I always make an effort to stay up to date on the resources available to my family law clients. A large number of my clients purchase books through Amazon that help them navigate the emotional divorce process. Several books will be released over the next few months that I am particularly excited about. All of these books can be preordered through Amazon.com, so you do not have to worry about an awkward run in at the book store.
How to Be a Good Divorced Dad: Being the Best Parent You Can Be Before, During and After the Break-Up By Jeffrey Leving. Mr. Leving is one of the country’s leading father’s rights experts and has authored at least two other books aimed at men involved in the divorce process. While Mr. Leving’s previous books have been a bit aggressive at times, his newest project looks like it will provide a great deal of practical advice for the divorcing dad.
Bigger than a Bread Box By Laurel Snyder. Over the last few years, divorce and separation have become somewhat common themes in children’s books. There are a number of books specifically for the purpose of assisting parents in discussing divorce with their children. Bigger than a Bread Box, however, is a children’s book that deals with divorce/separation topic, but isn’t ABOUT divorce. At the center of the story is child figuring herself out in a new town, in a new living situation, and with a changed family.
The Complete Guide to Shared Parenting After Divorce: What You Need to Know to Co-Raise Your Child Successfully. There is truly nothing more critical for divorcees with children than determining how to co-parent during and after their divorce is complete. I am a huge fan of any book that encourages and assists parents in creating a healthy and successful co-parenting relationship. I encourage parents to read the book at the same time – consider it a mini-book club.
Montana’s Constituion allows for direct appeals from Distrt Court judgments or orders (whether the case is civil or criminal), directly to the Montana Supreme Court. Unlike many other states, Montana does not have an intermediate appellate court. Instead, cases go directly from District Court to the state Supreme Court.
The party that initiates an appeal is called the “Appellant.” The party responding is called the “Appellee” or “Respondent.” Appellate is a very different animal than district court. Appellate procedure has its own set of rules, separate from the Montana Rules of Civil Procedure. The appellate rules are called the Rules of Appellate Procedure and can be found in Title 25, Chapter 21 of the Montana Code.
The Montana Supreme Court is located in Helena, MT. This means that any documents filed in your appeal are filed in Helena and any oral argument would take place in Helena (except in a few very limited circumstances). Oral argument does not happen in all cases. In fact, many appeals never require an appearance in person at the Montana Supreme Court. The great thing about that is Montana litigants have a much larger pool of attorneys to choose from. You could easily hire an attorney at the other end of the state to handle an appeal. All the documents go to the place regardless ofwhere you live!
If you are appealing a family law case from a Montana District Court to the Montana Supreme Court, you will likely have to head back to mediation. Under Rule 7 of the Montana Rules of Appellate Procedure, domestic relations (divorce/parenting/child support/maintenance) cases are submitted to mandatory appellate alternative dispute resolution (i.e. mediation).
Because appellate procedure can be very different from regular district court rules, many litigants choose to use a different attorney for appellate work than for district court/trial work. It can often be beneficial to have a fresh set of eyes look at your case or prepare it for appeal. Most importantly, you want to be sure to utilize someone with appellate exprience and with experience in research and brief writing.
Selecting your divorce lawyer is one of the most important decisions of your case, especially in the small legal communities of Montana. Ideally, you will find an attorney who is skilled, competent, and regularly handles family law and divorce cases. Also, look for someone who is responsive and going to communicate with you during the divorce process. Active and positive communication with your attorney will make a positive difference throughout your case. You can ask friends and family members for recommendations, but in the end you will have to trust your own judgment.
Generally, your relationship with your divorce lawyer starts with a consultation. This initial meeting usually lasts about an hour and is your first glimpse into what your prospective-attorney is like. First impressions matter. Remember, it is not just you who will be interacting with this person: adverse attorneys, judges, and possibly even a jury will all experience something very similar to what you go through during the consultation. Make sure that this is a person you want representing you and your interests. Also, do not be afraid to ask questions. If you knew all the answers, there would be no need for lawyers. And pay attention to how the prospective lawyer reacts. Is he annoyed? Does he actually answer your question, or at least try to? Some attorneys, especially those who do not practice divorce law very often may not have a firm grasp of the laws involved, and to cover for this inadequacy may simply dodge the question entirely. That being said, I am occasionally asked a question during a consultation for which I do not have an immediate answer. I always acknowledge this, make a note of the issue, and promise to get back to them once I have had a chance to research it. If a divorce lawyer promises to get back to you with an answer, make sure that they actually do.
Remember, this is your chance to evaluate a prospective divorce lawyer. Take advantage of it. This is a person you will be sharing intimate details regarding a personal and painful period of your life. It should be someone you trust to be knowledgeable and to look out for your best interests.
In Montana, a prenuptial agreement is a good way for an engaged couple to protect their assets prior to marriage and long before divorce is even a consideration. And these agreements are not something that only the wealthy should consider. Prenuptial agreements can be beneficial to couples considering a second marriage, particularly when children are involved, and in cases where there is disparate wealth. Also, it may be a good idea to consider one where wealth is just a possibility.
A prenuptial agreement is a contract made by two prospective spouses before entering into marriage. The agreement describes how property and assets will be divided in the event of divorce or death, but it can also address other issues. For example, a prenuptial agreement might outline how property will be acquired during the marriage; how it be will be classified for equitable distribution purposes in the event of divorce; how the parties’ estates will be handled if the marriage ends by death, and whether maintenance (also known as alimony) will be paid if the marriage ends in divorce.
In order to ensure that your prenuptial agreement will be upheld in court if challenged, both parties should each seek legal representation. One attorney cannot represent you both. An experienced matrimonial lawyer will be able guarantee that the agreement is properly executed. If your future spouse is also represented, you will have some assurance against future claims that the agreement was a result of fraud, undue influence, coercion or duress.
Finally, be sure to discuss the prenuptial agreement as soon as possible. You should plan on having the agreement signed and in place well before the wedding. Your marriage ceremony is for celebrating, not worrying over legal documents.
It is no secret that January is often a busy month for divorce filings. If children are involved, some parents stick it out through Christmas. For others, the holidays are the nail in the coffin of a relationship. Some even delay filing until after the first of the year for tax purposes.
Whatever the reason, this January seems to be no exception. For 2012, it appears divorce filings have increased even more significantly, perhaps due to the slightly better economic situation than last year. Many that could not have afforded a divorce at this time last year are finally able to financially afford to get their case moving.
I have already noticed an increased number of visitors to my blog and increased phone calls to the office, indicating that January 2012 will be a busy month in Flathead County.
Divorce in Montana is expensive. Not only are people suddenly living on half their previous income, but suddenly they are expected to begin paying attorneys fees. But I will let you in on a secret. As much as I like to get paid, I would prefer a prepared client who makes the work easy and for whom I can keep expenses low. Here are a few tips that will help keep your divorce lawyer’s bill as low as possible:
1. Be prepared to supply relevant financial documents, including bank and financial statements, tax returns, mortgage applications, loan documents and credit card bills.
2. Do not fight over assets that are of limited value. It simply does not make sense to litigate and run up huge legal bills that will dwarf the value of the assets you may recover.
3. Pick your battles and remember: moral victories cost money. You may want to be proven right or vindicated, but if it does not advance your case, consider conserving your resources.
4. Recognize that when you communicate with your divorce lawyer, the meter is running. When you call your attorney, do it from a room where you will not be interrupted and can talk openly. And do not take other telephone calls while speaking with your attorney, unless you want to pay for her to sit and wait.
5. Be candid with your attorney. In litigation, lies and falsehoods are always discovered.
6. Don’t litigate to be vindictive. This is a sure path to large legal fees.
In the end, if you want to keep your bills low: be prepared, professional, reasonable, and honest. But remember, the biggest wildcard in any Montana divorce case is your spouse.
A Connecticut judge ruled earlier this week that a divorcing couple was required to turn over their passwords to several popular social media sites. The ruling came after the husband in the case revealed his wife, Courtney Gallion, had been writing incriminating posts on Facebook about her feelings towards the children and her ability to care for the then. Both Mr. and Mrs. Gallion were required to turn over their passwords for Facebook, eHarmony and Match.com accounts.
The Gallion ruling is the latest in a string of cases evidencing just how significantly social media is affecting litigation. In March 2011, the American Academy of Matrimonial Lawyers issued the result of surveying, which reported that 80% of divorce cases now include evidence from social media sites.
A reminder for all those involved in any kind of limitation – if you wouldn’t want a Judge to read it, DON’T put it online!
Though many consider the holidays to be a time to celebrate peace and love, divorced couples can find it difficult to put down their swords. The holidays can be difficult for divorced parents, but even more so for their children. The following tips from licensed psychotherapist Donna Ferber should help such parents help their children have a better holiday season:
- Money, gifts, sweets and indulging don’t “make up” for anything. Your child is going to have TWO Christmases. No need to feel guilty. Most kids say the dual holidays are the best thing about being a divorced kid.
- If possible, make your plans with your ex-spouse ahead of time and stick to them. Let the kids know where they will be and when. It helps them feel in control. Let them make only age appropriate decisions. A good rule of thumb: if it is not a decision you would let your children make while you were married, then don’t let them make it now. Let your kids be kids.
- Be flexible. No, this is not a contradiction of #2. It means that stuff happens. So if your ex is two hours late because of an ice storm or because his cousin Joey showed up late, try to let it go.
- Keep your anger, resentment, annoyance, disgust about your ex, his sports car, his/her new love and his family, to yourself. Remember, your kids are part of both of you and when you slam your child’s other parent, your child feels slammed as well.
- Do not make your children responsible for your happiness. “Go have a good time with Dad in Jamaica, while I sit here miserable and all alone,” only breeds resentment and guilt in your child.
- Don’t compete. If he can afford more than you – fine. Rather than resenting his/her father( or mother), appreciate that your child can experience things you can’t buy him/her. Don’t overspend to keep up. Make memories by doing fun things together – bake cookies, read a Christmas story, build a snowman. Money does not buy love.
- The new girlfriend (or boyfriend) cannot and will not take your place.Children are unbelievably loyal. They can love many people, but the title and honor of parent is yours and will be only yours forever. So, relax. Deal with your jealousy without making your kid responsible for your feeling threatened. This is simply not the job of the child.
- Divorce is the severing of the adult relationship and should not be the termination of the parent-child relationship, no matter how much you really can’t stand him/her. If your child is not in harm’s way, the relationship needs to continue. This is the CHILD’s right. If you really feel the child is in danger, then get a lawyer, prove it and have supervised visitation. Never keep a child from being with a parent based on your own feelings!
- Lastly, remember that you are the adult. Suck up your anger toward your ex and make the holidays wonderful for your kids.
Source: ”Children, Divorce & the Holidays: Making it Happy not Horrible!” by Donna F. Ferber, LPC, LADC, a licensed psychotherapist in Connecticut and the author of From Ex-Wife to Exceptional Life: A Woman’s Journey through Divorce, which won an Honorable Mention Award by the Independent Publishers Association. To read more about the author and her work, please visit www.donnaferber.com.
Now that I have expanded my practice to include guardian ad litem work, I am receiving dozens and dozens of questions about what guardians ad litem do and do not do. The following questions seem to be the top five:
1. Does a Guardian ad Litem have to be a lawyer?
Montana law does not require that guardians ad litem be licensed attorneys. In fact, in dependency/neglect cases, many guardians ad litem are not attorneys. In custody and divorce cases, I strongly suggest the parties utilize a guardian ad litem that is a licensed Montana attorney, well-versed in Montana family law.
While a GAL may be a lawyer, the GAL is not technically a lawyer for the children. The distinction seems minor, but can be incredibly important. A GALs’ job is to make a recommendation to the Court regarding what is in a child’s best interest, even if it is contrary to what a child desires. A child’s lawyer, on the other hand, would be expected to advocate on behalf of the child’s desire, even if the desire were not in the child’s best interests.
2. How much do Guardians ad Litem cost?
Because most GALs are license attorneys, the cost is similar to that of an attorney. However, GAL fees are usually split between the parties. Often times the cost is split equally, but if the incomes of the parties are very disparate, the court may order a different split of the GALs fees.
3. How long does a GAL take to do an investigation and report?
Depending on how complicated the case is, how accessible the parties are and how many other professionals need to be consulted with, a GAL can take anywhere from a couple of weeks to several months to do their investigation and report.
4. What determines whether a GAL becomes involved in the case?
There are basically two ways a GAL becomes involved in a case. First, the parties might agree that the case is complex enough that a GAL should become involved. In that circumstance, the parties will enter into a stipulation or agreement appointing a GAL. In other cases, only one of the parties may feel a GAL is appropriate. If the other disagrees, the party desiring a GAL will file a motion for appointment of a GAL with the Court. The other party will have the opportunity to object and then the court will make a decision.
5. What factors does the GAL consider during her/his investigation?
When investigating and reporting to the Court, the GAL should consider: the wishes of your child and both parents; the safety and well-being of the child; the child’s relationship with both parents and other family members; the cooperation and communication between parents and whether either one unreasonably refuses to cooperate or communicate with the other; a parent’s likelihood to interfere in the other parent’s continuing relationship with the child; any physical abuse or problems with alcohol or drugs; the reports of appropriate professionals (counselors, doctors, etc.); and other significant factors that would affect the child’s well-being.
I have written several articles about guardians ad litem being utilized in Montana child custody/parenting case or Montana divorce cases. There are several great attorneys doing guardian ad litem work in Flathead County, but it seems guardians ad litem are still pretty hard to come by. After careful consideration, I have decided to expand my practice to include guardian ad litem services. I will handle cases in Flathead County, Lake County or Lincoln County.
For those of you unfamiliar with guardian ad litem work, a guardian ad litem (also referred to by the acronym “GAL”) acts as a quasi-representative for minor children involved in custody/parenting cases or divorce cases. GALs report and recommend to the court what they think would be the best parenting plan for a child. GALs generally do a thorough and independent investigation prior to making a report and recommendation to the court. The GAL meets with the minor child(ren); meets with both parents; speaks with other family members, teachers and providers; and visits the parents’ homes. In other words, the GAL has the opportunity to speak with and see a lot more than a judge is able to see when sitting on the bench. After reading the report and recommendation from a GAL, the judge has the opportunity to put the GALs recommendation in place, approve it in part or reject it entirely.
As a GAL, I plan to provide thorough, efficient and timely services. I understand the importance of resolving parenting cases as quickly as possible, while still taking the time to do a thorough investigation. I also understand that by the time a GAL is involved, the parties may be feeling financially strained. I look forward to serving the families of the Flathead, Lake and Lincoln counties.
For more information on guardians ad litem, read my blog over the next few weeks.
If you are interested in retaining me to act as a guardian ad litem in your case, please contact me at (406)752-6373.
