Mediation

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

Over the next couple of weeks, my blog will focus on the questions you should ask your divorce lawyer BEFORE you hire them.  My hope is to inform those clients that have never hired an attorney before or have been unhappy in the past.  If you are planning to file for divorce, or if you have been served with divorce paperwork, your first instinct is probably to hire an attorney.  For most litigants, that search begins with a consultation or inquiry appointment with an attorney in the area.  Before you hire your divorce attorney, make sure you have all of your questions answered.  Most importantly, be sure that your attorney is someone you feel comfortable with.  Choosing a divorce attorney is a very personal decision and not every attorney works for every client.  If you have never visited with a divorce lawyer before, here are some questions that may help you get the ball rolling.

QUESTION 1:  DO I REALLY NEED A LAWYER?

The reality is, everyone can benefit from having a divorce lawyer see them through the entire divorce process.  It is wonderful to have someone you can call at any time with questions and concerns.  However, not everyone can afford to have a lawyer represent them throughout the divorce process and their may be ways you can protect your interests without spending thousands on an attorney.  Any divorce attorney you meet with should be willing to have an honest discussion with you about your options for legal representation.

For example, I have many clients that are representing themselves in their divorce case, but that periodically set up an appointment to review forms they have completed or ask specific legal questions.  If you end up with this kind of arrangement, be sure you and your attorney carefully and clearly define your relationship in writing.  There should be no confusion about what your attorney is and is not doing for you.  If you are unclear, ASK!  I also have clients that have decided to file for divorce pro se (as an unrepresented litigant) and then asked me to jump into their case part of the way through.  Often times, the first few documents necessary in a divorce case can be easily acquired online – though be sure you ask your attorney where you can acquire accurate and appropriate forms.   A word of warning:  representing yourself does not work for everyone and you do not want to make mistakes that are difficult to repair.  Speak to an attorney before you try to do it yourself and, most importantly, take their advice seriously.  If you are uncomfortable with the advice you are given, shop around for a second opinion.

Watch for Parts II – IV of this series on questions to ask your divorce lawyer.

 

 

Kalispell Divorce Information – Marriage in Crisis Seminar

Saturday, March 26, 2011 – 9:00 a.m. at Whitefish Public Library

A panel of local experts will provide a free seminar on the emotional and legal aspects of child custody disputes, co-parenting and divorce at the Whitefish Public Library on March 26 from 9:00 a.m. until noon. “MARRIAGE IN CRISIS: What You Need To Know When the Bottom Drops Out” is sponsored by the HeartWorks Mediation Center in Whitefish.

The panel includes newly-elected District Court Judge David Ortley, Whitefish family mediator Brian Muldoon, Kalispell therapist Dr. Angela Jez, and divorce lawyers KayLynn Lee, Marybeth Sampsel and Kai Groenke. Jolie Fish, Director of Family Court Services, will explain how her agency helps the court decide difficult parenting issues.

The panel will discuss a wide range of topics, from deciding whether the marriage can be salvaged to knowing how to resolve parenting and financial issues raised by the divorce process. Following the panel discussion, lawyers will be available to provide free 15-minute consultations. These brief sessions will provide an opportunity to make initial assessments and get specific answers to legal questions. It is recommended that participants write down their questions in advance.

Divorce is an ordeal that challenges us in every way imaginable. Whether the conflict shows up around money, parenting or feelings of betrayal, few of us are prepared to deal with the fallout. It is vital to understand the emotional aspects of divorce as well as the legal part of the process. No matter what direction you go, getting the right information is a good place to start.

For more information, contact Brian Muldoon at HeartWorks Mediation Center at 406-862-9292
or heartworks@montanasky.com .

Dealing with Pets during a Montana Divorce

For many couples, a dog or cat is as much  a part of the family as their children.  Individuals involved in a Montana divorce are often more concerned about their pets than they are their house or belongings.  Though Montana law does not treat pets in the same manner as children, they can be a very important piece of the divorce puzzle – one that must be dealt with carefully and with concern for what is best for a pet.

If you are divorcing in Montana, or plan to divorce, there are a few basics you must be informed of with regard to your family pets.  First, no matter how much you may love your pets, Montana law still considers pets as property.  While many pets have only sentimental value, others can be quite valuable (think horses and other livestock).

Because pets are property, the same rules apply to them that apply to any other kinds of property.  In a Montana divorce, this means that the pets would become a part of the court’s property distribution and are to be “equitably apportioned” between parties.   The exceptions to the rule are the same for pets as they are for other kinds of property.  In other words, your pet remains non-marital property if it was (1) gifted to you individually; (2) you inherited the pet through an inheritance; or (3) you owned the pet prior to marriage.

As with most things in a divorce, it is ideal if you and your soon-to-be-ex-spouse are able to negotiate and agree on what will happen to your pets.   In the event you cannot agree, the court could order the pet be sold and the proceeds split in some equitable manner.

If you have children that are particularly attached to your family pets, you may consider having the pets become part of your Parenting Plan as the children’s “property.”  This is more easily accomplished with a dog or cat that can travel back and forth with the children.

If you are working with an attorney, make sure you communicate with him or her about how important your pets are to you and what you feel might be best for them.  That way, your attorney can assist you in handling the issue.

Modifying an Existing Montana Parenting Plan

Though Final Parenting Plans are designed to carry the parties to a dissolution or parenting action through the foreseeable future, there often comes a time when parents need to make changes to their Final Parenting Plan.  A parent may move, remarry, or obtain a new job.  Or as a child ages, their needs may change that make an old parenting plan impractical.  Occasionally, an emergency may arise with a child or parent that requires an immediate change to the parenting plan.

In order to modify a parenting plan, a parent must follow Montana’s statute governing the Amendment of Parenting Plans – M.C.A. 40-4-219.  Under Montana law, a parenting plan can be modified anytime both parents agree to the amendment.  If one parent does not agree, the other must prove that there has been a change in circumstances that makes an amendment necessary to serve the best interest of the child.  The change in circumstances must be based on facts that were unknown to the court when the prior plan was ordered or new facts that have arisen since the prior plan was put into place.

Many parenting plans include a “built in” review date.  In the event a parenting plan has a built in review date, a party may not need to show that a change in circumstance has occurred, provided the review date has passed.

Often parenting plans include a Dispute Resolution section which requires the parents attempt mediation before either of them can ask the court for an amendment of their parenting plan.   If that is the case, you may obtain names of mediators in your area from the Montana Mediation Association on their website.

If a modification of your parenting plan is appropriate, the court will consider the factors in Montana’s Best Interest of the Child statute.  Read the full text of the Best Interest of the Child statute.  The court may also consider the following:

– whether the parents agree to the amendment;

– whether the child has been integrated into the family of the petition with consent of the parents;

– whether the child is 14 years of age or older and desires the amendment;

– whether one parent has refused contact between the child and other parent or denied/frustrated contact between the child and the other parent; and

– whether a parent has or intends to change residences in a manner that will significantly affect the child’s contact with the other parent.

If you wish to modify your parenting plan, the first is to review your existing parenting plan for a review date and/or Dispute Resolution language.  If you do not have a copy of your parenting plan, you may obtain one for the clerk of court in the county your parenting plan was filed in.  Once you have a copy of your parenting plan, I encourage you to speak with an attorney about the modification process.


Dispute Resolution

Most parenting plans include a dispute resolution provision. This means that if there is a disagreement about the plan, the parties need to engage in the dispute resolution process before proceeding to Court. Even if your parenting plan does not have this, in Montana the judge can order you to try dispute resolution before returning to Court. In most family law disputes, you will need to at least try dispute resolution before a Judge will hear your case.

Dispute resolution can take many different forms. You can ask a friend, pastor, or any agreed-upon third party to mediate. You may try mediation or a settlement conference, or something even more informal. However you do it, remember the that purpose of dispute resolution is so that you and your child’s other parent can solve whatever problem exists on your own, without brining in a Judge to make major life decisions for your family.

A final note: Mediation is not appropriate for cases where domestic abuse is involved. If there has been physical abuse, or the threat of physical abuse by one parent against the other, the requirement of mediation is waived and the dispute should be heard by a judge. This is a safety issue, and a way to protect victims of abuse from being bullied into accepting terms they would not otherwise agree to.

If you are unsure whether your parenting plan contains a dispute resolution clause, or would like to discuss dispute resolution with a Montana divorce attorney, please call me today.

Kalispell Divorce Options

For those considering divorce in the Kalispell, Montana area there are a number of options you should consider in how to proceed. Although typically people think of hiring a lawyer and going to court in order to get a divorce, our system in Montana provides less confrontational options that are quicker and less expensive. Which option is best for you is a decision that needs to be based on an individual assessment of your situation. Remember, even if you ultimately decide not to hire an attorney, most will still have a consultation with you at an affordable rate. This may be the best way to determine which option is best for you.

Kalispell Divorce Attorney

A Kalispell divorce attorney can be very involved in your case or only provide some legal advice and guidance. One option is to hire the attorney to represent you in your divorce. From that time on, they will be responsible for communicating with your spouse’s attorney, drawing up the relevant paperwork, and advising you on the best course of action. This can take a great deal of stress off of people and enable them to focus on their daily lives instead of being bogged down in the minutia of the divorce process. An attorney may represent you all the way to a trial, but as I’ve discussed before I think the best possible outcome in family law cases is usually reached through an agreement between the parties. This usually takes the form of a settlement conference, mediation, or simply discussions between the parties. The benefit of having a divorce attorney at your side in these type of negotiations is that he can advise you on Montana divorce law and help protect your best interests under the law.

As I mentioned earlier, you can also hire a divorce attorney in a more limited manner. Often, this takes the form of a consultation where you schedule an appointment with an attorney, discuss the specifics of your situation, and receive legal advice tailored to you. A word of warning: when scheduling this type of an appointment, make sure that the attorney is willing to give advice if you do not ultimately retain him. Some attorneys see a consult simply as a way to sign up new clients, and are less cooperative when that is not going to happen.

Mediation and Settlement Conferences in the Kalispell Area

Another option is for you and your spouse to meet with a mediator. There are many excellent options in the Flathead Valley and I would be happy to provide a recommendation if you are interested. In Mediation, a neutral third party attempts to craft an agreement between you and your spouse. Because most of our local mediators are also attorneys, they can then help you prepare the proper documents for filing with the court. You could use a mediator without the aid of an attorney, or with one – the choice is yours.

Settlement conferences are an excellent way to settle cases, and generally come about between two parties represented by divorce attorneys. Where a mediation is an effort to bring the parties to an agreement, a settlement conference is much more about an assessment of each parties’ chances at court of getting what they want. It usually involves an experienced Kalispell divorce attorney who is familiar with the local courts and our judges and can give an accurate assessment of your chances.

Self Help Divorce in Kalispell

A final option is to use our self-help law library here in Kalispell to get the proper forms and fill them out yourselves. Generally, this option only works between spouses who are still able to communicate well and have a very civil relationship. This option also has a number of options in terms of how involved other people may be. You could hire an attorney for a consult prior to beginning the process, to get a better idea of what the results should be. You could also hire a mediator to help settle the one issue that the two of you don’t seem to be able to work out. Either way, this is generally the least expensive option – but also the most difficult to successfully complete. While you may think that the two of you can agree on everything, when it actually comes down to dividing the China, things may look a little differently.