Mediation

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

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.

Grandparents Rights in Montana

In Montana, grandparents can petition the Court for visitation rights with a grandchild, even over the objections of a parent. This is called third-party contact, and it is usually something a parent decides on. But sometimes, family situations require that the Court step in and make a decision that is in the child’s best interests. Obviously, the best result is when everyone can agree and get along, but the reality is that this isn’t always the way it happens. As a grandparent, taking the time to establish your rights can mean the difference between a life-long relationship and estrangement.

Grandparents Rights in MontanaA grandparent who wants the Court to order contact with his or her grandchild, must first have the judge determine if the parent is fit. If a parent adequately cares for her child, she is fit. If he does not, he is not fit.

If the parent is unfit, then the contact must just be in the best interests of the child. If the parent is fit, the grandparent needs to show that the visits are in the child’s best interests and also needs to rebut a presumption that the parent’s wishes are what’s best for the child. This is in keeping with the Unites States Supreme Court’s decision in Troxel v. Granville.

In Troxel, the father committed suicide in Washington state leaving behind two daughters and their mother (whom he had not married). The mother married and her new husband adopted the children and limited the father’s parents visitation rights. The US Supreme Court found that the Washington State law was too broad and said that it infringed on parental rights. This has become the standard that all the states must follow and which Montana does. If a parent is fit, the grandparent must overcome a significant burden.

If you are a grandparent who is being denied visitation with your grandchild, contact a montana family law attorney to learn more about your rights. If you’re not ready to take such a drastic step, there are other options to consider. Some families have had success with mediation (either with a trained mediator, or even a family priest or pastor). Sometimes, just sitting down as a family for a frank discussion about the problems can sometimes produce good results as well.

It’s also important to remember that law differ from state to state. While you may have a friend who went through the process in another state, their experience may have been wildly different from what you will experience here in the big sky state. Just remember, the best way to know what your rights are as a grandparent in Montana is to discuss the situation with a local lawyer.

Part 2: Advice from a Kalispell Divorce Lawyer: What Happens at a Hearing/Trial for a Montana Divorce?

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 of this series.  Today’s blog post focuses on the UNCONTESTED HEARING, also know as the SHOW CAUSE HEARING.

Uncontested or “show cause” hearings are very brief hearings that allow the court to determine what other procedural steps may need to be taken and to put short-term relief into place.  There are two divorce/parenting situations where uncontested/show cause hearings are most often seen, though a show cause hearing could be held on nearly any motion.  The first common reason a show cause hearing is held is in cases where an Order of Protection is sought.  In Flathead County (and this generally should happen throughout Montana), a show cause hearing is set within twenty days of issuance of a temporary order of protection. Show cause hearings are also scheduled any time an ex parte motion is filed – often seen when one party is seeking an ex parte interim parenting plan.  “Ex parte” is fancy Latin term, which really means that one side is seeking a decision from a judge before the judge has the opportunity to hear from both parties.  Ex parte matters should be reserved for emergency situations, thoughthat is not always the case.

If both parties appear at the hearing, the Judge will first determine if the matter is “contested.”  Contested means that the parties do not agree on what the Judge should do.  For example, one party may have asked for a temporary order of protection, but the other party denies that an order of protection is necessary.  Because the parties do not agree, the matter is considered contested.

If it becomes clear that the matter is not contested, the Court will generally put into place what the parties agreed upon.  If a party contests a matter but does not show up to the hearing, the Court will generally grant the relief requested by the moving party  (i.e. the person that filed the motion).

If the matter is contested, the court generally has three options available:

(1)  If the court has already granted some sort of short-term relief (i.e. a temporary order of protection or interim parenting plan), the Judge may decide to keep that relief in place.  Then, a contested hearing will be scheduled so that the parties can present evidence and testimony to the court; or

(2) The court may change the short-term relief that had previously been requested.  For example, if the court issued a temporary order of protection on an ex parte basis, but then became aware of additional information that changes the court’s opinion, the Judge may put different short-term relief into place.  Then, a contested hearing will be set; or

(3) The court could also order the parties to engage in some sort of dispute resolution before a contested hearing will be set.  For example, the Judge could require the parties attend mediation, obtain a guardian ad litem, etc.  Generally, the court will require that order be complied with before a contested hearing will be scheduled, but that is not always the case.

Because show cause hearings are scheduled very quickly and often on an emergency basis, the Judge will likely not have the opportunity to have a full-blown hearing.  In other words, the show cause hearing is to put a band-aid in place until the Judge has the opportunity to have a hearing where evidence can be submitted and testimony can be heard.  Show cause hearings are very brief and are simply not lengthy enough for a party to present their entire case.  Even though show cause hearings are generally very short, I strongly urge anyone attending a show cause hearing to be prepared and have all their information and evidence available in the event the Judge has time to hear the case.

 

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.

Appealing a Montana Divorce Case or Appealing a Montana Parenting Case

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.

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

Upcoming Parenting Classes at The Nurturing Center for Kalispell Divorce/Parenting

On May 9, 2011, and May 16, 2011, the Nurturing Center is offering a two-part class entitled “After the Storm:  Surviving High Conflict Divorce.”  The class is aimed at those parents who have already completed the Flathead County District Court required class, “Children in the Middle,” and are in need of additional education regarding shielding children from conflict between divorced or divorcing parents.  According to the Nurturing Center website, the course will “help you problem-solve parenting issues and communicate your needs without conflict.”

If you are interested in the course, pre-registration is required.  You can contact the Nurturing Center in Kalispell by calling (406)756-1414 or by visiting the Nurturing Center website.

Part IV – Five Questions Every Client Should Ask Their Montana Divorce Attorney

This post is the fourth in a five part series on questions you should ask your divorce attorney before you sign on the dotted line.  Check out Part I here, Part II here, Part III here – and look forward to Part V in the next few days.

QUESTION 4:  WHAT ABOUT MEDIATION?

Mediation can be a great way to fast-track what is often an incredibly slow, arduous divorce process.  If the parties agree to attend mediation early on and the mediation process is successful, it can be cheap (relatively), fast, and amicable.  There are a number of attorneys that do a great deal of family law, divorce, or child custody mediation in the Flathead/Kalispell area.  If you are looking for a mediator, consider the following Flathead/Kalispell mediators (listed in no particular order):  Shelly Brander at Kaufman, Vidal, Hileman, P.C. in Kalispell, MT;  Vanessa Ceravolo in Kalispell, MT; Mary Obermiller in Kalispell, MT; Randy Schwickert in Whitefish, MT; Brian Muldoon in Whitefish, MT; or Joyce Funda in Kalispell, MT.  Choosing a mediator is as important as choosing a lawyer.  Feel free to shop around for the attorney that fits your needs.  I encourage clients to find out the hourly rate of the mediator, the mediators availability, and to make sure they are comfortable with the mediator.

While Flathead County District Court has a local rule that requires alternative dispute resolution (i.e. mediation or settlement conference) prior to trial, parties are not required to attend mediation early on in the process.  In other words, the parties must agree if the mediation is to take place early on in the divorce process.  Some couples go to mediation before either one has filed for divorce or even before they have separated.  Luckily, it seems most family law attorneys in the Flathead/Kalispell area are in agreement that early mediation can be beneficial in many circumstances.  There are some cases, however, that early mediation is not the best option.

If you are represented by an attorney, you may want to discuss how your attorney can be a part of the mediation process. Many clients choose to take their attorneys to mediation.  While that is a great idea, it can also be expensive – a client is paying for the attorney and the mediator.  Talk with your attorney about ways they can assist you in the mediation process, while also conserving your valuable resources.  Many of my clients choose to attend mediation (though I prepare them for the process) on their own and simply check in with me before they sign any settlement agreement on the dotted line.

Part III – Five Questions Every Client Should Ask Their Montana Divorce Attorney

This post is the third in a five part series on questions you should ask your divorce attorney before you sign on the dotted line.  Check out Part I here and Part II here – and look forward to Parts IV and V in the next few days.

QUESTION 3:  WHAT IF I RUN OUT OF MONEY AND CANNOT PAY AN ATTORNEY?

Imagine it:  you have hired an attorney, plopped down the several thousand dollar retainer fee and you are feeling confident and secure in the future of your case.  Then, a few weeks later, you get your first bill.  You realize how truly expensive it can be to have an attorney represent and you  see that a huge chunk of your retainer has been spent.  A month later, little money is left.  A month after that, you receive a bill a realize you owe your attorney money.   Panic sets in.  Despite the warnings form your attorney, you figured (or hoped) your case would be cheap and easy.   If you haven’t spoken to your attorney about this scenario, you haven’t adequately prepared yourself for the sticker shock that often occurs during the first few months of representation.

Because every divorce case is different, some clients end up in a much lengthier and expensive divorce than they expected.   At times, clients are unable to keep up with their bill and fall behind in payment.  Depending on the divorce lawyer, this can affect how your case is handled.   Find out how your perspective attorney handles these situations.  Does he/she allow you to make payments over time?  Does he/she accept credit card payments, which allows a client the opportunity to pay over time?  Does he/she stop representing a client if the client owes them money?  Does he/she send her clients to collections?  Does he/she charge late fees?

It is important to have this conversation before the situation arises, so that both you and the attorney are on the same page.   One of the worst things that can happen in a divorce is for a client to run out of money part way through and be left without an attorney.  In that case, you’ve paid an attorney to get you part of the way through, but not to the light at the end of the tunnel.  If the advance deposit is the only money you are going to be able to put towards the case, perhaps you should explore the options discussed in Part I of this series.