No, You Don’t Get A Hearing

by | Jan 31, 2020 | Divorce, Mediation

One of the most frustrating things clients experience in divorce court is the surprise that they are not going to get a “trial” with every motion or appearance. Family law doesn’t work that way. If you have to take your case to trial, you have essentially already “failed” as the attorney for several reasons.

            First, while the Court has very broad discretion, it is bound by the policy of the State and the Family Code. The attorney knows how far the Court can go; she needs to communicate those boundaries to the client. The Court cannot handle issues that are not properly before it and it cannot make ridiculous orders that are prone to failure. The policy of the State is that former spouses, even from long term marriages, eventually become self-supporting. Also, children should have both parents equally in their lives, absent domestic violence or conduct that is detrimental to their best interests.

            There is no presumption that Mom gets the house to stay with the kids. Also, there is no presumption that Dad cannot change a diaper or do a 3:00 a.m. feeding, assuming he has been around junior since birth and the baby knows him.

            The list is exhaustive, but the bench has seen just about everything. So, when you make a first appearance (and everyone is expected to appear at all family law hearings), you need to know a couple of basics: is this a trial or long cause hearing where live testimony is going to be taken? Or, is it a hearing where evidence can come in by declaration and, therefore, everyone knows what is at issue and what has to be decided in advance so that any agreements that should be made, either are made before or at court, obviating the need for a hearing altogether. Your stipulation may get the Court’s signature, but it doesn’t want to engage you to hear about every crummy defect you want to tell it about your ex.

            California is a “no fault” State and has been one since 1972. This means that you can divorce for “irreconcilable differences” i.e., no reason at all. Whether she cheated on you is irrelevant to anything. You do not need to prove, as in so many other divorces for-cause States, how your ex broke his wedding vows. 

            Same goes for cases involving children’s issues: unless Mom’s behavior is having a detrimental effect on the child, she still gets to have visitation. Courts, and this includes all their ancillaries, mediators and personnel, want to know that a child is in danger to order a parent to keep away from her. Speculation about this is not enough. You had better come prepared with a written, professional opinion from a social worker, psychologist, pediatrician, etc., to properly get an order keeping a parent away from his child or supervised visitation.

            Frequently, after everything has been completed and an agreement reached, many clients want to know “Can I still talk to the Judge?” The answer is, “No.” If you have signed off on an agreement or stipulation and the Court has signed it also, the Court believes you are on board with the agreement and does not need to hear from you. Rarely does client’s input at a hearing change anything. Often, it makes the situation worse, especially if the attorney does not know what it is the client intends to say. Some judges who are almost always former trial lawyers, cringe when clients “speak out” at hearings – to some of them, this is akin to having their criminal defendant client blurt out “OK, I did it! But I didn’t mean it!” in a capital case. Very hard to put that admission back in the bag.

            Clients are entirely appropriate directly responding to questions the Court puts to them, unless their attorney objects to the form of the question. Otherwise, the reason you hired the law-school-graduated, State Bar-admitted person in the suit is to represent you, not sit idly by while you express yourself. If you need to address the Court, tell your attorney what you want to say. If it’s redundant or irrelevant, you can discuss it with her. Blurting things out either during hearings or without warning causes two problems: it can get you ejected from the courtroom and demonstrates for the everyone that your attorney has no client control. It can also show that you have no control over yourself, a problem if you are trying to come across as the sanest person in the room.

            To recap: unless there’s absolutely no meeting of the minds on any issue, most of your case will be decided by agreement. In parentage cases, unless you are contesting that you are the parent, or that you disagree with a parent’s custody or visitation and have proof of wrongdoing on their part, you are not going to trial on your case. The Court is not going to want to hear from you how awful the other person is in their spare time. Or how difficult it was before your child together was brought into this world, and how hard it has been since then. Those circumstances are a given in life, not just family law.

Tammy J. Mercado

Tammy J. Mercado has a passion for helping her clients achieve their desired results. She listens and she personally and promptly responds to your texts, emails and phone calls. She offers real solutions to your legal matters. Tammy will carefully evaluate the legal issues in your case, provide you with sound advice and offer you the pros and cons of each possible scenario so you can meet your legal objectives. She encourages clients to participate in their own matters. Tammy believes that client participation is key to a positive result and to keeping attorney fees as low as possible. You can be sure that she will offer you straightforward, sound and honest advice in a professional manner, with integrity and excellence.

Before opening her own law practice, Tammy worked for many high-volume law firms. This gave her extensive, diversified experience in hundreds of complex family law cases as well as civil matters. She is admitted to practice law before all courts in California and the United States District Court for the Northern District of California. She is also a member of the American Bar Association, the Contra Costa Bar Association, the Alameda County Bar Association and the Bar Association of San Francisco. Tammy is also a member of the Rotary Club of Danville.

Tammy is a graduate of John F. Kennedy School of Law and holds a Bachelor of Science in business management from the University of Phoenix. Tammy is also a licensed real estate broker, which comes in handy for valuing property in family law cases as well as real estate matters in the civil arena.

During her off time, Tammy is an avid sailor who crews and races on various boats in the San Francisco Bay. Tammy approaches each case as she would any yacht race: by assessing the other’s strengths, weaknesses, experience, equipment, history and reputation. She is a member of the American Sailing Association, and she is a certified Coast Guard Auxiliary member.

HONORS AND AWARDS
Tammy was selected to receive the prestigious “Business Person of the Year” Award in 2017 for the San Ramon Chamber of Commerce.

Tammy is currently serving as Danville Rotary President for 2017 through 2019.

Mary C. Whipple, CFLS

Mary C. Whipple opened her first law practice in the summer of 2008. She previously was an associate attorney at the Law Office of Cummins & Holmes, a full-service civil litigation law firm in San Ramon. The majority of her experience is in family law, which includes divorce, custody, support, prenuptial agreements and domestic-violence restraining orders. Certified by the California State Bar’s Board of Legal Specialization, she is a specialist in the area of family law. Mary has also represented clients in a variety of non-family-law cases, including juvenile dependency, probate, breach of contract and employment disputes, to name a few.

Mary also previously worked as a contract attorney for O’Melveny & Meyers in San Francisco while simultaneously volunteering at the Bar Association of San Francisco’s Volunteer Legal Services Program, representing defendants in unlawful detainer actions. The program acknowledged Mary with an Outstanding Volunteer in Public Service Award in 2006 for her efforts in providing access to justice.

A seventh-generation Californian, Mary is a graduate of Loyola University Chicago School of Law. She earned her Bachelor of Science in criminology at Southern Oregon University in Ashland, Oregon. She is a member of the State Bar of California, the Alameda County Bar Association, and the Contra Costa County Bar Association.

In addition, Mary is active in her community as a member of the Ambassador’s Committee for the San Ramon Chamber of Commerce; a volunteer at the Contra Costa County and Alameda County Superior Courts, where she assists self-represented litigants in completing their divorces; and a member of Divorce Angel, where she provides information regarding family law matters to members of the community. Since 2007 she has been a volunteer judge for Alameda and Contra Costa County’s Annual High School Moot Court Competition. She is also a member of the Danville/Sycamore Valley Rotary Club. She was awarded the San Ramon Chamber of Commerce 2012 Business Person of the Year; and a graduate of the 2012 class of Leadership San Ramon Valley.

CERTIFIED LEGAL SPECIALTIES
Certified Specialist in Family Law by the State Bar of California Board of Legal Specialization