Author Archive for Shawn Weber

Great post with tips for couples planning cohabitation

couple moving in for cohabitation

Our friends at ClosetBox just posted a great piece with 8 expert tips for couples thinking of living together.  The author, Brittany Anas, was kind enough to include my expert tip, which was to be sure and have a cohabitation agreement.  At least in California, the family code does nothing for non-married partners.  When there is a break-up, couples are treated like business partners in a civil dispute.  A cohabitation agreement goes a long way to help define expectations before moving in together.  That way,  if things don’t work out, there’s a plan.  It’s easy to prepare and can save a lot of heartache down the road.

Other tips for the ideal cohabitation included having a discussion prior to moving in, taking inventory of the stuff, choosing a theme for decor, creating personal space and splurging on the king-size mattress.  Thanks to ClosetBox and Brittany for a great post.

Read the article here.

Need an attorney to
prepare your cohabitation agreement?
Give us a call for a free 15-minute
telephone consultation at 858-410-0144.

 

Read Also:

FAQ: What is the purpose of a prenuptial agreement?

Prenuptial Agreements Are on the Rise, And More Women Are Requesting Them

The Prenuptial Agreement in California—Dotting the “i’s” and crossing the “t’s”.

 

How can I obtain a marriage annulment in California?

annulment or nullity of marriage

What’s the difference between a divorce and an annulment?

I often have a potential client call me and say that he or she wants a marriage annulment. Often the request is based on confusion about the differences between an annulment and a divorce. The differences are profound and I will attempt to lay them out here.

Dissolution of Marriage

First, a divorce is a dissolution of a marriage. In other words, we take a marriage that existed and terminate it. We speak in terms of “length of the marriage” being the period between the date of marriage and the date of separation. To get a divorce in California, a person must have lived within the State of California for six months and the county of residence for at least three months before filing. There is also a six-month waiting period from when the Petition for Dissolution of Marriage is served before the divorce can be granted. With divorce come the issues of spousal support (or alimony) and division of community property.

Annulment

In contrast, if the court grants an annulment (or nullity), it is as if the marriage never existed. Crucially, a person does not need to meet the residency requirements. There is no six-month waiting period before the annulment is granted. Because the marriage never technically existed, issues of spousal support and community property typically (with some exceptions that I won’t get into here) fall by the wayside.

There are strict requirements for getting an annulment in California.

To get an annulment in California, the Court requires that there are specific “grounds”.  The available grounds for a nullity are:

  • The marriage was incestuous. (Cal. Fam. § 2200);
  • The marriage was bigamous (Cal. Fam. § 2201);
  • One of the parties was below the age of consent at the time of marriage (Cal. Fam. §2210(a));
  • One of the parties had a prior existing marriage to another person believed to be dead, but isn’t (Cal. Fam. §2210(b));
  • A party was of unsound mind at the time of marriage (Cal. Fam. §2210(c));
  • A party obtained the consent marry by fraud (Cal. Fam. §2210(d);
  • A party obtained the consent to marry by force (Cal. Fam. §2210(e); or
  • Either party was, at the time of marriage, physically incapable of entering into the marriage state, and that incapacity continues and appears to be incurable. (Cal. Fam. §2210(f)).

A party seeking an annulment must prove that one of the above grounds is met.  Otherwise, the court won’t grant the nullity and the party will need to seek a divorce.

Read More:

My Appearance on “Smarter San Diego” to Talk About Divorce Mediation

Forgiveness During Divorce: A key to finding peace

How much does it cost to go to divorce mediation?

Divorce Mediation: Why patience with your spouse is so important

 

cartoon diagram about patience and the difference between the plan and the reality of achieving success

In my divorce mediation career, I’ve learned over the years that people approach divorce from different places.  Sometimes people want the divorce very badly and are happy to get started.  Others are devastated by the breakup.

 

It’s not uncommon for a couple in the process of their separation to move at different speeds.  One party may be ready to move quickly while the other spouse may be having a terrible time and may need to move more slowly.  In my experience, the divorce mediation will only move as quickly as the slowest person.  That can be very frustrating to the spouse who wants it over with.  My best advice is to take your time and give the other person the time and space he or she needs.

Divorce can feel like a death.

In her seminal work, on Death and Dying, Dr. Elisabeth Kübler-Ross describes the “Five Stages of Grief”.  They are Denial, Anger, Bargaining, Depression and Acceptance.  Divorce professionals have learned to spot these very same stages and patterns when people face the loss of their marriage during a divorce.  (See The Emotional Stages of Divorce: What to Expect During and After the Divorce ProcessThe Emotional Stages of Divorce: What to Expect During and After the Divorce Process)  We’ve learned that people are unable to effectively deal with the present issues of the divorce without reaching the point of acceptance that the divorce is happening.  But to get to acceptance, people first need to travel through the other four grief stages.  That can take some time.  If you’ve sat with your decision to divorce for awhile before breaking it to your spouse, it is likely that you went through the five stages of grief on your own before reaching your own point of acceptance.  Your spouse, who may be just learning of your intention to divorce is late to the grief cycle.  You’ll need to afford him or her some patience and time to work through it.

If you’ve been sitting with your decision to divorce for awhile before breaking it to your spouse, it is likely that you went through the five stages of grief on your own before reaching your own point of acceptance.  Your spouse, who may be just learning of your intention to divorce is late to the grief cycle.  You’ll need to afford him or her some patience and time to work through it.

Forcing a person to complete a divorce case before completing the grief process can be problematic.

First, a rushed agreement is rarely followed.

The person who is rushed will resent the process and will likely make efforts to undermine or to revise the agreement.  Worse, a party who agreed under duress would have grounds to set aside the settlement altogether.  It is better to take the time to get the settlement right so that there is buy-in from both parties.

Second, pushing the slower party often has the opposite of the intended effect.

If you own a dog, you may very well know the behavior that happens when you try to pull on a dog’s leash.  The dog will tug in the opposite direction or may even stubbornly stop moving or sit down.  In divorce mediation, trying to rush a party often has the same effect.  The slower spouse who is rushed may even slow down more.

Third, not allowing the slower spouse room to accept and deal emotionally with the divorce mediation process can lead the pushed spouse to choose more aggressive and expense processes such as divorce litigation.

Trust me, the wheels of justice at court will turn even slower.  So it’s best to work with your spouse to try to reach consensus.  But if that consensus doesn’t come overnight, it’s not the end of the world.  Letting your spouse have the time in a safe space to deliberate, review financials and consult with a lawyer is best even for the faster spouse because pushing a person too hard can lead to a much slower court process.

In Divorce Mediation, Slower is Faster.

So be patient and compassionate towards your soon-to-be ex.  Let him or her have time to deal with the emotional pain of the breakup.  Don’t push so hard that he or she slows down or worse, chooses to litigate.  Sometimes slower is, in fact, faster.

See also these related posts:

Can I Be Divorced Yesterday? Or is Slower Faster? by Shawn Skillin, Esq.

We don’t get along very well. How can we possibly mediate our divorce?

Five Tips to Have a Miserable Divorce

Human Side of Divorcing

How much does it cost to go to divorce mediation?

What is the divorce mediation costDivorce Expenses

A wedding in the United States costs on average more than $26,000.  This doesn’t include the honeymoon.  (Source: http://www.costofwedding.com)  Add raising kids at a cost of $233,610 per kid and the cost of your family can be very, very high. (Source: http://money.cnn.com/2017/01/09/pf/cost-of-raising-a-child-2015/)  Surprisingly, even with the high rate of divorce in America, people think very little about the cost of divorce until it is upon them.
Most Americans are shocked at the many tens of thousands of dollars it can take to get a divorce.  In my experience, a contested divorce can be anywhere from $20,000 to $100,000 for the average couple in San Diego County.  (This figure is based on the averages I have seen in my personal practice back when I used to litigate.)

Contested divorce expenses are usually higher because of exorbitant legal fees. People often overlook other “hidden” divorce expenses like the cost to refinance or sell a house.  Additionally, there can be increased costs for couples to have anything close to the same lifestyle they had before the divorce.  Moving to different households means that couples can’t pool their resources and efforts like they did before.  When you are buying two gallons of milk instead of one, life just costs more.  Finally, it is hard to put a price tag on the emotional toll on the family in tears, sleepless nights, stress and worry that are just part of an adversarial divorce.

Conflict Is Expensive

All in all, divorce expenses in adversarial or litigated cases are worse because conflict is expensive and imposes higher transaction costs.  Conflict simply costs more than harmony.  Spending money to fight, investigate, litigate and generally be adverse simply drives up the price tag.

Conversely, peaceful options for divorce such as collaborative divorce or mediation can help keep divorce expenses in check.  At my office in Solana Beach, California, the average divorce mediation cost falls anywhere between $5,000 and $9,000.  Of course, the costs largely depend on the complexity of the case and the level of conflict.  As a mediator, folks pay me for my ability to help manage and resolve disputes.  When the conflict is higher, that means I have more work to do, which, in turn, makes it cost more.

Divorce mediation cost is generally less than going to court.  There are several reasons for this.

Divorce Mediation is Cheaper Because of Informal Discovery.

In litigation, formal discovery is one of the most costly elements of a case. Because mediation is an informal process, discovery is typically done informally with much lower costs.  Litigators make tons of money off of depositions, demands for production of documents and interrogatories, each of which requires specialized formal responses.  In mediation, parties can choose less costly approaches to value assets like real estate than in litigation, because agreement puts an end to the need for forensic purity.  If the parties agree on a valuation method or even a value, then there is no need to hire a costly forensic expert.

Divorce Mediation is Cheaper Because The Parties Drive the Process

photo of divorce mediation sessionIn mediation, parties drive the process as opposed to court where the lawyers control everything.  In litigation, you pay your lawyer for time spent on the case.  If your lawyer is the ones driving the bus, then the bills will pile up.

In contrast, divorce mediation encourages the parties to drive the process and do a lot of the work themselves.  The mediator is there to guide and facilitate, but decisions are made by the parties.  It’s still good to bring in lawyers, but in mediation the lawyer’s role is more consultative than directive.  You can use your consulting attorney on an as-needed basis and avoid paying her to run the entire case.  Get your advice and make your decisions with the information you need.  But let mediation keep your costs down by keeping the lawyers out of the day-to-day management of the case.

Divorce Mediation Cost Is Low Because There Is Less Involvement with the Courts.

In a litigated case, there is a lot of interaction with the court. Lawyers file interim motions and must attend hearings.  Any interaction with the courts will cost you in billable hours.  Plus, courts are overburdened and slow.  A simple issue can take months to resolve at court.  Formal legal rules and procedures add to the costs by forcing your attorney to do more work.  In contrast, mediation cuts down on the need to interact with the court thereby cutting the need for formal processes.  In my mediation practice, I can resolve most issues and concerns in a fraction of the time that a court would take.  This keeps the divorce mediation cost lower.  Because my processes are informal, you would only pay an attorney to get advice about your rights and not to go to court.  Less formality translates to faster outcomes and fewer billable hours.

Divorce Mediation Cost is Low Because It Reduces Conflict and Reduces Emotional Damage

You really can’t put a price tag on the human cost that families feel when parties litigate.  Divorce is tough enough.  Litigation can actually make the conflict worse.

For example, children suffer as a result of the conflict. (Aside from therapy bills, your children may have a lifetime of emotional cost if exposed to conflict.  It’s always best to reduce their exposure to conflict.)  Instead of fighting, reducing the conflict by finding solutions to problems greatly reduces the impact on the kids.

Also, people going through a divorce feel a huge amount of stress as it is.  Conflict just adds to that stress.  With a resolution through mediation, people are more knowledgeable on how to resolve issues without harming each other, their children, and others, while experiencing peace.

See Also:

http://weberdisputeresolution.com/early-intervention-mediation-settlement-conference-divorce-case/

http://weberdisputeresolution.com/explore-our-services/mediation/

http://weberdisputeresolution.com/working-with-attorneys-in-mediation/

http://weberdisputeresolution.com/five-questions-ask-hiring-divorce-mediator/

Early intervention: Why mediation early in a family law case can save a fortune in fees and stress.

high conflict divorce litigation, family court scene, divorcing couple at a settlement conference

As a certified family law specialist (CLS-F)[i], I have been involved in divorce mediation and alternate dispute resolution (ADR) for more than 15 years.  I regularly serve as a pro tem settlement judge on the Mandatory Settlement Conference (MSC) Panel with the San Diego County Superior Court.  While I enjoy helping folks through their MSCs, the help is simply too little too late for many people.  Often preparation for the MSC is nearly as stressful and costly as preparing for the trial.  In addition, lawyers need to certify that discovery is complete and prepare elaborate briefs.  Waiting until the very end of a case to attempt mediation does the parties and the professionals a great disservice.  I see this in the pained and stressed-out expressions on parties and counsel at the MSCs I facilitate.

There are many options at the beginning of the case to settle issues, manage discovery concerns and resolve unnecessary conflict.  Even (and especially) high conflict cases can benefit from earlier intervention with a mediator to short circuit the conflict.  Attorneys benefit from early mediation because it helps them settle the cases that can settle.  That frees them up to focus on trials for cases that won’t settle.

Here are some ideas for how you can engage the ADR services of a mediator early in your family law case:

Meet and Confer on Steroids.

Every family law attorney is aware of the requirement for the “meet and confer” conference. Too often it’s simply given lip service by a short phone call to opposing counsel without discussing the issues.  Because lawyers sometimes give less attention to what needs to happen to settle, the case stalls.  Why not have a facilitated meet and confer settlement conference to identify the issues and formulate a plan for a swift conclusion?

Discovery Management.

Often the most expensive part of a case is the discovery, which involves elaborate and arcane procedures to gather as much evidence as possible. Sometimes this is whether the case needs the information or not.  The adversarial process spurs less and not more cooperation in discovery.  This can lead to months or even years of discovery wars.  Why not use a mediator to help “referee” the discovery? Most discovery can be provided informally with much less cost.  A mediator can help facilitate the discovery process to specifically target discovery needs and conclude the case with much less rancor and headache for the lawyers and cost to the parties.

Managing the High Conflict Case.

There is a common misconception that people cannot mediate high conflict cases.  That’s simply not true.  Most high conflict behavior in divorce cases is based on fear and hurt.  So, engaging a good mediator early in the process reduces conflict by managing the fight-or-flight response.  Court tends to exacerbate and actually encourage high conflict pathologies.  Rather than encouraging discord with a fight at court, consider short-circuiting conflict with a mediator experienced in high conflict.  Consequently, if parties learn early how to interact productively, it makes the rest of the case go more smoothly.

Use Early Mediation to Resolve Interim Issues.

The terribly backlogged Family Courts sometimes take months to hear even the most routine (and sometimes pressing) interim motions.   I can usually help as a mediator to resolve interim questions like support and custody in a fraction of the time and cost compared to filing a Request for Order.  Because a mediated settlement conference efficiently resolves interim issues, the parties can relax a little more and focus on concluding the case rather than reacting to interim problems.

Consider a Court-Ordered Family Resolution Plan and Use of ADR  Pursuant to Family Code Section 2451.

One little-known provision of the Family Code involves the use of Alternate Dispute Resolution (ADR) as part of a court-ordered family centered case resolution plan as described in Family Code section 2451California Rule of Court 5.83 describes how the plan can be implemented.  Parties can appoint a case manager as part of the plan and can also apply Code of Civil Procedure section 639 to appoint the case manager as a discovery referee.  Further, Family Code section 2451(a)(3) gives protection to attorneys who follow any discovery plans adopted as part of a court-ordered family resolution plan as follows:

“Limitations on discovery, including temporary suspension pending exploration of settlement. There is a rebuttable presumption that an attorney who carries out discovery as provided in a family centered case resolution plan has fulfilled his or her duty of care to the client as to the existence of community property.”

I have used this procedure to great effect.  It can do a lot to reduce costs and keep the case moving quickly towards settlement.

 

Let Us Move Your Case Past Stuck.

ADR mediation conflict resolution skillsBecause there are many ADR options beyond an end-of-case settlement conference where a mediator can make a huge difference, the key is to start early.  At Weber Dispute Resolution, we have the training, skills, and experience to get your family law case past stuck.  That’s because our approach serves to support existing relationships with legal counsel and will not waste family wealth by exacerbating family conflict.  Experience first-hand the difference a dolphin lawyer can make.

 

Want to get your case past stuck?
Consider a mediated
Settlement Conference with
Weber Dispute Resolution.
Call us at 858-410-0144
to start settling your case.

 

[i] Certified Specialist – Family Law, The State Bar of California Board of Legal Specialization.

 

Five Questions to Ask When Hiring a Divorce Mediator

mediation conflict resolution skillsIf you are thinking about divorce mediation, you need to consider that not all mediators are created equally.

In fact, some are much better than others.  What’s more, a bad mediator can cost you a lot of stress and money in the long run.   Good conflict resolution requires a very specific set of skills.  In other words, it’s best to get a mediator who knows what she is doing.

In California, there are no licensure requirements for mediators.  So, it’s buyer beware to some extent.

Here are some questions to ask mediators when interviewing potential candidates:

#1: How much mediation training has the mediator had?

Training is really important.  Good mediators have a specific skill set in working with parties to resolve their differences.  These skills in listening and communication are crucial to a case going well or poorly.  Make sure your mediator has sufficient training and has received continuing training as well.  If they just took a course 15 years ago, for example, without getting any updates, they probably will be lacking in skills.

Looking for divorce mediation training?
Check out Family Resolution Institute here
for more information.

#2:  What other professional credentials does the mediator have?

You want to make sure that the mediator has professional know-how beyond just a one-time mediation training course.  Typical mediators are either lawyers, mental health professionals or financial professionals.  They should have a working professional knowledge of the issues you are going to face.  When drafting settlement documents, it is often helpful to have an attorney serve as your mediator.  Mental health professionals are excellent for custody cases or cases where emotions are particularly high.  Financial professionals help a ton with the financial issues.  If there is no other underlying credential, you might want to look elsewhere.  Also, be careful of unlicensed professionals.  For instance, just because someone has a J.D., they may not necessarily be licensed attorney.  You certainly don’t want a disbarred attorney as you mediator.  If they don’t have an active license, ask why.

#3:  Is the mediator a full-time mediator, or a dabbler?

It’s best to get a mediator who mediates on a full-time basis and not a person, who just dabbles in mediation.  A person who mediates full-time takes the profession seriously.  People often get into trouble if they hire a person whose full-time job is as an adversarial attorney or a therapist, for example, who may only mediate now and then.  Such folks will likely not have the skills you need to get results.

#4:  Beware of one-day or super cheap processes.

Marriage is not an easy thing to unwind.  Be careful of mediators who promise results in one day or some other very short time period.  Chances are, you will feel rushed, and your settlement will not cover what it needs to cover.

Also, be careful of super-cheap mediators. In many cases, you really do get what you pay for.  There can be lasting consequences if you rush your process and miss something important.

#5:  Ask the divorce mediator about his/her process and mediation style.

Every mediator is different and may have a different style.  Some mediators are much more facilitative while others are more directive and evaluative.  As a result, the relationship with your mediator is very personal.  A mediator who is excellent for one couple may not be so good for another.  So take the time to get to know the mediator, her process, and style before you engage.

Hopefully, these tips will help you with the mediation selection process.  Very importantly, don’t rely on your mediator for legal advice.  Even if your mediator is an attorney, he can’t be YOUR attorney because of conflict of interest concerns.  So it is always smart during any mediation process to consult with a lawyer to make sure that your decisions are informed.

At Weber Dispute Resolution, we provide both attorney consultation service and mediation services.  To get more information, give us a call at 858-410-0144.