Author: Alford Law Office

Should I Talk to My Spouse During Our Divorce?

Should I Talk to My Spouse During Our Divorce?

Recently I was involved in a case where it was quite obvious that the other attorney had advised his client not to speak to my client about settlement negotiations. This was a case where the parties had been separated a while and there really was not that much to fight over but the other spouse simply would not sit down and talk to my client about the case. Motions were filed, letters between attorneys were exchanged hearings were set and bills increased. Ultimately, the case got settled for right about what my client wanted to settle it for in the first place. After the fact, my client confirmed that the other spouse’s attorney had, in fact, discouraged communication between the parties that could have resulted in a much quicker resolution (there was also some indication that the attorney was not passing along our settlement proposals, but that is an entirely different problem).

This illustrates a significant problem in a divorce case.  Divorce cases, unlike most civil lawsuits, involve people who know each other. Granted it is probably not wise for two litigants in a car accident case to communicate directly on a regular basis, but that is not usually the case in a divorce. Regardless of whether the parties in a divorce are talking settlement or not, they are most likely going to have to talk about some things. Whether it is transporting little Johnny to the baseball game, who is getting the blender, or who paid the car insurance, there is most likely going to be some communication.

I am a big proponent of keeping the lines of communication open as much as possible during a divorce case. You and your spouse know your lives, and your children’s lives, hopefully, better than anyone else in the world. Moreover, studies routinely show that people who have a hand in the resolution of their case are much more satisfied with the outcome. If you and your spouse can sit down over a cup of coffee and hammer out at least some of your issues, you should go for it as long as you discuss any ultimate agreement with your divorce attorney before signing anything. It will save you money, time, and heartache. If you talk to an attorney who discourages you from talking to your spouse without a valid reason, you should ask yourself why you are getting that advice and who stands to benefit.

Admittedly, there are occasions when talking with the other spouse is not a good idea. In situations of domestic violence, it may not be safe to do so or there could be a court order in place that prohibits communication.  Further, there are some relationships that have become so toxic that it is not a good idea to talk with the other spouse without an attorney or other person present as a buffer. As always, discuss your particular situation with your attorney to figure out what is best for you.

Photo courtesy of Search Engine People Blog

WHAT TO EXPECT IN DIVORCE COURT PART 3, FROM YOUR DIVORCE JUDGE

WHAT TO EXPECT IN DIVORCE COURT PART 3, FROM YOUR DIVORCE JUDGE

We have previously discussed what to expect from yourselfand from your divorce lawyer.  However, perhaps the most important person in the courtroom is the judge. After all it is the judge who will actually be deciding your case. That judge will have certain expectations of you and you should know what to expect from the judge.

1.              Expect the judge to expect you to follow the rules and the process. The judge will be juggling your case along with dozens of others. He or she will expect you and your attorneys to follow rules and procedure to work towards settling the case or narrowing the issues before trial. In following these rules and procedures, you will most likely be required to attend mediation, a settlement conference, other procedural hearings, and submit filings prior to a trial. While you may chafe under these requirements, rest assured the judge finds them very important. Failing to cooperate in any of these steps, will damage your credibility with the court.
2.              Expect the judge to limit the time you have to present your case. The judge will expect your lawyer and your spouse’s lawyer to give the Court a time estimate of how long it will take to present the case for trial. The more time needed to present the case, the more difficult it will be to fit your case into the Court’s calendar. Nevertheless, giving the court an estimate too short is not wise either. It could lead to an upset Family Law Judge and your matter continued anyway. Alternatively, it could hamper your attorney’s ability to present your case. Many judges will keep a close eye on the time to present a case. If a case it set for three hours, your lawyer gets one and a half hours to present your side of things. The time limits placed on a hearing may have a bearing on what witnesses and evidence you are able to present at trial.
3.              Expect the judge to expect you to be civil and follow the rules and orders of court. Despite the anger you may feel against your spouse, the court will still expect a certain level of decorum in the courtroom. Fits of rage or emotional outbursts will not help your case in any way.
4.              Expect that you probably will not be completely happy with the Court’s decision. Judges encourage the parties to reach an agreement at every step of the procedure. If the Court is required to make a decision in your case, most judges operate with the same rule of thumb. That rule is simply, “if everyone walks out of the courtroom upset, the Court has probably been fair.” While I am not saying that I ascribe to this sentiment, it is one I have heard from several judges over the years.

Knowing what to expect of the person in control of your immediate fate and what that person expects from you, will increase your chances of success.
Photo courtesy of Sol M. Wurtzel (Internet Archive) [Public domain], via Wikimedia Commons
WHAT TO EXPECT IN DIVORCE COURT PART 2, FROM YOUR DIVORCE LAWYER

WHAT TO EXPECT IN DIVORCE COURT PART 2, FROM YOUR DIVORCE LAWYER

As we previously discussed, understanding what to expect in divorce court can greatly reduce the stress you will undoubtedly experience.  Similarly, you should know what to expect from your divorce lawyer. This will allow you to plan and be of the utmost assistance in the presentation of your case.
1.              In the weeks leading up to your hearing expect the requests for information from your divorce lawyer to increase. These may be requests for updated financial documents, photographs, possible witnesses and contact information, etc. The quicker you can respond to these requests the better prepared your attorney can be. Your lawyer must have time to review the information you provide, most likely provide it to the other lawyer, and determine how best to present such information to the court. Waiting until the last minute to provide requested information to your lawyer will only make it more difficult to prepare for your case.
2.              Expect to meet with your lawyer to prepare for your hearing. Your lawyer should be going over trial strategy, possible evidence, and possible witnesses throughout the representation as he builds your case. As the trial date nears, these meetings should increase and include an explanation of what you can expect at trial and as well as your testimony.
3.              Expect that on occasion you may have difficulty reaching your attorney.  Just as the time your attorney will spend with you and working on your case, understand that he will from time to time have to spend that same amount of time on other cases. Rest assured, when the time comes, your lawyer will be focusing on your case and putting other cases on hold.
4.              Expect your lawyer will be communicating with your spouse’s attorney. While you may have extremely hard feelings towards your spouse, or even your spouse’s attorney, understand that family law attorneys routinely have cases with one another and regularly communicate. Moreover, the rules of procedure and the Court will expect the attorneys to communicate to try to resolve as many issues as possible.
5.              Expect that your divorce lawyer will be prepared. During your discussions and trial preparations, your lawyer should be able to explain to you a trial strategy, how that strategy will be presented and what the other side may present. This will further help you to be prepared yourself and more calm on the day of trial.

Divorce court is scary; no question about it. However, having a prepared and skilled lawyer at your side can calm those fears.
Photo courtesy of peggydavis66
WHAT TO EXPECT IN DIVORCE COURT PART 1: FROM YOURSELF

WHAT TO EXPECT IN DIVORCE COURT PART 1: FROM YOURSELF

Divorce court can be scary.  Judges and lawyers may not think so since we are there almost everyday. However, for most parties, it is the first time they have ever been in a courtroom and they find themselves fighting for their children, their livelihood and their very future. Being prepared for what to expect can help you perform much better and put your mind at ease. A skilled family law attorney will take the time to sit down with you and prepare you for trial.  The following is what to expect from yourself in a divorce court proceeding.
1.              Expect to be nervous, everyone else does.  Like I said, you are fighting for your children, your livelihood and future. The judge certainly expects you to be nervous and it is okay. Indeed, seeming to be stoic and unemotional in a child custody case may convey the mistaken impression that you do not care. However, some people get in court and become nervous, then believe that everyone, particularly the judge, will see that they are nervous and question their honesty. Then they become even more nervous and it becomes a vicious circle. Relax. Keep in mind, all you have to do when testifying is talk. You have probably been doing that since you were two years old.
2.              Expect to know everything about your case. If you think all you have to do is show up because your lawyer will know everything about your case, you are setting yourself up for failure.  No one knows your life better than you do. Prepare yourself. Review all of the pleadings from your case. Review financial documents that will be relevant to your case. Review statements made by you and the other party or any witness. Failing to prepare is preparing to fail.
3.              Expect that things are not black and white in divorce court. While you may see things as clear and evident, judges do not always see things as such. This is further complicated by the fact that divorce court operates under the rules of evidence. While something may be the truth, if it cannot be established within the bounds of the rules, the court cannot consider it.
4.              Expect that you will tell the truth, even if the other party does not. While this should go without saying, I will go ahead and say it. There may be a certain temptation to bend the truth or flat out lie to improve your case. Do not give into that temptation. For one, you will be committing perjury and subject yourself to criminal sanctions. Second, when (not if) your falsehood is exposed, your credibility will be destroyed. Finally, there is nothing more powerful than to simply tell the truth.

Preparing yourself for the terrifying experience of court will go a long way to increasing the odds of a successful outcome.
Photo courtesy of Calsidyrose
Can I Be Forced to Move Out of My House in a Divorce?

Can I Be Forced to Move Out of My House in a Divorce?

An average divorce case can take between two and six months to resolve.  During that time, there may be a struggle as to who will get to stay in the home.

This was the situation Shahnaz and Sharafat Khan when the wife, Shahnaz kicked Sharafat out of their million dollar home in the Houston, Texas, area.  Mr. Kahn refused to leave the premises leading to the police being called to the home.  Since the home was titled in both Mr. and Mrs. Kahn’s name and there were no allegations of domestic violence, the police could not force Mr. Kahn to leave.  Mr. Kahn then camped out on the lawn of the home in the affluent neighborhood for the next five months. Mrs. Kahn even posted a sign asking neighbors to refrain from feeding her estranged husband. Once Mr. Kahn received a copy of the divorce decree five months later, he finally got in a cab and vacated the premises.

This is an extreme situation, but it highlights a situation that many couples wonder about when considering a divorce in Kentucky. Most of the time, one party decides to voluntarily vacate the property once it becomes clear that the marriage is coming to an end.  This usually provides some much needed distance between the parties and helps reduce the hostilities.

Problems arise when one party simply refuse to leave, but there are options available.  While a divorce is pending, the Court will consider a motion for temporary relief to grant one party temporary exclusive possession of the home.  In deciding whether to grant such a motion, the Court will weigh the options each party have for other accommodations, with which party the children will be staying, the other resources available to each party, and allegations of domestic violence.

Photo from the George Grantham Bain collection at the Library of Congress.

Will the Judge Make Me Auction Everything in My Kentucky Divorce?

Will the Judge Make Me Auction Everything in My Kentucky Divorce?

While it is possible that a family court judge could order the property in a divorce case to be sold and the proceeds divided, the courts usually try to avoid it.  As a general rule courts have no interest in getting mired down in the process of selling property, especially personal property.

While many believe that everything in divorce is divided “fifty-fifty,” that is not truly accurate.  Rather, the Court is to divide the property in equitable proportions.  This usually means that the Court will require that for every dollar’s worth of property one party receives, that party must also take a dollar’s worth of debt to cancel it out.  The idea is that each party will net out at zero.  For example, if one party receives $100,000 worth of property, the Court will try to assign $100,000 worth of debt to that person.  The other party may receive $50,000 worth of property and $50,000 worth of debt.  While this division may not be “fifty-fifty,” it is considered equitable since each party netted out at zero.

This is the general rule attorneys use in trying to negotiate a settlement of your divorce case.  A problem can arise when neither party actually wants a certain pieces of property, such as the marital residence.  In this instance, there may be little choice but to sell the property and divide the proceeds. This may be done by placing the property with someone specifically in the business of selling such property (a realtor in the instance of real estate for example) or having the property auctioned.  The upside of an auction is that it gets the property sold quickly.  The downside, of course, is that the property will most likely only fetch pennies on the dollar.  If the parties cannot agree on a method of sale, the Court may be forced to decide.

Forcing the Court to decide on the method of sale may have unintended consequences for your case.  Oftentimes, a great deal of the success of your case can come down to the judge’s assessment of your credibility and even likability.  Normally, the person who is being the most unreasonable comes up short in these types of cases.  Therefore, if the Court determines that it must get bogged down in dividing property that no one wants at the final hearing because you have been the recalcitrant party, the Court may hold that against you in determining another issue.

As with most things in resolving a dispute in a divorce case, you should strive to be reasonable and listen to the advice of your divorce and child custody attorney.

Photo courtesy of Colleen Lane

Six Things Your Paralegal Wishes You Knew

Six Things Your Paralegal Wishes You Knew

 

Many divorce and child custody lawyers use paralegals to assist them in their practice and to provide clients with excellent service.  These paralegals are often the unsung heroes of family law litigation.  Clients sometimes do not fully appreciate the role the paralegal plays in their case.  Therefore, here are six things your paralegal wishes you knew.
  • I can save you money – Many law offices bill for their paralegal’s time at a much lower hourly rate than the attorney’s time.  While a paralegal cannot practice law, they can often explain aspects of the process of your case or answer questions without you being charged the attorney’s hourly rate.  Sometimes, they may even be more up to speed on your case than your attorney because they are dealing with the incoming pleadings and discovery as it comes into the office.
  • I can cost you money if you are not organized – Part of the paralegal’s job is to help organize information on your case and help get it ready to be presented to the court.  If you have taken the time to prepare everything requested of you, organize it in an orderly fashion and provided when it is requested, you will save the paralegal a lot of time and keep your fees lower.  Conversely, if you show up with garbage bags full of bills, old shoeboxes of receipts, and folded up, coffee-stained documents, your paralegal will have to spend additional time wading through all of that to make sense of it.  If your legal team cannot make sense of it, there is no way to make the court understand it.
  • I am easier to reach than the attorney – Admittedly, sometimes you just need to hear your attorney’s voice.  However, most divorce and child custody practitioners are in court on an almost daily basis making it difficult to return calls.  The paralegal is almost always in the office.  If they cannot answer your question immediately, they can usually get you an answer fairly quickly.
  • My time is valuable – The paralegal, like your attorney, is here to help you through your case.  Paralegals are trained in a lot of things, but they are not mental health professionals and cannot be your therapist.
  • I am often just as frustrated with the system as you are – Contrary to what a lot of people believe, good law firms try to move their clients’ cases through the system as efficiently as possible.  Coordinating multiple attorneys’ schedules along with a court docket bursting at the seams can make that task extremely difficult.  Moreover, sometimes the law or a ruling is simply not fair, but there may be very little we can do about it.  We understand your frustrations and try to empathize.  Remember, we are on your side.
  • I deserve your respect – Paralegals work very hard at often thankless tasks.  You make it more difficult when you treat them with anything less than the utmost respect and consideration.
How Do I Handle Out-Of-State Timesharing?

How Do I Handle Out-Of-State Timesharing?

Child custody and timesharing cases can be some of the most difficult, emotionally charged cases.  These cases are further complicated when one parent lives in a different state.  There are a number of things to keep in mind in dealing with a timesharing schedule across state lines.

BE FLEXIBLE

This is good advice in any co-parenting situation, but is doubly important in multi-state situations.  If the parties are flexible and realistic in these situations, it makes life so much easier.  The parents have to realize that they will not be able to share the same sort of schedule as parents who live in close proximity.  Holidays will not be able to be divided in the same manner.  It may be necessary to consider alternating holidays or celebrating the holiday on an alternate day.  In my own family, we have adopted the tradition for years of celebrating major holidays on the Sunday before the actual holiday just to make sure it does not interfere with anyone else’s plans.  As our family has grown and expanded this has continued to work for our family.  After all, the important thing is the time together, not the date on the calendar.

MONEY MATTERS

Increased distance between the parents means increased expenses transporting the children.  Figure out the finances on the front end.  Will one person transport to visits and the other return the child?  Will you meet in the middle?  Dealing with the expense of traveling for visits gets even more important if air travel is necessary.  The airfare, hotels, gas money all add up over time.  The more detailed you can be in the planning, the more likely you will avoid contention in the future.

COMMUNICATE EARLY AND OFTEN

When in person visits are not possible, electronic communication becomes vitally important.  Fortunately, there are a numerous options available for parents and children separated by long distances.  Skype, Google Hangouts, FaceTime and other video chat options are available to actually allow you to see the child while you are talking.  Keep in mind that children have social lives as well, so you may need to include time for reasonable and regular communication in your parenting plan to ensure that the child is available.  Although it is not a perfect solution, it will help you maintain an active role in your child’s life.

Although multi-state parenting is a difficult situation, safeguards can be put in place to make it as workable as possible.

Photo courtesy of Kevin Dooley

Can I Prevent the Other Party From Relocating?

Can I Prevent the Other Party From Relocating?

 

In our increasingly mobile society, it is a sad reality that at some point in a coparenting relationship, one parent may decide to relocate to another state and take the child.  There are a myriad of legitimate reasons for a move.  Perhaps, new job opportunities await.  The other parent may have additional family available to help them.  The person may simply want a new start (maybe in a warmer climate).  Many people want to know if there is anything they can do to prevent the possibility of such a move.

KENTUCKY RELOCATION RULES

Kentucky has implemented the Family Court Rules of Practice and Procedure.  Those rules specify that “[b]efore a joint custodian seeks to relocate, written notice shall be filed with the court and notice shall be served on the non-relocating joint custodian.”  Once that notice is filed, the other party can file a motion to modify custody or timesharing within twenty (20) days unless the parties agree.  Whether the court allows the relocation will be very fact dependent, but if a parent is seeking to relocate solely to frustrate the other parent’s time or relationship with the child, the court will likely not allow the child to move in a joint custody situation.  If, however, the relocating parent is a sole custodian, the chances of the court approving the relocation are greatly increased and the rules less stringent.

BACKUP PLAN

Another option to plan for a possible relocation is to have a backup plan; a “Plan B” timesharing schedule if you will.  In this situation if you know there is a chance that one parent may relocate in the near future, you can build that eventuality into the parenting plan.  In that way, if there is a relocation, no additional litigation expenses are incurred, the parties would simply begin following the “Plan B” schedule.  While it may not be a particularly pleasant thought to contemplate, it is better to address the possibility now rather than having to relitigate the case.

NO RELOCATION CLAUSE

A final option is to include a firm “no relocation” clause in a final parenting agreement.  You may or may not be successful in negotiating such a provision and it will probably depend heavily on the parties involved.  Keep in mind it is unlikely that a court would ever order such a provision in a final judgment so this could only be included in a negotiated settlement.  If you include a “no relocation” clause, it will need to be very narrowly crafted.  courts are very hesitant to enforce these clauses for fear of violating a person’s right to relocate for legitimate, good faith reasons.  The courts are at all times primarily concerned with the best interests of the children and could very well override the “no relocation” clause.

If relocation is a possibility in your case, discuss the issue with your divorce/custody attorney as soon as possible to ensure your rights are properly addressed.

Photo courtesy of Karen Apricot

Planning for a Divorce

Planning for a Divorce

As we have previously discussed, divorce filings increase dramatically in the months of January and February.  Many people are considering a divorce in the new year now that the holidays are behind them. There are several things you should do to prepare for an impending divorce.  The following will help you plan step-by-step for your divorce.

DO YOUR HOMEWORK

You would not believe the number of people who meet with their divorce attorney and have no idea about their financial status.  Take this opportunity to learn about any prenuptial agreements that may exist.  Learn about your household budget.  What are your monthly payments?  Learn what assets you and your spouse have both individually and together.  Research whether there are investment or retirement accounts. Research the value of those assets.  The property valuation administration and Kelly Bluebooks are excellent resources.

GATHER YOUR PROOF

Take this opportunity to put together as much documentation as you can.  Gather bank records, investment/retirement account statements, credit card statements, deeds, titles, and insurance policies.    You can find a more detailed list of things to bring to your first meeting with a divorce attorney here.

Although your attorney can usually get these documents during the litigation, it can be much more costly and time consuming to do so.  If you gather them ahead of time, it may save you significantly on your fees.  Moreover, when your attorney is properly armed with the necessary information, it increases the chances that the case may be able to be settled sooner rather than later.

Documentary evidence is not the only type of evidence you can gather.  If there are children involved, you should immediately begin keeping a parenting journal.  Keep photographs, education records of children, and information on each person’s medical history (including the children).

TAKE CARE OF YOURSELF

The five stages of grief are a real thing.  You will be going through them at a different rate than your spouse and your children.  Going through a divorce has been equated to the stress of close loved one dying or losing a job.  The grief and stress of the process requires you to pay special attention to your own mental health and wellbeing.  Further, your children may need assistance dealing with issues of the divorce.  Your attorney should be able to make a referral for you to a qualified mental health professional.

You also need to be aware of your physical safety and that of your children.  Kentucky has in place statutes specifically providing for the protection of victims of domestic violence.  Most counties have a twenty-four hour protocol in place so that you can seek that protection at any hour of day or night.

While it is nothing anyone enjoys thinking about, with a little planning you can get a new start without starting over.

Photo courtesy of babi krishna