Sample Stipulated Agreement and Order

LAW OFFICE OF
JOHN R. HUGHES
ATTORNEY AT LAW
520 MAIN STREET
PLACERVILLE, CA 95667
TEL 530.626.5175
SBN 182988

Attorney for Respondent BETTY SMARTCLIENT

IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA,

IN AND FOR THE COUNTY OF ANYCOUNTY

IN RE MARRIAGE OF SMARTCLIENT:

ROBERT SMARTCLIENT,
Petitioner,
and

BETTY SMARTCLIENT,
Respondent.

CASE NO: PFL2005XXXX

STIPULATION AND ORDER

RE: COLLABORATIVE LAW

Petitioner, ROBERT SMARTCLIENT, Respondent BETTY SMARTCLIENT, and their respective attorneys each agree and stipulate as set forth below, and further agree and stipulate that orders shall be entered as follows which shall remain in effect unless and until modified by written agreement signed by both parties and their attorneys or further court order, whichever occurs first. This stipulation is intended to be a binding court order upon being signed by the parties. It shall thereafter be filed with the court in the parties' action for Marital Dissolution.

LIMITATION ON ATTORNEY REPRESENTATION

1. TOP ATTORNEY has been retained by Petitioner to represent and advise Petitioner during the course of the collaborative process and JOHN R. HUGHES has been retained by Respondent to represent and advise Respondent during the course of the collaborative process. Each attorney named above agrees to be bound by the terms and provisions of this Stipulation and Order.

The parties and attorneys understand that while it is necessary for attorneys to "appear" in order to process stipulations and agreements, this agreement completely prohibits these attorneys from advocating in court. Each attorney named above, and any attorney in association with such attorney, is forever disqualified from appearing in any contested court proceedings as attorney of record for either party named above in this proceeding, or in any other contested family law matter, involving ROBERT SMARTCLIENT and BETTY SMARTCLIENT. This disqualification shall survive the term of this Stipulation and Order. An attorney shall be deemed "in association" if, at any time during the pendency of these proceedings or future family law proceedings between these parties, such attorney is the employer or employee of, or co-employee with, or shares a relationship of independent contractor status with any attorney named above.

COLLABORATIVE LAW

2. Both parties and attorneys agree to treat this matter as a Collaborative Law case. Each party and each attorney acknowledges that he or she has read and understands the document entitled "Guidelines and Principles Governing the Collaborative Law Process" (a copy of which is attached hereto), and agrees to act in good faith to comply with the recommendations set forth in that document.

3. For so long as this Stipulation and Order is in effect, the parties and attorneys agree to devote all of their efforts in reaching a negotiated settlement in an efficient, cooperative manner pursuant to the terms of this Stipulation, and agree that neither party nor attorney named in this Stipulation will file any document requesting intervention by the court including, but not limited to, a Request to Enter Default, Notice of Motion, Order to Show Cause or At-Issue Memorandum, except as otherwise specifically permitted under paragraph 16 below:

4. Both parties agree that commencing immediately:

a. Each is restrained from removing their minor child(ren) from the state of California without the prior consent of the other or order of court;

b. Each is restrained from borrowing against, canceling, transferring, disposing of, or changing the beneficiaries of any insurance or other coverage including life, health, automobile, and/or disability held for the benefit of the parties or their minor child or children;

c. Each is restrained from transferring, encumbering, hypothecating, concealing, or in any way disposing of any property, real or personal, whether community, quasi-community, or separate, without the written consent of the other party, or an order of court, except in the usual course of business or for the necessities of life.

d. Each party will notify the other of any proposed extraordinary expenditures at least five (5) business days prior to incurring these extraordinary expenditures and account to the court for all extraordinary expenditures made after these restraining orders are effective. However, nothing in this Stipulation and Order precludes either party from using community property to pay reasonable attorney's fees in order to retain and maintain legal counsel in the action.

e. Neither party will incur any debts or liabilities for which the other may be held responsible, other than in the ordinary course of business or the necessities of life.

JUDICIAL ASSIGNMENT

5. This matter is assigned to Department XX, which Department is the same Family Law department in the above-referenced County as would normally be assigned in non-collaborative cases.

6. The parties will file a jointly signed pleading every six months reporting the case status.

EXPERT WITNESS

7. Except upon the mutual written agreement of the parties to the contrary, any person or firm retained by, or whose work product is used by, either party or attorney during the term of this Stipulation and Order, is forever disqualified from appearing as an expert witness for either party testifying as to any matter related to such person's or firm's work product in the Collaborative Law process. All notes, work papers, summaries and reports shall be inadmissible as evidence in any proceeding involving these parties unless the parties agree otherwise in writing; however, said notes, summaries and reports shall be furnished to any successor counsel. Such persons or firms include, but are not limited to, accountants, attorneys, doctors, mediators, mental health professionals, personal or real property valuation experts, private investigators, vocational consultants, or any other persons retained or employed in the Collaborative Law process.

Notwithstanding the above, any such persons or firms may appear to give testimony in this action solely as a percipient witness in a capacity which existed prior to the filing of the petition in this matter.

DISCLOSURE AND DISCOVERY

8. Each party shall timely serve his or her Preliminary and Final Disclosure Declarations as provided under the California Family Code and shall provide each other with any written authorizations requested which may be required in order to obtain information or documentation, or to prepare Qualified Domestic Relations Orders or other orders facilitating agreements reached. The parties and attorneys acknowledge and understand that honesty and the full disclosure of all relevant information is an integral factor in the success of a Collaborative Law case.

9. All discovery requests shall be made informally. No motion to compel or Motion for sanctions is available for any discovery requests made during the term of this Stipulation and Order. Responses to any discovery requests should be made within the time limits prescribed by any applicable statute or Local Court Rule. Even though made by informal request, all responses to discovery requests shall be made under penalty of perjury or verified by the party responding.

CUSTODY MEDIATION

10. In the event the parties agree to refer any issues to Family Court Services or to a private mediator during the term of this Stipulation and Order, no action beyond mediation shall occur, except as expressly agreed upon in writing by the parties, nor shall any time limits or procedural requirements stated in any Local Court Rule apply to this matter. The parties shall specify whether the mediation is confidential or non-confidential, whether the mediator shall write a report, and whether a recommendation will be made. In addition, the parties shall specify whether any statutory provisions regarding custody mediation shall apply. The parties also shall specify, prior to mediation, if the custody mediation falls within the definition of persons as stated in Paragraph 7 regarding expert witnesses.

SANCTIONS

11. The court may impose sanctions under any applicable California Code Section in the event any party or any attorney (i) has used the Collaborative Law process in bad faith for the purpose of unilateral delay or (ii) has engaged in any concealment, misrepresentation, or perpetuation of the same in any way that materially and adversely affects the rights of the other party.

STATEMENTS OF PARTIES AND ATTORNEYS

12. The parties shall be deemed to have waived any privilege as to the following information:

a. Preliminary and Final Disclosure Declarations;

b. Responses to discovery requests under Paragraph 8 above; and

c. All written and oral communications or work product communicated by or between any party, attorney, witness or other person or firm retained by either party during the term of this Stipulation and Order.

Communications between a client and his or her attorney shall remain privileged. Notwithstanding the above, the following statements ARE NOT privileged, and may be disclosed: statements by any party which indicate an intent or disposition to endanger the health or safety of the other party, or of the children of either party, or to commit irreparable economic damage to the property of either party.

TERMINATION OF COLLABORATIVE STATUS

13. Any party may unilaterally and without cause terminate this Stipulation and Order by giving written notice of such election (hereafter "Termination Election") to all other parties and by filing a Termination Election with a proof of service of a copy of such Termination Election to all other parties in the proceeding.

14. Either attorney may withdraw from this matter unilaterally by giving fifteen (15) days' written notice of such election to other parties and attorneys. Notice of Withdrawal does not terminate the Collaborative Law process; the party whose attorney has withdrawn may continue in the Collaborative Law process without any attorney, or may retain a new attorney provided that the new attorney agrees in writing to be bound by this Stipulation and Order and the above-referenced Guidelines and Principles.

15. Upon termination of the Collaborative Law process by a party or withdrawal of any counsel, the attorney who represents the terminating party or who is withdrawing will promptly cooperate to facilitate the transfer of the client's matter to successor counsel.

16. The parties do not waive their right to seek the assistance of the Superior Court named above; however, any unilateral initiation of litigation by a party shall result in the automatic termination of the Collaborative Law process, on the date any application to the Superior Court for its orders or notice of intent to appeal is signed or otherwise made.

NOTICE

17. Any notice or document required to be served hereunder may be personally served, or shall be deemed served five (5) days after deposit in the United States Mail, first-class postage prepaid, addressed to the parties and their counsel at the following addresses:

PETITIONER	ROBERT SMARTCLIENT 1122 Any St. Anytown, CA 95XXX
ATTORNEY FOR PETITIONER	TOP ATTORNEY 11262 Any St., Suite 500 Anytown, CA 95XXX
RESPONDENT	BETTY SMARTCLIENT 1122 Any St. Anytown, CA 95XXX
ATTORNEY FOR RESPONDENT	JOHN R. HUGHES 520 Main Street Placerville, CA 95667

18. A party or attorney may change his or her address, for purpose of service, by giving written notice of such change to all other parties and counsel named above.

DATED: ___/___/______

__________________________

PETITIONER

__________________________

RESPONDENT

DATED: ___/___/______

__________________________

ATTORNEY FOR PETITIONER

__________________________

ATTORNEY FOR RESPONDENT

ORDER

Upon the Stipulation of the parties set forth above, the Court approves the terms of the Stipulation and orders the parties to comply with all of its terms and provisions.

DATED: _____/_____/______

JUDGE OF THE SUPERIOR COURT

GUIDELINES AND PRINCIPLES

GOVERNING THE COLLABORATIVE LAW PROCESS

I. INTRODUCTION

1.01 The essence of "Collaborative Law" is the shared belief of the participants that it is in the best interest of parties and their families in ordinary Family Law matters to commit themselves to resolving their differences with minimal conflict and no litigation. We who participate in Collaborative Law seek to adopt a conflict resolution process that does not rely on a Court imposed resolution. The process does rely, however, on an atmosphere of honesty, integrity and professionalism geared toward the well-being of the parties and their children.

1.02 One of our major goals in adopting the Collaborative Law process is to maximize the settlement options to the benefit of all parties and minimize, if not eliminate, the negative economic, social and emotional consequences of protracted litigation to the participants and their families. We commit ourselves to the Collaborative Law process and agree to resolve our differences justly and equitably.

II. NO COURT OR OTHER INTERVENTION

2.01 By electing to treat this Family Law case as a Collaborative Law Matter, we, as parties and attorneys are committing ourselves to settling the case without court intervention. The parties agree to give complete, full, honest and open disclosure of all relevant information, whether requested or not, and to engage in informal discussions and conferences for the purpose of reaching a settlement of all issues.

III. LIMITATIONS OF COLLABORATIVE LAW PROCESS

3.01 In electing to participate in the Collaborative Law process, we understand there is no guarantee of success. We further understand we cannot eliminate concerns about the disharmony, distrust and irreconcilable differences which have led to the current conflict. While we are intent on striving to reach a cooperative and open solution, success will ultimately depend on our own commitment to making the process work.

3.02 It is consistent with the Collaborative Law process that the parties act in their own best interests. Cooperation does not mean that a party must put the interests of the other party ahead of self-interests (except where it is strategically advantageous to do so). It is also true that open and cooperative agreement-making increases the likelihood of maximizing the beneficial outcome for each party. The parties may continue to act in their own best interests in areas which are outside the dispute, such as in changing estate plans and future financial and other activities.

IV. PARTICIPATION WITH INTEGRITY

4.01 As participants in the Collaborative Law process, we are concerned about protecting the privacy, respect and dignity of all involved, including the parties, attorneys and consultants. Each participant shall uphold a high standard of integrity, and specifically shall not take advantage of inconsistencies or miscalculations of other participants, but shall disclose them and seek to have them corrected.

V. EXPERTS AND CONSULTANTS

5.01 In selecting outside help, the parties are encouraged to retain joint experts or consultants for the express purpose of minimizing expenses of the process. Selection of a joint expert or consultant shall not obligate the parties to accept the report or opinion of that expert. Each party may retain separate or additional experts as desired in developing information relevant to reaching agreement. In the event a party retains a separate expert, any such expert or consultant shall be directed to follow the spirit and direction of these Principles and Guidelines. If desirable, the parties may request the experts and consultants to collaborate with one another, meet and confer, and where appropriate, render joint statements or opinions on the issues in dispute.

VI. CHILDREN'S ISSUES

6.01 In resolving issues about sharing the enjoyment of and responsibility for any minor children of the parties, the parties, attorneys and therapists shall make every reasonable effort to reach amicable solutions that promote the best interests of the children. The parties agree to act quickly to mediate and resolve all differences related to the children in a manner that will promote a caring, loving and involved relationship between the children and each parent.

6.02 The separation of their parents is distressing for children. To minimize this discomfort, they agree to protect their children from direct involvement in their disputes. They also agree to maintain attitudes of respect and cooperation towards each other. Consistently demonstrating these positive attitudes will help to foster the children's perception of each party as a worthy, caring parent.

VII. NEGOTIATION IN GOOD FAITH

7.01 The parties understand that the process, even with full and honest disclosure, will involve vigorous good-faith negotiation. Each party will be expected to take reasoned positions in all disputes and, where such positions differ, each party will be encouraged to compromise where necessary to reach a settlement of all issues. Although all parties should be informed by their attorneys and consultants about the litigation process and the result it might attain, neither party or attorney should use threats of going to court as a way of forcing settlement.

VIII. ABUSE OF COLLABORATIVE PROCESS

8.01 Collaborative counsel are encouraged to withdraw from a case as soon as possible if they learn that their client has withheld or misrepresented information or otherwise acted so as to undermine or take unfair advantage of the Collaborative Law process. Such actions may include, but are not limited to, the secret disposition of community, quasi-community or separate property in violation of the Automatic Restraining Orders, failure to disclose the existence or the true nature of assets and obligations, ongoing emotional or physical abuse of the minor children of the parties, intention to flee the jurisdiction of the court with the children contrary to an agreement or existing court order, withholding the minor children from the other parent, or interfering with the parenting plan to the detriment of the collaborative process.

IX. DISQUALIFICATION BY COURT INTERVENTION

9.01 The parties understand that their respective attorney's representation is limited to the Collaborative Law process and that neither of their attorneys can ever represent them in court in a proceeding against the other spouse.

9.02 In the event a court filing is unavoidable, the attorneys for both parties will be disqualified from representing either client.

9.03 On termination of the Collaborative Law process, all consultants and/or experts will be disqualified from appearing as witnesses for either party and any reports and/or work product of consultants or experts shall not be admissible as evidence unless otherwise agreed to in writing.

X. WITHDRAWAL OF ATTORNEY

10.01 If the attorney for either party deems it appropriate to withdraw from the case for any reason, the attorney agrees to do so immediately by a written Notice of Withdrawal to the court and to the other party and his or her attorney. This may be done without terminating the status of the case as a Collaborative Law case. 10.02 The party whose attorney has withdrawn may continue in the Collaborative Law process without an attorney or may retain a new attorney provided that the new attorney agrees in writing to be bound by the Stipulation and Order re: Collaborative Law and these Principles and Guidelines.

XI. ELECTION TO TERMINATE COLLABORATIVE PROCESS

11.01 If either party decides that the Collaborative Law process is no longer appropriate, and elects to terminate the status of the case as a Collaborative Law matter, he or she agrees to do so immediately with written notice of his or her Termination Election to the court and to the other party and his or her attorney.

11.02 The termination of status as a Collaborative Law case may also occur automatically in the event a party deems it necessary to proceed to court in an emergency to protect themselves, their children, or the property of either party. This process is outlined in the Stipulation and Order re: Collaborative Law.

XII. SELECTION OF NEW ATTORNEYS

12.01 Once the status of the case as a Collaborative Law matter is terminated, the parties' attorneys agree to aid their respective clients in the selection of a new attorney.

12.02 The parties understand that in retaining new attorneys in the event of the termination of the status of the case as a Collaborative Law matter, each party likely will incur an additional retainer in an amount comparable to that paid to the counsel representing him or her in the Collaborative Law process.

XIII. PLEDGE

13.01 Both parties and their attorneys hereby pledge to comply with and to promote the spirit and written word of this document and to execute and incorporate the Stipulation and Order re: Collaborative Law.

DATED: _____/_____/______

__________________________

PETITIONER

__________________________

RESPONDENT

DATED: _____/_____/______

__________________________

ATTORNEY FOR PETITIONER

__________________________

ATTORNEY FOR RESPONDENT

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