John Harding, a California Family Law Attorney, Discusses the Legal, Financial, and Emotional Challenges of California Divorce

By John Harding
April 16, 2014

Divorce in California involves completing many procedures and making many decisions that you should be aware of when you begin the process of ending your marriage. It is essential to understand the laws and costs that may affect your family, as well as to recognize the value in hiring an experienced family law attorney, in order to ensure that you can overcome the legal, financial, and emotional challenges of divorce.

 

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Hosted by: Dan Couvrette, CEO, Divorce Magazine 
Guest speakers: John Harding – Family Law Attorney. John Harding is the principal of the law firm of Harding & Associates in Northern California. He practices family law litigation and divorce mediation exclusively. John has been recognized with an AV certification by Martindale Hubbell Peer Review Ratings and is a Northern California Super Lawyer, and has been since 2004. He has written and lectured in the areas of civil litigation, family law, trial skills, case management, and legal technology. Learn more at www.hardinglaw.com.

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Read the Transcript of this Podcast Below.

Let’s start at the beginning with what a divorcing person in California needs to do to get started. So, where do they start their divorce?


Harding:
Well, hi Dan. Sure, that’s as good of a place to start as any and the answer is fairly simple. You start your divorce in the county that you live in. That can be a husband’s county or a wife’s county, but usually it’s the same county because they are at the early stages of the break-up of their relationship and neither spouse has moved on.

How long does a divorce normally take?

Harding: Well, every divorce is unique, Dan, but what I tell my clients is that the average length of time that they can expect to have their case pending in the California court system is eighteen to twenty four months. Now, that sounds like an awful long time and I have to explain that the case isn’t in front of a judge for that entire period of time. There is a lot of quiet time or downtime when parties are negotiating or waiting for a courtroom. But you can expect to have a file open at the courthouse for that period of time as an average.

For couples who are living together and are about to divorce, can you force one spouse to move out of the house or do you have to stay together? How does that work, regarding somebody’s home?

Harding: Good question. As a family law lawyer, I feel it best that the parties physically separate as soon as they can because it helps reduce the tension, it refocuses thinking, and really it facilitates the more efficient resolution of the divorce case. Surprisingly, though, in California, it is not that easy to get a spouse out of the family residence if that spouse is not willing to move out. Absent a case that has domestic violence elements to it, you can’t force the other spouse out of the house. It has to just be part of the negotiated process.

So, is it that they both have equal rights to being in the house?

Harding: They are both equal occupants with equal rights in that piece of real estate and everybody is entitled to have a roof over their heads. If there’s only one roof, then the spouses have to learn how to uncomfortably co-exist under that one roof while the divorce is pending. I find, as a matter of experience, though, that eventually everyone in the case appreciates that it is better to establish separate residences and so somebody does end up moving out.

Right. And how can a person, from your point of view, keep their costs under control as they go through their divorce?

Harding: The biggest piece of advice I can give along those lines is for the people in the divorce to get comfortable with the idea that you have to compromise. Nobody wins in a divorce. It’s a question of how effective we are at controlling the universal loss.

The only people that benefit from a long and protracted divorce case are the lawyers because we’re getting paid for the time that we invest in the case. In our California system, 50/50 is the base rule. And the sooner that participants in the case realize that they need to give a little to get a little, the sooner the case is going to get resolved and the cheaper it’s going to be to get it resolved.

The other bit of advice that I would give is, be prepared to work with your lawyer. The more information, the more facts, the more documents you can gather and present to your lawyer, so your lawyer doesn’t have to do all of that leg work and all of that detective work, the less time the lawyer is going to have to spend on the case. And the lower your attorney’s fees are going to be.

Right.

Harding: So, look at your relationship with your lawyer as a partnership. I refer to my clients as my junior paralegals. And I put them to a lot of work because it is usually cheaper for the client to do that work than it is for me to do it at my hourly rate.

Well, that makes sense. I had a question from a person going through a divorce, John. She said, “My spouse and I thought our divorce was going to be rather simple, but it seems to be getting more complicated and contentious since we hired lawyers to represent us. Can you suggest ways we can reduce the tension?”

Harding: Absolutely. And this phenomenon is not uncommon. The role of a lawyer is to educate and advise the client on the rights and remedies that are available. Sometimes that advice is inconsistent with a swift conclusion of a family law case. And sometimes the advice and the education that we give to our clients cause our clients to see the case through different coloured lenses, which may add a new element of emotion to the case.

The best way that you can get beyond the passion that arises in a divorce is to try and look at your divorce as a business transaction. You are evaluating options and choosing the best option that makes sense from many different perspectives, from the emotional perspective, from the peace of mind perspective, from the cost perspective, and from the fairness perspective.

Family law is a very, very emotional experience. Another thing that a party to a divorce can do to reduce the tension is to utilize the services of a divorce counsellor or a personal therapist. These are trained professionals that can help us deal with the unique emotions that arise in a divorce and help us get past the frustration so we can focus on what is more important, and that’s getting the case concluded.

Now, John, can I also read into what you are saying? You are saying there are family lawyers that are better at what they do and perhaps ones who are not as good as the best ones at what they do, and being careful when you are selecting your lawyer is important as well.

Harding: I think that’s a fair question, Dan. And I think it’s a genuine response to say, yes, there are better lawyers and there are less able lawyers. Just like there are better individuals in any trade, or any profession.

Right.

Harding: There are lawyers out there who can manipulate the emotions of a divorce case to create more work for themselves. If you work with a lawyer who is more established, who is more experienced, more credible, that lawyer is going to put the interests of the client before the self-interest of the lawyer in generating fees, and that lawyer is going to try to get that case resolved sooner and for less money.

As an established family law attorney, I benefit from a fairly steady stream of referrals. I appreciate that my reputation as an efficient problem solver is essential to my success as an attorney. So I’m prepared to get your case finished sooner and cheaper if possible, appreciating that then, as a satisfied client, you’re going to become an essential component in that referral stream that’s going to send new business to me.

Right.

Harding: And that long term is going to provide me with greater success. Other lawyers don’t always appreciate that. They see a big case walk through the door. They appreciate that this is an opportunity for them to really create revenue regardless of the effect and that’s what they do.

I have another question from somebody who’s written in, John, and says, “I just want to get on with my life and have my divorce behind me. Should I agree to the terms my spouse’s lawyer is proposing or should I put up a fight to get what I think I rightfully deserve?”

Harding: That’s a really challenging position to be in. As the party in a divorce, my client is the boss. My job is to educate my clients on the law and the options they have available to them. But my job is not to babysit my clients or to make decisions for them. I’m smart in my own way; each of my clients is smart in his or her own way. They’re the ones that have to live with the consequences of the divorce.

I’m going to strongly encourage my clients to make a particular choice, but at the end of the day, if they elect not to follow my advice, that is their prerogative. Working with a good divorce lawyer, you’re going to have all of your options in front of you including an idea of what it’s going to cost to pursue those options. And then you, as the divorce litigant, are going to have to make the decision as to which choice to make. I have clients all the time that tell me, “John, thank you for the education, thank you for the advice. I appreciate that this is an option that I have available to me but when I weigh peace of mind, efficiency of getting the case over with, potential cost-savings versus potential expense, I’m going to choose an option you aren’t fully endorsing because that is what works best for me.”

Right.

Harding: And in those instances, I’ve done my job, my client has done their job, and they have made the informed decision.

So, they are well informed before they make the decision? Which is how you want to be as a consumer.

Harding: Absolutely. Now, sometimes I’m going to push back a little harder. If I think a client is really making a dumb decision, and I’ve experienced that, I will sit them down and we will have a more challenging conversation so I am convinced that my client is fully considering all of the options available. But, ultimately, the client is going to make the decision. I can only think of one or two cases where I had a client who was determined to make what I called a dumb decision. And that’s in a quarter of a century of practicing law, so it doesn’t happen all that often. But in those one or two desperate situations that I can think of, my option was to actually withdraw from the case. To fire myself as the client’s lawyer so that they would make the dumb decision all on their own.

As a family lawyer, how can you help somebody who has a controlling spouse? Perhaps they are uncooperative or withholding information, and it may be because they don’t want to get a divorce. What can you do in that situation?

Harding: I have to answer that in two parts, Dan.

It’s not uncommon to have a controlling spouse and a subservient spouse in an unhealthy marriage, and we are dealing with an unhealthy marriage, as those are the ones that end up in divorce. Those roles are quite predominant.

To help my clients deal with a controlling spouse, I spend a lot of time trying to bolster my client’s self-esteem and self-confidence. The one thing that a controlling spouse is able to do well in life is to identify somebody who they can manipulate. As a family law lawyer, my job is to help my client get past that manipulation. And it can be a very, very challenging task. These couples have spent years and years in these roles and what I call the innocent spouse has really come to a point of mental conditioning where they believe they deserve to be controlled or they believe they are the source of all of the problems in the relationship. And it isn’t true.

It is true that they are the victim of somebody who is able to exploit a specific skillset and exercise control over them. So, I spend a lot of time getting my clients to believe in themselves, but if I’m not able to do it, though, then we have to resort to the mental health professionals. We have to get our clients into a therapeutic setting where they can start working with a trained psychiatrist or psychologist and get beyond the influence of that controlling spouse.

So, that answers as far as dealing with that difficult controlling spouse in the divorce case. As family law attorneys, we have our skill and experience that helps us to identify those uncooperative litigants and identify the tricks that they are trying to exploit. Then we apply the tools that we have to get beyond those tricks, beyond that defeat, and beyond the withholding of information.

Now, we do have some pretty effective litigation tools that we can utilize—formal discovery that is available to us, the statues in California that compel disclose of information. And, if necessary, we can utilize other professionals, forensic accountants, and private investigators to help us get past the deceitful component of the case.

There might be some listeners of this seminar, John, who are thinking about doing their own divorce. Can you give us the short answer why you think these people should consider using a family lawyer, rather than doing it themselves?

Harding: Yeah. I don’t want to sound contrite when I say this, Dan, but you absolutely have the right to act as your own attorney and you also have the right to perform brain surgery on yourself if you want to do so.

Not recommended.

Harding: Not recommended.

If you have a simple divorce, no kids, very little property, then you might not need the advice and the assistance of a divorce lawyer. But in a complicated legal system, like California’s, where you are expected to apply very sophisticated procedures and very sophisticated legal precedent to your case, if you don’t have that legal training, it can be a very, very overwhelming process to get through.

Before you can make informed decisions in a divorce, you need to have the information, you need to know the law, and you need to know the options. Without the assistance of a qualified family law attorney, you’re never going to be empowered with that information, you’re never going to be empowered with those tools, and you’re never going to be able to comfortably sail through the complicated stormy waters that are our courts.

A good family law attorney is going to help you navigate those waters with the information that you need to make smart decisions. And you’re going to be able to get your paperwork processed by the system in a more efficient fashion than if you were trying to do it yourself. The value that an effective family law lawyer brings to the consumer of the legal product is familiarity of the system, knowledge of the process, and ability to educate the client as to their options.

Now, sometimes one of the reasons for the divorce is an extramarital affair. I’m wondering if there’s any remedy for what money might have been spent as a result of that affair. Can the innocent spouse in this case get some of that money back from what was spent because of the affair?

Harding: Absolutely. You certainly can. There is a legal doctrine that allows the innocent spouse to recover money that was spent that was not for the benefit of the marital community. So, if, during your divorce, you discover that there were expenses paid, the buying of jewellery, paying for trips with that paramour, you do have the opportunity to make the argument to the court that those expenditures were not for the benefit of the marital state and that the innocent spouse should be reimbursed to some extent

I see. And can a person’s divorce be finalized even though they haven’t completely separated all their properties? So, for instance, if the house hasn’t sold, can you still finalize a divorce in that case?

Harding: Yes, you sure can. In California, the process is called bifurcation. What we’re doing is carving out different pieces of the pie and dealing with them on different schedules.

Let me give you an example. Let’s say that a marriage has just gone bad, the parties have grown apart, they have a sizeable estate, and it’s going to take them some time to sort out all of their legal issues. Not necessarily a high conflict type of case, but there’s just going to be some ditch digging work that’s going to take some time. One of the spouses has moved on to a new relationship and has a desire to marry that new partner.

We can carve out the idea of being married to each other and we can bring the marital status to an end. We can have these two people restored to the status of single people and then, that one spouse that I talked about, is free to go off and get married, while the balance of the divorce case stays in the system and gets adjudicated on a more necessary but timely course. So, I can get you divorced, you would be free to go out and get remarried, and I know this isn’t going to happen with you, Dan, because I know your wife, but I’m going to use it in the first person for the audience.

Okay, don’t tell her though.

Harding: And, then we can take the time that we need to sort out the property issues in the case, to transition into a parenting plan that is better for the kids, and to deal with other issues that shouldn’t be rushed. So, yes, we can take care of a case in bits and pieces if that proves to be the most efficient way to handle it.

Right. You touched on dealing with stress as you’re going through divorce. Is there anything you can recommend to reduce the amount of stress for people going through the process of divorce?

Harding: Yes, and I touched on it a couple of times, as you said. I am a big, big believer in reaching out and getting the help that is available from trained mental health professionals. There seems to be a stigma, a hesitancy to go into therapy or go into counselling because it makes us look bad or it makes us look weak.

Nothing could be farther from the truth. A divorce is a horribly traumatic experience. It’s not one that we’re wired to handle on our own. Now, you don’t have to go to a paid psychologist or a paid psychiatrist, there are other options available. There are community divorce groups. You can go into an anonymous group setting with other people that are going through a divorce. You can share you story, you can listen to their stories, and you can benefit from the collective energy of these support groups.

You can go to your priest, pastor, or rabbi for advice, or at least you a receptive ear or active listener who can help you. You can also find a friend that’s been through the process before. One of the ways that you can heal from divorce is to admit that you are in a divorce and admit that you need some help in healing. Once you get past those hurdles and are in a position that you can start talking through your problems with somebody that is able to listen, then you’re going to go miles and miles toward healing.

So, I always to encourage all of my clients, if you can afford a professional, that’s the best route to go, but don’t ignore the other options that are available and once you’ve identified those options, please do take advantage of them. You are only going to help yourself.

I know you also do mediation, John. I wanted to just talk to you a moment about mediation. Particularly, in a case where one spouse wants to use a mediator, but the other spouse is concerned that a mediator is going to be on the other person’s side. Can you just talk about that power balance and what the mediator’s role is?

Harding: Yes. And in a spirit of full disclosure, given that I am a trained mediator, I do have great confidence in the mediation process. I’m a big believer in it.

As a family law attorney, I also coach my clients that are going through mediation and I assure them that if they, or we, have done our due diligence to identify and retain a qualified mediator, then the fear of bias or the fear of sympathy for one spouse or another is not a realistic concern.

Competent family law mediators are trained to be neutral, to be objective and to maintain that neutrality throughout the course of the case.

In family law mediation, you always have the opportunity to go out and consult with your own advising attorney. You’re never going to be forced to make a decision in the mediation process. So there really is very little risk that you’re going to be the victim of a biased mediator.

And because mediation is completely voluntary, if you do believe, while you’re in the mediation process, that you are the victim of some bias or absence of neutrality, you can always pull out of the mediation. But I do not have any concerns that a qualified family law mediator is going to be anything other than neutral in the case.

We have to deal with some definitions though. Neutrality is different than telling the client, or the party of the mediation what he or she wants to hear. And that is where the participants in the mediation sometimes feel that there is a lack of neutrality. In response to information that they don’t want to hear, it’s much simpler to say, “Neutrality is gone and I’ve got a biased mediator. I’m unhappy with what is happening.” That’s a question of perception and that’s different from the true definition of neutrality.

That’s usually where we have problems with the mediation process, is that people are hearing what they don’t want to hear, even if it’s the right advice. I don’t have any injunction to encourage mediation as a process.

John, I’m going to let the last question be about your firm. You demonstrated to me your level of knowledge and I know you from both personally having met you a number of times, and also the great recommendations other family lawyers have given me about you, and great things they have said about you. But is there anything in particular about Harding & Associates that might differentiate your firm from others in Northern California?

Harding: Well, first, Dan, all we do is family law. In a state as complicated as California’s, both geographically, socially, and legally, I really do believe that I would be doing a disservice to my clients if I practiced any law other than family law exclusively. There are just too many system sets, too many processes, and too many laws that have to be mastered in the family law context to allow me to then also efficiently practice in other areas of law. So, the fact that we are exclusively a family law firm provides our clients with a real enhanced level of representation.

We also take great pride in the fact that we have made a substantial investment in technology. Our entire law practice is computerized. Everything from client intake to case management, file management, and record retention is managed electronically and digitally in our law firm.

That allows us to do our jobs as lawyers much more efficiently. We can research legal questions more efficiently. We can prepare cases for court much more efficiently. We can interact with our clients much more efficiently. And the greater degree of efficiency that we can bring to the practice of family law, the less money our clients are going to spend when they try and get out of a difficult relationship. Those are the core components that Harding & Associates brings to its family law clients.

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