by Shawn Weber | Oct 20, 2010 | Uncategorized
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:
- Gloria Joyner, “I Will Survive”
- Carly Simon, “You’re So Vain”
- Cee-Lo Green, “Forget You” (This is the PG version of the more explicit “F**k you”.)
- Dolly Parton, “Jolene”
- Carole King, “It’s Too Late”
- Sara Bareilles, “King of Anything”
- Ray Charles, “Hit the Road Jack”
- Billy Joel, “And So It Goes”
- Jason Mraz, “Love for a Child”
- REO Speedwagon, “Time For Me To Fly”
- Miranda Lambert, “Kerosene”
- The Dixie Chicks, “Goodbye Earl”
- George Michael, “Freedom”
- Kelly Clarkson, “Since U Been Gone”
- The Beatles, “We Can Work It Out” (I get it. This is about working it out and not getting divorced. However, I think it is a great song for people trying to settle their case outside of court.)
- Ben Folds Five, “Song for the Dumped”
- Mark Chestnutt, “Going Through the Big D”
- Jerry Reeves, “She Got the Gold Mine; I Got the Shaft”
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.
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 | Oct 1, 2010 | Uncategorized
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.
[youtube=http://www.youtube.com/watch?v=5ebv3i_9Ltc&fs=1&hl=en_US]
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.
by Shawn Weber | Sep 1, 2010 | Uncategorized
The main thing to do is to gather information. Copy documents; all the financial and legal documents you can find, such as: deeds, bank statements, credit card statements, income tax returns, corporate documents if there is a business, back for at leat 5 years, if you can. These documents will help to establish your standard of living during the marriage. NOTE that if you don’t have access to financial documents, you and your attorney have subpena power: he or she can send subpenas to the IRS and to financial institutions to request information. You can also do discovery: ask for answers to questions called Interrogatories, and request that documents be produced. Playing “hide the ball” is usally not successful.
Georgine Brave
Attorney at Law
Practicing Family Law since 1983
by Shawn Weber | Jun 3, 2010 | Uncategorized
No Fault Divorce
California is a no fault divorce state. Neither spouse has to prove that the other one is a bad guy. You check a box on the Petition, either “Irreconcilible Differences” or “Incurable Insanity”. This gives the court the grounds to grant the divorce. There is no need for the other spouse, the Respondent, to sign anything. He or she only needs to be served with the Summons and Petition and the divorce process is started. The Respondent does NOT have to agree; THE JUDGE GRANTS THE DIVORCE.
Georgine Brave
Attorney at Law
Practicing Family Law since 1983
