What is a Petition?

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The Petition is the initial step in starting the legal dissolution process in the court system.

There is no specific requirement regarding when during the Mediation a Petition is filed, but it must be filed in order to ultimately obtain a Judgment of Dissolution of Marriage. The only time frame which may be a consideration is that there is a minimum of six months between the date the Petition is received by the Respondent and the date the parties can be restored to the status of single persons. This can have tax and other implications which may affect the timing of the filing of the Petition.

 

The Petition, in general terms, sets forth statistical details and requests regarding child custody, support, property, and attorney fees. When the Petition is filed, the parties will be assigned a case number and file within the court system.

 

A Petition must be served on the "Respondent", the person who did not file the Petition. The easiest method is for someone other than the Petitioner to mail the Petition and Summons, along with a form entitled "Notice and Acknowledgment of Receipt", directly to the Respondent instead of personally handing the papers to the Respondent. If the Respondent acknowledges receipt of the Petition by signing and returning the Notice and Acknowledgment of Receipt, he/she has been effectively served. In the alternative, the parties can agree that the Summons and Petition will be handed to the Respondent during a four-, five-, six- or seven-way meeting.

Technically, a Response must be served and filed within thirty (30) days of the service date of the Petition. Like the Petition, the Response sets forth the Respondent's information regarding all issues. It is typical during the Mediation for an "open extension" to be granted. This means that the Respondent will not be required to serve and file the Response unless the Petitioner gives notice that a Response will be required.

What value does a Mediator add?

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Parties are often surprised at the role of a Mediator. Unlike attorney advocates, Mediators rarely tell individuals what is best or how to structure their deals. Instead, Mediators act as a buffer between parties who has the ability to identify underlying needs and interests of the parties. Mediators pay attention to the process and provide structure by ensuring a safe environment set up for success. 

Mediators are also trained in conflict management. Instead of fearing conflict, Mediators embrace conflict and work through tensions to create a durable agreement for the party’s future.  Mediators are okay with tears, yelling, and frustration. Our job is to maintain neutral and not be swayed by big emotions. 

A mediator also has excellent communication skills and is able to re-frame, assert, and ask effective questions. We seek to be the agent of reality, and a good sounding board for ‘fairness’ and equality. 

Last,  Mediators can often be especially skilled at data collection and analysis. Unlike an attorney advocate who wants to find the smoking gun in your financial disclosures, a Mediator can quickly sort though the information without judgment and display alternatives and variables in a calm neutral manner.

Mediation can be the right fit for your family if you want more control over the process.  However, if the parties need a Judge to tell them how it should be, then Mediation is not a great fit.  Mediators let both sides present as much information as they need, and unlike Court, decisions are not final until the parties agree to them in writing.

Mediation is likely to succeed if there are many issues at play, the parties want to control the process, there is communication conflict (where parties have different ideas of fairness), the parties wish to save time and stress, and there is room for creative resolution. 

You can contact me at Amanda@gordonfamilylaw.com for more information.

 

Methods of Division of Community Property Other Than by Judicial Decision

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1. In-Kind Division: Each party takes one-half of fungible assets such as bank accounts, stock in a corporation, etc.

2. Trade-off Division: The parties stipulate to settle their property disputes, without regard to value, by agreeing one will take certain items of property, e.g., the furniture, and the other will take other items, e.g., the car.

3. Piece-of-cake Division: This method gets its name from the common situation where two children have a piece of cake to be cut in half. To avoid the argument over who gets the "bigger" half, it is agreed that one will cut the cake and the other gets to choose which piece he or she will receive. In the marital property context, one party makes up two lists of the property in question, e.g., furniture, personal property, etc., which he or she believes are equal, and the other party chooses which list of items she or he will take. In using this or any other method, it is important not to break up sets, e.g., a dining room set, a set of dishes, matching art works, etc. The piece-of-cake method is particularly useful for dividing furniture and furnishing which usually have a real value to the parties far in excess of their fair market value as used furniture. This method is also useful in short-term marriages where the dispute is over the division of wedding gifts received by the parties.

4. One Values, the Other Chooses: In this method, one party places a value on each item of community property in dispute and the other party chooses those items he or she will take at the stated value up to one-half the total value. Alternatively, the parties may agree that the party choosing may select any, all or none of the items, with any items not chosen going at the stated value to the one who set the value. An equalization payment can be required. In dividing furniture and furnishings using this or one of the other methods listed, an alternative to piece-by-piece choice is to list furniture and furnishings room-by-room and have alternate choices by room.

5. You Take It or I Will Take It: In this method one party places a value on an asset at which that party is willing to let the other party be awarded the asset, or else the former will be awarded the asset at that value.

6. Appraisal and Alternate Selection: An appraiser is selected by stipulation to value each of the items in question. The parties then choose items alternately until all items are taken. The one to make the first choice can be designated by the flip of a coin. Another approach is to let one party go first and the other party then gets two selections, after which choices are made alternatively. As mentioned in No. 3 above, it is usually preferable to agree that sets not be broken up. It might be agreed that if a party takes a set it counts as that many choices, e.g., a dining room table and four matching chairs counts as five choices, and the other party then makes the next five choices.

7. Sale: The parties agree that the items in question be sold at a public sale or to a particular buyer with the proceeds divided equally, or in whatever other proportion is necessary to accomplish a satisfactory or equal division, considering the other marital assets or obligations each is receiving. For modest furniture or furnishings, the sale may be a garage sale, since this might be what the court would order.

8. Sealed Bid: Each of the parties submits a sealed bid on each item of property in dispute, using the same list. The bids are opened simultaneously and the one bidding the highest amount for an item gets that item valued at the figure he or she bid, with an equalizing payment to be made, if necessary. This method can also be used for disposition of the family home, other real property and a family business which both parties have operated, where each seeks to have it awarded to him or her.

9. Interspousal Auction: This is a straight auction between the parties, usually with an agreed minimum incremental increase over the last bid being required. The high bidder gets the asset at the amount of his or her bid with an equalizing payment being made, if necessary. To the extent a major asset is involved such as a family business or real estate, the stipulation might provide that each of the parties have an advisor present during the bidding. [13 Cal. App. 4th 95]

10. Arbitration: The valuation and division of the community property in question could be determined by an arbitrator selected by the parties. The parties should understand that the arbitrator is not required to follow the law, and his or her decision, for all practical purposes, is final and not subject to appeal. Because arbitration usually takes much less time than a court trial, the parties might consider stipulating with the consent of the judge, that the judge hear the case as an arbitrator.

11. Mediation: Mediation is greatly underutilized in family law cases. It can be a very effective and satisfying way for the parties to reach agreement on the value and division of their marital property.

12. Real Property: If both parties want community real property, one of the foregoing methods of resolution can be used. If neither wants it, it can be listed for sale with a broker stipulated to by the parties, at a listing price recommended by the broker. If one wants the property but the other feels he or she is offering too little, the latter can list it for sale with a broker of his or her choosing. If the property does not sell within a specified period of time, the listing price will be periodically reduced until it reaches the figure where the net proceeds would be equal to what the other party offered. The property then goes to the offering party for the amount of the offer.

13. Combination: Where more than one marital asset is in dispute, one of the foregoing methods might be used for one asset, while one or more other methods might be used for other assets.

Source: http://law.justia.com/cases/california/court-of-appeal/4th/13/81.html

Contact me at amanda@gordonfamilylaw.com for more information. 

Tips for Divorced Parents During the Holidays

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The holidays can be a magical time of year, but they can also be difficult and stressful. The obligations seem endless - school performances, work parties, shopping for presents, family visits. Frequently, families are surprised at just how tense the holidays can be.
This can be especially true if you are co-parenting with your ex and have young children splitting time between two homes this holiday season. Nevertheless, with a little planning and flexibility, you and your children can still enjoy the most wonderful time of the year.  Here are five tips for divorced parents during the holidays


1.     Your children come first
The first holiday without both parents present is usually the toughest for kids. You should expect some children to be confused, sad, angry, or disappointed.  Take the time to listen to their concerns and validate that it’s okay for them to have these feelings.  
If you get stressed out about all the holiday minutiae, remember to think about your kids. They can feel your stress, so take a deep breath and find a way to decompress if tensions rise.


2.    Be okay with changes to the schedule
Be flexible but firm about holiday plans.  It’s often challenging to craft the right time-sharing arrangement for the holidays since both yours and your children’s schedules can be very different than the regular day to day.
Children thrive when spending time with lots of caring family, especially during the holidays. If your ex’s Aunt Sophie wants to see your kids for the one day she is in town and that day falls on your scheduled parenting time, consider making an exception so that she can see them--it’s in your children's best interest, and her goodwill could come in handy later. This season’s about generosity, after all.


3. Keep some traditions but be willing to make new ones.


Some divorced parents choose to spend all holiday time together (such as Christmas Eve and Christmas day) to help their children feel supported. There is nothing wrong with sharing these special moments - just because you are divorced does not mean you are not still a family.
However, many families don’t, since sharing traditions can results in drama and what felt good before now feels like merely a reminder of what is gone. If this is the case, move on from past traditions and forge new memories.
Parents often decide to alternate holidays or split the days in half. For example, many parents find that they want to be there for Christmas morning present opening. So each year they rotate where the kids will wake up on Christmas morning.
One last tip is to remember that holidays are ultimately about taking time out of our normal day- to- day to spend time with family. Get creative and come up with a new tradition to follow. For example, some parents decide to celebrate Christmas on on both December 25 (at Dad’s) and December 26th (at Mom’s). Use your judgment to determine what will be a positive and happy experience for your kids.   

4.  Avoid competing over presents
Ex’s can be frustrating - especially when you are trying to solidify holiday plans and they are uncooperative or even just plain nasty. After all, couples often divorce for a reason. Nevertheless, during the holidays, it’s especially important to make sure your decisions, reactions, and behavior reflect what is best for your children’s happiness and well-being.    
Divorced parents sometimes turn holidays into a competition for the best presents, activities, and vacations. This doesn’t help anyone. Instead of comparing yourself to your ex, try to think of alternative ways to involve your kids and your ex in holiday planning.  Try to avoid one-upping your ex or competing for the child’s love by focusing on non-financial presents.
When you are shopping, keep your co-parent in mind. For example, you may want to consider joining forces with your ex to get one bigger present for your child that comes from both parents. Getting a gift from both parents also tells your child that even though you’re no longer married, you will both always be there for him/her.

5. Stock up on Movies, Hot Chocolate, and a good bottle of wine.
Take time to relax this holiday season, even if it’s just a few hours. With so many moving pieces, the holidays can be super stressful and overwhelming.  Pay attention the vibe in your house and if your children need some downtime, make sure you are prepared to have a quiet night in.  Here in San Francisco, we can’t exactly go out and play in the snow, but a moment of lightness is appreciated just the same.  
Dealing with divorce during the holidays is hard; while it’s tough, you need to avoid comparing yourself to either other families (with their picture perfect holiday cards and annual updates) or to your own holidays past. Change is inevitable, there is no such thing as a perfect family, and these comparisons will do nothing other than make you miserable, which doesn’t really fit into the holiday spirit--focus on joy and being grateful for what you do have.

Contact me at amanda@gordonfamilylaw.com for more information.