by Shawn Weber, JD, CLS-F* | Jan 1, 2016 | Uncategorized
Sometimes it is most difficult in divorce cases to divide personal property -the “stuff” accumulated over the years of a relationship. When people share their lives with each other, they also share and accumulate a lot of personal property. Sometimes the task of dividing the household furniture, furnishings and appliances can be a real struggle. Not only can it be difficult to physically divide and value the assets, it can be a real emotional rollercoaster.
I mediated for a divorcing couple recently, who had their most difficult struggles dividing the pots, pans, furniture, washer, dryer, stereo and those little knick-knacks they picked up at the swap meet over the years. Worse they were on the “pack rat” side of things so they accumulated a lot of things together. Each item represented something important. One piece of artwork reminded them of their romantic vacation in Mexico. The silver they had purchased together to celebrate their 25th wedding anniversary. The little statuette on the mantel was a gift from their child. All through the house they saw many symbols of their relationship and all that they had invested in each other. As a result, a task to divide personal property was extremely painful.
Here are some tips to help you divide personal property:
Understand that the court would only award a household asset at garage sale value.
Unless it is a Steinway Grand Piano or a rare piece of artwork, the chances are high that your stuff is not worth nearly what you may think. While you are looking at the values of things, think of what you would, as an objective outsider, pay for the item at a garage sale or a flea market. Be careful not to allow emotions to “inflate” in your mind the value of the flatware or the coffee maker. Yes we know that the teddy bear collection is absolutely adorable, but honestly, what would a third person really want to pay for it. Use common sense and don’t allow your emotions to cloud things for you when you divide personal property.
Do it yourself.
It is really not cost effective to pay your attorney $300 plus per hour to fight about who gets which couch or who gets the bath mat. If it’s a high dollar asset such as expensive artwork or collectable antiques, you may want to use your professionals. But, for most things it makes more sense to save the money and do it yourself.
Do an inventory first.
It’s a good idea early in the process and before you start dividing things to make a list. If time is a problem, I often recommend going through the house with a video camera and speaking about each item as you tape. You can then go make your list later.
Make a list to divide personal property.
In fact, make several lists. I suggest four columns. Column 1 means he gets it. Column 2 means she gets it. Sell everything you list in column three and divide what money you get equally. Column 4 is for those things in your closet to throw away or donate like the polyester suit in the closet, your old beta video tapes or the pile of Louis L’Amour novels that you haven’t read in twenty years. Notice, I am not including a list for items about which you cannot agree. I am a big believer in using the old Solomon method. If you can’t agree on who gets it, then sell it or donate it. You simply can’t afford, for most items, to spend the time arguing and spending money on your attorneys. One idea, if you are stuck, is to just take turns picking items you can’t agree on until they are gone. Another idea is to give extremely sentimental items as gifts to your children.
Make a plan for photographs and videos.
I recommend that you choose a date when each of you will make photographs and videos taken during the marriage available to the other. The person making the photograph or video available will allow the other to choose which ones he or she would like to duplicate. There are services available that can duplicate photographs and even restore some of them for you for a reasonable fee. You can also convert your old vhs to digital so that you both can keep a copy of your videotapes with yourselves. With today’s computers, scanners and printers, you might be able to do a lot of this yourselves. Each of you should share equally in the duplication costs.
Pets, according to the law, are property.
I have had many clients tell me how their pets have become nearly as important to them as children. They are often surprised to learn that the court deals with them not as living things so much as property. Few courts will entertain a pet “custody battle.” Remember, a court has the ability to truly play Solomon with your pets and order them sold. I advise parties to do everything they can to work it out relating to the pets. Do everything possible to consider your pets’ needs and do what is best for them rather than allowing them to become an issue of property division.
Be careful if there is a history of domestic violence.
In cases where there has been domestic violence, sometimes it is difficult to sit together and divide personal property. In such instances, it is probably advisable to go ahead and use your attorney as at least a go between. Naturally, if there are restraining orders in place, it would be impossible to meet face to face. But the same ideas described above apply. It is just you will need to make arrangements to inventory the house without the other being present and with proper legal arrangements. Don’t violate a restraining order just to get some stuff out of the house.
I have had many clients tell me that the process of dividing the personal items was a healthy cleansing process.
One client told me, it was nice to get rid of some of our old, useless stuff and start over for a fresh, clean break. If even after following these steps, a couple still finds it difficult emotionally, I recommend making use of a divorce coach, who can even come to your home while you do the division. Typically using a single divorce coach is much more cost effective than using your attorneys to divide household items.
If both parties approach the task to divide personal property with a fair, patient and open mind they will likely be successful in doing the division with little to no attorney intervention. The court’s are particularly happy when parties can reach agreements on their own. Parties should be careful not to allow the division of things bring unnecessary conflict. Remember, they are just things and not people.
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by Shawn Weber, JD, CLS-F* | Dec 23, 2015 | Uncategorized
The F-word
Those of you who know me are aware that my wife and I have five kids. When I tell people how many kids I have, there is usually an audible gasp and sometimes an expletive. (I don’t know why because I love my kids.) But as any parent will know, kids have a lot to learn about this world. One very important lesson to learn in the Weber house is that a lament that something isn’t “fair” gets you nowhere. We make it clear to the kids that “life isn’t fair and the sooner you learn that, the better off you’ll be.” That’s why “fair” is the F-word.
When people come through my door, I see the tumult in their lives. Clients will often make demands for what they view as the “fair” outcome. However, “fair” is a subjective concept and quite impossible to define objectively during family law or divorce negotiations. In their search for peace, clients sometimes bog themselves down in a vain attempt to achieve an unachievable result.
Really, there is no such things as a”fair divorce” in family law.
There’s a reason for that. The idea of “fair” is rooted in one’s perspective and perception. We view “fair” through our own prism of reality. In family law or divorce negotiations, what one party might view as fair is often different from what another person views as fair. If fair were easy to define, I would be out of a job because people would just be able agree with little to no effort. But fair is not an objective standard. Fair is always subjectively defined. A truly fair divorce is very rare.
Why “Fair” Is the F-WordThe Myth of Lady Justice
Concepts of “justice” are equally subjective. The statue we see at the courthouse of Lady Justice with the blindfold and the scales is a myth. Anyone who has spent any time around a courthouse knows that achieving true justice is rare. Rather, the courts simply apply the imperfect laws written by imperfect legislatures and interpreted by imperfect courts. Very often, folks perceive the application of those laws as unfair or unjust.
Make a Good Business Decision
Rather than asking, “what is fair,” it makes more sense to ask, “What is a good business decision?” or “What will maximize my outcome given the hand that I have been dealt.” These questions remove the emotional and loaded questions regarding justice and fairness. They allow the participant to focus on reaching a settlement that he or she can live with. A settlement by definition requires compromise. A compromise by definition means that both parties are giving something up. A fair divorce, in that situation, isn’t the point. Rather, the focus is on making a decision that can end the conflict so that a person can move on, which in turn will bring peace.
Many of the rapids on our journey through life a borne in a sense of dissatisfaction with the choices before us. Divorce has a way of limiting many of our choices.
I’ve never seen a client find peace in life by focusing on what is fair or unfair. Peace comes from finding a resolution and reaching an acceptance of what is. It’s an opportunity to transition from a conflictual sense of being to one that is harmonious and whole.
See Also:
Five Tips to Have a Miserable Divorce: https://weberdisputeresolution.com/five-tips-to-have-a-miserable-divorce/
Forgiveness During Divorce: A key to finding peace: https://weberdisputeresolution.com/forgiveness-during-divorce/
How much does it cost to go to divorce mediation? https://weberdisputeresolution.com/divorce-mediation-cost/
Shawn Weber, CLS-F: https://weberdisputeresolution.com/meet-our-team/shawn-weber/
by Shawn Weber, JD, CLS-F* | Dec 20, 2015 | Uncategorized
For many of my clients, the holidays after divorce can be a difficult time.
Many are keenly aware of the loss they have suffered as the result of their divorce and will go to great lengths to preserve a sense of family. The changes to the family, for many, are in stark contrast to the ideal Norman Rockwell Holiday memories they want their kids to have. People also, quite reasonably, want their children with them on those special days. All of that is reasonable, but when the wish to have your kids with you on a special Holiday turns into conflict between you and your ex, your kids can suffer.
It’s a bit ironic that in this season when we are supposedly celebrating peace on earth, some of the greatest interfamily conflict can occur and if you’re not careful, your kids will be right in the middle of a holiday visitation disaster. Here are just a few ideas about how to bring “Peace on Earth” to your kids for the holidays after divorce:
Consider Celebrating Some Part of the Holiday Together with Your Ex.
I know, you worked hard to get away from your former spouse, but your kids didn’t. For their sake, consider putting the past behind you and let your kids open presents with both of their parents. That said, if you just can’t be in the same room with the other parent without it devolving into a slug fest, then reconsider. But if you both can keep it together long enough for the kids to have a nice holiday, you will have done something very kind for them. This is the season of giving after all.
Coordinate Presents with the Other Parent.
Much of the holidays after divorce conflict we see is when the parents compete with each other over the present giving. Don’t let that happen. Rather, spend some time early coordinating the gift giving with the other parent. Perhaps consider purchasing joint gifts. Don’t let something as beautiful as gift giving turn into an ugly competition.
Don’t Project Your Own Emotions About the Holidays After Divorce Onto Your Kids.
Holiday visitation stirs up all kinds of feelings and emotions. Regret, guilt, anger, resentment, loneliness- these are feelings that can pop up in spades during the holidays. However, if these are your emotions, they might not necessarily be what your kids are feeling. We have a tendency to project our own feelings and frustrations onto others, when that is usually not appropriate. Be aware of that and keep your expression of emotions in check. Stay selfless and make the holidays about others and what their needs are. Be mindful, that your kids’ needs will likely include time with the other parent.
Plan the Holiday Visitation and Travel Schedule Early.
Don't just assume that your ex will be aware of or will cooperate in fulfilling your expectations for the perfect holiday with the kids. Communicate early and plan ahead with your kids' other parent to reduce confusion or frustration when the holiday comes around. Don't assume anything about the schedule. Don't wait until Thanksgiving to talk about the holidays. Start talking and coordinating in July – or even earlier. That way, when the holiday comes around, there will be no surprises.
In summary, the holidays after divorce can be a time when cherished memories are created. However, they can also be a time of heartache and terrible memories if not done properly. Don't let problems with holiday visitation be a flashpoint for your kids to remember how badly you and your ex behaved. Let it be "Peace on Earth" for your kids. That means that you need to take responsibility to be a peacemaker with the other parent.
These are just a few ideas. Maybe you have some ideas or tips. Share them with me!
https://weberdisputeresolution.com/divorce-options-workshops/
https://weberdisputeresolution.com/forgiveness-during-divorce/
by Shawn Weber, JD, CLS-F* | Oct 7, 2015 | Uncategorized
I will often receive a call from a potential client interested in a San Diego divorce mediation, but who is a little apprehensive because their spouse has had a history of coercion, manipulation and bullying. The question then arises as to whether mediation is really the appropriate venue to resolve the case. Many of my peers may disagree with me, but a good mediator can successfully resolve almost any case. Here are some points to consider for a successful divorce mediation when your spouse is a bully:
Check to make sure you have a well-trained mediator.
Mediating a case where there is a history of coercion or manipulation is advanced work and not for the faint of heart. You need to make sure that your mediator has the skill, background and personality to ensure a level playing field. It may be a good idea to bring up your concerns in a caucus session so that the mediator is aware.
Make sure you consult with an attorney.
Mediation is actually without risk because the mediator makes no decisions in your case. She can only help facilitate the discussion. Nothing becomes binding until you sign the marital settlement agreement. You would be wise, however, to work with advising counsel throughout the mediation process. Come to mediation sessions armed with knowledge of your rights and what the law may or may not provide. Under no circumstances should you ever feel pressure to sign any documents without first having had the opportunity to review it with your attorney. If you continue to feel uncomfortable, you may want your attorney to attend mediation with you.
Consider hiring a divorce coach or a therapist.
You need to bring your best self to the mediation sessions. To avoid falling into the same old patterns where you may have been manipulated or coerced in the past, it is wise to meet with a mental health professional knowledgable in divorce issues to prepare you for the sessions so that you can avoid getting your buttons pushed. You can find divorce coaches by looking up your local Collaborative Practice group. In San Diego, you can go here: http://www.collaborativefamilylawsandiego.com.
Demand Full Financial Disclosure.
In successful mediation, disclosure is essential. Make no decisions without having had the opportunity to thoroughly review all material financial information. A financial disclosure should also include back-up statements and documents. Like in the cold war, it’s “Trust but Verify.” You may consider having a financial professional such as a Certified Divorce Financial Analyst (CDFA) review the disclosures to uncover any “red flags” deserving additional investigation.
Stand Your Ground.
Bullies often bluster and threaten. More often than not, the threats are empty. If you prepare yourself, you need not be intimidated. Often times, abusive relationship involve a sort of abuse dance. You don’t have to dance anymore. You are getting divorced. You are intelligent. You are certainly not stupid. Stand on your own two feet and rely on your support system to be strong.
If there is physical intimate partner violence, think twice.
It is one thing to be a bit of a blowhard and a verbal bully. It’s entirely different when the situation involved physical violence. Do not trifle with domestic violence. If that is happening, mediation is very difficult. However, even in such situations, mediation can be appropriate with safeguards in place. For instance, you can be in separate rooms at all times or you can demand anger management counseling. In any case, make sure you have trained professionals who know what they are doing. If for one moment, you do not feel safe, you can withdraw. However, as a general rule, physical intimate partner violence presents a huge red flag.
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by Shawn Weber, JD, CLS-F* | Oct 1, 2015 | Uncategorized
When getting divorced, some couples are able to remain civil throughout the process. Others need help from family law lawyers like jennifer croker. And a few add chaos to the whole process because they’re in such bad conflict. The worse the conflict, the harder the separation process can be so how can you manage it successfully?
In my years as a consensual dispute resolution professional, I have gotten to know a lot of professionals who try to manage conflict in divorce and family law situations. Some are very successful… and others not so much. I have compiled a list of my top five principles for successful family law conflict managers.
1. PATIENCE
This is not a race. Parties involved in a divorce are in crisis both emotionally and often financially. Don’t expect them to just reach a compromise in five minutes. The temptation is to try to “cut to the chase.” After all, we probably have an idea of where the settlement is long before the parties do because of our experience. But the parties need to “own” the agreement and they can’t if we just decide it for them and then try to force it on them.
Our job is NOT to twist arms. Our job in successful dispute resolution is to help the parties find solutions. In my experience, arm-twisting rarely results in a lasting settlement. It does, however, leave a terrible taste in the mouth of the person whose arm you just twisted. If people feel pressured or forced, we may reach a settlement, but it is unlikely we will have been able to help the parties reach a transformative outcome. Worst of all, they will resent us.
Rather, we should let the case proceed organically. We will guide, inspire and motivate– but never, ever force.
2. HUMILITY
Newsflash! It’s the parties’ case- not yours. Your job is to help guide people to a respectful outcome. You are not the finder of solutions or the sage of wisdom. Your job is to shine a light on problems and help the parties find their own solutions.
I have seen mediators brandish their stats as a weapon in mediation. For example, parties may be stuck at impasse and the mediator says, “I have a 98% settlement rate and you are ruining my statistics!” Your dispute resolution statistics, as far as the parties are concerned, are completely irrelevant to their problems. Sure, you try and find solutions, but the moment you invest yourself personally invested in the outcome as a matter of pride, you are doing your parties a huge disservice.
In my experience, most of the best ideas come from the parties not me. While I sometimes see myself as the “brainstormer-in-chief” trying to provide as many ideas as possible that the parties may not yet have thought of, I never lose site of the reality that the case belongs to the parties. My most important job in brainstorming, however, is not to be the one with the great idea. Rather, I strive to create an environment were the parties can find the solutions on their own. I am the facilitator. I am not the decider. My personal pride is not important.
3. EMPATHY
Perhaps the most important skill a mediator can learn is the ability to listen. I am not talking about the superficial surface listening. I mean deep, empathic listening.
To help parties settle, you have to really understand the conflict. This requires more than just listening to words. You need pay attention to body language and non-verbal cues. Prepare yourself to dig deep to find out what really motivates a party and what his or her interests truly are. Yes, she may be telling you that it is about the house or the best interests of the kids. But maybe down deep, she is really just afraid or insecure about her future. In such a situation, no financial settlement can satisfy the party who is afraid until the fear is acknowledged and addressed. This may take some digging to find, but until you do, you won’t help the parties reach a lasting settlement.
I find that I have to make sure I listen with more than just my ears. I also listen with my eyes, my heart and my soul.
Good dispute resolution requires your humanity. Remember, this isn’t just a legal process; it’s a human experience. Until we can get into the world our clients are experiencing, we are limited in what we can help them unlock for themselves. “Family law at its heart is concerned with human condition and the resolution of the myriad of tragedies that flow from it in all its chaotic splendour”, Deputy Head of International Family Justice for England and Wales International Academy of Family Lawyers writes in the official Peters And May blog.
4. FLEXIBILITY
Because I work with people, I have learned to be ready and open for the unexpected. People don’t fit into compartments. My dispute resolution process, therefore, needs to have flexibility built in. A good mediator or dispute resolver can pivot quickly. Rigidity is the enemy of success when people are involved.
My mantra is “People before process.” While we may be very proud of our protocols and systems, the moment we allow them to drown out the needs of the clients, we miss the whole point of our service-to guide and help PEOPLE. We will keep our processes and protocols, but won’t be afraid to modify when the needs of the parties dictate a change.
5. PRINCIPLED BOUNDARIES
While it is important to be empathic and flexible, it is still important to have principles and boundaries, which we don’t compromise. For instance, I don’t ever let a party compromise my neutrality. I also insist on clarity surrounding how a party can communicate with me outside of the dispute resolution process. I guard my weekends and off hours, which are reserved for my own family. These and other principles and boundaries will not only preserve my own sanity, but they also communicate to the client that this is a business transaction and that there is a professional process that is deserving of respect.
While I am all about compassion and kindness, I am not a family member or a friend. I am a professional with a job to do. I do that job best when there are boundaries. Whenever I have allowed a boundary to be compromised, I regret it because the case almost always will go south.
I have found these principles to be crucial to my own practice. Perhaps you have other principles you would like to share. Let me know what works for you!
Read also:
Dolphin Lawyering: Why I can be an advocate without being a shark
We don’t get along very well. How can we possibly mediate our divorce?
Why “Fair” is the F-Word in Divorce Negotiations
