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 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.
