Settlement vs. Litigation: Which Is Right for Your Divorce?

Settlement vs. Litigation: Which Is Right for Your Divorce?

There are many reasons to file a divorce. Take Henry and Martha. After raising four children during their 31-year marriage, they decided to join the “gray divorce” crowd. Jake and Lucy, married four years ago, had one child together before Jake’s infidelity and substance abuse drove them apart. Both of these couples had some heavy decisions ahead. As their cases progressed, they had to decide whether settlement or litigation was best for their divorce.

Two Pathways.

The parties in most divorce cases are able to reach a divorce settlement agreement. The couple and their attorneys may negotiate privately or go to mediation. Though it is similar to a trial in that both parties present their side, mediations proceed very differently. 

For one thing, agreements reached in a mediation are confidential. Court proceedings are not, although courts can restrict who can view divorce court records. In Jake and Lucy’s case, privacy was a big concern. Lucy did not want Jake’s infidelity and drug addiction publicly aired.

Unfortunately, trial became a necessity for Henry and Martha. A lifelong homemaker, Martha had never worked outside the home. She expected spousal support to continue for some time. Henry, however, felt she deserved nothing because he had been the family’s breadwinner for their entire marriage. Both stubbornly stuck to their positions and refused to compromise.

When Is Settlement Right?

Some couples are in a position to settle their differences quickly. For them, settlement through negotiations or mediation typically is faster than going through the court system. They don’t have to wait for space to clear on a court docket to schedule hearings.

Divorce strains family relationships. Mediation may be less destructive on those relationships because they are typically less combative than trials.

Couples going through a divorce may have financial problems. Mediations and settlement negotiations are usually less expensive than going to trial.

When a settlement agreement is presented to the court, the judge will make sure the document complies with California law. However, many of the agreements contained in the settlement agreement do not require a judge’s scrutiny. Couples may hammer out agreements that suit them, but that most judges would not arrive at.

 

If negotiations and mediation fail, divorce proceedings go to the next level.

When Is Litigation the Best Option?

Some parties may be unable to resolve their issues without court intervention. So, they settle in for the long haul. They may be expected to attend several hearings or even participate in a trial that lasts for days.

Going to trial sounds terrible! So why do some couples end up battling it out in a courtroom?

Divorces with more complex issues are more likely to go to trial. What makes a divorce more complex? Among other things, disputes over property division that can’t be overcome. Inability to agree on hot issues like child custody or spousal support could end up in a courtroom.

Trial may be necessary if domestic violence or child abuse is involved. A judge has the authority issue orders that protect the abused spouse or child, something neither an attorney nor a mediator can do.

Some spouses make unreasonable demands or have unreasonable expectations. In cases where this is an issue, unfortunately, a trial usually becomes necessary.

Final Thoughts.

The attorneys at the Law Offices of Judy L. Burger can help, whether your case is settled or goes to trial. Call us at 415-293-8314 to schedule a private appointment or visit our website. We maintain offices in San Francisco, Marin County, Santa Barbara, Ventura/Oxnard, San Jose, Gold River (Sacramento), and surrounding communities.
Family Dispute Resolution: How It Is Used in Custody Disputes?

Family Dispute Resolution: How It Is Used in Custody Disputes?

Our children are near and dear to our hearts. When marriages break up, many of the most difficult issues pertain to a couple’s children. Most of the time, both parents want what is best for the kids. However, it can be difficult to come to an agreement about how to handle custody and visitation issues because parental judgment may differ. That’s where family dispute resolution comes into play.

In an ideal circumstance, parents have similar ideas about what is best for their kids in terms of where the kids should live, go to school, and so on. Sometimes, however, they do not. In an even worse circumstance, one or both parents does not have the child’s best interest at heart or is not healthy enough to have a proper perspective on what is best for the child.

It is in circumstances like these that family dispute resolution is used by the court system. When the parents cannot come to an agreement, the family dispute resolution program helps by conducting services such as child custody evaluations and mediations.

The goal is to help families craft their own agreement about child custody and visitation issues. Dispute resolution allows parents to play a critical part in creating their own agreement for the approval of a judge. When it is successful, dispute resolution can often help the parties avoid a hearing in front of a judge about controverted issues.

The law sets forth three goals when family dispute resolution is used for custody or visitation matters:

  • mitigating negative relationships between the parents;
  • developing an agreement that serves the child’s best interests in a way that, ideally, continues contact with both parents; and
  • resolving custody and visitation issues in the best interest of the child.

At the end of family dispute resolution, the mediator helps to draft the parties’ agreement.

If you have questions about custody or visitation issues, you should consult with an experienced California lawyer. The attorneys at the Law Offices of Judy L. Burger will provide authoritative legal support tailored to your specific situation. Make the call today to learn how our attorneys can help: (415) 293-8314.

What Happens at a Mandatory Child Custody Mediation?

What Happens at a Mandatory Child Custody Mediation?
Parents going through a divorce or legal separation need to know how their child-rearing responsibilities will be divided.  Ideally, the parents work together to establish a parenting plan that lays out the parties’ expectations about visitation and decision-making authority.  If the parents cannot do so, or if the judge does not approve the parents’ plan, the case is referred to child custody mediation.


The purposes of child custody mediation are threefold:

  • To reduce hard feelings between the parents;
  • To help the parents develop a parenting plan that is in the best interest of the child and that helps ensure the child’s continuing contact with both parents; and
  • To come to a child visitation agreement that is in the child’s best interest.

Mediation proceedings are confidential and are conducted by well-trained, neutral parties. Part of the mediator’s job is to help the family transition into its new relationship.  The mediator is required to consider the “best interest of the child” and the child’s “health, safety, [and] welfare” throughout the mediation process.  The mediator is also required to attempt to control for any power imbalances between the parties.


By law, the mediator must do the following:

  • Review the court file and intake form;
  • Conduct a parent orientation that explains the process and the child’s developmental needs;
  • If necessary, conduct interviews with the child;
  • Helps the parties develop a parenting plan; and
  • Discontinue the mediation if allegations of child abuse or neglect arise.

At the end of the mediation, if the parties come to an agreement, the mediator creates a written parenting plan.  The mediator also puts together a description of any additional case management or court procedures that may be necessary to resolve custody or visitation issues.


The attorneys at the Law Offices of Judy L. Burger have extensive experience in divorce, child custody, and child support matters, including child custody mediations. Make the call today to learn how our attorneys can guide you through the mediation process: (415) 293-8314.

Some Facts to Know Before Your Divorce Mediation

ArguejpgMany clients ask us what they can expect in mediation and we are careful to explain the ins and outs and the mechanics of the mediation process.  Mediation can be a very positive experience for those who are of a mind to compromise and who are fortunate to have the help of a truly unbiased and experienced mediator.  Knowing the basics ahead of time often helps alleviate our clients’ anxiety. The basic idea behind mediation is that the two parties, along with their attorneys, sit down with a neutral third party and attempt to reach an agreement on various issues in a divorce. The discussions that take place during mediation are kept confidential and are prohibited from being used if the matter eventually winds up in court. This arrangement is intended to allow for the worry-free sharing of ideas and offers. One fact worth taking to heart is that mediators are referred to as neutrals because that is the essence of their role – to maintain complete neutrality regardless of the facts of a case.  Maintaining neutrality can be a challenge when facts weigh heavily in favor of one party, but neutrality is absolutely essential.  If one spouse perceives a lack of absolute neutrality, the mediation is unlikely to be successful. Another fact to remember is that mediation can only result in an agreement when both parties engage in mediation with a good faith intent to be open minded and willing to compromise to find the middle ground in every disputed issue. Being open minded and willing to compromise may sound reasonable enough, but often the problem is that by the time one or both spouses decide to file for divorce, good faith is long gone.  A spouse who was the victim of neglect or deceit may not be able to forgive and forget.  In our family law practice, we deal with highly contested cases where emotions are frequently too raw for a mediation to be successful. If you are facing mediation, the Law Offices of Judy L. Burger are here to help.  We will assist you in preparing for mediation and help you construct a back-up plan in the event mediation is unsuccessful.  Our attorneys will aggressively pursue the best outcome possible for you, whether you need to demonstrate the other parent’s faults, or defend such claims.  Judy L. Burger is known for steadfastly representing clients in high conflict cases in and around the San Francisco Bay and Sacramento areas.  Call us today to learn more about how we can help at (415)293-8314 in the San Francisco Bay area or (916)631-1935 in the Sacramento area, or contact us online via our confidential inquiry form.

Do I Need a Lawyer If My Spouse and I Are Going to Mediation?

Man holding question mark In a perfect world, mediation can be a fair way for a divorcing couple to compromise and settle disputes over child custody and visitation or decide how to divide marital property.  But, circumstances are not always ideal and an unfair mediation session can leave a party feeling used, intimidated, and hopeless. In California, parties arguing over custody must attend mediation before a judge will hear their case. Trouble arises when the husband or wife feels the mediation process is weighted in the other spouse’s favor.  Though many family court mediators have significant training and experience in family law, mediators – like lawyers and judges – are still human.  A mediator may hold a bias and not realize it. Other instances where a person can feel shortchanged by mediation are when one spouse is more educated about the divorce process than the other (seeming to have inside information) or when intimidation was present in the marital relationship. One way to overcome these potential snags is to be well prepared for mediation.  Educate yourself about the divorce process and California’s law and policy regarding family separation issues.  Make a list before mediation of which points are negotiable and which are not. Finally, although your attorney may not be permitted to sit through all of the mediation process with you, your attorney will prepare you for this process prior to your appointment.  If you have any doubts about the quality of the mediator, about your knowledge of family law, or if you feel intimidated in any way by your spouse or the process itself, then the best court of action is to show up for mediation equipped with a strong advocate on your side. At the Law Offices of Judy L. Burger, we will persistently pursue the best outcome possible for you in your divorce or quasi-divorce proceedings, whether you need to demonstrate the other spouse’s faults, or defend such claims.  Judy L. Burger is known for her aggressive representation of clients in high conflict cases in and around the San Francisco Bay and Sacramento areas.  If you are a spouse facing divorce, call us today to learn more about how we can help.  Call (415)293-8314 in the San Francisco Bay area or (916)631-1935 in the Sacramento area, or contact us online via our confidential inquiry form.