Archive for October 2010

Co-parenting on Halloween: How not to make candy night into a nightmare

By Shawn Weber, San Diego Family Law Attorney and Mediator

Halloween visitation, halloween co-parenting, Shawn Weber

Halloween visitation is often overlooked by California courts. It never seems to get the attention that Christmas, Fourth of July or even Labor Day receive. Because people don’t get time off for Halloween, it is often simply forgotten in custody orders. However, it can be pretty frightful if the parents are acting like monsters on the night that the kids are supposed to be having fun. Here are some tips to make sure that Halloween is a treat instead of a trick:

  • If Halloween visitation is not in your ordered parenting plan, consider adding it. This may seem like a no brainer, but as mentioned above, the holiday is often overlooked. It’s a good idea to be fair about the holiday and consider an alternating annual schedule. For example, the kids could be with dad for trick-or-treating in even-numbered years and with the mom in odd-numbered years.
  • If your relationship with the co-parent is a good working relationship, consider doing the trick-or-treat thing together. It can be a lot of fun to take your kid together. But, if you know you can’t be within ten feet of your ex without turning into a witch, then be realistic about it.
  • Remember, this is your kids’ time for fun. You don’t want their memories of Halloween to be marred by the horrors of badly behaving parents. Even though you may be tempted to “get into it” with your ex, make sure you have a good handle on your emotions so that your kids can have a great time.
  • Don’t let there be a battle with the ex about the kids’ costumes. I know, you want to dress your little boy up as a clown or a tiger, and your ex wants to dress him up as Freddy Krueger. It will help if the two of you discuss Halloween costumes well in advance of the big night. Most importantly, let your child have the last word on what the costume will be. Don’t let the costume be a turf war.
  • If it’s Halloween and it’s your night to have the kids, as circumstances permit, consider driving your little monsters past the other parent’s house to trick-or-treat. Perhaps even take the kids to your ex’s parents to show their costumes off at grandma and grandpa’s. This goes a long way to show that you are making the children’s relationship with the other parent a priority.
  • If it is not your night to have the kids, don’t force yourself onto the scene. If you can do it together and you are welcomed by the other parent, that is wonderful. But if you are not welcomed, don’t just show up. Remember, a key to successful co-parenting is respect for boundaries. Perhaps you can plan a separate Halloween party when it is your night complete with spooky music, candy and pumpkin carving.

Again, remember that Halloween can be a fun night for your kids. Be considerate of your little ghoul or goblin by not spoiling the evening by bickering with the ex. Make the night about the kids. If you can work together— great! If you can’t, then respect boundaries.

Need help figuring out a plan for Halloween visitation?  Contact San Diego Divorce Mediator and Attorney Shawn Weber at 858-410-0144.

 

The Weber Dispute Resolution Divorce Song List

By Shawn Weber, Attorney and Mediator

Ok… so I have been writing all of these serious posts on my blog about important things like child support, custody, division of pensions, blah, blah, blah. . . .

This post is an attempt at a little levity in what is otherwise a fairly depressing industry. I have learned over the years as a divorce attorney that it helps to be armed with a fairly robust sense of humor when tackling my daily diet of other people’s misery. My mother always taught me, “You might as well laugh as cry.”

I also find it healthy to listen to how artists have dealt with the “D” word through the divorce song. Some of the songs are deeply emotional and some are downright funny. In any case, music can make a person forget their own struggles… or maybe just wallow in them… I’m not sure.

So, here is my divorce song list in no particular order:

I’m sure I didn’t even come close to scratching the surface. Please comment and tell me your favorite divorce song. Maybe I can compile a huge playlist to put on our music on hold. Well—maybe not.

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What effect does adultery have on a California divorce?

Shawn Weber, Attorney and Mediator

The short answer is “none” because California is a “no-fault” state.

This means that evidence of adultery, as a general rule, is not permissible in court as it is not relevant. However, perhaps that answer is a bit simplistic. Evidence of an affair can come in if it is used to prove a fact that is relevant.

For example, I had a case several years ago where the husband had used community property funds to purchase expensive jewelry for his mistress. I represented the wife and brought the evidence of the jewelry purchase into evidence – not to show that there was adultery, but that the Husband had violated his fiduciary duties by secretly purchasing the very expensive jewelry with community property funds. In another case, I was able to bring evidence of of an affair in where the opposing party had invited the parties’ five-year-old child to sleep between her and her boyfriend. Again, I did not bring the evidence in to show that there was cheating. Rather, the evidence came in to show that the minor child was inappropriately being exposed to her mother’s sexual behavior.

So, the rule in a nutshell is that evidence of adultery generally does not come into evidence because the fact that an it occurred is not relevant in a no-fault state. However, where the evidence that shows that adultery occurred also shows that something occurred that is relevant, the evidence can come in, but only to show the truthfulness of the relevant fact and not the alleged adultery. (That the judge learns of the adultery as a consequence is a nice little bonus.) Importantly, the mere fact that adultery occurred cannot be considered by the court in dividing property, dividing debt, awarding support, awarding attorneys’ fees or determining child custody in a divorce.

Keeping emotional perspective: how keeping track of one’s emotions can lead to better outcomes in divorce cases.

Shawn Weber, Family Law Attorney and Mediator

One colleague of mine made the apt observation that Family Law is the only area of law where 99.99% of the time, the opposing parties have slept together. That is huge! What a tremendous amount of emotion, pain and tension can come to the table over what otherwise could be simple negotiations. The parties in a divorce or other family law case are faced with not only the stress of potentially costly litigation but are also faced with the hurt, pain and loss associated with the end of an important relationship. Throw children into the mix and it becomes even more complicated. This contrasts starkly with the average civil dispute where, although there may be anger and frustration, the emotional pain does not and cannot run as deep. In a simple civil dispute, decisions often simply come down to math. It’s not so simple in family law where two plus two may not exactly equal four.

I often work with families in extreme high conflict. I have seen otherwise perfectly sane and rational people completely “crack up.” I am reminded of the 1989 Hollywood Film the War of the Roses (http://www.imdb.com/title/tt0098621/ ), where the divorcing characters played by Michael Douglas and Kathleen Turner, the Roses, draw a chalk line through the middle of the house and actually end up killing each other at the end of the movie. It has always been a goal of mine to keep my clients from ending up like the Roses.

It is very important that a person going through a divorce work very hard to keep emotions from clouding sound judgment. Sometimes people latch on to certain assets like a house or a retirement plan and refuse to give it up no matter the cost. For example, a person needs to think hard about whether it is really best to keep the house rather than sell it. A client may “win” and get the house, but then be “house poor” for years trying to pay an unaffordable mortgage and maybe even lose the house anyway.

There is also the issue of what I call emotional cost. Divorce and family law litigation can play havoc on a person’s soul. I believe it can take years off a person’s life. I have personally had clients, who I have watched deteriorate physically as a result of the huge amount of stress. Their lips may be pursed, their eyes sunken from lack of sleep. Perhaps they are drinking more heavily or gaining weight. It doesn’t do any good to fight to the death over every last dime if a person strokes out from the stress.

On the other side of the same coin, however, I never cease to be amazed at how much better a client actually looks after they are finished with the divorce and away from the stress. I remember one client in particular who simply looked beaten down as a result of some fairly difficult litigation. She didn’t take care of herself. She had headaches all the time and she rarely slept a full eight hours. The pain and tension literally could be seen in her eyes. She came to my office one day and said, “I feel terrible. This divorce is killing me. You have to help me end this nightmare.” We then talked about options for settling the case in ways that she was previously unwilling. She realized that the stress of the divorce was killing her and that it was more important for her to end the conflict than it was to keep fighting for every penny. I called opposing counsel and the case settled in a week after three years of litigation. I saw this client later the following year. She looked wonderful. I didn’t even recognize her. The color came back to her cheeks. She actually smiled, which I had never seen her do. Her eyes showed that she was happier and stronger. No, she didn’t get everything in her divorce settlement that she thought was “fair” and she was still happy.

Later that same year, I met with a friend of mine who was facing his second divorce with an extremely high conflict individual. I could see the pain in his eyes as he considered the prospect of costly litigation with a very difficult spouse who had already assured him she would “make him pay.” He asked me as a friend, not as a lawyer, what my advice was. I told him to come up with a number he could live with and buy his peace. He followed my advice and told me that it was the best advice he had received that year about his divorce. Others, including attorneys, advised him to fight with a scorched earth strategy. Instead of Armageddon, however, he found peace and was able to move on quickly. He was happier for it.

So, I always advise my clients to consider the emotional cost of continuing with the fight. As an attorney, it’s hard for me to place a value on emotional peace, but it is nonetheless real. A party may do better leaving some things on the table and walking away, if it offers a chance to be free of the conflict. Perhaps only the person going through the divorce can put a value on emotional peace.

I am NOT suggesting that a person should just walk away from everything so as not to fight. Rather, I suggest that when weighing financial decision making, one should consider all aspects of the emotional pieces of the dispute and consider emotional cost when making financial decisions. Peace of mind is simply priceless.

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