Mistakes to Avoid (During Family Law Litigation)

Published September 14, 2011 | By admin

Part 5 in an ongoing series: Managing New Challenges in California Family Law Disputes

It is important for the client to recognize that it might take several months for their case to be heard in court, so that they do not have any false hope of obtaining a quick resolution. At the same time, this delay often offers the client opportunities to explore consensual dispute resolution programs that can take their matter out of the congested court docket and put it into the
hands of a private judge. A client may ask, “If I can get a bench officer to judge my case for free by going to court, why should I pay $5,000 to have a private judge hear my matter?” The answer is that instead of waiting around for months to get your case heard, you will get your case tried faster by a very well-qualified, retired expert. Therefore, even though you have to pay
for their services at the outset of the case, in the long run, a private dispute resolution procedure is less expensive than litigation.

Another mistake to avoid in family law litigation relates to perceptions of fairness. When you listen to a client tell their story you have to be able to consider what their spouse is saying about the same situation. Consequently, if you are able to take what your client says with a grain of salt, you might be a more effective attorney on their behalf. You should never get so personally aligned with the client’s situation that you lose sight of what the law is, or lose sight of what a rational explanation for some of their behavior might be. Simply put, the greatest mistake practitioners make is becoming too aligned with their client’s situation, and losing their
objectivity.

-Joseph P. Spirito Jr. is a partner at McGaughey & Spirito. He has been in private practice in Los Angeles area since 1982. He is currently serving on the executive committee of the Los Angles County Bar’s family law section and is A Better Divorce Collaborative Law Group – Co-Founder and President

This article was first published in STRATEGIES FOR FAMILY LAW 20th EDITION

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Minimizing Costs in a Family Law Case

Published September 9, 2011 | By admin

Part 6 in an ongoing series: Managing New Challenges in California Family Law Disputes

One of the best ways to minimize costs in a family law case is trying an alternative method of proceeding with your case, as previously noted, instead of pursuing litigation. As long as you have been able to identify the challenges in your case and you are adequately prepared to present the client’s position, going to mediation or some other form of alternative dispute resolution (ADR) early on can be a good way of limiting costs for the client. I also think that the new focus toward collaborative efforts in family law matters has impacted family law cases in a positive way. While mediators are useful. In some contexts, they cannot give legal advice to the parties, and since mediators work with both parties, one party may feel under represented if the perception is the mediator tends to side with the other spouse. Additionally, one party may be more sophisticated in business than the other party, creating a power imbalance. However, in a collaborative law proceeding, each party has their own counsel, and there is a commitment on both sides that they will not be going to court-which removes the inherent pressure of the “If you don’t agree with me, I’ll see you in court” mentality. Basically, I think mediation/ADR has become more progressive, in that all parties can now be represented adequately without the high costs of litigation.

Other cost-saving strategies may include utilizing the services of professionals who can offer their unique brand of expertise, instead of trying to do all of the work in a case on your own. Helpful experts in family law cases include CPAs, real estate appraisers, and mental health professionals who can help you in determining a good custody plan for the family by identifying the children’s needs and the parents’ ability to meet them. Consequently, I bring experts into my clients’ cases early and often. I find that experts help me build a foundation for my case, and they identify the key issues in a family law matter, which cuts down on the time that the parties may spend arguing over certain issues. For instance, instead of waiting to find out what the value of a piece of real estate might be, it is far more cost-effective to get an appraisal early on. It is also helpful to try to get the cooperation of your opposing counsel with respect to such appraisals so that you do not wind up dealing with “dueling experts.”

-Joseph P. Spirito Jr. is a partner at McGaughey & Spirito. He has been in private practice in Los Angeles area since 1982. He is currently serving on the executive committee of the Los Angles County Bar’s family law section and is A Better Divorce Collaborative Law Group – Co-Founder and President

This article was first published in STRATEGIES FOR FAMILY LAW 20th EDITION

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Developing an Effective Family Law Strategy

Published September 7, 2011 | By admin

Part 4 of an ongoing series: Managing New Challenges in California Family Law Disputes

During an initial client meeting, the client is typically trying to determine if they are interested in hiring me, and if my style and approach suits their needs. At the same time, I am trying to determine if this particular client is someone who I feel I can work with. I prefer to work with clients who have realistic expectations, who will work with me to achieve their goals, and who will attempt to resist the temptation to fixate on emotions in this highly charged area of law.

Key steps in developing an effective family law strategy include meeting with your client on a regular basis, and also having collaborative meetings with experts in order to determine the appropriate course of action for the client’s case. I believe that if you bring the right people together early on to develop a strategic plan in a divorce matter, then you can start to build a strong foundation for presenting an effective case in case you have to go to court. In addition, if you understand the limitations in your case early on, you can make more strategic offers when you get into settlement discussions through restricting your most zealous arguments to areas of the case in which the law most fully supports your client. I find that you can be a more zealous and effective advocate for your client if you understand the potential weaknesses in the client’s case. For example, it might be helpful to consult with a mental health professional who can identify any particular traits that the client may possess that might weaken their case–i.e., personality disorders and limited abilities to accomplish their goals.

--Joseph P. Spirito Jr. is a partner at McGaughey & Spirito. He has been in private practice in Los Angeles area since 1982. He is currently serving on the executive committee of the Los Angles County Bar’s family law section and is A Better Divorce Collaborative Law Group – Co-Founder and President

This article was first published in STRATEGIES FOR FAMILY LAW 20th EDITION

Posted in Custody, Family Law, Legal | Tagged , , , , , , , ,

Responding to Recent Changes in Family Law

Published August 31, 2011 | By admin

Part 3 in an ongoing series: Managing New Challenges in California Family Law Disputes

In response to the recent changes in family law cases, many of my colleagues are concerned about how their clients are going to get their day in court if they are required to bring witnesses and present live testimony. At the same time, some family law attorneys feel that presenting live testimony is a very important matter. It may be that their client would like to be heard on a particular issue, or have a witness testify on their behalf. Many clients do not want bench officers to simply talk to the lawyers in chambers and then come out with a ruling, because the clients then feel as if they have not had their day in court. Therefore, it seems that attorneys are responding to these changes with mixed emotions. Some lawyers feel that the trend toward becoming more evidentiary with respect to family law matters is a positive development, while others feel that while introducing more evidence may be great in theory, it remains to be seen how it is going to work in practice when court staffing in California has been reduced by well over one hundred people, and the state government has closed many family law courts.

Personally, I do not know if most clients fully understand the dynamics of having their day in court, unless they already have experience in that area. They may think that going to court will be like taking part in a Perry Mason case–and then they are surprised when they realize that they have not been able to, talk to a judge at all, or for only two minutes. Therefore, it is likely that they will view the new developments in this area somewhat favorably, but they are also going to have to pay more for the benefit of being able to go to court. Ultimately, I do not view the new evidentiary requirements as necessarily being a positive development in family law matters when, again, there is the potential that courtrooms will not even be available to try these cases.

-Joseph P. Spirito Jr. is a partner at McGaughey & Spirito. He has been in private practice in Los Angeles area since 1982. He is currently serving on the executive committee of the Los Angles County Bar’s family law section and is A Better Divorce Collaborative Law Group – Co-Founder and President

This article was first published in STRATEGIES FOR FAMILY LAW 20th EDITION

Posted in Custody, Family Law, Legal | Tagged , , , , , , , , , , ,

Key Decisions in California Family Law Cases

Published August 24, 2011 | By admin

Part 2 in on ongoing series: Managing New Challenges in California Family Law Disputes

Fortunately, a recent California court decision has provided a definitive answer regarding premarital agreements. A key question in the past has been: If a party has seven days from the time that they are presented with a premarital agreement to actually sign it, when did that seven-day period start if they were not initially represented by counsel? For instance, did it start on the day when they were first presented with a draft of the agreement, or did the seven-day cooling off period start on the day when the agreement was presented in its final form? In January 2011, the California Supreme Court ruled that when a premarital agreement is first presented to an unrepresented party, they have seven days to either see a lawyer or sign it, at which point it becomes effective.

Another key decision in this area is In re Marriage of Reifler, 39 Ca1.3d 479 (1974), a case that many bench officers have long used relative to not allowing oral testimony in support or custody hearings if declarations submitted by the parties have already been read. For example, if you brought a witness to testify on your behalf, the court might say, ”We do not have time to hear that argument, because you have already submitted a declaration.” Even though Reifler has not been overturned, the California courts have decided that declarations will be utilized less frequently as a means of getting information to a bench officer, whereas oral testimony will be increasingly required, due to more stringent application of the Rules of Evidence and increased opportunity for family law litigants to request live testimony.

-Joseph P. Spirito Jr.

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Recent Trends in Family Law in California

Published August 18, 2011 | By admin

Part One in an ongoing series: Managing New Challenges in California Family Law Disputes

Unique aspects of practicing family law in California pertain to the fact that California is a community property state, and the community property must be split equally upon divorce. In contrast, many states only require that property acquired during the marriage be split equitably, or fairly, which may or may not result in a 50/50 division. Additionally, California is a no-fault divorce state; therefore, the divorcing couple does not have to air their dirty laundry in public.

In recent times, many California family court cases have been impacted by the creation of the Elkins task force, which was the result of a California Supreme Court​ decision, Elkins v. Superior Court, 41 Cal.4th 1337 (2007),aimed at restoring many of the civil rules of procedure and evidence to the family courts. For example, there is currenty a movement to limit the length of declarations in family law cases to ten pages, and to require oral testimony as well. While these changes may increase fairness through requiring the court to hear oral testimony and allowing witnesses to be cross-examined before the court, they may also decrease efficiency by limiting the out-of-court evidence the court may consider. Also, attorneys who represent children are now required to account for their recommendations and opinions, instead of simply rubberstamping what minors’ counsels have typically done in the past.

Implementing the requirements of the Elkins task force has been a time-consuming process. Elkins was decided in 2007, the Task Force​ issued its recommendations in 2009, and the last of the recommendations will not be adopted as law unti12012, over four years after Elkins was decided.

Finally, the recent budget cuts in California are limiting courtroom time for family law cases-which conflicts with the new requirements that there must be more evidence introduced in family law matters. Ultimately, I believe that it is going to be very difficult for family law litigants to have their cases heard in court on a timely basis. Consequently, mediation,collaboration, and other types of alternative or consensual dispute resolution programs will be an increasingly popular choice for those who cannot get their case tried in a courtroom.

-Joseph P. Spirito Jr.

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