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.
by Shawn Weber | Feb 25, 2010 | Uncategorized
By Shawn Weber, San Diego Divorce Attorney
When dividing the community property interest in a defined benefit plan, the Court most often uses the so-called “Time Rule” or “Brown Formula”. Many clients (and a lot more attorneys than you would think) have a difficult time understanding how the time rule formula works.
Basically, the court uses a formula for the apportionment between divorcing spouses of the future retirement benefits. A percentage is determined based on the ratio between the time that a member spouse was enrolled in a defined benefit plan during the marriage and the total time that the person was enrolled in the plan. The formula is used because often times the member spouse is not yet retired and is still racking up separate property time in the plan, changing the percentage of the total benefit payment the non-member spouse would receive when the plan goes into pay status. For an excellent discussion of the Court’s use of the time rule, see In re Marriage of Judd (1977) 68 Cal.App.3d 515, 137 Cal.Rptr. 318.
In applying the formula to a pension annuity, the Court in Judd “simply” boiled the time rule down as follows:
“The most effective method of [dividing the community property portion of a pension] would be to determine the community interest to be that fraction of retirement assets, the numerator of which represents the length of service during the marriage but before the separation, and the denominator of which represents the total length of service by the employee-spouse. Such disposition would comport with what we have termed the ‘time rule.'”
For me, it is easier to actually see the formula written out as follows:
1/2 x (Member’s system credit accumulated from date of marriage / members total system service credit at time benefits become payable) x (Member’s benefit at time benefits become payable) = (Non-member spouse’s share of system benefits)
Usually, a Qualified Domestic Relations Order or “QDRO” will be required by the pension administrator to apply the time rule to the pension. Then, once the pension goes into pay status, the payments will be divided according to the formula.
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