AFTER 14 YEARS of marriage, Anna Laveria May and Francis N. Luke divorced using the services of a legal document assistantto draw up their marriage
AFTER 14 YEARS of marriage, Anna Laveria May and Francis N. Luke divorced using the services of a legal document assistant to draw up their marriage settlement agreement. They continue to cohabitate in their Hayward home. (Aric Crabb - Staff)
FOR ANNA LAVERIA MAY, it took three years to finalize her divorce from husband Francis N. Luke because she feared the adversarial court system.

"All I ever heard about divorce was horror stories and people hating each other," May said. "I was a child of divorced parents, and (their divorce) was ugly."

But May and Luke wanted to conduct a divorce amiably and cheaply. The couple finally found a way to dissolve their 141/2-year marriage without the courts and without lawyers. It saved them stress and lots of money and kept their friendship intact. In fact, they still share a home in Hayward even after their divorce.

The underfunded court jurisdictions require longer waits, and therefore soaring attorney fees; and unhappy spouses must suffer through a frequently torturous adversarial system, experts say.

Divorce happens. In 2004-2005, there were 155,600 filings for divorce, separations or annulments statewide, most heavily weighted in Los Angeles County, according to statistics from the state's court systems. This was a hike from 138,000 filings a decade previous. Nationally, there are 7.5 marriages per

1,000 of the population and 3.6 divorces per 1,000, reported the National Center for Health Statistics for 2005.

Contested divorces can cost tens of thousands of dollars.

People can find alternatives to divorce court, many of which are cheaper than hiring a lawyer and focus more on finding common ground than they do on finding fault with a soon-to-be-former spouse.


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However, these alternatives do require the divorcing spouses to be ready to conduct themselves with honesty and integrity, possibly a tall order if both sides remain seized with resentment.

Retired California Superior Court Judge Roderic Duncan of Berkeley urges divorcing couples to stay out of the courts.

His 2007 book "A Judge's Guide to Divorce" says, simply, "divorces don't belong in court."

He offers three alternatives to court: the "kitchen table divorce;" mediation; or the collaborative law divorce. The options vary by how much outside help a couple needs to reach agreement.

The kitchen table divorce

The kitchen table divorce is a term describing how divorcing couples settle important issues — assets and children — between themselves. Duncan believes people can settle the majority of issues this way.

However, once a couple reaches agreement, the couple still needs to draw up a marriage settlement agreement, or MSA, and file it with the court.

They can do this themselves or they can seek a legal document assistant, or LDA. Unlike a paralegal, who assists an attorney, an LDA is frequently self-employed; those who facilitate divorces may have a special certification.

Some parties seeking divorce may find an LDA suits their needs better than an attorney.

When Cindy Elwell went through her second divorce, it took her four years to find an attorney she could trust.

"They weren't really listening, and I wasn't feeling very strong," she said.

She resolved to save other people the same anguish. It took her a few years, but eventually the bookkeeper found her way into what has become a professional specialty helping to facilitate divorces outside the courts.

She is now an LDA operating her own practice, Divorce with Dignity, in Alameda. Elwell now helps divorcing couples avoid lawyers.

Why do people seek out an LDA when they could complete the MSA themselves?

"It's easy to start the paperwork but hard to finish it," said Elwell, whose charges range from $330 to $1,200, depending on the complexity of the case. Each party also pays an additional court fee of $320.

Legal document assistants are trained to help the spouses draw up their settlement agreements and know how to navigate the divorce system if clients ultimately have to consult a mediator or a lawyer.

But LDAs cannot draw up the MSA themselves or represent clients in court, Duncan said.

LDA is a relatively new profession, and clients usually find LDAs through word-of-mouth.

These professionals were previously called paralegals. But a law passed in 2000 required these independents to distinguish themselves from paralegals and created a profession regulated by the California Association of Legal Document Assistants.

May and Luke, the Hayward pair, ultimately turned to an LDA to settle their divorce. They used Marcia Burke of Fremont Divorce, who charges between $185 and $525 depending on how long the couple have been married, whether children are involved and number of assets. Shared debts may complicate the proceedings, she said.

But lawyer-mediator Katherine E. Stoner notes in her 2006 book, "Divorce Without Court: A Guide to Mediation & Collaborative Divorce," that LDAs are not lawyers and may not see legal nuances where lawyers may. In any case, LDAs are not authorized to give legal advice. Berkeley-based Nolo published Stoner's book and Duncan's book.

"If people are dividing a pension, this is not a simple thing. You have to have a document accepted by a pension plan. An LDA may not have the expertise to do that," said Stoner, who teaches lawyers to be mediators at the Center for Mediation in Law in Mill Valley.

Furthermore, the kitchen table method assumes the dissolution is uncontested and that the spouses can work out the major issues — child support and child visitation rights, alimony and division of assets — honestly and willingly.

Stoner, however, is leery of people trying to do it themselves even if they are 100 percent in agreement. An hour with a lawyer to look over their agreement could save lots of headaches, she said.

If a couple have been married less than five years and have no children or assets to split, they can file for a "summary dissolution." There's a six-month waiting period, so an LDA service would help by reminding the couple to file in timely fashion, Elwell said.

Mediation or collaborative law

If the couple still have contentious issues to settle and yet want to stay out of the courts, they can choose either mediation or a process called collaborative law divorce, two very different processes.

Open the Yellow Pages or do an Internet search and you will find many so-called "mediators." However, not all of them handle divorces. Check out those with family law experience. Stoner strongly recommends personal referrals.

Paul Merlyn, mediator and owner of New Resolution in San Francisco, operates throughout the Bay Area. He said the mediation process can take anywhere from two to eight hours.

"If there are children involved, real estate, a single proprietor business to be divided, pension and retirement accounts, it takes more time," he said.

The mediator helps the clashing couple draw up an MSA, which they can have an independent attorney review before they file it with the courts.

He charges $200 an hour, but he said some couples need only a few hours if they feel that they have been set on the right path and can complete negotiations between themselves.

Divorcing spouses who hold a lot of acrimony for each other, don't communicate well or can't reach agreement on what they expect of each other may have to turn to the collaborative law process.

The collaborative process is considerably more expensive than the other two alternatives but far less adversarial than going to court — where spouses may resort to blaming people they once loved in open court and will have the most intimate details of their lives preserved for the public record.

"If you have a couple with fairly equal power and equal knowledge who are transparent with each other, then mediation can be economical. But if you're looking at two whose knowledge is different and one of them doesn't know anything about the family finances, that person may be at a disadvantage in mediation," said Natalie Leininger, a Castro Valley financial planner who specializes in collaborative divorces. In such a case, a mediator will advise a visit to a consulting attorney who can review the marriage settlement agreement.

"If the attorney finds any inequities, then it turns into a litigation," Leininger said.

An expensive route

In the collaborative law process, each spouse hires an attorney, a therapist-divorce coach and a financial planner. The spouses and the attorneys sign a contract asserting they will come to an agreement without going to court. If they fail, the spouses have to find two new attorneys.

The attorneys act as advocates for each client, not as adversaries, said divorce coach Neil Penn of Palo Alto, who said the collaborative approach works when "each spouse does not want to make a shambles of the other person and the kids are not being used as sacrificial lambs."

Penn charges $150 an hour and helps his clients develop coping skills, emotional stability and communication skills to finish the divorce. He also provides "parenting meetings" to ascertain the needs of the children and help the parents compromise on their behalf.

Not for everyone

Still, "this process is not for everybody," said Alan Nobler, a San Jose attorney who practiced divorce law in the traditional litigation scenario for 30 years until he changed to the collaborative law process in 1999.

"Some people are incapable of seeing what is going on with the other person or seeing that the other person has a right to share children. Some people hide their assets," Nobler said. "For those who can sit down, talk and compromise and recognize they'll have a relationship with the other person as long as they share their children's future, the collaborative process has worked."

And most clients have been happy with the results, he said.

In a typical divorce with court-imposed solutions, an unhappy party can later bring a motion to try to change change the court's directives on issues such as child support or child sharing.

"In the eight years that I've been doing collaborative law, only one client has come back to make a change, and that was because he lost his job," Nobler said.

Nobler charges $360 an hour, plus an additional $80 an hour for the services of his paralegals.

Leininger, the certified financial planner based in Castro Valley, charges $225 an hour. She helps her clients understand the ramifications of the settlement options in the long term, such as how the sale of a house will affect a couple's retirement options, for example. Also, the process is expensive because you pay for three professionals: your own attorney, the divorce coach and the financial planner.

And there are no deadlines, such as those that might be imposed by the court. If one of the spouses drags her or his heels, the professionals still collect their fees.

But it could be argued that if a case is complicated enough to require the collaborative law process, it could've been a lot more expensive to go to court. And probably more stressful.

What is the one time when you should absolutely pursue a divorce in court? When it's a case of violence or other kind of abuse.

"In that case, you get into the court immediately," said Duncan, the retired judge. "Telling someone they have to stay 100 yards away from your house and not drive by it or else they will be arrested is a pretty effective remedy."

Contact Francine Brevetti at fbrevetti@angnewspapers.com (510) 208-6416.