Appeal

There are three levels to the California state court system, the state Trial Court, the California Court of Appeal, and the California Supreme Court. Hearings in the Trial Court involve one judge. Hearings before the Court of Appeal involve a panel of three justices. Hearings before the Supreme Court involve a panel of seven justices. Every litigant has a right to a hearing before the Court of Appeal. Every litigant does not have a right to a hearing before the California Supreme Court.

An appeal is a process by which the trial court’s ruling is reviewed by the appellate court. This occurs when the litigant who is unhappy with the trial court’s judgment follows certain procedural requirements to ask the Court of Appeal to reach down to the the Trial Court judgment and determine whether or not it is correct, in whole or in part. This is done according to a Standard of Review.

The appeals process involves the filing of briefs. The person seeking review is called the appellant and is responsible for filing the Opening Brief. The opposing side is called the Respondent and files the Respondent’s Brief. The appellant has the opportunity to file the last brief, called a Reply Brief. In addition, the entire record of the proceedings and evidence from the trial court will be delivered to the Court of Appeal.

The Appellate Court will set a date for Oral Argument unless both the Appellant and Respondent waive the right to appear and argue the appeal. Arguments are made to the panel of justices. Attendance by the Parties is not necessary and no testimony is taken during an appellate argument. The argument is a conversation only between the attorneys and the panel of justices.

The matter is “submitted” when Oral Argument is completed. The Appellate Court issues a written opinion within ninety days of Oral Argument. The written opinion usually is not published beyond the parties and counsel in the particular case and is applicable only to that case.

The written opinion may be certified for publication if the Court determines that the case is important, advances the development of the law, or is needed to provide guidance to other courts on similar matters. Publication means that the opinion will be published in the official reporters and the legal casebooks to be relied upon by other lawyers and judges in other cases. This is unusual and indicates that some important aspect of legal interpretation has been addressed either for the first time or in clarification of an evolving area of law.

The Appellant or Respondent may ask the California Supreme Court to review the opinion from the Court of Appeal if either is unhappy with the appellate opinion. A Petition is filed asking the Supreme Court to “grant review” which requires an explanation as to why review should be granted. There is no right to have the Supreme Court “grant review” and the Supreme Court rarely grants the Petition. The opinion from the Court of Appeal will “stand” and become the law of the case for which it was rendered if unpublished. The opinion from the Court of Appeal will “stand” and become the law for the underlying case and other similar matters if the opinion is published.

The appellate process begins anew if the Supreme Court grants the Petition for Review. Each side will file briefs and Oral Argument will be scheduled for counsel after all briefs have been filed. Oral Argument will be scheduled to take place before the seven California Supreme Court justices. The Supreme Court will issue a written opinion that will be binding on the subject case and on all current and future cases involving related, same, or similar questions of law.

This is intended to be a summary description and should not be relied upon as legal advice. More information may be obtained by consulting an attorney providing these services at HFLP.

Concierge Services

HFLP offers Concierge Services. We do not believe that your geographical location, your schedule, or your state of mind should prevent access to our services. We believe that it is important for you to see and experience our offices, designed to make you as comfortable as possible, to enable familiarity with our staff, and to accommodate meetings and technological needs. However, we also understand that you may need us to come to you. An attorney can meet with you at your office, home, or other location of your choice. A member of our legal or support staff is available to come to your office, home, or other location to assist you in reviewing documents, organizing files, or collecting information. Our wish is to collaborate with you on what will provide you with the access and support you need while insuring effective communication and representation. A member of HFLP will be happy to speak with you about these services and provide you with more information.

This is intended to be a summary description and should not be relied upon as legal advice. More information may be obtained by consulting an attorney providing these services at HFLP.

Dissolution of Marriage

Jill Hersh, the founder of Hersh FamilyLaw Practice, has been representing people going through dissolutions of marriage since 1978, shortly after California switched from a fault-based divorce system to a no-fault dissolution of marriage system. The procedure to obtain a dissolution has changed over the years, but the end result has remained the same – an end to marital status.

A Dissolution of Marriage, commonly referred to as a Divorce, results in the termination of a marriage and restores each participant to the status of an unmarried person.* No-fault means that either partner to a marriage is entitled to end her/his marriage whether or not the other spouse agrees. No-fault also means that marital assets are divided so that each spouse receives assets and debts equal to one-half of the community property and debt without regard to fault or “blame” for the underlying divorce.**

There are residency requirements to obtain a marital Dissolution in California. One must be a resident of California for six months and a resident of the County of filing for three months at the time of filing. There are other jurisdictional requirements that will be better and more fully explained by an attorney.

A Dissolution is legally commenced by filing a Petition for Dissolution of Marriage. A Summons issues simultaneous with the filing of the Petition. The Summons contains Standard Temporary Restraining Orders (“STRO’s” or “ATRO’s”) that immediately go into effect upon filing. The purpose of these STRO’s is to freeze the status quo pending resolution of the issues involved in the dissolution action.

The earliest that a party may be restored to the status of an unmarried person is six months from the date that the Petition (and accompanying forms and notifications) are served on the other party by a legally recognized method of effecting service. One party to a dissolution may not serve the other. An attorney will explain how service is accomplished and procedurally what follows upon the filing and service of a Petition.

* References to marriage may be equally applicable to dissolution of domestic partnerships and use of the term “marriage” is for convenience only and reflects the greater proliferation of marriage since consolidation of Marriage Equality.

** There are minor exceptions to equal division that are rare and have nothing to do with blame for the underlying dissolution, but are related to certain policy considerations carved out by the legislature. An attorney will be able to explain these exceptions.

This is intended to be a summary description and should not be relied upon as legal advice. More information may be obtained by consulting an attorney providing these services at HFLP.

Family Formation

HFLP assists heterosexual and LGBT clients who are forming their families through adoption and assisted reproduction. The possibilities for family formation have expanded with advancement in reproductive law and assisted reproductive technologies.

HFLP understands and cares about this evolving area of the law. The Firm has made new law advancing the interests of children of same-sex parents, the rights of same-sex parents, and the legal interpretation of donor agreements within intimate relationships. Our appellate work has resulted in published opinions in this area, which can be reviewed at this website, including the 2000 California Appellate Court opinion of In Re Guardianship of Olivia J. and the 2005 California Supreme Court opinion of K.M. vs. E.G.

HFLP continues to follow the evolving opportunities afforded by developing law and scientific advancements. The Firm provides consultation, guidance, and legal representation in areas of Family Formation. HFLP drafts contracts between intended parents and their egg donors, sperm donors, and/or surrogates. HFLP establishes parental rights through parentage judgments and adoption.

HFLP continues in its willingness to take on appellate work that will advance the law in the area of Family Formation and the best interests of children.

This is intended to be a summary description and should not be relied upon as legal advice. More information may be obtained by consulting an attorney providing these services at HFLP.

Family Transition

A Dissolution of Marriage or Legal Separation is a transitional process for couples and families.

A Dissolution of Marriage, commonly referred to as a Divorce, results in the termination of a marriage and restores each participant to the status of an unmarried person.* This change from a cohabiting couple to a separating or divorcing couple is a major transition for each party to the marriage. This is a greater transition for a couple with children, who will need to adjust to two households and a revised and more expansive notion of “family”.

There are residency requirements to obtain a marital Dissolution in California. One must be a resident of California for six months and a resident of the County of filing for three months at the time of filing. There are other jurisdictional requirements that will be better and more fully explained by an attorney.

A Legal Separation replicates the process of Dissolution, except that the individuals remain married at the conclusion of the legal proceeding. Each member of a couple has to agree to a Legal Separation. One member of the couple may switch the process over to a Dissolution regardless of the wishes of the other. Couples obtain Legal Separations instead of Dissolutions for a variety of reasons and more information may be obtained from one of the attorneys at HFLP.

A Legal Separation does not have the same residency requirements as a Dissolution of Marriage. However, there are other jurisdictional requirements that can be better and more fully explained by an attorney.

* All references to “Marriage” are intended to include Domestic Partnerships. Marriage is used both for convenience and because the number of domestic partnerships is decreasing with the consolidation of Marriage Equality.

This is intended to be a summary description and should not be relied upon as legal advice. More information may be obtained by consulting an attorney providing these services at HFLP.

Legal Separation

A Legal Separation replicates the process of Dissolution, except that the individuals remain married at the conclusion of the legal proceeding. Each member of a couple has to agree to a Legal Separation. One member of the couple may switch the process over to a Dissolution regardless of the wishes of the other. Couples may agree to obtain Legal Separations instead of Dissolutions. Some individuals may wish to initiate legal proceedings with a Petition for Legal Separation. The reasons for these different approaches are varied and may be discussed in more detail with one of the attorneys at HFLP.

A Legal Separation does not have the same residency requirements as a Dissolution of Marriage. However, there are other jurisdictional requirements that can be better and more fully explained by an attorney.

This is intended to be a summary description and should not be relied upon as legal advice. More information may be obtained by consulting an attorney providing these services at HFLP.

Litigation

There are various modalities for reaching resolution in a family law case. The term “litigation” commonly is erroneously understood to mean an acrimonious and disruptive process of resolving conflict. We hope that this form of litigation may be avoided, which largely is dependent upon who the other party hires as an attorney and the choices that she/he may make in the course of the dissolution.

More commonly, “litigation” at HFLP means that we represent our clients in the fact-finding process called discovery and the resolution of intermediate issues that arise in the course of moving towards a final determination of each party’s interests and rights. Hopefully, this includes voluntary production of information requested by us and a cooperative approach to resolving intermediate issues.

There are times and circumstances in which cooperative behavior is not offered by “the other side”. In that case, we have the intelligence, experience, tenacity, and resources to move the matter forward in spite of obstructive behavior.

The vast majority of cases are settled, whether after cooperative fact-finding or active litigation. Rarely, it is necessary to ask a judge to render a judgment in order to bring the case to a conclusion. In that event, HFLP’s experience as litigators enables effective preparation for an conducting of hearings or trials.

HFLP’s philosophy is to assume that the other side will be reasonable until it is not and that aggressive representation is courteous, smart, reasonable, and tenacious. Aggressive representation should not be confused with rude and discourteous behavior. Credibility of the attorney is vital. Compliance with agreements or court orders is imperative.

The old adage is: Prepare a case to settle and it will be tried. Prepare a case for trial and it will be settled. In other words, excellent preparation and credible arguments combined with a will to persevere usually will get the matter resolved.

This is intended to be a summary description and should not be relied upon as legal advice. More information may be obtained by consulting an attorney providing these services at HFLP.

Mediation

Mediation is a process of conflict resolution that seeks to facilitate an agreement resolving custody or financial issues. The purpose of this section is to explain mediation in the context of financial issues incident to dissolving a marital or domestic partner relationship, although mediation may be used by unmarried people seeking a Premarital Agreement or by married Parties seeking a Postnuptial Agreement.

Mediation is a voluntary process in which two people, with or without their attorneys present, seek the assistance of a neutral attorney to help settle their financial affairs. HFLP provides mediation services. Jill Hersh received mediation training in 1985 from the Center for Mediation and Law. HFLP also works with and advises individuals while they go through mediation with a third, neutral mediator.

A common model for mediation involves a neutral attorney mediator who meets with the Parties who are present without their attorneys. Under these circumstances, the mediator always will advise the Parties in mediation each to retain his/her own attorney to advise him/her about the issues on a confidential basis. This enables ongoing assistance to understand the legal issues and financial decisions that will be made incrementally as the mediator takes the Parties through the process of understanding, addressing, and resolving their financial concerns. In addition, each Party will have the opportunity for confidential communication about different questions or concerns with his/her own attorney.

This confidentiality with each Party’s own attorney is important. The neutrality of the mediator precludes the mediator’s having a confidential relationship with one member of the couple to the detriment of the other. In addition, the neutrality of the mediator precludes giving advice to one member of the couple to the detriment of the other or assisting with strategy from one member’s point of view to the potential disadvantage of the other.

Another approach to mediation includes the Parties and their respective attorneys in the mediation process. This may include meetings of the mediator with the clients and each client’s attorney. A very competent mediator often will have the flexibility to approach the mediation process pragmatically and with an understanding of “what will work” for the individual case. This may result in a mediation process that is a hybrid – individuals meeting with the mediator with their respective attorneys, individuals meeting with the mediator without their attorneys, and/or communication between the mediator and one or both attorneys to facilitate movement on an issue or to enable a better understanding of any obstacles in the path of resolution.

A couple wishing to use the mediation services of an attorney at HFLP will have limited initial contact if only one member of that couple makes the originating call to the firm. In that instance, the call will not include any substantive information about the couple’s estate or either Party’s concerns about the dissolution in order to preserve neutrality. Substantive information about the issues of the dissolution may be imparted during the originating call if both members of the couple are participants in that call. In that case, the potential mediator attorney is simultaneously speaking with both members of the couple and neither will feel that the other has had the advantage of a private call with a mediator who is supposed to be neutral.

A couple hoping to receive mediation services from HFLP will be given an opportunity to meet with the attorney to determine if they agree to use that attorney’s services. This meeting will be for purposes of an introduction and also to enable the attorney to assess suitability for mediation. Any couple scheduling such a meeting will receive a letter prior to the appointment briefly describing the mediation process and confirming that the mediator acts as a neutral third party.

Mediators need to assess whether the Parties seeking mediation are “suitable” for the process, particularly if they plan to meet without any attorneys present. Mediation is suitable when there is not a perceived disparity in power or knowledge in the relationship and the Parties have the same motive for attending mediation. Mediation is not suitable if one Party is intimidated or fearful of the other, one Party wishes to have continued access to the other as a means of control, one Party is not credible or honest, or the conflict between the Parties is too high for constructive communication. Mediation is not suitable if one Party’s anxiety, fear, or distress interferes with his/her ability or think clearly and freely while in the mediation environment.

The term, “mediation”, also is used to describe a meeting of the Parties, their counsel, and a fifth person who is hired to help “settle” the issues of the dissolving relationship. This may involve a single extended session or ongoing meetings to discuss and resolve issues and is more commonly known as a “settlement conference”.

This is intended to be a summary description and should not be relied upon as legal advice. More information may be obtained by consulting an attorney providing these services at HFLP.

Settlement Conference

This is a meeting of the parties, their counsel, any necessary consultants, and a lawyer or judge whose task is to supervise and facilitate the parties’, counsel’s, and consultants’ discussions towards a resolution of the conflict. This may take a single session or multiple sessions. The settlement lawyer or judge may supervise the exchange of any additional information needed for additional settlement sessions. The lawyer or judge usually determines the procedure for the settlement discussions. Often, it is done by “shuttle diplomacy.” This means that the parties and their respective counsel and consultants are mostly in separate rooms while the settlement lawyer or judge goes back and forth between each side with proposals, counter-proposals, or guidance and instructions for making proposals or counter-proposals.

This is intended to be a summary description and should not be relied upon as legal advice. More information may be obtained by consulting an attorney providing these services at HFLP.

Transactional Services

HFLP negotiates and drafts agreements affecting the financial aspects of intimate relationships. This includes Prenuptial Agreements and Postnuptial Agreements.

A Prenuptial Agreement is a contract entered into between two people prior to marriage. The purpose of the Agreement is to regulate resolution of financial issues in the event of dissolution of their marriage in some way that pre-empts the normal operation of state law. This may include the definition or preservation of separate property, the creation or limitation of community property, and obligations of post-marital support. Any provisions limiting duties of spousal support in the event of a dissolution may be set aside by the Court if deemed unconscionable at the time of the dissolution.

A Prenuptial Agreement must conform to those provisions of the Uniform Premarital Agreement Act adopted by California. Application of the Act and judicial decisions impacting Prenuptial Agreements make this an evolving area of law. A Prenuptial Agreement may not violate public policy, limit obligations of support during marriage, or pre-determine child custody or child support.

A Postnuptial Agreement is a contract entered into between married persons intended to define their respective property interests. It will be binding upon the Parties in the event of dissolution of their marriage as to any financial areas it addresses, so long as permitted by law. A Postnuptial Agreement may not regulate obligations of support during marriage or predetermine child custody or child support. It may not violate public policy in any way.

A Postnuptial Agreement is a contract between married people and married people have a fiduciary relationship to each other. Therefore, a Postnuptial Agreement must comply with certain rules governing the right of fiduciaries in order for it to be enforceable at the time of dissolution. This includes, but is not limited to, full and complete disclosure of all financial information as requested by either Party to the Agreement, unfettered access by each Party to professional support and advice, and deliberative and knowing consent to the terms of the Agreement free from pressure, duress, or coercion. In addition, the Agreement must comply with certain stringent requirements of the Family Code in order to successfully change the character of any property from community to separate, from separate to community, or from one person’s separate to the other person’s separate property.

This is intended to be a summary description and should not be relied upon as legal advice. More information may be obtained by consulting an attorney providing these services at HFLP.

Trial

A trial is a formal legal proceeding presided over by a judge. This will be a judge of the Superior Court, either publicly employed by the State of California or privately hired by the Parties and empowered by a public Superior Court Judge.

The judge will enter a judgment after each side presents its evidence and arguments in accordance with legal standards and procedures. This may include witnesses, expert testimony, and documentary exhibits. This process of hearing a case and rendering a judgment is called “adjudication” of an issue or all issues.

The judge’s decision will be binding on all parties. Sometimes, one of many issues is tried and decided if that issue will enable resolution of other issues in the case. The Court’s decision on that one issue will be the “rule of the case” and binding on the Parties. The Court’s judgment may be appealed if either Party believes that it is the result of error.

This is intended to be a summary description and should not be relied upon as legal advice. More information may be obtained by consulting an attorney providing these services at HFLP.