Tag: settlement

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

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

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)

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 Can I Expect at an Initial Consultation With an Attorney?

What Can I Expect at an Initial Consultation With an Attorney?

A lawyer’s time is his stock in trade. ~Abraham Lincoln

Not all initial consultations are created equal.  Many attorneys, especially in the area of divorce and family law, charge an initial consultation fee.  There are several attorneys who offer free consultations, but the advice you get, if any, may be worth exactly what you pay for it.

The nature of the advice you get in an initial consultation will vary greatly depending on the nature of the case about which you are consulting with the attorney.  If you are just beginning a divorce case, you will get much different information than if you are in the middle of a contested case.  It will also depend on if you are merely on an information gathering visit or ready to file something immediately.

During your first meeting with an attorney in addition to the other information you should bring, which we discussed here, you should be prepared to provide the following information to your attorney:

  • A brief history of the marriage
  • Background information on you, your spouse, your children and other pertinent members of your family
  • Information about your immediate situation and/or needs
  • Your goals regarding your post-divorce future and, more specifically, your relationship with your soon-to-be ex-spouse
  • The information you need from the attorney, i.e. come prepared to ask questions

The attorney you meet with should be able to provide you with the following:

  • A summary of how divorce works in Kentucky and a rough outline of how the case will progress
  • A discussion of the issues that are relevant to your case and how he/she might approach each issue
  • A preliminary assessment of your rights, obligations and responsibilities under the law
  • Background on the attorney, the firm, and their experience in family law matters
  • Information about fees, court costs and other expected litigation expenses.

The initial consultation is an opportunity for you to develop a rapport with the prospective attorney.  You will be putting the immediate (and possibly long-term) future of you, your children and other members of your family into this person’s hands.  It is imperative that you trust this person and are satisfied with the advice they give you and that they have the ability to handle your case.  You should expect them to not only answer your questions, but ask you questions that show he/she understands your situation.  While it is impossible for an attorney to answer every single question at an initial consultation, you should be able to develop some sense of comfort with the person.  If not, you need to keep on searching.

Photo courtesy of Solo, with others

My Spouse Says We Should “Share” an Attorney for Our Divorce. Should I Hire One Anyway?

My Spouse Says We Should “Share” an Attorney for Our Divorce. Should I Hire One Anyway?

The Code of Ethics for Kentucky attorneys prohibits an attorney from representing two people with conflicting interests in a dispute.  A divorce is most definitely a dispute in that it is by its very nature an adversarial proceeding.

There are times when a couple reaches an agreement directly with each other prior to contacting an attorney.  One party will usually then take the step of actually hiring the attorney, however, the other party should not be under any dilution that the attorney represents both parties.  When one party hires an attorney and the other spouse declines to do so, which is very common, the attorney that is hired cannot tell the other spouse whether the agreement is in his/her best interests.  The other spouse should hire separate counsel to at least review the documents before they are signed to make sure that the spouse understands the agreement.  This independent counsel can provide answers to possible legal effects of the divorce agreement, whether the agreement is even conscionable or legal, and make referrals for the spouse to financial advisers to discuss tax, retirement and health insurance ramifications.

If your spouse has filed for divorce or hired an attorney and told you that you do not need a lawyer, you would be wise to at least meet with a lawyer to ensure that you understand your legal rights.  I often get asked whether an attorney is even needed for a divorce.  Technically, the answer is “no,” but then again you do not need a surgeon to amputate an injured leg.  It just usually works out better if you do.

Photo courtesy of Brian Hawkins