Divorce process overview part three. In Divorce Process Overview – Part Two , we discussed how spouses owe a fiduciary duty to each other and under the California Family Code that the parties to a dissolution or legal separation are required to provide full and accurate disclosure of all assets and liabilities in which one or both parties may have an interest and they must serve their disclosures on the other party.
Assuming the other party has filed a Response to the Petition and the preliminary declarations of disclosures are exchanged and served, the parties then have two options. First, the parties can and should make efforts to cooperate with settlement negotiations and minimize the cost of litigation. Second, if the parties cannot agree, judicial intervention becomes necessary.
The first option, resolution by agreement, is by far more beneficial to the parties and the most cost effective. Resolution by written agreement involves preparation and execution of either a Marital Settlement Agreement (MSA) or a Stipulated Judgment. Both documents can operate to memorialize the intent of the parties as it relates to issues of the division of community property, child support, spousal support, custody and visitation. Once executed by the parties, the agreement is filed with the court and becomes an order attached to the final judgment.
Aside from being more cost effective than going to trial, parties who can agree have more control over the disposition and division of their community property, child support, spousal support, custody and visitation. Typically, a court will not question or dispute an agreement between the parties. This is particularly true if both parties are represented by counsel. When the parties can agree, there is more flexibility afforded to the parties on these issues than going to trial because a judge must order an equal division of the property in most cases and abide by statues as to support and custody. With a MSA or Stipulated Judgment, the parties have the flexibility to agree on something other than an equal division of the property or guideline child support for example. Effectively, the parties can “opt out” of the California Code and by doing so; have more control over what happens post-judgment.
The less parties agree, the more judicial involvement. If the parties cannot agree they have the option to try Alternative Dispute Resolution, which could involve use of a private mediator or settlement conferences. If the parties still cannot agree, the court will require a mandatory settlement conference before trial.
Trials can be costly. At trial, a judge equally divides the community property and decides the future of support and custody leaving the parties with far less control. A wise boxing coach once cautioned his protégé, “Don’t let this go to the judges. You may not like the result. End the fight before the bell.”
The court favors and encourages agreement between the parties. The court is there to intervene if necessary, but a better result stems from every effort being made by the parties to resolve these issues between themselves and arrive at a written agreement.