General

Is Summer the best time to file your Montana Divorce?

Let’s be realistic.  There is no “good” time to file for divorce.  It is never an enjoyable experience and could certainly not be described as fun.   It seems, however, that there are times of the year that are more popular to file for divorce.   Late summer is one of those times.  I figured it was just a coincidence, but when I started to look into divorce rates at different times of the year, I found that summer is a very popular time for divorce filings throughout the country, even the world.   Check out this story from ABC News “End of Summer, Time for a Divorce?

Though there are not any official statistics, other attorneys are experiencing the same late summer rush.  There are several theories as to why the end up summer is such a busy time.  Some suggest that individuals want to wait until family vacations are over and the children are back in school to get the process started.  Others suggest that the heat of late summer causes mood changes that could encourage filing for divorce.  Some attorneys have a more philosophical approach, suggesting that the end of a season could encourage self-reflection, causing an individual to take the step to start anew.

Whatever the reason, late summer in the Flathead is no exception.  I see a dramatic increase in work in the mid-to-late summer months, causing me to cram my summer fun into the early part of the season.   What does this mean to someone who may be considering filing for divorce in Montana?   Truthfully, a busier divorce season probably won’t affect you too much.  If you are considering filing for divorce and are planning to wait until late summer, you may find it more difficult to get an appointment with an attorney.   You may also see a bit more of a delay in getting your initial divorce paperwork filed and you may end up with a later trial date.   Those delays could extend your divorce process by several weeks to a few months.   In the grand scheme of the divorce process, a couple of weeks may not be all that long.  However, if you are particularly anxious to get the ball rolling and are hoping to move things along quickly, it may benefit you to get the divorce process started, rather than wait for the late-summer rush.

Part 5: Advice from a Kalispell Divorce Lawyer: How to prepare to testify at a Contested Hearing or Trial?

Over the last several weeks I have been blogging about what to expect at hearings or trials in Montana divorce (dissolution) or Montana parenting cases.  For more information, see Part 1 and Part 2 and Part 3 and Part 4 of this series.   Today’s blog is about preparing to testify at a hearing or trial.

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.

Part 4: Advice from a Kalispell Divorce Attorney: What is the difference between a Contested Hearing and a Trial?

Over the last several weeks I have been blogging about the different kinds of hearings one can expect if they are involved in a Montana divorce (dissolution) or Montana parenting case.  For more information, see Part 1 and Part 2 and Part 3 of this series.  Today’s blog is about the differences between a contested hearing and a trial.

When most people think of a trial, they picture an episode of Law & Order: a packed courtroom, a dozen jurors, as many lawyers and so on.  While some real-life trials really do look that way, divorce trials do not.  In Montana, divorce and parenting cases are always done in front of a judge (a.k.a. “bench trial”) rather than in front of a jury (a.k.a. “jury trial”).  There are occasionally friends or family members in the courtroom observing, but by and large, the spacious courtroom seems pretty darn empty.  Of course, the Judge will be there, as will a court reporter, a clerk and probably a bailiff.

A divorce or parenting trial looks almost exactly like a contested hearing, just longer and often dealing with several issues rather than one or two.  Much like a contested hearing, each side will put on testimony, witnesses and will submit evidence to the court.  At the end of the trial, the Judge has the option to take the matter under advisement or to issue a decision right there (a.k.a. “ruling from the bench”).

One of the biggest differences between a trial and a contested hearing is that the trial is intended to bring the case to a close and give the parties some finality.  While a contested hearing may have been held to deal with interim parenting and the parties continued to fight about interim parenting throughout the case, the trial will result in a Final Parenting Plan.   There may also be squabbling about interim property issues, but the trial determines the Final Property Distribution of the parties.  “Final” can be a bit of a misnomer in divorce and parenting cases, as we all know that parenting plans are often up for review as years pass.

If someone is unhappy with the results of a contested hearing, they may be able to seek relief through the district court at trial or at another hearing.  If a party is unhappy with the result of a trial, there only option (with some VERY limited exceptions) is to appeal to the Supreme Court.  If you need information about appeals, see my previous blog series all about Appealing Montana Divorce or Parenting Cases.

 

Part 3: Advice from a Kalispell Divorce Attorney: What Happens at a Contested Hearing?

Over the next several weeks, I will be posting a series of entries regarding what occurs at Montana divorce or parenting trials and hearings.  For more information, see Part 1 and Part 2 of this series.  Today’s blog post focuses on the CONTESTED HEARING.

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.

 

 

Advice from a Kalispell Divorce Lawyer: What Happens at a Hearing/Trial for a Montana Divorce?

There is a great deal of valuable and reliable information available for divorce litigants regarding how Montana family law works and where to find forms to file.  However, there seems to be a lack of information on how divorce procedure works.  This leaves many litigants, particularly unrepresented litigants, completely terrified of walking into court.  Though it is impossible to convey the finer points of trial advocacy through a blog, some basic tips about what to expect when you walk in to court can help ease some of that anxiety.

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.

Upcoming Divorce Titles

As a lawyer practicing family law in Kalispell and primarily handling divorce and parenting cases, I do my best to keep up to date on the literature available to my clients.  Going through the divorce process or a heated parenting battling can be extremely isolating and it seems clients often feel as though no one understands what they (or their kids) are going through.  Over the next several months, there are literally dozens of books being published about divorce, parenting, children and the like.  There are several titles I am most excited about and I would like to share them with my readers.

Joint Custody with a Jerk: Raising a Child with an Uncooperative Ex: A Hands-On, Practical Guide to Communicating with a Difficult Ex-Spouse

Author: Julie Ross and Judy Corcoran

Release Date: August 2, 2011

I have literally dozens of clients that have an incredibly difficult time dealing with their ex-spouse when it comes to parenting issues.  While I can give some practical advice and explain their legal options, so much of this communication issue is outside of my expertise.  In an ideal world, all my clients would have income sufficient to allow them to have a therapist on call.  But that’s not reality and most people are forced to figure out how to deal with this on their own.  Ms. Ross and Ms. Corcoran’s book (which is a revised edition of an already bestselling classic) is a great read for those that find themselves with an uncooperative ex and kids stuck in the middle.   With a revised edition being released later this summer, this is a great late-summer read for those hoping to change things before the school year begins again!

Divorce Stinks

Author: Paul M. Kramer

Release Date: July 16, 2011

While I find divorce titles aimed at adults incredibly helpful, children’s books about divorce and coping with divorce are truly my favorite.  Parents reading to their children can be incredibly beneficial and if parents are able to utilize books on the very delicate subject of divorce – all the better.   According to the description for “Divorce Stinks,” the book is aimed at children ages 4 to 8 and is intended to send the message that parents may divorce each other, but do not divorce their children.  Though I am not entirely sold on the name of the book, it looks like Mr. Kramer may have a winner.

The Ultimate Divorce Organizer

Author: Laura Campbell and Lilli Vasileff

Release Date: May 25, 2011

“The Ultimate Divorce Organizer” is a 160 page three-ring binder intended to help someone stay organized through the divorce process.  The book covers everything from the emotional aspects of the breakdown of a relationship to gathering and keeping your financial information organized.  In addition to the text, the book is literally a binder to stay organized during the process – folders and all.   The book is available on Amazon.com for $29.95, which seems like a deal given the amount of time you and your attorney will spend discussing organization of your financial information.  What time and money it would save if clients had already organized their information using this book!

 

Part 3: Appealing a Montana Divorce Case or Appealing a Montana Parenting Case

This is Part 3 of a series dedicated to appealing Montana divorce cases or Montana parenting cases.  See Part 1 and Part 2 for more information.

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.

Part 2: Appealing a Montana Divorce Case or Appealing a Montana Parenting Case

This week, I’ll be blogging about appealing decisions in Montana divorce cases or Montana parenting cases.  See Part 1 of this series here.

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.

Montana Supreme Court: Mediation not mandatory in divorce/parenting cases where abuse is suspected

In a case decided on April 12, 2011, the Montana Supreme Court ruled that domestic violence victims no longer can be forced into mediation over parenting plans in Montana divorce cases.

The case, entitled Hendershott v. Westphal, makes clear that MCA 40-4-301(2) “explicitly prohibits courts in family law proceedings from authorizing or continuing mediation of any kind where there is a reason to suspect emotional, physical or sexual abuse.”  In other words, a court can no longer mandate dispute resolution or mediation when abuse is reasonably suspected.

Perhaps more significant is the Court’s determination that the statute does not require proof of abuse “by clear and convincing evidence, a preponderance of the evidence, or even probable cause.”  Instead, a court must simply have a “reason to suspect” that emotional, physical, or sexual abuse has taken place.  If a reason to suspect is found, no mediation can be mandated.  

Read the full opinion of the case at the Montana Courts website

Want to File for a Montana Divorce Without an Attorney? Visit MontanaLawHelp.org!

This article is part three of a series specifically aimed at those Montanans who are unable to afford an attorney for their Montana Divorce or Montana Child Custody/Parenting case.  Read the other parts in the series here and here.

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.