Divorce

Mediation Gone Awry, Marriage of Anderson

Viola and Gary Anderson entered into a mediated property settlement agreement as a part of their divorce. The district Court approved the property settlement agreement and decree of dissolution. However, afterwards, Viola was less than thrilled with the agreement. She appealed to the Montana Supreme Court raising two issues: 1) Whether the district court abused its discretion when it denied Viola’s Rule 59(e) and 60(b) motions based on the district court’s failure to consider whether the property settlement agreement was unconscionable; and 2) Whether the district court abused its discretion when it determined that the property settlement agreement was valid without a disclosure of assets.

Mediation is a common and important part of most divorce proceedings in Montana. In fact, I would say a majority of my cases are resolved either by formal mediation or by negotiation. Mediation usually results in a faster and more cost-effective resolution. It also produces an outcome that the parties themselves have proposed. This can be much better than a judge making those decisions. But, problems can arise if there wasn’t full disclosure before the mediation, or if the mediation wasn’t conducted properly. In this case, Viola challenged the mediation because she believed that she was going to receive a lump sum cash payment of $3,000,000, and realized belatedly that she was only to receive $300,000.

Viola’s first challenge to the property settlement agreement was that it was unconscionable. As I’ve discussed before, the allocations of marital assets much not be unconscionable, and the district court is required to make that determination prior to entering the decree of dissolution of marriage. However, Viola did not raise this objection at the decree hearing. It appears, that at the time of mediation and the time the decree was entered, she had no objection to the property settlement agreement. Regarding conscionability, the MT Supreme Court had this to say:

The District Court (Sandefur, J.) noted that although Gary received the majority of the real property from the marital estate, Gary also took responsibility for all of the debt owed by the marital estate. Gary estimated that this debt amounted to $500,000. Gary’s certified public accountant submitted an affidavit stating that the Heaven on Earth Ranch and the ranch business had suffered a net loss of $83,000 from 2006 to 2011, and an additional $61,491 loss for bills that should have been paid in 2011 but were not paid until 2012, for a total loss of almost $144,500.

Much like the spouse in In re Marriage of Lawrence, Viola received an upfront payment of cash and assets, and a guaranteed income stream. Viola received almost $900,000 in cash and assets and $24,000 each year for the rest of her life. Gary received more assets than Viola, but he also accepted the risk associated with those assets and the debts associated with those assets.

Based on that, the Supreme Court found that the district court did not abuse its discretion in determining that the property settlement agreement was not unconscionable.

Next, Viola argued that the parties’ failure to disclose assets made the property settlement agreement invalid. Section 40-4-254, MCA, provides that “[a]bsent good cause, the court may not enter a judgment with respect to the parties’ property rights” unless the parties have provided a full disclosure of assets. In this case it is undisputed that no asset disclosure ever took place. However, Viola acted a bookkeeper for the ranch and guest ranch business for a number of years. Further, she didn’t allege that Gary misled her about the existence of an asset, or the value of any asset. Because of all this, the Supreme Court found that Viola had failed to demonstrate that she suffered any prejudice from the district Court’s entry of judgment without a final disclosure of assets.

Marriage of Anderson, 2013 MT 238

Legal Separations

For people not wanting a full divorce (or dissolution as we call it in Montana) there is another option. The law allows you to obtain a legal separation instead. The differences are actually quite small, and in general this isn’t much of a solution for my clients. But, the option exists and people should be aware of it. Particularly for some religious faiths, this can provide an important alternative that makes the most sense in certain situations. If you find yourself wanting a legal separation instead of a divorce, here are some things to think about.

Legal Separations in Montana are governed by Section 40-4-104(2) which allows a District Court to enter a decree of legal separation (instead of a decree of dissolution) if one or both parties request it, and neither party objects. The requirements for getting a legal separation are the same as those for getting a divorce. Specifically, it is available if:

(a) the court finds that one of the parties, at the time the action was commenced, was domiciled in this state, as provided in 25-2-118, or was stationed in this state while a member of the armed services and that the domicile or military presence has been maintained for 90 days preceding the filing of the action;

(b) the court finds that the marriage is irretrievably broken, which findings must be supported by evidence:

(i) that the parties have lived separate and apart for a period of more than 180 days preceding the commencement of this proceeding; or

(ii) that there is serious marital discord that adversely affects the attitude of one or both of the parties towards the marriage;

 (c) the court finds that the conciliation provisions of the Montana Conciliation Law and of 40-4-107 either do not apply or have been met; and

(d) to the extent it has jurisdiction to do so, the court has considered, approved, or made provision for parenting, the support of any child entitled to support, the maintenance of either spouse, and the disposition of property.

 

Following a legal separation, once the parties have been living separate and apart for six months, either party may ask to have the separation converted into a divorce – which essentially happens automatically upon that request. If the parties have only received a legal separation, they may not marry anyone else, but most of the other requirements of marriage are removed by the decree of separation.

Because of the ease with which a separation is converted into a divorce, it can be an attractive option for people unsure about the divorce process. However, remember that in order to get the separation you have to go through all the different steps that a divorce requires. And then six months later, either party can have it converted into a divorce. While it may seem like a less permanent step, often it just means ripping the band-aid off slowly instead of more quickly.

Estate Planning Considerations in Divorce

Far and away, the most common wills in Montana (and across America I would guess) say something like this: If I die before my spouse, all my property goes to him when I die. If my spouse dies before I do, my property goes to my children in equal shares. It’s popular for good reason: it works in a way most people think is fair. But here’s the catching point: the will doesn’t say “my spouse.” The will names your spouse. It says, “I’m married to Brad Pitt… If my husband, Brad Pitt, predeceases me…” So what happens if I’m not married to Brad Pitt at the time I die?

The good news is that Montana already thought of that. Our laws recognize that at the end of a messy and emotionally draining divorce the last thing you may feel like doing is having a new will drafted. So the law provides a sensible default. It says that if you named your spouse in your will, and executed a will at the time you were married, if you get divorced later we’re going to assume you meant for that to modify the will as well.

So, in the will discussed above, if I divorce Brad but don’t get around to having a new will drafted before I die – the Court is going to read my will as if all the parts included Brad had been deleted. Usually, this makes for a pretty good result. In the most-common scenario I started this article discussing, it would mean that everything would go to my children in equal shares. That’s probably what I would have done if I’d gotten around to making a new will anyway, so I’m happy with that.

But what if, after divorcing Brad, I’d married Ryan Reynolds? Wouldn’t I want my property to go to him? I might. But if I didn’t make a new will and specify that Ryan is going to be in a tough spot. This demonstrates that a sensible default is great, but it doesn’t cover all potential outcomes. I strongly recommend all my clients talk to an attorney about estate planning following a divorce. Whether that’s me or someone else isn’t as important to me, but you should know what will happen when you die. It may be that the default will cover you, but wouldn’t you want to know?

Appealing a Child Custody Case in Montana

While appealing a child custody or parenting case in Montana can be just like any other appeal, there are a few important things litigants need to know when considering whether or not to appeal the district court’s decision.  Parenting/Child Custody cases can be a bit different than other appeals, even divorce appeals.   Here are few things to consider before diving in to an appeal:

1.  You’ll Have to Head Back to Mediation.

That’s right, even though you likely attended mediation prior to going to trial, the Montana Supreme Court will make you take another stab at resolving your case.  If the parties cannot agree on an appellate mediator within 15 days of filing the Notice of Appeal, the Montana Supreme Court will simply assign you an appellate mediator.  You could end up with a mediator on the other end of the state – although the Clerk of the Supreme Court does his best to nominate someone in close proximity to the parties.  Your appellate mediation has to be accomplished within 75 days of the filing of the Notice of Appeal.  If you settle the case, the appeal is dismissed.  If not, you proceed like any other appeal.

2.  You’ve Got to Have a Final Order.

Generally speaking, in order to file an appeal with the Montana Supreme Court, you have to have a final judgment or order from the district court.  Aside from some extraordinary remedies, the Montana Supreme Court is not there to deal with interim issues.  If you have an interim parenting plan you are dissatisfied with, you probably cannot appeal the district court’s decision.  Instead, you will have to wait until you get the court’s final parenting plan.  If there are still problems, an appeal would be initiated at that point.

3.   It Can Get Expensive.

Think your trial was expensive?  Wait for an appeal.  While the overall cost will probably be less than your district court case, the cost of an appeal can rack up pretty quickly.  Your appellate attorney will have to do a huge amount of research and briefing to adequately prepare your case for the Montana Supreme Court.   When it comes to parenting and child custody cases, there is often no cap on the amount of money a parent will spend.

4.  It Can Take Time.

You have probably already experienced a fairly slow moving district court case.  Depending on the county you live in, it may have taken well over a year for your case to get to trial.  In recent years, the Montana Supreme Court has made it a point to clear up their backlog and push cases along as quickly as possible.  They have truly succeeded and the time cases spend at the Supreme Court is often much shorter than the time spent in district court.  Still, litigation just takes time.  For litigants it can feel like forever.  Plan on your appeal taking at least 6 – 8 months.

5.  Its Tough to Do-It-Yourself.

While there are many family law proceedings that parties can handle on their own (particularly if the case is uncontested), an appeal is not really the time to try your hand at lawyering.  Because appeals involve a great deal of legal research and briefing, it is important that you find someone with experience to help you.  In particular, you want to find a lawyer that has experience with appeals and enjoys doing them.  Your trial lawyer might be great, or they may refer you on to someone else.  Either way, if you are going to go to the time and expense of appealing, make sure you find someone to help.

Appealing Divorce Decisions in Montana

Unlike many other states, Montana does not have an intermediate appellate court and, instead, district court cases in Montana are appealed directly to the Montana Supreme Court.  If you have had a divorce or parenting trial and believe that the result was improper under the law, your remedy is generally to initiate an appeal to the Montana Supreme Court.

The Montana Supreme Court is located in Helena, MT.   All appellate proceedings take place in Helena (except in a few limited circumstances), regardless of where you live in the state and regardless of where your district court case took place.  The beauty of the appellate court being located in Helena is that parties have an entire state of attorneys to choose from.  You can easily hire an appellate attorney on the western half of the state, even if you live in Eastern Montana.

After having been through months of litigation in district court, you will find that appellate procedure is a lot different than trial court procedure.  Generally speaking, the Montana Supreme Court decides issues of law, not issues of fact.  In other words, appellants argue that the district court made the wrong decision as a matter of law.  This means that you cannot necessarily appeal just because you were unhappy with the result at district court.  Instead, you have to have a legal basis for your appeal.  Unlike district court, the Supreme Court will never hold a hearing where the parties tell their side of the story.  Instead, the Supreme Court sees a transcript of the trial, along with the district court file.   Most family law litigants never even see the Supreme Court.  Instead, the parties submit briefs and the case is generally decided based on those briefs only.

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.

Bigfork Divorce Attorney

I live in Bigfork, and understand what it means to come from a small community and face divorce. Your concerns if you’re going through this are different than someone from a larger area. The reality of a small town like Bigfork is that people tend to be in your business more than you’d like. Often your kids will go to school and hear things about your marriage that you wish they hadn’t.

Because I live in that world, I can help guide you through a divorce or child custody dispute. I’ve seen the traps, and I know how devastating they can be for families. That’s why, as a Bigfork divorce lawyer, I try to not only give you legal advice – but also practical advice. Some of my clients have been through the process before, but for most this is their first (and hopefully only) divorce. I have been through hundreds. And although each family is unique, the process usually shares some similarities.

If you live in Bigfork, or other rural areas across Montana like Swan River, Swan Lake, or anywhere else, you deserve the best possible representation in your divorce. You deserve a Montana divorce lawyer who understands your unique situation and can help. If any of this sounds like you, please call me today at 406-752-6373.

Alternatives to a Litigated Divorce in Montana

When I sit down with a client for the first time, very few say to me, “Marybeth, I want this to be expensive, take forever, and be a generally horrible experience for all involved.”  Instead, most clients hope their divorce can be like ripping off a bandaid – quick, easy, and with minimal pain.   While we cannot always accomplish that goal, the way we start a case can have a dramatic effect on the cost, time frame and overall experience.

Before diving into divorce litigation, consider your alternatives to “regular” divorce litigation.  If you have an ex that wants to make it a less painful process, you may find that you can get in and out of the divorce process with minimal scar tissue.

Do-It-Yourself Divorce

Divorce can be very complicated, both legally and financially.  If not handled correctly, you can make mistakes that will have major consequences.  Generally speaking, I discourage most people from trying to do their divorce completely on their own.  It is well worth the few hundred dollars it will cost to at least sit down with an attorney to evaluate your case.

However, there can be cases where a Do-It-Yourself divorce makes sense.  For example, if you’re marriage was very short, you did not accumulate property or debts during your marriage and you don’t have any children.  In other words, if the only thing you are trying to handle is ending the marriage, a Do-It-Yourself divorce might be a possibility.

Mediation

In divorce mediation, rather than the parties retaining attorneys to fight, a divorcing couple works with a neutral mediator who helps both parties come to an agreement on all aspects of their divorce. The mediator may or may not be a lawyer (although I suggest you utilize a lawyer).  The mediator MUST be a neutral party and cannot advocate on the behalf of one party or the other.  They may, however, bring up issues you and your spouse hadn’t thought about and suggest that you and your partner work those issues out in mediation.

If mediation works, it can be fast, effective and affordable.  If it does not work, you may have spent time and money that would have been better spent on litigating your case.  Mediation is a good option in a large number of divorce cases.  If you have concerns about disclosure of assets/liabilities or there are abuse concerns, mediation probably isn’t for you.

If you do mediate, make sure that you have an attorney review any agreement BEFORE you sign it.  Once it is signed, it may be too late to make changes.

Collaborative Divorce

Although not particularly popular in Montana, collaborative divorce can be a great idea.  Basically a collaborative divorce is when a couple agrees to work out a divorce settlement without going to court.  During a collaborative divorce both parties retain their own attorney.  Instead of simply advocating for your position, the attorneys will assists their client in negotiating a settlement agreement. The collaborative process may also involve other neutral professionals such as an accountant or financial planner, who will help the parties work out agreements on financial issues.  You may also see a counselor or guardian ad litem involved to assist the parties in reaching agreements on parenting.

A collaborative divorce generally includes an agreement that the attorneys involved will only assist the clients during the collaborative process.  In the event an agreement cannot be reached and limitation ensues, the attorneys may have to withdraw and the parties may have to start from scratch with new counsel.

If a divorce is particularly heated, the collaborative process might not be very successful.  When financial issues are complex or there is a lack of disclosure, collaborative divorce may not be the thing for you.

In general, if there are concerns that your spouse is hiding assets/income, if there are abuse concerns or a history of domestic violence, or if there are drug or alcohol issues, see an attorney before initiating one of the divorce litigation alternatives.   As always, ensure that you speak with an attorney before you sign on any dotted line.

Is Divorce Bad for the Economy?

A recent report from the Marriage and Religion Research Institute suggests divorce is bad for the U.S. economy because it “Marriage is a causal agent of economic growth. It constitutes one third to one fourth of the human capital contribution of household heads to macro-economic growth. The total contribution of human capital to growth of domestic product in turn is large, being of equal proportion to the other two contributing factors: size of the labor pool and physical capital.  Divorce removes this agent of economic growth.”  In other words, divorce negatively affects productivity, which in turn, places a burden on the U.S. economy.

Keep in mind, the Marriage and Religion Research Institute is a project of the Family Research Council, a conservative Christian-based organization.   The Marri Project has an interest in producing studies that suggest divorce has negative effects on individuals, the economy, etc.

Regardless of your religious or political affiliation, studies like this one can be interesting and informative.  Read the full report here.

Divorce Books: New and Upcoming Releases

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 Divorce or Child Custody Appeal

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.