move forward with a divorce.
Unless they fail to respond (allowing you to proceed to default), you and your spouse must agree to a legal separation.
No. Not in California. California is a no-fault divorce state. Meaning, generally no matter what the reason, the Court will follow the community property laws surrounding division of property, formulas for child support, Family Code Sec. 4320 factors for spousal support, and the best interests of the child(ren) for child custody and visitation.
In some instances, Domestic Violence can play into orders that are available to you. For example, if a spouse is convicted of domestic violence, they may not be able to seek spousal support against their victim.
As you start the divorce process, you will often hear attorneys refer to “community property,” or say that California is a “community property state.” What does that mean? The basic concept is that any asset or debt acquired during the marriage – from the date of marriage to the date of separation – is jointly owned with each of you having a one-half interest. This will generally apply, even if you do not hold joint title or have accounts that are held jointly. This also applies to income earned during the marriage. There are exceptions for assets acquired through inheritance or gifts to one spouse.
Separate property are the assets and/or debts that a spouse acquires before marriage, after the date of separation, or by gift/bequest at any time. If you owned property prior to marriage, this is your separate property. However, it can be “transmuted” to community property if you take steps to do so (i.e. adding your spouse to title on a real property you owned prior to marriage has generally been held to be a transmutation of property). There may also be reimbursement claims by the community, if community income was used to pay on separate property debts (i.e. a mortgage for real property).
There are many cases defining the “date of separation” in a dissolution action. This is not the date your Judgment is entered. As stated above, you do not need to file for a legal separation to establish a date of separation.
In general, the Court is looking for when there was a “complete and final break in the marital relationship.” This needs to be evidenced by at least one party expressing an intent to end the marriage, and you must show that the conduct following this expression is consistent with that intent. Meaning, if you say, “I want a divorce,” but then continue living together, sleeping together, engaging in intimate relations, sharing bank accounts, vacationing together, going to functions together, etc., making that statement alone is likely not enough.
In some cases, this will be very easy to determine. You had an argument, said you wanted a divorce, one party leaves the home, and you begin separating things immediately. In these cases, both Parties generally agree on the date and know, that is when the marriage “ended.”
In most cases, it is much more complicated. In the Bay Area especially, many people cannot move out on their own with just one income. They continue to share a home and they continue to share finances out of necessity. Often, when still residing together, there are a mix of emotions that make the personal aspect of their lives complicated as well. Perhaps they periodically continue intimate relations, even though they are seeing other people. One party may feel sentimental on an anniversary date and still give a gift or card in remembrance. The Court will be forced to look at all aspects of their personal conduct to determine when there was a complete and final break.
That will largely depend on what type of assets you have, and/or what changes have occurred during that time. Did someone move out and run up another $15,000 in credit card debts? Did someone deplete a joint savings account? Did you contribute another $15,000 to your retirement accounts during the disputed time period?
If you are unsure what your date of separation is, and you know there may have been some significant financial changes during that time, you can put “To Be Determined” as the date of separation in your initial pleadings (Petition FL-100 or Response FL-120).
This will somewhat depend on what type of account it is, and whether those contributions are traceable. For example, a retirement account is the most frequent account we see contributions to before, during, and after a marriage. Generally, the non-contributing spouse is awarded only one-half of those contributions made from the date of marriage to the date of separation, plus or minus any gains or losses attributable to that portion. So, if you had $100,000 in your retirement at the time of marriage and contributed $25,000 during the marriage, your spouse will only receive one-half of the $25,000, not the full $125,000.
For a savings or checking account, this can become complicated when the funds are co-mingled. If you kept a separate savings account (your name alone) and no additional funds were deposited during the marriage, the entire account remains your separate property, including gains/interest. However, what if you deposited funds during the marriage? What if you also withdrew funds during the marriage? In those cases, you will likely need a financial expert to trace what portion of the account is separate versus what portion is community.
If you want to avoid a financial expert, a good starting point is often looking to what the lowest balance the account dropped to after the marriage. If the account held $100,000 at the time you were married, but at some point dropped to a $0 balance, then your separate property was depleted (though there may be other reimbursement claims, depending on how the funds were used). Even if the account is built back up to $150,000, your separate property no longer exists.
On the contrary, if the account only dropped to $50,000 during the marriage, it is a pretty safe assumption that the $50,000 that remained in the account is still your separate property (though there may be some exceptions).
A QDRO is a special order that divides a retirement restricted account without penalty or taxes. This order is separate from your Judgment and is generally filed after a Judgment. Often, if there are liquid accounts (457, 401k, 403b), we will request one “offsetting” QDRO. An actuary will calculate the community interest in each account and transfer the net balance from only one account. This avoids having to prepare multiple QDROs and the transfer of multiple plans. While this is possible with Pension accounts, it is not widely practiced, as the value of Pensions is not as easily ascertainable or certain.
For a Pension division, generally a percentage formula is included in the QDRO that provides the non-participating spouse one-half of the service credit years earned during the marriage, divided by the entire number of years the participant worked. For example, if you worked and earned service credit years for 20 years and you were married for 10 of those years, your spouse would receive 5 years (one-half of a 10 year marriage) / 20 years = 25% of your Pension upon your retirement. There are many issues that may affect the final amount being paid (i.e. whether a survivor benefit was elected), but that is the general framework from which they begin. The Plan will perform the final calculation upon the participant’s retirement, so it may be many years before either of you know the exact amount of income you will receive from a pension.
A premarital agreement, often called a prenuptial agreement, is an agreement reached between a couple prior to their marriage which define and generally alter the property rights prescribed by law. This agreement is usually created to do one of two things, 1) opt out from California’s community property laws, or 2) to document the existing separate property at the time of marriage. Some couples will also define rights related to future spousal support.
Generally, in order for a premarital or prenuptial agreement to be valid, both Parties should have the final version at least seven days prior to signing, and it must be signed before their date of marriage. If there are agreements being made related to spousal support, both Parties must be represented by counsel.
Additionally, even if you have made agreements surrounding spousal support, it is possible the Court may find it "unconscionable at the time enforcement is sought."
Post-Nuptial Agreements are agreements entered into during the marriage/domestic partnership. They must be in writing, they must contain an express declaration of transmutation of the property, and they must be consented to or accepted by the adversely affected spouse. Post-Nuptial Agreements are generally more scrutinized by the Court because of the fiduciary duty owed to your spouse during marriage. There are different requirements, depending on whether the agreement is being made in contemplation of a divorce, or not. They are not typically favored and are much more likely to be challenged in the event of a dissolution of your marriage.
Child custody and visitation are two separate issues. Child Custody has two main components, legal and physical.
Legal Custody is defined as the right to make decisions regarding the health, education, and welfare of the child(ren). It is decision making power. Where will your child(ren) go to school? Who will their doctor be? When you have joint legal custody, either parent acting alone may make decisions regarding the health, education, and welfare of the child, unless the order specifies circumstances requiring consent of both Parties, or unless it interferes with the visitation of the other parent. Although the court states no preference over joint or legal custody, the vast majority of cases that we see are joint legal custody. The focus of the court is what is in the child(ren)'s best interest, not the parents' interest or to achieve equity between the parents.
Physical Custody can be either "sole" or "joint" - just as legal custody. However, even where the court has granted "sole physical custody," this only means that the child(ren) will reside with one parent, subject to the other parent's visitation schedule. It does not mean that the non-custodial parent has no visitation. "Joint physical custody" means that each parent will have significant periods of physical custody. There is no set percentage of visitation deeming when "joint" is ordered over "sole." It is the court's discretion, and varies widely.
Visitation is the actual schedule the parties follow in sharing time with the child(ren). This can vary widely, and there is no stated preference for one parent (mom or dad) over the other and there is no stated preference for a specific visitation schedule or percentage (50/50). The court is trying to ensure frequent and continuing contact with both parents, as long as each child(ren)'s health, safety, and welfare are ensured. Again, the focus is on the child(ren)'s best interest. So while there may not be a stated preference for mom over dad (or vice versa), if one parent has been the primary care taker during the marriage, the court will often initially award them more custodial time to promote continuity and stability for the child(ren).
This is probably one of the most frequently asked questions we receive and the one that is the least predictable. In cases where there are agreements, no hearings occur, and you simply need help with document preparation and working out details - these generally range from $5,000 to $7,000 - depending on how organized you are, the level of communication with the other side, and whether we are assisting in every step of the process.
In high conflict cases, the costs can easily become overwhelming. One court hearing alone generally costs a minimum of $4,000. You can expect about 4-6 hours preparing for the hearing (including preparing documents), about 2-4 hours appearing at the hearing, and approximately 1-2 hours dealing with the Order After Hearing. That time adds up, and depending on your attorney's hourly rate, it can add up quickly.
For families that have multiple review hearings, prepare multiple updates to the court, and still have the regular dissolution paperwork that also has to be completed (the $5,000 to $7,000 above), you can see how it is very easy to hit $20,000 in a very short period of time.
My best recommendations on keeping costs down are the following:
1) Be organized. When your attorney asks for documents, keep them tidy, label them clearly and by date, and send them all at once - when you send one document at a time, we have to re-review the list to see what we are missing and you get charged for that.
2) Utilize the paralegal services where you can. Have a question about scheduling and/or procedure - ask the paralegal, not the attorney. They are charged at a lower hourly rate.
3) Try to do some some steps yourself. Most of the forms are easy to read and largely self-explanatory. You can always hire an attorney to review what you've prepared.
4) Try to work out an agreement with the other party on your own first. It may not work, but it's worth a shot.
5) Do a cost benefit analysis of what you are fighting over. Are you going to spend $4,000 to win $1,000?
It is possible, but you should not bank on it. There are two primary basis for attorney fees in family law cases:
Disparity in Access - The court must ensure that each party to a marital action has access to legal representation. To do so, the court may order one party to pay the other party's attorney fees and costs. The court looks not only to the income of the parties, but the support they are receiving, the cash accounts they have access to, and whether the paying party has the ability to pay both their own and the other party's fees and costs.
Sanctions - There are many basis for sanctions in family law cases, and the amounts vary widely. They are most commonly used to reimburse one party for unnecessary expended legal fees (if the paying party did something or failed to do something, necessitating the filing of a motion by the other party), or as punishment to deter future behavior.
In both of these cases, Judges are reluctant to order large amounts of fees for parties that are making middle to upper middle class livings. Even though one party may make more than the other, if their expenses are more and their savings are lower, the court may find they do not have the ability to pay. You will often have a hard time finding an attorney that is willing to take the case with no money up front either.
Please reach us at chelsea@jagarfamilylaw.com if you cannot find an answer to your question.
Mediation is a form of Alternative Dispute Resolution (ADR), which allows the Parties to formulate their own agreement, outside of litigation. Mediation is confidential. Mediation is non-binding, unless and until you sign an agreement.
The process can take on many forms. In some cases, both Parties may be represented by counsel and appearing with their counsel at meetings. Or, in other cases, neither party may have an attorney and they work solely with the mediator together to reach an agreement.
The benefit of mediation is that you can formulate your own solutions, with the input of an expert. A mediator does not represent either Party and does not provide legal advice. While he/she may give you outlines of options and/or provide information on existing statutes/laws, a mediator should not be opining as to whether the deal you are entering is a “good” or “bad” deal, whether it is better/worse than what you would get in Court, or whether it is in your best interest.
In my mediation sessions, even after we have reached an agreement, I encourage both Parties to take the agreement to an attorney of their choosing, before signing, to ensure the agreement is what they believe it to be and that they fully understand the terms of the agreement.
While California does not require a mediator to be an attorney, if your mediation is about your divorce, generally I do believe that it is best to have a family law attorney as your mediator, or at least engaged for document preparation purposes.
Many health-care professionals offer mediation services for divorcing couples. This can be very valuable in cases where one partner is having a difficult time coming to terms with the divorce. They may need a more mental health focused approach to move beyond their disappointment and sadness before they are able to really come to agreements on division of property and/or child custody and visitation.
The downside to using a non-legal professional in this role, is largely related to procedure. If you have not yet filed for a dissolution of your marriage and you have not yet completed some form of financial disclosures, you may run into issues surrounding whether the agreement was properly entered as a post-marital agreement. Additionally, even if you have started the legal process, if you are using an attorney for document preparation and a separate person for mediation, you will often have an increase in costs. You are paying two professionals (sometimes three if you both have your own attorneys) for overlapping work.
In my mediation cases I offer either a “full service” mediation, meaning I work with you to complete all steps of your divorce (Steps 1 through 4 above), or a limited mediation where you complete Steps 1, 2, and 4 either on your own or with your respective attorneys, and all I prepare is the Agreement/Judgment through our mediation sessions.
It is unfortunate, but there are times when mediation is not successful. When that happens, it may be possible to have a partial agreement. Sometimes the Parties will leave with only one outstanding issue. Other times, the Parties may not be willing to do that, because they have conceded in other areas in contemplation of reaching a deal on all issues.
Regardless of how it happens, if mediation falls apart, no, I cannot and will not represent either Party. That is a conflict of interest, as I have been privy to information from both sides that you may not have shared with me as an opposing attorney.
Confidential means that anything discussed in mediation cannot be used in litigation. Any documents prepared for purposes of your dissolution are an exception to this rule (Petition, Response, Disclosures, etc.). Additionally, if you reach an agreement, the signed document is not confidential. It may be filed with the Court as part of your Judgment.
Please reach us at chelsea@jagarfamilylaw.com if you cannot find an answer to your question.
Wills are written documents that express your wishes for the division of your estate upon your death. It must be in writing and it must be witnessed by at least two witnesses. While not required, it is generally recommended that you have your Will notarized. Unlike a Trust, a Will must still pass through Probate Court for distribution of your assets.
Trusts are also written documents that express your wishes for the division of your estate upon your death, but unlike Wills can also address issues that may arise while you are living and are generally able to avoid Probate Court (there are some exceptions), as well as the costs of Probate Court. You may wish to include provisions surrounding your incapacity, such as who will control your estate and how it will be controlled while you are still living. Trusts can be prepared for single individuals and/or married couples. They can be modifiable (Revocable Trust) or non-modifiable (Irrevocable Trust).
Health Care Directives are documents that express your wishes on how you would like your health care needs to be handled in the event you are not capable of making those decisions. Whether making decisions surrounding incapacity, or making end of life decisions, such as Do Not Resuscitate Orders (DNRs), these can be invaluable to your family members in knowing they are following your wishes.