Archive for Shawn Weber

New Case – Watch out if asking question in a deposition about a custody evaluation

New Appellate Case: Anke v. Yeaker

There is a new appellate which came down from the Second Appellate District of the California Court of Appeal on February 4, 2019.  The case is Anka v. Yeager and can be found here https://law.justia.com/cases/california/court-of-appeal/2019/b281760.html.

You know it’s going to go badly for the attorney in the case when you read this in the opening paragraphs quoting the oath of admission required to practice law described in California Rules of Court, rule 9.7:

“These cautions are designed to remind counsel that when in the heat of a contentious trial, counsel’s zeal to protect and advance the interest of the client must be tempered by the professional and ethical constraints the legal profession demands. Unfortunately, that did not happen here.”  [Emphasis added.]

Yikes!

Sanctions for revealing the contents of a custody evaluation in deposition questions

In Anka v. Yeager, an attorney asked a question during a deposition as part of a child custody dispute about the contents of a custody evaluation.  The displeased trial court ordered $50,000 in sanctions against the attorney and party under Family Code sections 3025.5 and 3111.  The trial court found that the attorney’s asking questions about the custody evaluation in the presence of the court reporter and videographer at the deposition constituted an unjustified, malicious and reckless disclosure of the contents of the custody evaluation.

When the sanctioned attorney appealed.  She argued that the court reporter and videographer were “officers of the court” and were, therefore, exempt under 3025.5.  However, the appellate court held the court reporter and videographer were not employees of the court and were therefore not exempt.  The trial court did not abuse its discretion by imposing the sanctions on the attorney.  The attorney by asking deposition questions referencing the custody evaluation disclosed highly personal information about the child and family.  Moreover, disclosure in the form of questions in the presence of a court reporter was malicious and reckless.  The court affirmed the sanction of $50,000 against the attorney but reversed the sanction against the attorney’s client.

Be careful about asking questions in a deposition about a custody evaluation!

So, what is the lesson here? In a custody cases, do not ask questions about the custody evaluation in a deposition without court clearance.  If you screw this up, you may be paying a lot of money in sanctions and could even face discipline.

Big Change Coming in California Mediation Law in 2019 You Need to Know About

New Form Required by California Evidence Code § 1129

A SMART Agreement for Holiday Co-Parenting

SMART parenting agreements can ensure happy holidays even when you’re divorced.

At Weber Dispute Resolution, we believe in crafting SMART agreements.  SMART stands for Specific, Measurable, Attainable, Relevant and Time-Bound. SMART agreements help with enforcement, and make it clear to both parties what is required for them to stay within the boundaries of their agreement.

Here’s why a SMART agreement makes things so much easier:

  • When an agreement isn’t SPECIFIC, parties become confused over exactly what they agreed on
  • Unless performance can be MEASURED in some way, it is difficult to determine where the boundaries are, and when they’ve been broken.
  • Any agreement must be ATTAINABLE – something you can easily comply with. People can’t be expected to do the impossible – it’s setting them up to fail.
  • Agreements require RELEVANCE to make sense in any particular circumstance.
  • Finally, linking the provisions to TIME-BOUND deadlines lets people know when things should happen.

So, unless your agreement is a SMART agreement, there is a good chance you will be facing problems down the road.

This is especially true when we are talking about holiday co-parenting.  People can become emotional during the holiday season. It’s understandable and predictable. Holidays are all about family.  Not having your children with you and with your extended family during the holidays can be hard to cope with.

Because people are so emotional about the holidays, parenting decisions about holiday traditions and practices can become a significant source of conflict.  When I used to litigate family law cases in courtrooms, unfortunately for my clients, they paid me a good amount of money to sort out holiday schedules and last-minute misunderstandings.

With a SMART holiday co-parenting agreement, you can avoid big emotional blowouts AND writing big checks to lawyers. Here’s how.

SMART – Specific

When crafting holiday orders and agreements, make sure you are very specific about what the schedule is.  Just saying that the

Put your mediated agreement in writing if you intend it to be legally binding. Photo: Antonio Litterio/Wikimedia

SMART agreements are specific. Photo: Antonio Litterio/Wikimedia

kids are with mom on Christmas in even-numbered years and Dad in odd-numbered years is a start.  But it is not very specific.  Get into the weeds about when exactly Christmas starts and ends.  Where will the kids be delivered or picked-up.  I have even seen people get specific about whether a joint present opening time would happen and how it would go.  The more specific your agreement is, the less likely there will be misunderstandings.

Another example is with New Year’s Eve and Day.  When talking about New Year’s Eve and Day and odd years versus even years, which year counts for odd or even?  Is it New Years Eve, which falls in one year, or New Years Day, which falls in the following year?  This kind of lack of specificity can lead to confusion.

A colleague of mine recalled a poll on a local list serve account for family law attorneys.  She learned that when confronted with the question of which day, New Year’s Eve or New Year’s Day, counts for purposes of even and odd, roughly half of the respondents thought it was New Years Eve while the other half thought it was New Years Day.  Get clear, and you can avoid trouble.

SMART agreements are timebound.

 

SMART – Measurable and Time-Bound

When talking about parenting schedules, measurable and time-bound tend to go together. It’s good practice to have a clear start and end time when describing holiday periods. A common provision is  “The child shall spend Father’s Day with the father every year.” This is too vague.

Much better and a more effective provision: “The child shall be with father on Father’s Day every year from 8 a.m. the morning of the holiday until 8 a.m. the day after the holiday.”

SMART – Attainable

It seems like a no brainer an agreement or order should be attainable. But sometimes, people don’t realize a provision is unattainable. In a recent case, the court order described as written the children would be with Mom on Christmas Day at 10:00 a.m. and returned to Dad at 10:00 a.m. the next morning. However, the parties lived more than 3,000 miles apart! These parents could not possibly make this work from any practical standpoint.

In another case, the children were to alternate between mom’s house and dad’s house during the holidays for overnight visits in an even and odd patterned schedule. The problem? One of the parents was incarcerated.

So it’s important to avoid these kinds of attainability problems by making sure the agreement’s boilerplate language is customized to you and written to fit your unique circumstances.

SMART – Relevant

SMART agreements must be relevant to your circumstances.

Holiday co-parenting orders should be relevant to your situation. In one of my cases, Family Court Services made Christmas co-parenting recommendations. The parties only celebrated Jewish holidays. Clearly, something lost in translation was missed.

As practitioners, it’s tempting to fit people neatly into nice little boxes. But it makes little sense to force parents to observe a holiday schedule for holidays the parties don’t even celebrate. In another case, attorneys included a provision for Fourth of July. The parties didn’t celebrate Fourth of July and weren’t concerned about having the kids on Fourth of July.

The SMART Approach to Happy Holidays When You’re Divorced

 Filling a holiday co-parenting agreement with irrelevant provisions does nothing but confuse things, and clutter up your case with unhelpful rules. To say nothing of having an agreement that falls into the “TL; DR” category (that’s Tool Long, Didn’t Read).

Your agreement should be meaningful, with SMART rules that make sense for you and your family alone. Work with someone who will listen to your needs and get you know you, your co-parent, and your kids, and create something that fits. You won’t be fighting against it and arguing about it, which doesn’t help anyone.

Want to clean up your holiday co-parenting schedule BEFORE the holidays get here? Would you like to avoid those frantic last minute calls to a lawyer to fix your holiday parenting schedule? Contact Weber Dispute Resolution now, and you can have truly happy holidays without a care. Isn’t that the holiday gift all families wish for?

 

 

 

Why Waiting Can Cost You: Racing the Clock to Keep Your Alimony Tax Deduction

The deadline to preserve your alimony tax deduction in California before the end of 2018 is fast approaching.

by Mark Hill, CFP, CDFA and Shawn Weber, CLS-F

With the passage of the Tax Cuts and Jobs Act of 2017 (TCJA), the deductibility of alimony or spousal support on federal taxes is set to sunset on December 31, 2018. If you plan to divorce or are in the process of a divorce that will not be completed before the end of 2018, this could cost you a lot of money.

Spousal support used to be deductible under previous law

Under the previous law, spousal support (or alimony) is deductible from income for the support payor and taxable to the support recipient.  This let parties save money on Uncle Sam’s dime. Typically, the support payor would be taxed at a higher rate than the support recipient because of the disparity of income. By transferring the tax burden from the support payor to the support recipient, the support payor had higher net spendable income and could afford to pay more. This usually ended up in a win-win circumstance for the parties.

Changes to spousal support deductions under the new 2019 law

Commencing on January 1, 2019, spousal support paid under new orders will not be deductible to the support payor and will not be taxable to the support recipient. This rule will apply to alimony payments required by “divorce or separation instruments” executed after December 31, 2018.

A “divorce or separation instrument” as defined by 26 U.S. Code § 71(b)(2) “means –

(A) a decree of divorce or separate maintenance or a written instrument incident to such a decree,

(B) a written separation agreement, or

(C) a decree (not described in subparagraph (A)) requiring a spouse to make payments for the support or maintenance of the other spouse.”

Example from a higher income case

In negotiations husband and wife had agreed that spousaI support would be set at $12,000 a month. Because husband will be in the combined 46.3% tax bracket post-divorce, the after-tax cost to him will be $6,444. However because wife will be in the combined 34.3% bracket she will net $7,884 after tax.  When the new law is in force and husband can no longer deduct his payment it would cost him $1440 more to get her the same amount of spendable money. The differential will be even greater if wife goes ahead with her plan to buy a condo next year and thus receive the deductions for mortgage interest and property taxes.

Of course the reality of divorce is that there is rarely enough money to go around and the result of this change is going to be that payors will end up paying more and payees will end up receiving less.

An additional impact of this change that we believe is not well understood is that because in California the software that calculates child support uses after-tax income as the input number used for income available for support, child support numbers will also be reduced.

Is your divorce grandfathered into the new 2019 rule? Maybe not!

However, a divorce or separation instruments in place before January 1, 2019, but modified after this date, will remain under the current rules allowing for deductibility.  They would only be subject to the TCJA, if the modification expressly provides for the TCJA to apply.

What does this mean for people in the midst of a divorce today?  To preserve the possibility of the alimony payment tax deduction, you MUST have a divorce instrument entered by a court before the end of 2018.

Your judgment MUST be entered in 2018 to be deductible.

Although it is unclear exactly how the IRS will interpret this rule, we believe it is crucial that the divorce instrument be entered before the end of the year to preserve deductibility forever (or at least until the rule is changed again).

A huge concern is that the courts are very much behind in the processing of judgments of divorce or legal separation.  Time is of the essence.  If a couple does not have a completed judgment to submit prior to middle of November 2018, there is a very strong likelihood that it will not be accepted by the court in time.  Thus, the parties would lose the benefit of deductibility because there divorce or separation instrument would not be enterd before 2019.

Let Weber Dispute Resolution and Pacific Divorce Management help you keep your alimony tax deduction into 2019,

To help parties maximize what they have to spend for themselves and their kids after divorce, Weber Dispute Resolution is teaming up with Pacific Divorce Management to offer an expedited to process.

Pacific Divorce Management, one of the premier advising firms in San Diego for financial issues in divorce, will work with parties to gather financial data to complete the State mandated Declaration of Disclosure Forms.

Weber Dispute Resolution, a leader in divorce mediation and legal dispute resolution, will prepare the necessary forms to open a divorce case and will work hand in glove with Pacific Divorce Management to prepare the necessary divorce or separation instrument necessary to satisfy the IRS requirements for deductibility.

If it is impossible to conclude the entire divorce prior to 2019, the parties could enter into a partial stipulated Judgment for spousal support that would meet the requirements for the alimony deduction.  The couple would then have the following options:

  1. Work with Pacific Divorce Management and Weber Dispute Resolution in an out-of-court alternative dispute resolution setting to complete their divorce or legal separation (for example, mediation or collaborative practice).
  2. Work with other professionals in an out-of-court alternative dispute resolution setting to complete their case.
  3. Litigate their divorce or legal separation with other professionals.

Whether you choose to complete your divorce with us or choose to go another way, we want to help all parties involved in a late 2018 divorce be aware of this change, and take advantage of the tax laws for deductibility of spousal support payments before it goes away forever.

Don’t delay – contact us today to save your alimony tax deduction:

Weber Dispute Resolution: 858-410-0144

Pacific Divorce Management: 858-509-2330

 

 

 

 

 

 

 

 

My Surprising Philosophical Connection to John McCain

Along the banks of the Ho Truc Bach Lake in downtown Hanoi, Vietnam is a monument sculpted from stone.

It’s an image of a person with arms raised and head lowered. The monument portrays the fateful moment in October 1967 when then U.S. Navy pilot John McCain was captured. The monument text, roughly translated, reads:

“On 26 October 1967 near Truc Bach Lake in the capital, Hanoi, the citizens and military caught Pilot John Sidney McCain. The US Navy Air Force Aviator was flying aircraft A4, which crashed near Yen Phu power station. This was one of ten aircraft shot down that same day.”[1]

The John S. McCain monument at Bruc Back Lake. Photo: Jim Bryant, U.S. Navy

The John S. McCain monument at Bruc Back Lake. Photo: Jim Bryant, U.S. Navy

Fast forward to August 27, 2018.

A 62-year-old Vietnamese man, Pham Van Khanh, brought flowers to the McCain monument in Hanoi.[2] He joined countless other Vietnamese who wished to honor their former captive.[3]

Even McCain’s jailer and operator of the prison, former Col. Tran Trong Duyet, said, “When I learnt about his death early this morning, I feel very sad. I would like to send condolences to his family. I think it’s the same feeling for all Vietnamese people as he has greatly contributed to the development of Vietnam-U.S. relations.”[4]

How could a nation that reviled and tortured the late Senator have such love for him after his death? Because of Senator McCain’s work along with former Senator and Vietnam Veteran John Kerry to normalize relations with Vietnam, the Vietnamese government now reveres him as a “symbol of his generation” who helped “heal the wounds of war.”[5] This mutual respect between Senator McCain and his former captors exemplifies the many times McCain rose well-above a conflict to find common ground and to make peace.

john McCain navy fighter

John McCain with his Navy Squadron (botrrom right). Photo: Library of Congress

I have never met Senator John McCain, but as a professional peacemaker I relate to his peacemaking words and consider him a peacemaking soulmate.

We all know the story of how McCain was shot down over Vietnam, beginning his terrifying and heroic stay at the infamous Hanoi Hilton prison. Refusing to be released before his brothers-in-arms, the North Vietnamese tortured him mercilessly and placed him in solitary confinement.[6]

His captors didn’t release McCain until after the signing of the Paris Peace Accords on March 14, 1973. Though free, he carried substantial injuries for the rest of his life.

As a Senator, he was known for his work across the political aisle. Sometimes he angered the more strident members of his party for taking the higher ground.

Senator McCain admits to his imperfections, and has apologized for his less than peaceful remarks at times.

For example, he famously used a racial slur to describe his captors, feeling he had a right to describe his former captors with any language he chose. He later reconsidered and apologized, and removed the word from his vocabulary.[7]

This man is considered a hero today in large part because he made a career of rising above the fray of the negative discourse that pervades American politics today. Perhaps most famously, he defended Barrack Obama against people who accused Obama of being “Arab”, saying “No ma’am. He’s a decent family man and citizen that I just happened to have disagreements with on fundamental issues.”

john McCain peacemaker with president obama

Senator John McCain meets with President Barack Obama in the Oval Office in 2011. Photo: Pete Souza, White House Photo Office

It’s telling that two of his principle political rivals, Former President’s Obama and Bush, will eulogize him at his memorial service.[8]

John McCain’s thoughts on the need to ‘win’ at all costs

Most recently, when speaking to the Senate with a request for a return to regular order in the Senate in the wake of a difficult debate on healthcare reform in 2017, McCain said the following to support his plea:

“I’ve known and admired men and women in the Senate who played much more than a small role in our history, true statesmen, giants of American politics. They came from both parties, and from various backgrounds. Their ambitions were frequently in conflict. … And they often had very serious disagreements about how best to serve the national interest.

“But they knew that however sharp and heartfelt their disputes, however keen their ambitions, they had an obligation to work collaboratively to ensure the Senate discharged its constitutional responsibilities effectively.

“Both sides have let this happen. Let’s leave the history of who shot first to the historians. I suspect they’ll find we all conspired in our decline – either by deliberate actions or neglect. We’ve all played some role in it. Certainly I have. ….

“Incremental progress, compromises that each side criticize but also accept, just plain muddling through to chip away at problems and keep our enemies from doing their worst isn’t glamorous or exciting. It doesn’t feel like a political triumph. But it’s usually the most we can expect from our system of government, operating in a country as diverse and quarrelsome and free as ours.

“….  It is our responsibility to preserve that, even when it requires us to do something less satisfying than ‘winning.’ Even when we must give a little to get a little. Even when our efforts manage just three yards and a cloud of dust, while critics on both sides denounce us for timidity, for our failure to ‘triumph.’

“I hope we can again rely on humility, on our need to cooperate, on our dependence on each other to learn how to trust each other again and by so doing better serve the people who elected us.”

John McCain was a peacemaker

Senator John McCain walks with Vice President Mike Pence on the 75th anniversary of the Pearl Harbor attack in Honolulu, Hawaii. Photo: US Army. Jose A. Torres, Jr.

I read the words spoken by Senator McCain last year and listened to them again. I have a soulmate in Senator McCain. We have never met, but as a professional peacemaker I relate to his peacemaking words.

I have often thought the woes of Washington, D.C. could be greatly reduced if some mediators could head to Capitol Hill. We professional peacemakers understand that peace and agreement requires people who disagree to disagree agreeably. “Compromise” is not a dirty word. Rather, a compromise allows for differing people to find a common ground. The all-or-nothing subjective myths of “justice” or “fairness” give way to the higher principles of collaboration, mutual respect and peace.

As a divorce mediator, I am involved in helping people find pathways to settlement in the toughest of times.

There are very few experiences as heart-wrenching and personally painful as divorce. Consequently, my aim is to help others learn how to work together while experiencing peace. It’s possible.

Senator McCain’s approach to politics parallels my Dolphin Lawyering philosophy and approach to dispute resolution.  Unlike some of my shark-like colleagues in the legal profession, I strive for a more humane approach encouraging peaceful outcomes.  I therefore live by the creed, “It’s not just a legal process; it’s a human experience.”

Like Senator McCain, I look back on the contentious moments of my past career as a divorce litigator. Similarly, I realize that at times I didn’t always live up to my greatest ideal. But whenever I have embraced peacemaking and mutual respect, I have not only worked as an instrument for others to find peace, but I have experienced my greatest professional joy: helping others.

While many may disagree with political stands by Senator McCain, perhaps we can take his life as a shining example of a peacemaker a person of any political persuasion can follow. I, for one, am certainly grateful for his imperfect, yet sincere example.

Further Reading:

Forgiveness During Divorce: A key to finding peace

Five Tips to Have a Miserable Divorce

Dolphin Lawyering: Why I can be an advocate without being a shark

[1] http://www.uswarmemorials.org/html/monument_details.php?SiteID=38&MemID=76
[2] https://www.washingtonpost.com/politics/congress/vietnam-pays-respects-to-john-mccain-with-tributes-flowers/2018/08/27/5e004f80-a9cf-11e8-9a7d-cd30504ff902_story.html?utm_term=.25f769ed10f7
[3] Id.
[4] https://www.washingtonpost.com/politics/congress/vietnam-pays-respects-to-john-mccain-with-tributes-flowers/2018/08/27/5e004f80-a9cf-11e8-9a7d-cd30504ff902_story.html?utm_term=.25f769ed10f7
[5] https://www.reuters.com/article/us-usa-mccain-vietnam/vietnam-says-john-mccain-helped-heal-the-wounds-of-war-idUSKCN1LC0P8
[6] https://abcnews.go.com/Politics/john-mccain-pow/story?id=32574863
[7] https://www.washingtonpost.com/news/morning-mix/wp/2018/08/27/when-mccains-anti-asian-slur-stalled-his-straight-talk-express-he-doubled-down-then-he-apologized/?utm_term=.cb872792afad
[8] https://www.cbsnews.com/news/john-mccain-funeral-obama-george-w-bush-requested-eulogies/

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

Family law attorney and mediator Shawn Weber of Weber Dispute Resolution appeared on the NBC 7 San Diego Morning News on Friday, August 24 to offer advice to divorced parents who have conflicts over ‘back to school’ issues with their children.

Family law attorney and mediator Shawn Weber interviewed by NBC 7 San Diego news on back to school issues for divorced parents.

Family law attorney and mediator Shawn Weber interviewed by NBC 7 San Diego news on back to school issues for divorced parents.

Weber recommends parents discuss their expectations and come to an agreement on time commitments, spending, and logistics involving school-age children long before the school year starts.

See the entire interview with mediator Shawn Weber on the NBC 7 San Diego website.

If you need help working through conflicts with your ex-spouse over parenting issues, contact Weber Dispute Resolution today at 858-410-0144.

KOGO AM Radio Features Shawn Weber Interview

The KOGO AM 600 Morning News with anchors Ted Garcia and LaDona Harvey featured a live interview with family law attorney Shawn Weber of Weber Dispute Resolution on Wednesday, August 16.

Weber discussed tips from his latest blog post, “Back to School Doesn’t Have to Mean Back to Court,” which offers advice for divorced parents on solving disagreements over their children and their return to school. Conflicts regarding spending over clothing and supplies, communication from school officials, and participation in various extracurricular school activities are common sources of friction between divorced parents. The failure to solve these problems can send parents back to their attorneys, and even back to court.

If you missed the interview, you can listen to it here.

Avoid an expensive trip back to court – contact Weber Dispute Resolution

Back to school sometimes sends divorced parents back to court. Are you fighting over:
  • Responsibility for buying school supplies?
  • Who’s driving the kids to school?
  • After-school activities?
  • Who talks to your kids’ teachers?
  • Emergency contact?
  • Who gets to sit where at the school play?
Call on Weber Dispute Resolution to help you and your clients get an A-plus on school plans that work for the entire family. Weber Dispute Resolution can help you avoid an expensive, lengthy, and emotionally damaging court fight. Call 858-410-0144 to set up a private settlement conference.

READ MORE: Early Intervention: Why Mediation Early In A Family Law Case Can Save a Fortune in Fees and Stress