Category: divorce

Divorce, Domestic Violence and Mediation

Divorce, Domestic Violence and Mediation

This post is written by Abigail C. Barnes with the Alford Law Office.  Abbie is a former director of the McCracken County Child Support Office, former Domestic Violence Prosecutor and former Felony Offense Public Advocate.

 It has been said that going through a divorce is one of the top five stressors in a person’s life.  Add abuse, whether physical or emotional, to the mix and the stress becomes heightened to the point of being dangerous.  In fact, when the abused party is trying to untangle themselves from a toxic relationship,  that is statistically the most dangerous time he or she has to face.  Domestic violence is about power and control.  As anyone who has undergone a divorce would know, a divorce alone leaves you feeling powerless to control your circumstances at best.  If domestic violence is an issue, then usually the abuser fights harder for the upper hand, while the abused party is faced with abuse at a heightened rate.
Mediation is an amazing tool to help an individual going through a divorce maintain some control over what happens.  Mediation is a guided negotiation with a knowledgeable and unbiased party at the helm, helping both parties reach an agreement that satisfies them both.  However, throw the dynamic of domestic violence into the mix, and the negotiations have the tendency to become volatile and one sided.
As a former Domestic Violence Prosecutor, I have seen first hand the affects that domestic violence and abuse have on an individual who has suffered at the hands of an abuser.  Many times, the abuser will expertly manipulate the abused to reach their desired result.  Their end game being to assert their power and control over the situation, thus getting what they want at the expense of the other party.
Fortunately, the courts have recognized this as a significant issue, and many jurisdictions, including Kentucky, prohibit mediation in cases where a Domestic Violence Order (“DVO”) has been entered.  Unfortunately, however, many acts of domestic violence go unreported, thus leaving the court with no knowledge of how ordering parties to mediation may affect the negotiations.  It is not uncommon to have an abused party, who for whatever reason, has not reported the abuse, or who has reported it but did not follow through with charges or a DVO.  In these cases, if the abused party remains silent, they could be sent to mediation and placed into a situation that allows the abuser to maximize his/her power and control over the situation, thus manipulating the abused into a one-sided agreement.  The significance of this can be even more dramatic if there are children involved.
If you find yourself in the situation where you are involved in court proceedings against an individual who has routinely abused you, either physically or emotionally, the best thing you can do to protect your rights is to hire an attorney who understands that dynamic and fully inform them of your circumstances.  Silence truly is your enemy.  Do not remain silent in situations that have the potential to affect your future.  Speak up.  Tell your attorney so that special precautions can be made to protect you from being further intimidated at the negotiating table.

 


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Photo courtesy of Jane Fox

How Do I Handle Hostile Communications From My Ex?

How Do I Handle Hostile Communications From My Ex?

Whether in the middle of a divorce/custody case or after the legal dust has cleared, you may be plagued by hostile communications from your ex.  It may be text messages, emails, phone calls, or over social media. Most of it probably has little, if any, legal significance so you can simply ignore it. It cannot have any power over you unless you let it and often it is more an indication of the writer’s emotional state than anything else.  Responding with similar or like-kind emotion is probably the worst thing you can do and will usually only serve to escalate things. However, since emails and other communications can find their way into court files and litigation, you may feel compelled to respond.  If you do feel compelled to respond, it is important to keep these rules in mind.

1.  Keep it brief.  Say only what you absolutely need to say to fulfill your legal obligations or correct inaccuracies and then be done. The more you write, the more material the other side has to use against you. Keeping responses short will often help diffuse the situation and, hopefully, end the harassment (at least temporarily).

2.  Stick to the facts.  Do not allow yourself to be drug down to the level of your harasser. If you have to respond, keep your responses factual and informative.  Remember, the point is often to simply correct misinformation in previous communications. Correct the error and be done.  For example, “Just to be clear, the children were not left alone. My mother came and stayed with them while I was out of town.”

Avoid being argumentative. Do not use sarcasm or negative comments. Avoid threats and profanity (both of which always seem much worse when seen in the printed word). Do not use personal attacks like name calling or insulting their intelligence.  If they are a high conflict personality, it will only throw fuel on the fire and increase the harassment.

3.  Kill them with kindness. When the other side is hostile, you respond with civility. Although you may be tempted to anger, you will achieve your case much better by keeping the tone of your responses friendly. If they are shown in court it will help to highlight the contrast between how you handle the situation like a reasonable adult as opposed to your ex.

There is no need to be syrupy sweet as that can come back around to sounding sarcastic. Just keep the tone relaxed and non-antagonistic. Acknowledge their concerns and then address them. Continuing from the example above, “I understand that you were worried about the children, but mother had things under control.”

4.  Be firm.  In a very matter of fact sort of way, communicate to the other person your position on the issue and be done. Think Forrest Gump, “That’s all I have to say about that.” Avoid comments that invite discussion, negotiation or anything that would continue the conversation. Comments like “I think you would agree. . .” or anything involving a question like “who,” “what,” “when,” where,” “why,” or “how” will only invite a response from the other person which is what you are trying to avoid.

It is important that you sound confident and avoid asking for information if you want to end the back and forth. A confident person is less likely to be challenged with further communications. If you are challenged, and feel the need to respond, make this response even shorter than the first and do not emotionally engage.

Whether it is on your work or personal email, handling communications from your ex with these rules in mind will help minimize the emotional anguish it causes you.

Photo courtesy of AJ Cann

Tips for Negotiating and Managing a Timesharing Schedule

Tips for Negotiating and Managing a Timesharing Schedule

As if juggling a child’s busy schedule with ballgames, play auditions, church functions, birthday parties and other activities of your little social butterfly were not enough, adding a co-parenting timesharing schedule into the mix makes it even tougher.  The timesharing schedule may be one that is negotiated through settlement discussions with the other party, reached at mediation or it may be ordered by the Court. Regardless of how your timesharing schedule is determined, there are some very fundamental and key points that you need to keep in mind.

1.  Keep It Simple

I have had cases where parents are bouncing the child back and forth night to night or during the day. The dad gets every third leap day and the mom gets each evening where Jupiter aligns with Mars. UGH!  Of course, I am exaggerating to make a point, but it is a valid point nonetheless.  Obviously, you and the other parent have some difficulty getting along otherwise, you would probably still be together.  Therefore, avoid as many misunderstandings or opportunities for argument as possible by keeping your schedule as simple and easy to understand as possible.

Keeping the schedule as simple as possible will also help provide your child some stability. Children can often adapt better if they understand and follow a routine.  They can quickly learn “Monday is a mommy day;” or “I was with mom last weekend so I will be at dad’s this weekend.”

2.  Help the Children Understand

Like I said oftentimes knowing what to expect can put children’s minds at ease in a co-parenting situation. Help your child understand the timesharing schedule. Make it available to your child in a way that is easy to understand. Perhaps a printed calendar posted on the refrigerator or a dry erase board. For older, more tech-savvy children, set up an online calendar with the days marked.  This is actually very easy to do with many of the online calendars because you can program in repeating events. There are also a number of apps available in the iTunes and Google Play stores specifically for family scheduling.

3.  Do Not Forget Holidays and Important Family Events

Most standard visitation schedules promulgated by the Courts have many of the big holidays spelled out.  This is often a good place to start if you are trying to develop your own parenting schedule. Also, if your family has a big family reunion or other special event each year, you should factor that into the schedule.  Some other things that may come up are birthdays, family events such as weddings or funerals.  It is a good idea to also review your child’s school calendar to determine when there are long weekends or breaks for you and the other parent to consider.

4.  Get It Documented

You and your co-parent or ex-spouse may be getting along beautifully, and that is wonderful.  However, you need to prepare for the day when you may not agree on things. In that case, you had better have your timesharing plan well-documented and filed with the Court. If it is not documented, who is to say who gets what time? If it is not on file with the Court and adopted as part of a custody order or divorce decree, the Court cannot enforce it with the Court’s contempt powers.

This also applies if at some point you and your ex change the timesharing schedule. Sometimes it evolves over time. Sometimes you have to change as a result of changed circumstances like when the child starts school. Whatever the reason, get it documented and make sure the Court file reflects what is happening with you, your ex and your child.

Getting everyone on board with your timesharing schedule and keeping everyone properly informed will go a long way to making your life as a co-parent much, much smoother.

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Photo courtesy of Dafne Cholet

A Divorce Lawyer’s Guide to a Good Marriage: Part II

A Divorce Lawyer’s Guide to a Good Marriage: Part II

We previously began our discussion on our Guide to a Good Marriage.  This post continues on that topic, but to summarize, good marriages take hard work and commitment to one another as well as the relationship itself. With that in mind we will dive into the remaining tips from this divorce lawyer’s perspective.

4.  Part of a Good Marriage is Open Finances Right from the Beginning

An older attorney once told me that many of the people who file for divorce probably actually just need to file for bankruptcy. His glib attitude belies a real truth that finances put an incredible strain on a marriage relationship. It becomes miserable to be with someone when all you do is fight or fret over money issues.

While struggling to make ends meet can put serious stress on a marriage, money-related problems often also stem from a couple’s unwillingness to share financial information. One spouse controlling the finances can create an imbalance of power in the relationship that can become toxic.  I also am not a big fan of the idea  separate bank accounts.  They can lead to secrets or make it a lot easier to decide to split the sheets. If you are going to be in a marriage, it should be a partnership. Think of it like rowing a boat. If two people are rowing in opposite directions, you are not going to get anywhere. Everyone needs to be pulling in the same direction.

5.  Pick Your Battles

He never puts the toilet seat down. She always burns the toast. WHO CARES? Pick your battles and let life’s little annoyances go.  Do not expect the other person to be perfect. Conversely, we divorce lawyers cringe when we hear couples say they never fight. There is not a single relationship on earth where people do not argue or disagree. Talk about your problems or disagreements. If you feel you cannot talk to your spouse about an issue, you have big problems. Find a therapist before you have to find a lawyer.

6. Treat Your Spouse as You Would Treat a Good Friend

One of the weird things about marriage based on what I have seen, is that people often treat their friends, children and extended families better than they treat their spouse. If you treat your drinking buddies better than you treat your spouse, you have a problem. Remember how you showed your spouse you cared when you two were dating? Do that. Never forget you could lose him/her.

7. Find an Outside Interest/Activity/Hobby

Maintain your own interests and do not rely on your spouse (or your spouse and children) for the sum total of your happiness. Having outside interests makes you a more interesting person. It gives you something to talk about over those date night dinners we discussed in Part I of this article. You are never too old to learn something new. Take a piano lesson. Sign up for an art class. Go hiking, Whatever it is, find something that interests you. Then you can share it with your spouse.

No one ever said this would be easy. Hopefully, you remember why you got married in the first place and you have decided it’s worth it.

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Photo courtesy of Allie Towers Rice

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