| Family Law Questions (Frequently Asked) |
|
Scroll down to review responses to frequently asked questions involving the following:
-
General Family Law Questions
-
Family Law Non-Adversarial Modes
-
Family Law Adversarial Modes
-
Divorce Questions
-
Custody/Parenting Time Questions
-
Child & Spousal Support Questions
-
Ginter Family Law Questions
| |
| General Family Law Questions |
1. I need some legal assistance with a family law matter. Where do I begin?
We find that, when most people are confronted with a family law issue, there is an immediate focus on the substantive issues (i.e., learning the law, rights regarding various issues, etc.). Not that education regarding one's rights is not important, but, for many family law cases, the first step of one's education should be learning about what process would be best for the client and, in fact, the family. Therefore, much of the time, there is really a two-step educational process: First, one should become educated with the various methods available to resolve family law concerns. And, second, one should become educated as various rights in family law in order to make informed decisions.
Step #1: Education as to What Processes are Available
Broadly speaking, there are two methods to resolve issues: (1) an agreement reached by the parties or (2) a decision made by a judge after the parties argued his/her side in front of the judge or, if we applied those concepts in legal terms, either (1) by a non-adversarial process or (2) by an adversarial process. Therefore, once should learn about how the various non-adversarial and adversarial methods work and, considering the dynamic between you and the other side and complexities of the case, first make a decision as to which process would be a good fit for the case.
Step #2: Education to Make Informed Decisions
Once a process has been chosen, the next step is to learn about the law and your rights in order to make informed decisions. How you learn and who you learn from depends on the method chosen and your wishes. For example, in mediation, an attorney mediator can provide both parties with applicable law so they can make informed decisions. In litigation, each party's attorney (assuming they both have one) will educate his or her own client as to various rights, etc. Unfortunately, one should keep in mind that the law is oftentimes grey or the judge is given a wide lattitude of discretion where the law does not become much help as to what is "fair."
2. How much time and money will my case cost? Do you offer flat rates?
This question is understandably at the forefront of many potential client's minds. Unfortunately, it is also one of the questions that cannot be answered because the factors that largely determine the length of time (and length of time impacts the cost) are out of the attorney's control. Specifically, those factors are: 1) the cooperation level of the parties in resolving the issues, 2) the cooperation and lawyering style of the attorneys, 3) how much the parties want to investigate and analyze various aspects of the case to become more informed to make proper decisions and 4) the amount of detail the parties desire with the outcome of the case. For these reasons, we do not typically offer flat rates.
3. I would like to handle my family law case on my own. Is this advisable?
Typically, it is never advisable to handle your own family law matter, for a few reasons. First, the substance and rules of family law are treacherously complex. Second, even though parties may mean well, there oftentimes is an art of articulation that attorneys have learned through experience that a lay person just won't have. And third, objectivity oftentimes is not available to a party since it is the party's own case and emotions tend to get in the way. Therefore, if one can afford an attorney, a family law attorney's assistance is always advisable. For those that have a limited budget, Mediation tends to be a great non-adversarial mode where the parties are able to work together and Partial Service may be a good mode for a litigation case.
4. Do you charge for an initial consultation? If so, why?
Yes, unless it is a mediation consultation. However, the first hour of an initial consultation is typically done at a great discount (call for details). We firmly believe we are providing you a valuable legal service, whether you have retained us as your attorney of record or not. It has been our experience that potential clients leave the initial consultation feeling that they have been taken care of, that their questions have been answered, that they now have a direction and that the fear they initially came to us with has been minimized. Whether or not you ultimately retain the firm, we do our best to ensure that we provide you with excellent service every time you meet with the attorney.
Initial mediation consultations are typically free since the consultation does not consist of providing the potential clients with any "substantive" information and/or feedback about their case. See our Mediation page for more details.
5. Do you charge a retainer? If so, how much is it?
If you are "retaining" the firm, then an Initial Retainer is charged. In addition, we also implement a "Renewable Retainer." By way of an example, if the Initial Retainer is $5,000 and the Renewable Retainer is $2,500, we would need $5,000 (plus the retention documentation) to begin working on your case. If the $5,000 gets reduced below $2,500 after working on your case and/or paying various costs, then we would need the amount necessary to replenish your trust account amount back to $2,500. Depending on the services contracted with us, there may be additional retainers, such as a trial retainer. The retainers are quoted at the end of a consultation with the attorney (and not beforehand) since the retainer amounts depend on several factors, including the complexity of the case and the type of service chosen (i.e., "full service," "partial service," mediation, collaborative law process, etc.).
If we are not "retained" (i.e., "consult only"), there is no retainer since you simply pay at the time of each consultation.
6. Right now I'm in the "looking" phase of hiring a family law attorney. Regarding pricing, what types of things should I be looking for in a prospective attorney?
Some attorneys may offer a "free" consultation or a highly discounted initial consultation, which sound nice at first. However, you should look at the total package in retaining an attorney, including their "normal" or "standard" hourly rates and what the initial retainer quote will be. For example, with all else remaining equal, let's say Attorney A charges an initial consultation rate of $200 for the first hour, and Attorney A's "normal" hourly rate is $350 per hour; Attorney B provides a free 45 minute consultation, and Attorney B's "normal" hourly rate is $450 per hour. While one would save money at the intial consultation stage, over the course of time, there is a good chance a client will pay more with Attorney B over the long run. For example, if both attorneys worked 10 hours for their respective clients, Attorney B's client will be billed $1,000 more than Attorney A's client, which surpassed the $200 "saved" in having the initial consultation with Attorney B.
|
| Family Law Non-Adversarial Modes |
1. What non-adversarial modes are available to me with Ginter Family Law?
2. So, in a non-adversarial mode, we have the opportunity to stay out of court, keep control over the outcome of our case to decide what we think (not a judge) is best for our family, to limit our fees and costs and to keep our negotiations private...isn't this a no brainer? Why doesn't everybody choose a non-adversarial mode?
There are actually many reasons why people choose to litigate their case as opposed to going into a non-adversarial mode...and some reasons are worse than others.
Some good reasons people choose to litigate are the following: the other party has a disorder that prevents him or her from behaving appropriately or making rational decisions; there was domestic violence by one of the parties and the victim does not feel comfortable or safe sitting in the same room as the perpetrator; the other party does not want to divorce and, therefore, chooses not to cooperate in obtaining a divorce amicably; either one or both parties do not have the capability of taming negative emotions which causes many problems, including lack of rational decisions, unproductive communication, etc.; and, one party has too much distrust in the other party that cannot be alleviated somehow in a non-adversarial mode.
Some poor reasons people choose to litigate are the following: one or both parties are not aware of even the existence of a non-adversarial mode, so they rush out to hire an attorney for immediate "protection"; there is a belief that money can be saved by doing the case on his/her own, only to find out that many things were done incorrectly that necessitated more time and money later, including the lack of education to make truly informed decisions; one or both parties have a misconception that the law is black and white and an attorney will surely get what's "fair" in court, only to find out that the particular area in the law was grey and/or the judge used discretion that favored the other party; one or both parties were not able to put their negative emotions aside, including forgetting about the past, to be able to make decisions that will serve the parties and their family in the future; and shortsightedness in looking to the best gain now instead of planning long-term for the future.
3. Is there anything the other party and I can do to help us work our issues out in a non-adversarial mode?
Absolutely. The number one thing the parties can do which cannot be stressed enough is to adopt the following mindset: 1) look to the other party, not as having "problems" or "issues," but, rather, as having "concerns," and then ask yourself, "How can I, within reasons, without sacrifcing my own values, alleviate the other party's concerns?"
I would also suggest that the parties consider seeing a therapist that can help with any negative emotions that may have resulted from the past, reading some books and listening to audio recordings regarding productive communication (i.e., "Taking the War Out of Our Words," etc.) and focusing on how to make a better future instead of looking to the past, which usually only leads to blame, resentment, anger and sadness.
4. I've heard you say "Family Law Mediation" and "Custody Mediation"...what's the difference?
What I call "Family Law Mediation" is a private and confidential process that can include any family law issue. In Family Law Mediation, the mediator does not make any recommendations to the court and is not employed by the court. What I call "Custody Mediation," on the other hand, is a court-mandated process where the parties sit down with a mediator to discuss only the issues of custody and parenting time. Also, unlike in Family Law Mediation, depending on the county, oftentimes the custody mediator will provide recommendations to the court as to what is in the parties' children's best interest regarding custody and/or parenting time in the event the parties cannot agree. Unless indicated otherwise, any and all references of "mediation" on and off this website refers to "Family Law Mediation."
5. My spouse and I are thinking about mediation, now what do we do?
If both parties are on board with considering mediation, the first step is to make an appointment so you and your spouse can see the mediator together. Every mediator conducts their sessions differently, so this is the time to become educated as to the mediator's process, fees, billing arrangements and personality. It is imperative that both parties feel comfortable with medaition as a mode of choice, how the mediator conducts his/her mediation process and the mediator him/herself. Once both parties retain the mediator, there will be a series of sessions until all of the family law issues are discussed and resolved. At Ginter Family Law, I walk both parties through all of the procedural (i.e., how long do we need to wait to become divorced, what do we need to file, how do we fill out forms, etc.) and substantive (i.e., property division, custody, parenting time, spousal support, child support, etc.) issues so the parties can make informed decisions. Once all the issues are resolved, a settlement agreement is drafted that the parties sign that is filed with the court. If all issues were resolved in mediation, typically no court appearance is required for the parties.
6. Now that I've learned a bit about mediation, I seem to like that process. However, I know that the attorney mediator will not be representing me as my own attorney and I kind of liked the idea of having my own attorney. Is this still possible?
Absolutely. At any point in time, either or both parties can hire what is called a "consulting attorney" to speak with. In fact, a consulting attorney is highly recommended. Oftentimes, if a consulting attorney is hired, the consulting attorney does not attend the mediation sessions. Rather, the consulting attorney is more on the "sidelines" in case the hiring party had any questions or if the hiring party would like to show the consulting attorney legal documents before they are signed. Since consulting attorneys are typically not nearly as active as they would be in a litigation case, oftentimes their retainer amounts are lower. A consulting attorney could even be an attorney that either party saw initially, before deciding that mediation would be an appropriate process. This way the client can still maintain that relationship with that attorney and the parties can then jointly seek out a mediator they feel comfortable with.
7. What is "Collaborative Law Process"?
Collaborative Law Process (a.k.a. "Collaborative Practice") is a team-based non-adversarial option that is geared towards resolving a divorce or a legal separation. Collaborative Law Process is now recognized by statute in California in Family Code Section 2013, which states: "a) If a written agreement is entered into by the parties, the parties may utilize a collaborative law process to resolve any matter governed by this code over which the court is granted jurisdiction pursuant to Section 2000. (b) "Collaborative law process" means the process in which the parties and any professionals engaged by the parties to assist them agree in writing to use their best efforts and to make a good faith attempt to resolve disputes related to the family law matters as referenced in subdivision (a) on an agreed basis without resorting to adversary judicial intervention."
Unlike mediation and litigation, both parties must hire an attorney that becomes the parties' attorney of record. Other "team players" common to Collaborative Law Process are 1) Communication Specialists (a.k.a. "Divorce Coaches"), who help the parties productively communicate with each other and tame emotions, 2) a Child Specialist, who, if there are minor children, acts as a voice for the children to help the parents and other team members have an understanding of the children's feelings, wishes and development and 3) a Financial Specialist, who can help the parties with taxes, the law-required disclosures, budgets and planning and cash flow analysis. Some of these other professional individuals are required, depending on the particular group, if any, the professionals belong to.
Through a series of meetings, the team helps the parties resolve all the issues in their matter, typically without having to appear in court, if the matter is fully resolved. To enter into a true Collaborative Law Process case, the parties and their attorneys actually sign a contract that is filed with the court. This contract typically contains the guidelines and protocols the parties and the professionals agree to follow. Additionally, a provision that is common to all Collaborative Law Process contracts is that, if the process breaks down for any reason, all of the professionals, including the attorneys must be fired and cannot be re-hired by the parties.
At present, the guidelines and protocols to be followed by the involved professionals and the parties is privately driven, as opposed to being driven by law. In other words, for example, if your attorney belongs to the group "Any Location Collaborative Practice Group," then the group will likely have a set of guidelines and protocols for the attorney (and other professionals) to follow. It is not a requirement to belong to any group to be a Collaborative Law Process professional; it simply means that the professional not belonging to a particular group is not bound by guidelines or protocols of any particular group, unless that professional signs an agreement containing those guidelines and protocols.
For more information on Collaborative Law Process, please click here.
8. I have heard of the term "Cooperative Practice"...what is this?
As previously mentioned, if a professional belongs to a Collaborative Law Process association or group, there are guidelines and protocols that are supposed to be followed. There have been individuals that do not like some of the protocols and guidelines typically found in a true Collaborative Law Process case. Therefore, some attorneys, including myself, are open to agreeing that the case will proceed amicably out of court, but with modified protocols and guidelines. Similar to a Collaborative Law Process case, both parties must have an attorney. Since there really are no rules, per se, for a Cooperative Law Process case, other than industry standards or the guidelines and protocals adopted by a Collaborative Law Process group, the guidelines that will be followed by the team (i.e., the parties and the attorneys) can be customized, although basic premises of a Collaborative Law Process case should still be adhered to...that is, neither party will utilize formal discovery, formal motions will not be filed and the parties will not seek court intervention.
At Ginter Family Law, we approach a "Cooperative Practice" case in one of the following two ways, depending on the client's preference:
1) We enter into a Full Service litigation agreement and send a confirming letter to the other attorney indicating our informal agreement to approach the case cooperatively. If the case escalates, we can simply remain on hand for court appearances, motions, discovery, etc. or,
2) We enter into a Partial Service litigation agreement, specifically "carving out" litigation-like tasks, such as court appearances, motions and discovery. If the case escalates, the client, not the attorney, is resonsible for those tasks, unless a new fee agreement is entered into between the attorney and the client. This typically allows for a lower retainer since the client shoulders some of the legal responsibility for the case.
|
| Family Law Adversarial Modes |
1. What are the different adversarial modes that Ginter Family Law offers?
Ginter Family Law offers two options for adversarial legal assistance: 1) Full Service and 2) Partial Service.
2 What is "Full Service" support?
With full service agreement, an attorney becomes your "attorney of record." The attorney handles all of the legal aspects of your case, including court appearances, settlement negotiations, legal research, consultations and document drafting.
3. What is "Partial Service" support and why would someone want this instead of Full Service?
With a partial service agreement, an attorney takes on some responsibility and the client takes on some responsibility for the case. Someone may want to choose this in an attempt to keep fees down or to retain complete control over various aspects of the case. For example, let's say a client was a very comfortable public speaker and, because of that, wanted to handle any and all court appearances. A partial agreement between the attorney and client could reflect that the client will be handling all court appearances. Since court appearances often require quite a bit of the attorney's time, both in preparation, in travel and in appearance, there is a good potential that the client's fees will be lower than if the attorney was also making court appearances. There are many different types of partial service options to help fit both your case and your comfort level regarding various aspects of the case.
4. I just want to contact you once in a while for advice. Is this an option?
Absolutely. All you have to do is give us a call and set up an appointment. An attorney does not become your "attorney of record," but the attorney can review documents and provide legal advice at the attorney's hourly rate.
|
|
1. What is a "dissolution"?
This is an action for a divorce. "Dissolution" is the modern day "politically correct" term for a divorce.
2. I don't really want a divorce, but my spouse does. Can I stop this?
Technically, you can object to a dissolution. However, California has been a no-fault state for many years now where most of the divorces are granted based on the ground of "irreconcilable differences." Therefore, the practical result is that, if one of the parties desires a divorce based on irreconcilable differences, then the divorce will be granted. Accordingly, the question would not be "Will a divorce occur?" (it likely will), but, rather, "How will the divorce occur?" (i.e., mediation, collaborative practice, litigation, etc.)
|
| Custody/Parenting Time Questions |
1. I don't want a judge deciding what custody and parenting time should be. Can my spouse and I decide this?
It is possible to keep control over the outcome of custody and parenting time if you and your spouse are able to agree on these issues, for example, in mediation or another non-adversarial mode. If not, then a judge makes the ultimate decision as to what he or she, not necessarily the parents, feels is in the best interest of the children.
|
| Child & Spousal Support Questions |
1. I was thinking about waiving child support. Is this possible?
You can certainly agree to set the current child support amount to zero, but, while a child is a minor, it is not waivable. This means that, most of the time, either party can request that the court issue "guideline" child support.
2. I'm not the one bringing my kids to the childcare provider, so I shouldn't pay, right?
Wrong. It doesn't matter who is bringing the children to childcare. Typically, both parents share in this expense, regardless of who actually brings the children to the childcare.
3. I'm feeling very nervous and upset. I am the higher earner between my spouse and me, and I'm going to have to pay spousal support for the rest of my life....Right?
Not necessarily. There are many factors that impact duration of spousal support. You should speak to a family law attorney to investigate this question.
|
| Ginter Family Law Questions |
1. Do you charge for an initial consultation? If so, why?
Yes, unless it is a mediation consultation. However, the first hour of an initial consultation is typically done at a great discount (call for details). We firmly believe we are providing you a valuable legal service, whether you have retained us as your attorney of record or not. It has been our experience that potential clients leave the initial consultation feeling that they have been taken care of, that their questions have been answered, that they now have a direction and that the fear they initially came to us with has been minimized. Whether or not you ultimately retain the firm, we do our best to ensure that we provide you with excellent service every time you contact our firm.
Initial mediation consultations are typically free since the consultation does not consist of providing the potential clients with any "substantive" information and/or feedback about their case. See our Mediation page for more details.
2. Do you charge a retainer? If so, how much is it?
If you are "retaining" the firm, then an Initial Retainer is charged. In addition, we also implement a "Renewable Retainer." By way of an example, if the Initial Retainer is $5,000 and the Renewable Retainer is $2,500, we would need $5,000 (plus the retention documentation) to begin working on your case. If the $5,000 gets reduced below $2,500 after working on your case and/or paying various costs, then we would need the amount necessary to replenish your trust account amount back to $2,500. Depending on the services contracted with us, there may be additional retainers, such as a trial retainer. The retainers are quoted at the end of a consultation with the attorney (and not beforehand) since the retainer amounts depend on several factors, including the complexity of the case and the type of service chosen (i.e., "full service," "partial service," mediation, collaborative law process, etc.).
If we are not "retained" (i.e., "consult only"), there is no retainer since you simply pay at the time of each consultation.
3. Right now I'm in the "looking" phase of hiring a family law attorney. Regarding pricing, what types of things should I be looking for in a prospective attorney?
Some attorneys may offer a "free" consultation or a highly discounted initial consultation, which sound nice at first. However, you should look at the total package in retaining an attorney, including their "normal" or "standard" hourly rates and what the initial retainer quote will be. For example, with all else remaining equal, let's say Attorney A charges an initial consultation rate of $200 for the first hour, and Attorney A's "normal" hourly rate is $350 per hour; Attorney B provides a free 45 minute consultation, and Attorney B's "normal" hourly rate is $450 per hour. While one would save money at the intial consultation stage, over the course of time, there is a good chance a client will pay more with Attorney B over the long run. For example, if both attorneys worked 10 hours for their respective clients, Attorney B's client will be billed $1,000 more than Attorney A's client, which surpassed the $200 "saved" in having the initial consultation with Attorney B.
|
|
