Tag: divorce lawyer

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
The High Cost of Not Hiring a Lawyer

The High Cost of Not Hiring a Lawyer

I am often asked, “Do I really need to hire a lawyer for my divorce.”  That answer is no, there is no law that requires you to hire a lawyer to represent yourself.  There is also nothing that says you could not perform your own amputation if you need to, but things usually work out better if you hire a surgeon to do it.

Representing yourself in court is called being pro se (you have now fulfilled your quota of pompous legal terms for the day).  The problem with trying to represent yourself in a divorce is that things rarely work out as well as you had hoped they would.  Many people start off with the best of intentions that their divorce will be “uncontested” only to find that they cannot agree on some very important issues.  This is only the beginning of the problems with self representation.

Another major concern is that you may not get everything to which you are entitled.  Many people I talk to on a daily basis are surprised by what the law entitles them to in a divorce.  If you do not know  to what you are entitled, you have no idea what to ask for and can wind up “leaving money on the table.”  This can make the prospect of starting over in a new life as a single person much more challenging if you have even fewer resources.  Your lack of knowledge and hopes of saving yourself a few thousand dollars on an attorney could wind up costing you tens of thousands of dollars.

That same lack of knowledge of the law can also be a detriment to you if you have to go to court.  Courtrooms are operated using a complicated set of rules and procedures that attorneys often spend years learning and studying.  If you are representing yourself, you are held to the same standard as an attorney and you must know all of these rules inside and out.  Additionally, you are responsible for knowing and understanding all of the substantive law that applies to your case and whether an argument or motion you file is considered frivolous or without foundation.  If your lack of knowledge or procedure results in unnecessary litigation or your pleadings are deemed baseless or harassing you could wind up owing the opposing party’s attorney fees.  At a minimum, a skilled attorney on the opposing side will most likely be able to prevent you from presenting all of the evidence you want the judge to review and otherwise put you at a tremendous disadvantage.

The final concern is that you will let your emotions take over.  An attorney’s job is to look at your case, the facts and the law objectively and advise you as to the best course of action.  When you are representing yourself, there is a real fear that emotions such as anger, hurt, the desire for revenge will take over and cloud your judgment.  This can cause you to make some very, very stupid mistakes causing you to act like a hurt and angry spouse instead of a rational attorney.  Settlement negotiations wind up going nowhere, which results in you having to go before the judge, where you again let your emotions get out of control and you wind up with an even worse result.

There is a reason that the old adage “he who acts as his own attorney has a fool for a client” is an old adage.  It is just as correct today as when it was first uttered probably hundreds of years ago.  Do yourself a favor and hire a lawyer.

Photo courtesy of Pat Loika (cropped for space)

What is the Difference Between Marital and Non-Marital Debt?

What is the Difference Between Marital and Non-Marital Debt?

We have previously discussed the difference between marital and non-marital property.  There is also a difference between marital and non-marital debt.  With property, the court will start off with a presumption that property acquired during the marriage is marital property.  That is not entirely true with debt.

The true inquiry that must be made is did the debt serve a marital purpose.  This is a fairly broad concept that looks to a number of factors:

  1. Did both spouses participate in incurring the debt?
  2. Did both spouses receive a benefit from the debt or whatever was purchased with the debt?
  3. Was the debt incurred to purchase marital assets?
  4. Was the debt necessary to support the family?
  5. Was the debt incurred for a non-marital purpose or one that did not benefit the entire family?
  6. The respective economic circumstances of each party to handle the indebtedness.

As a general rule, most debts incurred during the marriage will be marital debts.  This would include mortgage debts, car payments, etc.  However, many times a spouse will be in the midst of a divorce and through the discovery process  learn that there are credit card debts or other obligations of which he/she was not aware.  Then the inquiry must be made as to why this debt was incurred.  One example might be where a husband is shocked to learn that his wife has an electronics store credit card with a debt of two thousand dollars.  Nevertheless, he is well-aware of the fifty inch television sitting in his living room that appeared after one of the wife’s shopping excursions.  The family has benefited from the television and absent some other odd circumstance, that debt will be considered marital.

A converse example, would be a situation where the wife learns of a credit card her husband has.  This credit card is used by the husband primarily to pay for time at the local no-tell motel with his mistress.  Obviously, this debt did not benefit the family in any way, therefore, it would be a non-marital debt.

I routinely advise clients at the beginning of a divorce to get a copy of his/her credit report to determine if their name is listed on any debts of which they may not be aware.  Many are surprised by what they find.  Where there is concern about the debts owed by the parties, it becomes very important to secure information on why the various debts were incurred to make sure that you are not burdened with more than your share of the debt.

Photo courtesy of Chris Potter

A Great Lawyer Knows the Judge

A Great Lawyer Knows the Judge

No, I do not mean that a great lawyer is also the judge’s best friend.  Obviously, if a judge and lawyer who appears before him/her have a close relationship, it creates a conflict of interest that would prohibit the judge from hearing that lawyer’s cases.  The same would be true if there was a high level of personal animosity between the judge and a lawyer.  I recently heard the story of a lawyer who was divorcing his wife, who was a judge.  This lawyer was actually bombarded with calls offering to pay him for the privilege of representing him in the divorce so that his future-ex-wife-the judge would have to recuse herself from all of their cases as well.

In a family law case, it is often vitally important that the attorney you choose is able to accurately predict how the judge assigned to your specific case may rule based on the facts of your case.  I routinely practice in front of approximately nineteen different judges across numerous counties in two states.  Each of those judges have different viewpoints, attitudes, and ideas about what is equitable or in the best interests of children.  There are some judges that regularly award equal timesharing while other judges are opposed to it and would never award it absent an agreement of the parties.  One judge is very generous in awarding maintenance while the judge in an adjacent county almost never awards maintenance.

Having an attorney who can anticipate how a judge may rule in your case can shape not only how your case is prepared for trial, but also possible settlement.  If the opposing party is making demands at a settlement conference that your attorney knows the judge is likely never to award at trial regardless of the evidence, it will inform your negotiation strategy.  Conversely, if your attorney is unable to predict the judge’s actions, you may wind up giving up more than necessary which could negatively affect your financial future.

During your initial consultation your attorney should be able to give you an idea of what you can expect from the judge who may be assigned to your case.  Keep in mind, some judges are easier to predict than others, but the attorney can discuss that issue as well.  If the attorney with whom you are meeting is unable or unwilling anticipate possible outcomes of your case based on different facts and variables, it might be a sign you need to hire a new lawyer.  Who you hire can make a difference.

Photo courtesy of Mike Licht

Does My Spouse Have a Right to My Medical Records?

Does My Spouse Have a Right to My Medical Records?

If you are involved in a custody case or possibly even a maintenance case, the answer is yes.  Although as a general rule medical records are private, once you put your health at issue, you have effectively waived that privacy right.  Your spouse’s attorney can then force you to produce them through the discovery process or subpoena them directly from your medical provider.  Under Kentucky’s Family Court Rules of Practice and Procedure you can be required to sign an authorization for the release of such information to the opposing attorney.

Your physical, mental and emotional health is always at issue anytime you ask the court to make a determination of child custody.  Moreover, if you are seeking maintenance and claiming that your health in some way inhibits your ability to work and earn a living, then you have made your physical health a factor for the court to consider and essentially given the other side the right to snoop through your medical history.

If this becomes an issue in your case, you should talk to your lawyer about your concerns.  This is not a time to be shy or to keep things from your attorney if there are potentially dangerous or embarrassing things in your medical history.  Your lawyer may be able to file a motion with the court to limit the information that the other side can get or to prevent it from coming in altogether if it is not actually relevant to a case.  If your lawyer knows all of the facts of the situation he can better advise you on how to proceed and protect your interests in court.

Photo courtesy of Seattle Municipal Archives

What Do I Do When My Child Does Not Want to Visit the Other Parent?

What Do I Do When My Child Does Not Want to Visit the Other Parent?

Whether it is entered by the court or agreed upon by the parties, chances are there will be a visitation or timesharing schedule established as part of your child custody case.  This schedule sets out specific times when the child is to be with each parent.  This schedule is part of the divorce decree or child custody order and is enforceable by the court.

If you are the primary residential parent, it is incumbent upon you to encourage the child to go to these visits.  “Encourage” might be too light of a wording, because the court expects you to make the child go.  If you do not, it is not the child who gets punished.  Instead, the other parent can file a motion for contempt; sometimes called a motion for rule to show cause.  We have previously discussed these motions in terms of when one parent refuses to pay child support or bills as ordered in a divorce.  It works much the same way in the realm of child visitation.  One party files a motion with an accompanying affidavit alleging that the other parent is refusing to obey the child visitation order.  If the court determines that is true, the parent disobeying the order can be sanctioned from a “slap on the wrist” and a stern lecture from the judge all the way up to six months in jail.

If you are the primary residential parent and you have a valid concern that the child is seriously endangered by the visitation such as evidence of abuse (and I mean solid evidence not just a suspicion), you can refuse the visitation.  However, you cannot simply take a unilateral action.  You will still need to file a motion to terminate the visitation with the court.  The court will conduct a hearing and if the court does not believe there was a good faith basis to deny the visitation, you could still be held in contempt and/or the other parent will most likely be allowed to make up any time that was missed.  “Crying wolf” and alleging abuse where there is none may also form the foundation for a motion to modify the timesharing and asking the court to designate the other parent as the primary residential parent.

Things get tougher when the child gets older and becomes a teenager.  When the teenager decides she no longer wants to visit and has a life of her own it can make it difficult for the non-residential parent to maintain that relationship.  It still remains the obligation of the primary residential parent to push the child to attend the visitation.  Some judges are more lenient than others, but many judges are loathe to allow a child to begin to decide whether the court’s orders will be followed.  In situations where the residential parent cannot get the child to cooperate, the parent may be left with no choice but to file an action against the child as an out of control teen (also known as a status offender) and ask the court for assistance.  Many parents hesitate to do this for fear of creating a record for the child or even giving the other parent ammunition to take them back to court.

Another point to be aware of is the fact that visitation and child support are two totally separate issues.  If the other parent stops paying child support, that does not give you the right to stop visitations and vice versa.  Courts do not appreciate these sort of “self-help” remedies.

Photo courtesy of DeptfordJon

You Can Annul a Divorce in Kentucky

You Can Annul a Divorce in Kentucky

You have been divorced.  You went through the arduous process.  Perhaps, you and your now ex-spouse even duked it out in court.  You reached a settlement agreement or the judge made rulings on child custody and dividing your property and debts.  Now tempers have cooled.  You are talking civilly to one another, maybe even went on a date.  Cupid’s arrows are flying.  You have decided to get back together.  It’s as easy as simply getting remarried right?  Not necessarily.

First of all consider the fact that by some statistics, the rate of divorce in second marriages is in the neighborhood of sixty percent.  Allegorically speaking from practicing family law for years, I can say that the rate of divorce for second marriages to the same person tends to be even higher.  However, hope springs eternal.  Nevertheless, remarriage may not be the best option.

A little used provision of Kentucky law actually allows a couple who wish to get back together to annul their divorce.  This action actually voids the divorce decree and any separation agreement.  The effect is that the divorce decree or separation agreement has no legal effect as though it never happened.  That means that anything that was marital property before the divorce is once again marital property.  It may also be used to prevent a lapse in coverage of health insurance since most employer plans will automatically drop a former spouse.  If the divorce is annulled, the insurer should recover the spouse and, arguably, cover the period of any lapse assuming premiums were appropriately paid for family plan coverage.

If you choose not to annul the divorce, get remarried and then realize that you just cannot make the marriage work for a second time it could have a major effect on your second divorce.  The property that was divided in the first divorce remains each party’s separate non-marital property.  Remember non-marital property includes property owned prior to the marriage, even a second marriage to the same person.  This may or may not simplify the second divorce, but it usually comes as a surprise to at least one of the parties who assumed everything went back to being marital property by virtue of the marriage ceremony.

These are not easy issues to handle.  When Cupid’s arrows start flying, you might be wise to get out of the way.

Photo courtesy of Hans Splinter

Should We Consider Marriage Counseling?

Should We Consider Marriage Counseling?

Most counselors would tell you that they wish you consider marriage counseling before contemplating a divorce.  Nevertheless, I would like to think it is never too late to salvage the relationship if both parties are committed to the effort.  Marriage counseling as most people think of it is generally short-term therapy consisting of between six and a dozen sessions.  However, some types of therapy may be more ongoing.
I recently heard from one couple who had successfully saved their marriage after almost divorcing only two years into the marriage.  That have now been married six years and still see a marriage counselor on a monthly or bi-monthly basis just “to keep things running smooth.”  This couple learned that marriage counseling not only helps them deal with current issues they are having but also how to spot the mole hills before either party makes them into giant mountains.  People often find that marriage counseling not only strengthens their relationship, but also helps their overall mental health because problems in a relationship also usually lead to other personal problems such as chronic depression, anxiety, and stress.
A word of warning if you consider marriage counseling; assuming the counselor is doing his job correctly, both parties should be made to feel somewhat uncomfortable during the process.  That is just part of change and obviously if you want the counseling to work, a change is going to have to take place.  Additionally, in order to give the counseling a real opportunity to succeed both parties need to make some commitments:
   Commit to attending a set number of sessions.  Most counselors would recommend at least six sessions.
   Commit to improving the relationship
   Do not make any big moves in dissolving the marriage.  This may include actually filing for divorce, moving out of the house, or continuing a relationship with a paramour
   Follow the recommendations of the counselor.

Keep in mind when looking for a counselor that different counselors have different approaches.  Some counselors are focused solely on maintaining the relationship absent abuse or danger.  Other therapists are more focused on the mental health of the individuals involved and remain somewhat neutral as to saving the marriage.  Regardless, the survival of a marriage is a long-term effort and commitment.  Setting aside time to work on your relationship is important to its success.
Photo courtesy of Pascal
What is the Role of a Guardian Ad Litem in a Custody Case?

What is the Role of a Guardian Ad Litem in a Custody Case?

A guardian ad litem (GAL) may not be able to fly, but she may still be a superhero.  GALs are practicing attorneys who are appointed in different types of legal proceedings.  Their role is different depending on the type of case in which they are appointed.  When the current Family Court Rules of Practice and Procedure went into effect in 2013, they provided that the family court may on its own motion or on the motion of a parent or custodian appoint, among other appointments, a GAL.

Often in particularly acrimonious custody disputes a GAL will be appointed to assist the court and to represent the child in proceedings before the court.  A GAL’s direction in these cases has often been confusing an miss-mashed between rules and statutes affecting divorce proceedings, dependency/neglect/abuse proceedings, and even cases involving representation of inmates.  The Family Court Rules of Practice and Procedure, even though allowing appointment of a GAL in custody cases are conspicuously silent as to the role of the GAL in such a proceeding.

The Supreme Court recently published an opinion clarifying the role of the GAL in a custody proceeding.  In the case of Morgan v. Getter, the family court appointed a GAL who filed a report with the court making a recommendation that the sixteen year old daughter be allowed to relocate to Florida and the father be the primary residential parent.  The trial court refused to allow the mother’s attorney to call the GAL to the stand so as to cross-examine the GAL about the report or the recommendation.

The Supreme Court pointed out that there is a separate statutory provision allowing a trial court to appoint a friend of the court (FOC) to perform an independent investigation and file a report with the court.  In that case, the FOC would be subject to cross-examination about his findings, report and investigation.  The high court clarified that a GAL’s role in a child custody case is to actually act in the best interests of the minor child using the lawyer’s independent judgment.  To that end, the GAL may file motions, call witnesses, present evidence, but should not file a report with the court nor be subject to cross-examination.  The Supreme Court noted that there may be instances in which the lawyer’s determination of the best interests of the child may conflict with the child’s actual wishes and the GAL, if the child consents, may be required to report that conflict and the child’s wishes to the trial court.  The costs of the GAL’s fees can be apportioned to the parties as costs according to the rule.
This is a fairly radical shift in GALs’ responsibilities in these types of cases in Kentucky. However, it does clarify the direction that the GAL should take by adopting a best interests approach as opposed to simply advocating what the child wants; a decision that may be impossible for a child to articulate given age or maturity level.  When that happens, leave it to the superhero to save the day.
Photo courtesy of Jeffrey Kontur
How Do I Know If It’s Time to Hire a Different Lawyer?

How Do I Know If It’s Time to Hire a Different Lawyer?

The decision to change attorneys is a costly one.  It takes an emotional toll when you are already emotionally vulnerable.  It takes a financial toll and it takes a toll on your time when all you want is to get this process over.  You will have to go through getting to know your new attorney and how his office works.  Your new attorney will need time to get up to speed on your case, which will cost you money.  All of this will most likely delay the proceedings.

Nevertheless, if you feel your current counsel is not adequately representing your interests or if you feel that you can no longer work with that lawyer (sometimes called a breakdown of the attorney/client relationship), you might be well served by changing attorneys and should not hesitate. The sooner you act, the more likely you will be able to ensure that your rights are protected and that you have an attorney in whom you have faith and can trust to represent your interests.

Before you go through the expense and trouble of hiring a new attorney, you should take a hard look at your case and ask yourself some things:

  • Have I expressed my concerns to my attorney?  I mean, have you calmly and reasonably talked with your attorney about what is bothering you and not tried to get attention by being rude or demanding to the attorney or the office staff.  (FYI – that is never effective at getting a response you want.)
  • When I expressed my concerns, did my attorney take steps to remedy the situation?  This would apply whether we are talking about moving the case forward or simply handling an issue of communication between you and your attorney.
  • Is my lawyer open and receptive to what I have to say or does he get defensive?  Again this might depend on how your present your problem to the attorney, but attorney’s are professionals and should not get their feelings hurt if you are expressing a legitimate concern.
  • Am I blaming my lawyer for the bad behavior of my spouse or opposing counsel?  Try as you might, there is no way to litigate someone into not being a jerk.  Don’t blame your lawyer.
  • Have I provided my lawyer with all of the information he needs to take the next action in my case?  As a lawyer, it is impossible to go into battle with an unloaded gun.  Give your attorney all of the ammunition he/she needs.  You have responsibilities in this case as well.
  • Am I blaming my lawyer for things over which he/she has no control?  Sometimes, the law just is not on your side.  Make sure you ask whether it is your lawyer’s fault or if it is the law or even the judge that govern’s the outcome.
  • Is my lawyer keeping promises for completing action on my case?  Basically, is the lawyer doing what he says he is going to do?
  • Do I trust my lawyer?  Much like in a marriage, once the trust is gone, you need to go elsewhere.  Remember, you are putting your future and the future of your family in this person’s hands.
  • What are the relative advantages of hiring a new attorney compared to the costs?  Weigh out the pros and cons of changing lawyers.
  • Do I feel like my lawyer will support me to achieve my goals in this case?  Has my lawyer ever even asked me what my goals are?

You should make every effort to avoid changing attorneys in the middle of your case.  It can make a difficult situation even tougher.  There is an old adage that says you should never change horses mid-stream, but you might be on a horse that just can’t swim.  If that is the case, you should probably find yourself a canoe.

Photo courtesy of Stephen