by Shawn Weber, JD, CLS-F | May 2, 2011 | Uncategorized
This is an excellent article about how to work with advising attorneys during mediation. I always say, make sure your attorney understands clearly at the first consultation that you are not looking for full blown representation– just advice. I also agree with the comment that a collaborative lawyer is the best candidate. Collaborative lawyers through their training “get it” that you are trying to stay out of court. Remember, your attorney works for you and you are the boss. Don’t let an attorney talk you out of a settlement if you believe it is right for your family. You only need the attorney to make sure that your decisions are informed. You are a grown up, so if after conferring with your attorney, you believe that your choices are right, then follow your gut. You have to live with your choices, not your attorney.
Read the Article at HuffingtonPost
by Shawn Weber | Oct 18, 2010 | Uncategorized
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.
