Video Post: Why I Absolutely Love Collaborative Practice For Divorce Cases
Family Law Attorney and Mediator Shawn Weber explains why he loves Collaborative Practice for resolving divorce and family law cases.
Dolphin Lawyering: Why I can be an advocate without being a shark
My History Before Dolphin Lawyering
I have been involved in the divorce industry now for 17 years. If you would have asked me 20 years ago if I would make my living as a divorce attorney, I would have laughed. I never thought I would enter into such a world. It seemed to me at the time that matrimonial law was where the lowest of the low practiced. Consequently, the idea of profiting off of other people’s troubles seemed somehow distasteful.
But then I started a family law clerkship. There I experienced the reward of helping people through the turmoil of their lives. Importantly, I became a very effective family law advocate and mediator.
Divorce is not just a legal process; it’s a human experience.
As a human being myself, I gain satisfaction from helping people through a very dark and frightening experience. I made it my goal in every case to bring humanity to legal situations to clarify the dynamics of each unique client situation in a manner that reveals options for settlement, preserves the long-term interest of the family, and empowers the individual client. Indeed, people become more knowledgeable on how to resolve issues without harming each other, their children, or others, while experiencing peace.
Dolphin Lawyering vs. Shark Lawyering
Sharks, frankly, give lawyers a bad name. I have learned over the years to be a different kind of attorney from the sharks. I developed a profound ability to get into the world my clients are experiencing and feeling to uncover the necessary clarity in each divorce relationship dynamic. From there, I use my gifts to bring a sense of calm, resolve and hope that could never be reached with a Shark Lawyer. I call it, “Dolphin Lawyering”.
As opposed to a shark who smells blood from miles away and mindlessly devours whatever fish crosses its path, a dolphin is smarter about how it goes about its business. As warm-blooded mammals, dolphins are very intelligent and creative hunters. They can be deadly if they need to be, but can show compassion to other animals as well. Stories abound of dolphins defending humans from sharks.
How is this like lawyering you may ask?
Many lawyers operate solely by a lawyer’s instinct to act as a zealous advocate, which actually exacerbates conflict. They operate with standard operating procedures and cookie-cutter approaches to their cases failing to tailor their approach to the individual families with whom they work. As a result, legal fees escalate needlessly. Instead of helping, the process damages families and children. So many divorcing couples begin their divorce process with hopes of remaining friends and effective co-parents for their children. When a Shark Lawyer gets a hold of a family like that, it only makes the attorney richer. Indeed, the co-parenting relationship is destroyed and the children suffer.
A Smarter Approach.
The Shark Lawyer will defend her actions by pointing out that she was only being a “zealous advocate”. But zealous advocacy does not mean a lawyer should be a mindless man-eater. Good advocacy involves knowing when to fight and when to negotiate in a smart way.
Prior to a case starting, Dolphin Lawyers will spend time pre-planning with the client. The decision of how to divorce is almost as important as the decision whether to divorce. The Dolphin Lawyer will spend time with his client discussing all of the options for a dispute resolution process. While litigation is sometimes a necessary evil, a good advocate will take time to discuss consensual dispute resolution models such as mediation or Collaborative Practice. I always ask, “What specific, tailored approach is going to work for this family?” In contrast, the shark never asks such a question, simply going by mindless instinct and applying expensive and unnecessary standard operating procedures that may or may not be helpful. While the Dolphin Lawyer seeks to pour water on the fire, the Shark Lawyer pours gasoline.
The Dolphin Lawyer is No Wimp!
Keep in mind, Dolphin Lawyering is not wimpy. Dolphin Lawyer can nonetheless advocate strongly for her client’s interests. As a matter of fact, she can do it with compassion and intelligence. Certainly, the Dolphin Lawyer is as knowledgeable as any other attorney. The difference is about effectively applying knowledge to reduce conflict rather than to exacerbate it.
The Dolphin Lawyer is just as zealous an advocate as any Shark Lawyer. But the Dolphin Lawyer is a more effective advocate because he knows good practice is more than just winning at court. Rather, strong advocacy is about improving the client’s situation. While it may make the Shark Lawyer richer, exacerbating conflict and wasting money on unnecessary legal procedures is hardly effective.
The Dolphin Lawyer does not fear conflict. She is instead comfortable working with raw, heightened emotions. In particular, she understands that to lead her clients to peace, she must directly face the pain that led her clients to her door.
Dolphin Lawyer Compassion
A Dolphin Lawyer seeks to understand his client’s pain so that he can help find solutions. Without doubt, he understands that people are coming through his door at the worst times of their lives. He doesn’t judge. Rather, he seeks to be compassionate and understanding.
Below is a chart showing some of the key differences between Shark Lawyering and the Dolphin Lawyering:
| Shark Lawyer | Dolphin Lawyer |
| Overly and unnecessarily aggressive. | Tough when needed, but understands that you catch more flies with honey than with vinegar. |
| Avoids emotional discussions. | Understands that dealing with emotions is a key element to helping clients through a tough time. |
| Applies expensive and often unnecessary cookie-cutter standard operating procedures. | Tailors the process to the individual client instead of the client to the legal process. |
| Lacks Compassion or Empathy. | Uses compassion and empathy. Seeks to understand the client’s pain, so that he can find solutions. |
| Puts the Legal process first. | Puts the human element first. |
| Fans the flames. | Pours water on the fire. |
| Uses litigation only. | Offers alternate or consensual dispute resolution options such as mediation or Collaborative Practice. |
| Tells you what you have to do. | Asks you what you want to do. |
Robin Williams and the Two Headed Monster Demonstrate Conflict
As I am a mediator and a collaborative divorce practitioner, my job is all about managing conflict. A key component to managing conflict is recognizing it when you see it. To that end, I thought this video would make a great tribute to the late Robin Williams while educating my readers. Enjoy!
Love and Real Estate: I am in a divorce with my spouse, but I don’t want to sell our house yet because I am worried about the impact selling will have on our kids. What can I do?
By Shawn Weber, CLS-F*
It is possible to get what is called a “deferred sale of home order”. California Family Code section 3800(b) provides for this option as follows:
‘Deferred sale of home order’ means an order that temporarily delays the sale and awards the temporary exclusive use and possession of the family home to a custodial parent of a minor child or child for whom support is authorized under Sections 3900 and 3901 or under Section 3910, whether or not the custodial parent has sole or joint custody, in order to minimize the adverse impact of dissolution of marriage or legal separation of the parties on the welfare of the child.
Section 3800 and related sections basically codify the holding of In re Marriage of Duke (1980) 101 Cal.App.3d 152, 161 Cal.Rptr. 444. The Court in Duke wrote:
Where adverse economic, emotional and social impacts on minor children and the custodial parent, which would result from an immediate loss of a long established family home are not outweighed by economic detriment to the noncustodial party, the court shall, upon request, reserve jurisdiction and defer sale on appropriate conditions.
[Duke at page 155.]
In essence, the intent of the statute is to minimize the impact on the children by awarding temporary use and possession of the family residence to the custodial parent. (A “custodial parent” is the party awarded either sole or joint physical custody of a child. [See Cal. Fam. Code 3801 (a).]) This house is then sold at some future time.
Before the Court will make a deferred sale of home order, the court must first determine “whether it is economically feasible to maintain the payments of any note secured by a deed of trust, property taxes, insurance for the home during the period the sale of the home is deferred, and the condition of the home comparable to that at the time of trial.” [Cal. Fam. Code 3801.]
In making this determination, the Court has to consider each of the following factors:
(1) The resident parent’s income.
(2) The availability of spousal support, child support, or both spousal and child support.
(3) Any other sources of funds available to make those payments.
The Family Code specifically describes the legislature’s intent regarding the economic feasibility test to accomplish all of the following:
(1) Avoid the likelihood of possible defaults on the payments of notes and resulting foreclosures.
(2) Avoid inadequate insurance coverage.
(3) Prevent deterioration of the condition of the family home.
(4) Prevent any other circumstance which would jeopardize both parents’ equity in the home.
If the Court is satisfied that the deferred sale is economically feasible, then it has to ask the following questions:
(1) How long has the child lived in the home?
(2) What is the child’s grade in school?
(3) How close is the residence to the child’s school or daycare?
(4) Was the house modified to accommodate a disabled child or a disabled custodial parent?
(5) What emotional detriment would there be to the child if he/she changed residences?
(6) How close is the house to the custodial parent’s work?
(7) How financially able are the parents to obtain suitable housing?
(8) What tax consequences would be experienced by each party as a result of the deferred sale?
(9) What other “just and equitable” factors are there for the court to consider regarding a potential deferred sale.
Once the Court has considered all of the required factors, then it can make its order. The order has to spell out the duration of the deferral and what each party has to do to maintain the residence. Usually, the “in-spouse” has to pay the costs of living in the residence to include the mortgage, property taxes, HOA, etc.
Now, the parties can always agree to a deferred sale without the Court ordering it if they so choose. They would just want to also carefully consider the factors described above as well. It would not due for a party to insist on a deferred sale of home order that simply was impossible financially.
One important point to consider: In my experience, the children are far less emotionally impacted by a move than the parents realize. It is important when considering a deferred sale of home order, to ask whether the deferred sale is desired because the kids need it or because a parent is having a hard time letting go of the house. Often it is better to just sell the house as soon as possible (you can visit https://www.housebuyersofamerica.com/sell-my-house-home to learn about a possible way of doing this). It is common for people ton entangle their emotions with things. Perhaps we will make seriously flawed financial decisions in order to hold onto a thing like a house. Remember to really think about the decision of a deferred home sale. If it doesn’t make sense financially-then it won’t help the kids either. In fact, an economically imprudent deferred home sale can hurt the kids a lot more than it will help.
Other resources regarding deferred home sales:
In re Marriage of Braud (1996) 45 Cal.App.4th 797, 53 Cal.Rptr.2d 179.
In re Marriage of Boseman (1973) 31 Cal.App.3d 372, 107 Cal.Rptr. 232.
In re Marriage of Herrmann (1978) 84 Cal.App.3d 361, 148 Cal.Rptr. 550.
In re Marriage of Stallworth (1987) 192 Cal.App.3d 742, 237 Cal.Rptr. 829.
For more information regarding a deferred home sale, contact attorney Shawn Weber at 858-345-1616 or visit our website at www.bravewebermack.com .
*Certified Specialist – Family Law
The State Bar of California Board of Legal Specialization.
Love and Real Estate: I am in a divorce with my spouse, but I don’t want to sell our house yet because I am worried about the impact selling will have on our kids. What can I do?
By Shawn Weber, CLS-F*
It is possible to get what is called a “deferred sale of home order”. California Family Code section 3800(b) provides for this option as follows:
‘Deferred sale of home order’ means an order that temporarily delays the sale and awards the temporary exclusive use and possession of the family home to a custodial parent of a minor child or child for whom support is authorized under Sections 3900 and 3901 or under Section 3910, whether or not the custodial parent has sole or joint custody, in order to minimize the adverse impact of dissolution of marriage or legal separation of the parties on the welfare of the child.
Section 3800 and related sections basically codify the holding of In re Marriage of Duke (1980) 101 Cal.App.3d 152, 161 Cal.Rptr. 444. The Court in Duke wrote:
Where adverse economic, emotional and social impacts on minor children and the custodial parent, which would result from an immediate loss of a long established family home are not outweighed by economic detriment to the noncustodial party, the court shall, upon request, reserve jurisdiction and defer sale on appropriate conditions.
[Duke at page 155.]
In essence, the intent of the statute is to minimize the impact on the children by awarding temporary use and possession of the family residence to the custodial parent. (A “custodial parent” is the party awarded either sole or joint physical custody of a child. [See Cal. Fam. Code 3801 (a).]) This house is then sold at some future time.
Before the Court will make a deferred sale of home order, the court must first determine “whether it is economically feasible to maintain the payments of any note secured by a deed of trust, property taxes, insurance for the home during the period the sale of the home is deferred, and the condition of the home comparable to that at the time of trial.” [Cal. Fam. Code 3801.]
In making this determination, the Court has to consider each of the following factors:
(1) The resident parent’s income.
(2) The availability of spousal support, child support, or both spousal and child support.
(3) Any other sources of funds available to make those payments.
The Family Code specifically describes the legislature’s intent regarding the economic feasibility test to accomplish all of the following:
(1) Avoid the likelihood of possible defaults on the payments of notes and resulting foreclosures.
(2) Avoid inadequate insurance coverage.
(3) Prevent deterioration of the condition of the family home.
(4) Prevent any other circumstance which would jeopardize both parents’ equity in the home.
If the Court is satisfied that the deferred sale is economically feasible, then it has to ask the following questions:
(1) How long has the child lived in the home?
(2) What is the child’s grade in school?
(3) How close is the residence to the child’s school or daycare?
(4) Was the house modified to accommodate a disabled child or a disabled custodial parent?
(5) What emotional detriment would there be to the child if he/she changed residences?
(6) How close is the house to the custodial parent’s work?
(7) How financially able are the parents to obtain suitable housing?
(8) What tax consequences would be experienced by each party as a result of the deferred sale?
(9) What other “just and equitable” factors are there for the court to consider regarding a potential deferred sale.
Once the Court has considered all of the required factors, then it can make its order. The order has to spell out the duration of the deferral and what each party has to do to maintain the residence. Usually, the “in-spouse” has to pay the costs of living in the residence to include the mortgage, property taxes, HOA, etc.
Now, the parties can always agree to a deferred sale without the Court ordering it if they so choose. They would just want to also carefully consider the factors described above as well. It would not due for a party to insist on a deferred sale of home order that simply was impossible financially.
One important point to consider: In my experience, the children are far less emotionally impacted by a move than the parents realize. It is important when considering a deferred sale of home order, to ask whether the deferred sale is desired because the kids need it or because a parent is having a hard time letting go of the house. Often it is better to just sell the house as soon as possible (you can visit https://www.housebuyersofamerica.com/sell-my-house-home to learn about a possible way of doing this). It is common for people ton entangle their emotions with things. Perhaps we will make seriously flawed financial decisions in order to hold onto a thing like a house. Remember to really think about the decision of a deferred home sale. If it doesn’t make sense financially-then it won’t help the kids either. In fact, an economically imprudent deferred home sale can hurt the kids a lot more than it will help.
Other resources regarding deferred home sales:
In re Marriage of Braud (1996) 45 Cal.App.4th 797, 53 Cal.Rptr.2d 179.
In re Marriage of Boseman (1973) 31 Cal.App.3d 372, 107 Cal.Rptr. 232.
In re Marriage of Herrmann (1978) 84 Cal.App.3d 361, 148 Cal.Rptr. 550.
In re Marriage of Stallworth (1987) 192 Cal.App.3d 742, 237 Cal.Rptr. 829.
For more information regarding a deferred home sale, contact attorney Shawn Weber at 858-345-1616 or visit our website at www.bravewebermack.com .
*Certified Specialist – Family Law
The State Bar of California Board of Legal Specialization.