by Shawn Weber | Feb 22, 2011 | Uncategorized
Best Interest of the Child is the California Child Custody Standard
You hear it mentioned over and over again, “The Court makes a custody order in keeping with the child’s best interests.” However, seldom do you hear anyone define what “best interest of the child” really means. The factors that the court
Calfornia Family Code section 3041 defines “best interest of the child” for child custody
The factors that the court must consider in determining the best interests of the child are spelled out in California Family Code section 3011 as follows:
“In making a determination of the best interest of the child in a proceeding described in Section 3021, the court shall, among any other factors it finds relevant, consider all of the following:
(a) The health, safety, and welfare of the child.
(b) Any history of abuse by one parent or any other person seeking custody against any of the following:
(1) Any child to whom he or she is related by blood or affinity or with whom he or she has had a caretaking relationship, no matter how temporary.
(2) The other parent.
(3) A parent, current spouse, or cohabitant, of the parent or person seeking custody, or a person with whom the parent or person seeking custody has a dating or engagement relationship.
. . . .
(c) The nature and amount of contact with both parents, except as provided in Section 3046.
(d) The habitual or continual illegal use of controlled substances or habitual or continual abuse of alcohol by either parent. . . .”
Cal. Fam. § 3011 (West 2011).
Check out this further reading:
https://weberdisputeresolution.com/irreplaceable-dad/
https://weberdisputeresolution.com/in-california-what-is-the-difference-between-legal-custody-and-physical-custody/
https://weberdisputeresolution.com/holiday-visitation-bring-peace-on-earth-to-your-kids/
https://weberdisputeresolution.com/divorce-options-workshops/
by Shawn Weber | Jan 17, 2011 | Uncategorized
“Should” is simply the wrong question to ask when considering whether you have a community property business. The right question has more to do with what “is” under the law. California is a community property state. This means that anything that was acquired through labor or skill during the marriage is community property. If you built your business with the sweat of your brow, but that sweat came during the marriage, the fruits of such labor will be community property. So, yes, if you worked to grow your business during the marriage, chances are it is a community property business.
Even if your business was established prior to marriage, but it grew as a result of your labor during the marriage, there is a good chance the community has at least part ownership. Below are links to some cases and code sections relevant to the community property business:
Pereira v. Pereira (1909) 156 Cal. 1., 103 P. 488.
Van Camp v. Van Camp (1921) 53 Cal.App. 17, 199 P. 855.
Todd v. Commissioner (9 Cir 1945) 153 F.2d 553
CA. Family Code section 760.
CA Family Code section 770.
Community property business, FAQ, California divorce law
by Shawn Weber | Nov 3, 2010 | Uncategorized
By Shawn Weber, Attorney and Mediator
In this difficult economy, I am being asked frequently how to save money on a divorce. Divorce costs can be horribly expensive and can leave both parties destitute. Additionally, there are some unscrupulous attorneys out there who will “churn” a divorce case making a fortune in legal fees, but providing no real benefit to the client. For these sharks, a win is if the attorney’s party ends up with two dollars, the opposing party has one dollar, and the attorney has all the rest.
I can’t lie to you, though; divorce can cost an arm and a leg even with the most scrupulous of lawyers. However, there are some ways to watch and protect yourself from unnecessary fees. Here are some ideas that can help you navigate the legal system without losing your shirt:
- If possible, avoid court. Litigation is extraordinarily expensive. Aside from the expense of paying your attorney to sit in court and fight it out with opposing counsel, you are paying even more for the preparation leading up to court. Discovery, motions, evidentiary objections, legal research, appraisals, file organization, etc., all cost dearly in billable hours. The formalities of court that are there to protect your due process all drive up costs. A well written trial brief can cost a client thousands. While there is no other option for many parties, litigation should be a last resort. Before hiring your attorney, ask her what her philosophy is about settlement. Instruct him to pursue settlement first. If your attorney just has knee-jerk standard operating procedures to make discovery demands, schedule depositions and file motions without first seeking to obtain evidence informally, that is a huge red flag that you are about to drop a lot of money in fees. In my practice, if a client has to go to court, I see that as a failure. It is always better if the parties can settle as much as possible with using a judge. So be tough with your attorney and demand that she pursues settlement first. If you aren’t satisfied that settlement is a priority, consider moving to another attorney who will keep your divorce costs down.
- Consider using a mediator. In mediation, the parties hire a neutral to help facilitate agreement. Mediation can be very cost effective because most of the procedure and discovery is informal. You won’t need to involve your attorney except to obtain occasional advice along the way. You and your spouse are in the driver’s seat and the attorneys are on the sidelines. A good mediator will be able to help you balance the interests of both parties and help you to find a settlement that you can live with. I always recommend that parties obtain independent legal counsel in the cases that I mediate so that all decisions can be informed. However, you are only paying the attorney for his time to advise you and not to prepare for trial. I have been mediating for years and have seen that the cost of a mediated divorce is a fraction of the divorce costs of my litigated cases. Typically, the total cost of the mediation fees for both parties is around $6500 depending on the complexity of the case, whereas in litigation, $5000 may just get you started.
- Consider Using Collaborative Divorce. In a collaborative divorce, the parties and collaboratively trained attorneys sign a stipulation that they are not going to go to court. If either party chooses to litigate, both attorneys fall out of the process. As part of their “divorce team”, parties can choose to add mental health professionals who can act as a divorce coach or a child specialist as a member of the team. In addition, parties can add a financial specialist to the team. The benefit is that all of the experts work together with the parties in a team setting to reach a settlement. The outcomes are often superior to those achieved in litigation but with lower divorce costs. Additionally, there are tremendous economies of scale in using an attorney to do legal work only, a financial specialist to do the financial work and the coach/child specialist to work on the emotional issues. You often get a better product for less money. Collaborative can be cheaper than litigation if the parties can work together. The danger, however, is that if the parties do not work well together, the case can fall out and all of the work done by the team (and their fees) would be lost. However, if the parties can be respectful and work with the team honestly to achieve a better result for their transitioning family, the results can be tremendous.
- Consider Using Limited Scope Representation. You can also choose to do a lot of the divorce work yourself and use an attorney for limited purposes. For instance, you can hire an attorney to simply advise you on a case, not as your attorney of record, while you represent yourself at court. You can also hire an attorney for purposes of negotiation only with the understanding that she will do no court work. Other options include hiring an attorney only for a particular issue, such as child support or custody. Be sure to talk to your attorney about these money saving options. You may not need an attorney for every aspect of your case. Only pay for services that you need.
While a divorce can be terribly expensive, it doesn’t have to be. Remember, you are the boss and the attorney works for you. If your attorney refuses to talk about options besides full representation, beware. Talk to your lawyer about divorce costs. If a particular discovery request is to go out or a motion is to be filed, demand to know why before the action is taken. You can direct your attorney not to take a course of action, if you don’t want to pay for it or don’t find it necessary.
At Weber Dispute Resolution, we offer all of the options described above to include mediation, collaborative practice and no-court consultation. Our philosophy is that the case is ultimately yours and you are the one to decide how you want to spend your money. We can help you decide which option makes the best sense for you and your family.
If you have questions about keeping divorce costs down or about how best to proceed with your divorce or family law case, call us for a free telephone consultation at 858-410-0166.
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 | 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
