Archive for Marriage

Why you should watch “Marriage Story” on Netflix

by Shawn Weber
January 21st, 2020
Promotional Poster from Netflix Film Marriage Story directed by Noah Baumbach and starring Adam Driver and Scarlett Johansson

Theatrical Release Poster*

Most divorce professionals have “seen this movie before” in their own practices.

As a divorce professional for the last 20 years, I’ve been involved in more than one ugly divorce as I am sure you can imagine.  The stories are similar and seem to go one of two ways.  Either the parties get to a place where they can work through their differences out of court or the case devolves into a nightmare scenario where parents give up all control to a broken adversarial legal system.

The second option of the completely messed up divorce experience is powerfully portrayed in Marriage Story, now streaming on Netflix.  With a fantastic screenplay by Noah Baumbach, the film is the recipient of multiple Oscar nominations such as best actress, best actor, best picture, best supporting actress, best original screenplay and best original music score.  It’s a tour de force of acting prowess that made the critics very happy.  Marriage Story shines a light on the emotional trauma an adversarial process can cause when parties cede control of their families to the judicial system.

Our protagonists, Charlie (played by Adam Driver) and Nicole (played by Scarlett Johansson) are an artsy theater couple living in New York with an 8-year-old son.  We learn quickly that they are trying for an amicable split, but after a disastrous meeting with a less than competent mediator, things go pretty far south.  Mom moves to LA to reboot her acting career while Dad stays in New York.  While in LA, Mom hires a shark of an attorney in the form of Laura Dern.  What follows is the typical sorrow, pain and emotional destruction of the adversarial litigated divorce.

(An aside: The scene with the bumbling mediator would be great to use in a mediation training as an example of what a mediator should NOT do.)

Emotional Ambiguity is “Par for the Course” in Family Law

While the film gets some of the law not quite right, it nails the ambiguity and conflict experienced by a couple in divorce who are estranged yet still have good feelings somewhere- even if buried deeply.  In reality, when people marry and especially when there are children, there is a thread of positive in the feelings even when there is hurt and anger from a divorce.  I have learned as a family law mediator that the more tightly and deeply a person buries the good feelings for their ex, the greater the remaining love actually is.  Betrayal and hurt from a person one loves stings much more acutely than when it’s a person one cares less for.

Uncovering that Remnant of Good Feeling

Sometimes a remedy mediators use to find accord is to help the parties find that string of good feeling that remains – no matter how difficult to find and how small it is.  Litigation does the opposite. It creates new negative feelings and wounds unnecessarily, which chokes out the possibility for positivity and accord.

Divorce Litigation Disempowers

Further, divorce litigation takes control away from the parties.  It is disempowering, emasculating, demoralizing, debilitating and impoverishing. One particular scene in the film shows the lawyers arguing in the courtroom in front of a judge while Charlie and Nicole watch helplessly.  The attorneys take simple mistakes or misunderstandings and elevate them into unmitigated crimes against humanity.  While their horror is clear, they seem transfixed and paralyzed as the mutual assured destruction continues.

I’ve learned that such hyperbole argued in a courtroom tends to accomplish little.  One wise practitioner once warned me that it is rare for a person to be as horrible as portrayed by the ex spouse.  Insults hurled across the court room tend to boomerang.  This truth holds: water seeks its own level.  Said more coarsely, “Mother Teresa doesn’t marry Hitler.”

So, if you are a divorce practitioner, you owe it to your clients to watch this film as a window into what is going on when you aren’t there- the unintended consequences of a less than careful application of our craft.  If you are contemplating a divorce or are in the throws of divorce conflict, you owe it to yourself and your children to watch this film so you can be alerted to the dangers and pitfalls that may befall you without taking care.  As I always tell my prospective clients, the decision of HOW you divorce is almost as important as the decisions TO divorce.

*Note:  The Marriage Story Theatrical Release Poster shown above is believed to belong to the distributor of the film, Netflix, the publisher of the film or the graphic artist.  We use the image in this blog post to serve as the primary means of visual identification at the tip of the article dedicated to the work in question. 

Minimal Use: The image is used for identification in the context of critical commentary of the work, product or service for which it serves as poster art. It makes a significant contribution to the user’s understanding of the article, which could not practically be conveyed by words alone. The image is placed at the top of the article discussing the work, to show the primary visual image associated with the work, and to help the user quickly identify the work, product or service and know they have found what they are looking for. Use for this purpose does not compete with the purposes of the original artwork, namely the creator providing graphic design services, and in turn the marketing of the promoted item.  In fact, the use in this blog post serves to promote paid viewing of the film in question.

 

 

Forgiveness During Divorce: A key to finding peace

Shawn Weber Offers Back to School Advice for Divorced Parents on NBC 7 San Diego

*Note:  The Marriage Story Theatrical Release Poster shown above is believed to belong to the distributor of the film, Netflix, the publisher of the film or the graphic artist.  We use the image in this blog post to serve as the primary means of visual identification at the top of the blog post dedicated to the work in question and as a featured image on this blog. 

Minimal Use: The image is used for identification in the context of critical commentary of the work, product or service for which it serves as poster art. It makes a significant contribution to the user’s understanding of the article, which could not practically be conveyed by words alone. The image is placed at the top of the article discussing the work, to show the primary visual image associated with the work, and to help the user quickly identify the work, product or service and know they have found what they are looking for. Use for this purpose does not compete with the purposes of the original artwork, namely the creator providing graphic design services, and in turn the marketing of the promoted item.  In fact, the use in this blog post serves to promote paid viewing of the film in question.

Categories divorce, For Professionals, Relationships
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The California Prenuptial Agreement — Dotting the “i’s” and crossing the “t’s”.

by Shawn Weber
February 7th, 2019
multi-racial couple signing prenuptial agreement

Get your prenuptial agreement right!

California Prenuptial Agreement Rules Are Strict

I have seen A LOT of malpractice by otherwise supposedly competent lawyers in the area of prenuptial agreements. The California law for prenuptial agreements is fairly strict for what will pass muster and what will be thrown out. If you don’t get it right, your prenup won’t be worth the paper it is written on.

Here’s my “prenup formalities” checklist:

1.    The agreement must be in writing. California Family Code § 1611.

2.    The agreement must be executed voluntarily. California Family Code § 1615(a)(1).

3.    The parties must fully disclose information about debt and assets. California Family Code § 1615 (a)(2)(A).

4.    There must be a waiver of further disclosure expressly waiving, in writing, any right to disclosure of the property or debts of each spouse beyond the disclosure provided. The parties should execute this prior in time to the signing of the prenup. California Family Code § 1615(a)(2)(B).

5.    Both parties should have counsel.   Furthermore, each attorney should sign off on the prenuptial agreement. California Family Code § 1615 (c)(1). (Technically, California Family Code section 1615(c)(3) provides that a prenuptial agreement could be enforceable with only one attorney. However, it is harder and I don’t recommend it. I won’t do a prenup without lawyers on both sides.  That’s because the requirements to show that the other party was fully informed of rights and obligations is too onerous. Because it sets the single attorney up for a lawsuit, I simply won’t do it.)

6.    Both parties must have had no less than seven calendar days to review the prenuptial agreement between the time it is presented in final form and it is signed. California Family Code § 1615 (c)(2).

Download the free Weber Dispute Resolution Prenup Checklist HERE!

Notary?

Although the code does not specifically require it, I always notarize my prenuptial agreements. Another tactic is to follow the agreement up with a postnuptial agreement for reinforcement.

Do a postnuptial too

Different rules apply to postnuptial agreements. So, if a court throws out the prenuptial agreement under the premarital agreement act, the same document as a postnuptial agreement may save the day

Gotta have counsel

When you are contemplating your own prenuptial agreement, make sure you do it with an attorney. Don’t rely on an online service or a paralegal service to prepare your documents. Too much can go wrong and it is very easy for a court to throw out an agreement if it doesn’t meet the requirements of the code. Also, as mentioned above, don’t let your attorney fly solo on this. So, make sure the other party has counsel.

Get it right!

Again, I have seen a lot of attorneys go down in flames because an agreement ran afoul of the code. I have seen even more agreements go down in flames because the parties tried to do it without counsel. Word to the wise: Get it right.

Prenuptial Agreements Are on the Rise, And More Women Are Requesting Them

Great post with tips for couples planning cohabitation

Categories Prenuptial Agreement
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I Have An Alimony Order in California – What is a ‘Gavron Warning’?

by Shawn Weber
May 14th, 2018

What is a Gavron Warning?

Paper family split between broken dollar heart with Alimony text

What is a Gavron Warning?

The idea of the “Gavron Warning” came from the case In Re Marriage of Gavron, (1988) 203 Cal.App.3d 705, 250 Cal.Rptr. 148. In this case, the parties separated in 1976 after a 25 year marriage. Subsequently, the court ordered the husband to pay $1,100 per month of alimony. He did so until 1981, when he asked the court to reduce support to $550 and then terminate entirely after one year. This initial request was denied.

However, the husband tried again in 1986. This time the court ordered that support would continue for five months and then terminate. The wife appealed and reversed the trial court’s order. The appellate court held that because the wife was not warned in prior orders to become self-sufficient, she could not be penalized years later because the court did not tell her to make efforts. In essence, as the court argued, the failure to focus her on the expectation to become self-sufficient meant that the court could not cut her support now.

Because of this case, the courts will frequently issue a warning to the supported spouse. Here is an example of a Gavron Warning:

“NOTICE: It is the goal of this state that each party will make reasonable good faith efforts to become self-supporting as provided for in Family Code section 4320. The failure to make reasonable good faith efforts may be one of the factors considered by the court as a basis for modifying or terminating spousal or partner support.”

Supporting Spouses will want the Gavron Warning included

So, the lesson for support payers is to make sure that the court includes such language in the spousal support order. If it is not, it may be harder to reduce income later if the supported spouse refuses to make good faith efforts to become self-sufficient. When I am representing a support payer, I always ask the judge for a Gavron Warning and I almost always include it in written stipulations. I will also sometimes simply file and serve a written Gavron Warning to the supported party myself at the beginning of the case so that there is no question that the supported party has been warned.

The supported spouse will likely rather not have the Gavron Warning included, but it is hard to oppose it

When I am representing a supported spouse, naturally I will not bring the Gavron Warning up. However, if opposing counsel wants it in an order, there is no legal basis to resist it. The moral for the supported spouse is not to count on the alimony as a permanent means of support.

I frequently refer the supported spouse for vocational counseling to assist with re-entering a career. I get as much alimony as I can, but encourage the prudence of planning for self-reliance. After all, no one knows for sure what the future holds. Not only could the support payer try to reduce alimony, it could simply terminate by means of death. Any changed circumstance such as unemployment or disability could force a reduction or termination in support too. The best advice is to use the support as a life preserver to stay afloat in the short run, but take steps immediately to be ready for when the support may no longer be available.

Further reading:

How California Spousal Support Works

What does California Child Support Cover?

 

 

Categories Alimony, divorce, Finances, Marriage, Spousal Support
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The Irreplaceable Dad: The Importance of Dads Stepping Up In Co-parenting and Moms Letting Them Do It

by Shawn Weber
March 26th, 2018

This article was originally posted in 2013.  We have received such a positive reaction that we are reposting it.  It was the subject of Shawn Weber’s upcoming interview on the Real Talk San Diego Facebook Live program on March 28 at 1:00 PM PDT.  Watch it here: https://www.facebook.com/yourwealthhour

Some dads aren’t so great

061811_1818_TheIrreplac1.jpg

Let me preface this post by noting that there are a lot of terrible fathers. Many of them are abusive, punitive and cruel. Many are irresponsible and fail to take their role as parent seriously. Some simply abandon and neglect their families. In such cases, it may very well be better for the kids if these dads weren’t around. Such men are not “fathers”. They are unworthy of the title. My heart goes out to their victims. But, there are good dads out there and in many cases, their role can be unnecessarily marginalized. I am only talking about the good dads in this post. Women, please don’t hate me.

Every time Father’s Day approaches, I find myself contemplating the role of a dad in the family- in particular, given my career as a family law attorney, the role of a dad in a post-divorce family. I grow increasingly frustrated with the term “single parent”, which is so often bantered about unnecessarily. We are told of how hard the single parent has to work. Often we are treated to images of single moms struggling to make ends meet with kids at home and a dad nowhere to be found or, at least, not involved. For many of my clients, that is the case. To be sure, there are a lot of dads out there who don’t step up.

Co-parenting is better when possible

In most cases, however, single parenting isn’t necessary. Co-parenting is the better way to go. After the demise of some marriages, one parent does everything possible to eliminate the other parent from the equation. I have heard moms say that they would be happy if their kids’ dad would just go away. Some even say they would prefer their ex-husbands to be dead. Such sentiment is surprisingly common. “Hell hath no fury like a woman scorned.”

There are dads who check out and neglect their families, refusing to pay child support and refusing to take responsibility as fathers. There are dads who are abusive. It is only natural that a woman may feel uneasy about the man who beat her up. I am not talking about the bad apples here. However, there are many dads who do not deserve the level of scorn they receive.

Divorce can be nasty. When people get to my office, things are usually pretty bad. Folks don’t make the big decision to get a divorce unless they are very unhappy with their spouse. However, all too often, a wife can unnecessarily extend her hatred of her ex to his relationship with the children. These women, not realizing the damage they inflict on their children, will stop at nothing to minimize or even eliminate a dad’s involvement in the family. While they are very happy to maximize the child support they receive, they are relentless in removing dad from the parenting equation. This is not ok. Kids need their dad and although a wife’s experience of her ex-husband as a spouse may be less than perfect to say the least, this man still has an important role with the kids.

I have had a number of cases recently where a mother decides, for whatever reason, to relocate out of the state. These women have reasons for their decision to relocate. Sometimes the reasons are good. Many times they aren’t. Perhaps they are moving closer to family. Perhaps they feel they can get cheaper housing. Universally, they minimize the impact on the kids’ relationship with dad. They, wrongly, believe that they are the only important parent in their children’s lives.

What they fail to understand is that this man, with all of his imperfections, is still their kids’ dad. He is a part of them. They love him. Yes, they even need him. One prominent psychologist told me that the moving parent almost in every case fails to understand how devastating moving the kids away from the other parent can be. In family law, move-away cases are not about what is in the child’s best interest. Rather it is about minimizing detriment. It is rarely in the child’s best interest to move away. As participants in the legal process we are then asked to determine whether it messes the kids up more to lose their dad or to lose their mother. Judge’s hate these kinds of cases.

Dads matter to kids

I have seen grown, tough men weep openly in my office as they explain to me how hurt they are that the mother of their children cares so little for their contribution. One such parent lamented that with his wife moving, he would no longer be able to attend Cub Scout meetings or coach the soccer team. One father told me how upset he was that his son would miss out on campouts and fishing trips. Another dad told me how tragic it was that he and his daughter would miss their regular basketball scrimmages at the local park.

I have also seen children in pain that one of their parents is being cut out of their lives. One teenage boy told me that he misses his father terribly and doesn’t understand why his mother speaks negatively about him. He says, “He’s my dad. When she bad mouths him, it is like she is talking bad about me. It makes me cry. I don’t show her though; I just go in my room and punch my pillow.” Another twelve-year-old boy told me that while he loves his mom and understands that she had her reasons for leaving his father, he feels like a piece of him is missing. He said, “My uncles are great. But they are not my dad. Why can’t I just have my dad around.” Then with tears in his eyes he said, “I just wish I could still hang out with him.”

Dads, you need to step up

Not just to pick on the moms, I have had many mother’s complain that they wished that their ex-husbands would be more involved fathers. They try to encourage dad to participate, but he refuses. Sometimes dads just “check out” as parents after the divorce. This is not ok either. Dads, you need to step up.

I am a strong believer that it takes two genders to be most effective in parenting. To be sure, there may be someone out there who will take me to task and wrongly accuse me of sexism. I am just noting, that as much as we would like to say that there are no differences, men and women are, in fact, different. These differences, rather than seen as a way to divide families, should be embraced and celebrated. As a father of five children, my wife and I have had many conversations about how important we believe the gender differences are in our parenting. We each bring different parenting styles and different approaches to the table. These differences enrich our children and bring them balance.

father parent child

The best co-parenting I see is when both parents are deeply involved

While the parents may have deep and real differences that led to a divorce, they don’t show their children these differences. Rather they present a unified front to the kids. They both encourage a relationship with the other parent. They seek the other parent’s guidance and counsel about issues with the kids. The kids benefit greatly from having both parents as active and equally important parts of their lives.

(Just an aside, it is equally damaging when fathers eliminate mothers from the equation. But we are talking about dads here. We also see more cases where the dads get pushed out then the other way around. But the inverse does happen.)

So what is the lesson?

Moms, unless your ex is truly one of the bad apples I mentioned above, you should probably go out of your way to include him in the parenting of your kids. Remember, he is part of who they are as individuals. That is meaningful. Encourage him to be involved. Encourage your kids to reach out to him.

Dads, it’s time to step up if you haven’t already. You are vital and irreplaceable. You are more than a convenient source for child support. You are far more important than a mere sperm donor. Make SURE that your children know that you love them. Demonstrate your love by word and deed. Be responsible. Be involved. Tell your kids that you love them. Show an interest in their activities. Don’t give up. Don’t just blame your ex if you have a terrible relationship with your kids. Step up and take initiative. Those kids of yours are precious and they need you.  You are their father!

To both parents, minimize your conflict.

Spend less time fighting about stuff in court and more time working together in a mutually respectful manner. I encourage the use of mental health professionals, mediation or Collaborative Practice to help folks work together. I know the split up probably hurt. Now, be the grown-ups. Swallow your pride. Find a way, if at all possible, to work together for your kids.

mother and father co-parenting

 

Read also:

6 Tips for Successful Holiday Co-Parenting

3 Great Tips to Give Your Kids a Voice in Your California Divorce

Five Tips to Have a Miserable Divorce

Categories Conflict Resolution, custody, divorce, Marriage, parenting, Relationships
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6 Tips for Successful Holiday Co-Parenting

by Shawn Weber
December 14th, 2017

By Shawn Weber, Family Law Attorney and Mediator

holiday co-parenting cookies

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.”

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.

Holidays After Divorce – Bring Peace on Earth to Your Kids

Categories Children, custody, divorce, Holidays, parenting, Relationships
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How can I obtain a marriage annulment in California?

by Shawn Weber
April 1st, 2017

annulment or nullity of marriage

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?

Categories divorce
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