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 | 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
by Shawn Weber | Mar 19, 2010 | Uncategorized
By Shawn Weber, San Diego Family Law Attorney and Mediator
The Family Court in San Diego County, California requires parents in a custody dispute to attend mediation at Family Court Services (FCS). At Family Court Services, the parents meet with a social worker who tries to broker a parenting agreement between the parties. However, if no agreement can be reached, the Family Court Services mediator makes a recommendation to the Court. This recommendation is often “rubber-stamped” by the Judge as the Court’s order. Sometimes an attorney can argue to change certain provisions in the recommendation, but only very rarely are the recommendations ignored. “Mediation” is a bit of a misnomer for the process because FCS really acts as an arbitrator. Because the process is not confidential empowering the social worker to make a recommendation, the parties need to take it very seriously and prepare.
Because the judges rely very heavily on the recommendations of the Family Court Services mediator, you should prepare for the mediation as though you were preparing for trial. In fact, you need to prepare more thoroughly for mediation than you would for trial, because your attorney is not allowed to be present during the mediation to assist you.
The following is a list of points to keep in mind when you prepare for the appointment.
1. Before the Family Court Services Appointment:
a. You can attend the weekly FCS orientation, which is held the third Tuesday of the month from 12:00 to 1:00 p.m., and the first Thursday of the month at 4:00 p.m. at the Family Court, 1555 Sixth Avenue, between Beech and Cedar Streets in downtown San Diego (optional). No appointment is necessary, meetings are on a first come first serve basis.
b. Arrive on time for the Family Court Services mediation appointment. You will be asked to fill out an FCS Mediation Data Sheet.
c. Make an appointment to see your attorney, so you can prepare your presentation, and bring with you a list of important points that you wish to make.
2. During the Family Court Services Appointment:
a. First impressions are important.
FCS Mediators are human beings too, and although they try to remain neutral, they cannot help but be influenced by their first impressions of people. You should present yourself as the parent who puts the best interest of the child ahead of your own interests.
b. Take your time.
If the other parent makes accusations about you to the mediator that you think are irrelevant, wait for an opening and then ask the mediator if you may respond. Then be guided by the mediator‘s response. If you are being interrupted by the other parent, ask the mediator to stop the interruptions.
c. Try to stay “on task“.
Do not be drawn into an argument with the other parent about your past relationship. The task is to determine a parenting plan that is in the best interest of the children.
d. Be prepared for the FCS mediator to ask questions.
The Family Court Services mediator will question the parent who wants to restrict the other parent‘s time with the children. You will be asked to give reasons for your views. In order to limit visitation, you must show that some harm to the children would result.
e. No financial issues.
The FCS mediator does not discuss financial issues with the parents such as support or property division.
f. Remember that the Family Court Services mediator is not your therapist.
Nothing that either parent says can remain confidential. If child abuse is disclosed during the mediation session, the mediator has a legal obligation to make a report to Child Protective Services.
g. In cases of domestic violence, meet separately.
If you or the children were physically abused, or if the other parent alleges that you committed such abuse, the mediator must meet with the parents separately upon the request of either party. You should make this request before the meeting begins. If allegations of physical abuse are present, these should be discussed with your attorney before the mediation appointment.
h. You should prepare to substantiate allegations of drug or alcohol abuse.
Criminal convictions or arrests are the best evidence, and you should have documents available. The court file can be copied and made available to the mediator. The drug or alcohol abuser will usually deny the problem. You can request that the other parent submit to monitored drug testing.
i. Do not make an agreement that makes you uncomfortable.
The Family Court Services mediator may try to pressure you into agreeing by saying that is what he or she will recommend anyway. You can say that you want to discuss it with your attorney first. If you agree in mediation, it is almost impossible to get out of your agreement. If you do not agree, you can review the written recommendation before court and agree to it at that time, if you wish to do so.
3. After the Appointment:
a. Be sure to write down the name of the mediator and give it to your attorney in case you need to contact her.
b. Please telephone your attorney to let him/her know the outcome of your mediation. In that way, if an important point needs to be clarified, he/she can set up a telephone conference with the mediator before the mediator writes his/her report.
c. The written FCS report will be available on the day of the hearing, or before. Sometimes, FCS will mail it to your attorney’s office before the hearing. You will have an opportunity to review the report before the hearing if you are present in court.
Should you have any questions or concerns regarding the Family Court Services mediation, do not hesitate to contact your attorney.
4. Family Court Services Prep Coaching.
If you feel you need additional coaching prior to an FCS appointment and you have the funds to pay for it, we highly recommend it. There are a number of former FCS mediators who can help prepare you and coach you for your mediation appointment. We have had good success with such coaching. The FCS mediation prep coach can role-play with you. You can bounce ideas off the coach and he or she can advise you about how an FCS mediator would react. If you need a referral to such a coach, ask your attorney.
In summary, you need to take your Family Court Services mediation seriously. This is where the rubber meets the road in your custody case. The mediator’s report usually sets the tone for how your entire custody case will go. A bad report can be disastrous. So, prepare, prepare, prepare!
NOTE: Since we wrote this post, Family Court Services no longer provides “mediation”. It is now called “Child-Centered Parenting Counseling”. Essentially, the service is the same. But, because true mediators would never make a recommendation to the court, we refer to it with the new description.
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.
time rule, pension, retirement, dividing retirement, community property, QDRO, domestic relations order, san diego divorce attorney
