Not only is divorce incredibly difficult, but it’s also emotional. This is an explosive combination that can make everything worse. An experienced divorce lawyer, in Missoula or the rest of the country, understands that burden and represents all your needs. Sometimes, a guiding hand is as important as technical legal advice. This is the philosophy I bring to all my divorce and child custody cases, and it’s one I know my clients appreciate.

When children are involved, a deft touch is even more important. In cases of child custody or parenting plan modifications, I pride myself on representing my clients by also representing their children. While some lawyers build a reputation on being adversarial “trial lawyers,” I see no reason to create conflict and strife unnecessarily. A good lawyer can be a zealous advocate without adding stress and aggression to an already tense situation.

Although my office is located in Kalispell, I represent divorce clients across the state. Modern technological developments make it as easy to communicate and share documents with clients in Missoula as anywhere else. If you need a Missoula divorce attorney, please call me today at (406) 752-6373 to schedule a consultation.

Once again, it is necessary to give a WARNING: Because the bulk of my practice is in Flathead County District Court in Kalispell, this series is most relevant to my local court.  Scheduling, practice and procedure can very from county to county and even from judge to judge.  Because of that, I strongly urge anyone with a hearing/trial to go and observe their local court and the judge specifically assigned to their case.  Call your local Montana District Court courthouse to find out when to see your judge in action.

If you do have an attorney, you will be sworn in (i.e. swear to tell the truth, the whole truth, and nothing but the truth so help you God) and will take the witness stand.  Your attorney will have the opportunity to ask you questions first – this is called “direct exam.”  Your attorney’s questions will be “non-leading” questions.  This means that they will generally be open-ended questions that cannot be simply entered with a “yes” or “no” answer.  Non-leading questions often begin with who, what, where, or when.  On direct exam, it is your opportunity to tell your side of the story.  Your goal, however, is to tell your story fully and completely without being long-winded or giving irrelevant information.

If you are not represented by an attorney at your hearing or trial, the Judge may have you testify from your seat at the counsel table, rather than take a seat at the witness stand.  Even if you do not take the witness stand, the Judge will still have you sworn in  and you will be expected to testify truthfully.  If you do not have an attorney, you will not have someone asking you questions on direct exam.  Instead, the Judge may ask you questions or the Judge may just ask you to tell him/her whatever you feel is important.   Even without an attorney, your goal is the same.  Tell the Judge your side of the story without wasting the court’s time.

Once you are done testifying on direct, the other side will have the opportunity to cross-examine you.  During cross-exam, the adverse may ask you “leading” questions, or questions that are designed to lead you to a certain answer or conclusion.  You may get questions that being with, “isn’t it true…” or “won’t you admit that….”  Generally the adverse is looking for a yes or no answer, but you may be unable to answer a question with simply yes or no.   If the other party does not have an attorney, the court may allow the person to ask you cross-exam questions.  As you can imagine, cross-exam can turn ugly when no attorneys’ are involved, so the Judge may handle the case a bit differently to avoid a verbal altercation between parties in court.

After cross-exam, your attorney can come back and ask you some additional questions to clean up any issues that may have arisen during cross-exam.  This is called re-direct.  Your adverse can then do re-cross, your attorney can do re-re-direct, and so on.  It can go on and on!

During your testimony, the Judge will be assessing many things about you – not just what you say.  Some of the things the Judge will be considering are the following:

1. Truthfulness.  Does a witness seem to be telling the truth?  Does the witness have reason to lie?  Would the witness gain anything by lying?  Does this witness seem/appear truthful?

2.  Impeachability.   Is there something about this witness that makes them unreliable or would diminish the value of their testimony?

3.  Demeanor.  Does the witness seem confident, nervous, afraid, etc?  Did the witness dress appropriately for court?  Does the witness treat the Judge and other court personnel with respect?

Testifying in court can be extremely nerve-wracking.  The more prepared you are, the better you will feel.   Again, I urge anyone who will be testifying in court to go watch a hearing or trial.

As I have mentioned in my previous posts, this series is geared specifically towards hearings and/or trials in Kalispell (Flathead County District Court).  Each Judicial District is different and I encourage all litigants to learn the local rules of their Judicial District (which can be found on the Montana Courts website).  I also strongly encourage litigants to visit the courthouse and sit in on a proceeding, particularly a similar case and with the same judge that is assigned to your case.   You will learn far more by observing your judge and seeing how your local court runs than I can explain in a blog post!

The contested hearing is what people really think of when they imagine going to court.  Basically a “mini trial,” the contested hearing is often several hours long and allows both parties the opportunity to present witness, present evidence, and give testimony about the circumstances of their case.  In Montana family law cases, contested hearings are often seen for interim matters – i.e. matters that need to be determined at the outset of a case, long before a final trial takes place.  You might have a contested hearing on an interim parenting plan, interim child support, interim maintenance and so on.   Contested hearings are also common after the divorce or parenting case is finalized, when new issues arise.  For example, a parenting plan that needs to be modified or child support modifications generally result in contested hearings.

In Kalispell family law cases, it is not uncommon to have a contested hearing last as little as one hour or as long as four hours.  Some cases take less time, some take more.  Our Judicial District is incredibly busy and the Court simply does not have the time or resources to give every case 4+ hours.  I encourage unrepresented litigants to be prepared enough to present their side of the case in 30 minutes, keeping in mind that they may actually be allowed an hour or more.  And be aware just because you are given more time, does not mean you HAVE to use it.

If a contested hearing has been scheduled in your case, chances are it will be scheduled at 9:00 a.m.  WARNING:  CHECK THE ORDER SETTING CONTESTED HEARING YOU RECEIVED FROM THE COURT!  Do not rely on this blog post as a means of determining what time your hearing will take place.  If you are unsure what time your hearing is scheduled for, call the court and find out.  I repeat – do not rely on this post to determine what time your hearing will take place.

With that warning out of the way, often times in Kalispell District Court, contested hearings are scheduled for 9:00 a.m.   When you get to court, you will notice that several other cases will likely be scheduled for 9:00 a.m. as well.  Obviously, you cannot all present your cases to the judge at the same time.  So, your judge might call the cases one by one (which will require you to hang out at the courthouse until it is your turn), or your judge might schedule the hearings throughout the day after taking “roll,” and determining how much time each case will need.

The most important thing to understand about scheduling, is that you MUST be at the courthouse at the time your hearing is set, even though your case may not be heard until later in the day.  Also, if you are employed, plan to miss the entire day of work.  Even though the Order setting your hearing says 9:00 a.m., you may not go in front of the judge until late afternoon.

In the following days/weeks, watch for additional posts on the contested hearing.  I will be explaining what order things happen in (i.e. who goes first); what to bring with you to court; and what the court/judge expects from you.

Over the next several weeks I will blog about Montana divorce and parenting hearings and trials – how they work, what happens, and how to prepare.  Because the bulk of my practice is in Flathead County District Court in Kalispell, this series is most relevant to my local court.  Scheduling, practice and procedure can very from county to county and even from judge to judge.  Because of that, I strongly urge anyone with a hearing/trial to go and observe their local court and the judge specifically assigned to their case.  In Kalispell, you can access each of the Judges’ court schedules (also known as the “docket”) online.  Nearly all court proceedings are open to the public, so do not hesitate to go see the courtroom, watch your judge in action, and become familiar with how your judge runs her/his courtroom.  I find that seeing where your hearing/trial will take place and watching how your judge works calms a massive amount of those pre-hearing jitters.

If you are involved in a divorce case, you can pick out a hearing for another divorce case.  You will know it is a divorce case because the case will be called “In re Marriage of____.”  For parenting cases, find a case called “In re Parenting of ______.”   Though the online docket does not tell you what kind of hearing it is (i.e. child support, contempt, interim parenting, etc.), you can always contact the Clerk of District Court to find out what kind of motion the hearing is about.

Though there are several other documents that are required in throughout the appellate process, the “guts” of the case is set forth in a brief filed by each party.  A brief is a written argument filed by each party that explains why that party should win.  The brief explains to the Montana Supreme Court the facts of the case, the procedural posture (what happened at district court) and the argument of law.

Once the Supreme Court has made their decision, it will be set forth in an opinion.  The opinion is a written explanation of the Court’s decision.  Past decisions by the Montana Supreme Court can be located at the Montana Courts website.   The Montana Courts website also provides copies of the briefs filed by each party.

One of the most important things to understand about filing an appeal with the Montana Supreme Court is that timing is everything.  In civil cases (including divorce/parenting/child support/maintenance), a notice of appeal must be filed in the district court where the case originated within 30 days of the date of the entry of judgment or order being appealed.  If you blow that deadline, an appeal may be impossible.   In the event your case involves the State of Montana as a party or a political subdivision as a party, you may have a 60 day deadline.

When you begin reviewing the Montana Rules of Appellate Procedure, you will notice that there are many specific requirements for the pleadings.  Word limits, paper color, cover pages, font/size…it can get pretty confusing if you are not familiar with the rules or do not know where to look.  Luckily, the Montana Courts website includes an Appellate Filing Guide for guidance.

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.

Today’s topic:  MontanaLawHelp.org.  Much like the State Law Library of Montana Forms Library, MontanaLawHelp.org has a large forms website, which includes forms and information for Montana Divorce and Montana Child Custody/Parenting cases.  A great deal of the information available on MontanaLawHelp.org is created by the Montana Legal Services Association, which provides legal assistance to low income Montanans.   Much like the Forms Library, the information available on MontanaLawHelp.org is entirely FREE and does not require that you financially qualify.

If you plan to use either forms library (montanalawhelp.org or the State Law Library Forms Library), I suggest using them both in conjunction with one another.  Review both sets of documents and both sets of instructions.

This article is dedicated to a the Forms Library on the Montana Courts website.  The forms library is a service provided by the State Law Library of Montana.  Aside from forms for Montana Divorces or Montana Child Custody cases, the State Law Library Forms Library includes forms for a wide variety of legal topics:  civil actions, estate planning, evictions, small claims, etc.

In addition to fill-in-the-blank forms, the Law Library provides practical information about how to file for divorce – how many copies of documents to make, where to file them, etc.   Because they are drafted by the folks at the State Law Library (and not some fly-by-night internet scam), you can be sure they are up to date and that they will be accepted by all Montana District Courts as forms appropriate for filing.

Best of all, anyone can access the State Law Library Forms Library.  You do not have to financially qualify to use this fantastic service.

Now that I have waxed poetic about the amazing resource the Forms Library provides, I must give you a warning.  Remember that the information found at the Forms Library is NOT legal advice.  The forms are fantastic, but are truly designed for fairly basic, uncontested cases.  If your case is complex, you really should see an attorney to ensure that things are being done correctly and legally.

The purpose of this series of articles, however, is to remind my readers about the variety of FREE services available to help them through their Montana Divorce or Montana Parenting/Child Support case as an unrepresented litigant.

Over the next few days, I will discuss the services that are available for low income Montanans and the way they can be utilized.  I will also discuss how you may be able to use an attorney to maximize results.