by Shawn Weber, JD, CLS-F* | Dec 14, 2017 | Uncategorized
By Shawn Weber, Family Law Attorney and Mediator
When we think of the holidays, we think of family. Our traditions are all about bringing the family together and celebrating togetherness. We have Norman Rockwell style images in our heads of the family (and children) gathered around the table with something delicious. Whether it’s lighting the menorah or setting out cookies for Santa, the Holidays inspire hopes for greeting card type scenery and happy times with our children. After all, “it’s the most wonderful time of the year.” It is also during the holiday time that most parents may opt to take their kids for vacations. It can either be to busy cities like New York, Florida or to serene and peaceful countryside locations like the ones at Iceland. You can opt for camper rental and spend quality time with them on the highlands. They would definitely appreciate spending time with the nature.
However, for single parents, the holidays can be especially trying. As a family law attorney, I typically see an uptick in custody and visitation disputes prior to every major holiday. It makes sense that the most emotionally meaningful calendar dates for people sometimes lead to the most emotionally driven family disputes.
It is always amazing to me that a time of year for celebrating peace on earth can be so full of conflict. Often I will get a frantic call right before a special day.
Examples are:
- “The kids were with my ex last year. Now he wants to take them again!”
- “I have been planning a visit with my kids to see my parents in another state and now she is ruining our plans! I already bought plane tickets!”
- “He is trying to buy the kids with expensive gifts. It makes me look terrible! He knows he doesn’t pay me enough support and I can’t keep up with him!”
- “She is threatening to show up right in the middle of our holiday dinner.”
Below are some tips learned through years of trial and error as a family lawyer to help co-parents get through the holidays:
Tip #1: Be Specific In Your Holiday Co-Parenting Plan
There is a reason why lawyers write everything down. When you have your agreement in writing, there is less opportunity for playing games. When I draft custody orders, I try to include a written holiday schedule with specifics about when the kids will be with each parent for which holiday. For example, a provision might look something this:
“In every even-numbered year, Sarah shall be in the Father’s care at 10:00 A.M. on December 24 until 10:00 A.M. on December 25 and in the Mother’s care from 10:00 A.M. on December 25 until 10:00 A.M. on December 26. In every odd-numbered year, this schedule shall reverse.”
(As an aside, notice that I split up the Christmas holiday in a way that lets both parents share in the fun. This is a very typical type of provision to consider including in your holiday co-parenting plan.)
The more specific your order, the less confusing your holiday co-parenting will be on the day of the holiday. Remember, confusion and ambiguity breed conflict and disagreement.
Tip #2: Don’t Wait Until the Last Minute. Discuss and Agree to Holiday Co-Parenting Plans Early.
Planning a trip to North Dakota with the kids for winter break? Then make your holiday co-parenting plans and get your ex’s agreement early. I can’t tell you how many times I have seen a party make plans and buy non-refundable tickets only to have those plans dashed at the last minute because they didn’t consult with the other parent. Talk about it early. Agree on travel plans. Get it in writing.
Tip #3: Talk to each other about gifts.
It can be very awkward when both parents buy little Susie a Big Hugs Elmo. So, make an effort to coordinate. And please, don’t make it a competition. It’s about your child after all.
Tip #4: Control the Relatives.
Your child does not need to hear anyone speaking ill of the other parent over turkey, even if he really is a big jerk. Make sure that relatives and family members refrain from bad mouthing. Remember, that’s your child’s other parent they’re talking about. When you allow other people to speak ill of the other parent in front of your children, it only hurts the kids.
Tip #5: Don’t be selfish. Share!
There is a real temptation to want to keep all of the holiday fun for yourself. Avoid that type of thinking. When you are co-parenting, you simply may not get to spend every holiday with your child. It’s the season of giving-remember? However, you may consider (if you are up to it) spending a holiday together with the ex. Why not do the Santa thing together? It can really make a holiday special for your child if you can pull it off without fighting. Be realistic about it, though. If you really can’t get through an evening with your ex without throwing your egg nog at him, then go the separate route.
Tip #6: Respect Boundaries.
If it is your ex's year to have the kids on a holiday, remember to be respectful of her time with the kids. Don't interfere. Do not try to show up at the house unannounced during dinner. Don't worry. I know it may be really difficult to be away from your little ones during a special holiday, but it will be okay. Don't let your kids be the subject of a tug of war on a day that is supposed to be merry and joyful. Let them experience the holiday without being placed in the middle of your struggle. Just let go-at least for the holiday. Your ex will be grateful and will be more likely to return the favor when it's your year.
https://weberdisputeresolution.com/holiday-visitation-bring-peace-on-earth-to-your-kids/
by Shawn Weber, JD, CLS-F* | Apr 1, 2017 | Uncategorized
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?
by Shawn Weber, JD, CLS-F* | Mar 21, 2017 | Uncategorized
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
by Shawn Weber, JD, CLS-F* | Aug 23, 2016 | Uncategorized
The “Dolphin Lawyer” Shawn Weber
Shawn Weber on the Radio
I had a blast on Real Talk San Diego on ESPN Radio AM 1700 with co-hosts Ryan White and Karen Kaseno as well as my good friend and fellow University of San Diego School of Law Alum, Brian Dirkmaat, of the Coast Law Group. I enjoyed sharing my insights about Divorce Mediation and my Dolphin Lawyering philosophy. Give it a listen and let me know what you think.
Listen to the Podcast Here:
https://soundcloud.com/realtalksandiego/shawn-weber-brian-dirkmaat-08-18-16
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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