1. Money, gifts, sweets and indulging don’t “make up” for anything. Your child is going to have TWO Christmases. No need to feel guilty. Most kids say the dual holidays are the best thing about being a divorced kid.
2. If possible, make your plans with your ex-spouse ahead of time and stick to them. Let the kids know where they will be and when. It helps them feel in control. Let them make only age appropriate decisions. A good rule of thumb: if it is not a decision you would let your children make while you were married, then don’t let them make it now. Let your kids be kids.
3. Be flexible. No, this is not a contradiction of #2. It means that stuff happens. So if your ex is two hours late because of an ice storm or because his cousin Joey showed up late, try to let it go.
4. Keep your anger, resentment, annoyance, disgust about your ex, his sports car, his/her new love and his family, to yourself. Remember, your kids are part of both of you and when you slam your child’s other parent, your child feels slammed as well.
5. Do not make your children responsible for your happiness. “Go have a good time with Dad in Jamaica, while I sit here miserable and all alone,” only breeds resentment and guilt in your child.
6. Don’t compete. If he can afford more than you – fine. Rather than resenting his/her father( or mother), appreciate that your child can experience things you can’t buy him/her. Don’t overspend to keep up. Make memories by doing fun things together – bake cookies, read a Christmas story, build a snowman. Money does not buy love.
7. The new girlfriend (or boyfriend) cannot and will not take your place.Children are unbelievably loyal. They can love many people, but the title and honor of parent is yours and will be only yours forever. So, relax. Deal with your jealousy without making your kid responsible for your feeling threatened. This is simply not the job of the child.
8. Divorce is the severing of the adult relationship and should not be the termination of the parent-child relationship, no matter how much you really can’t stand him/her. If your child is not in harm’s way, the relationship needs to continue. This is the CHILD’s right. If you really feel the child is in danger, then get a lawyer, prove it and have supervised visitation. Never keep a child from being with a parent based on your own feelings!
9. Lastly, remember that you are the adult. Suck up your anger toward your ex and make the holidays wonderful for your kids.

Source:  ”Children, Divorce & the Holidays: Making it Happy not Horrible!” by Donna F. Ferber, LPC, LADC, a licensed psychotherapist in Connecticut and the author of From Ex-Wife to Exceptional Life: A Woman’s Journey through Divorce, which won an Honorable Mention Award by the Independent Publishers Association. To read more about the author and her work, please visit www.donnaferber.com.

The hugely successful online role-playing game MapleStory recent reported that the divorce rate in cyberland is currently at about 75%.  Nexon, the makers of MapleStory, recently reported that of the 26,982 in-game marriages (which cost $25.00 a pop, by the way) that took place this year, 20,344 ended in annulment/divorce.

Just like divorce in the real world, MapleStory players don’t divorce for free.  An in-game divorce costs 500,000 Mesos (aka MapleStory money) and players must relinquish their wedding ring.  Players must also wait ten days before marrying someone else.

1.  Kalispell/Flathead County Self Help Law Center

If you are able to visit the Flathead County Justice Center in Kalispell, you can find the Self-Help Law Center on the third floor.   The Self-Help Law Center is open from 9:30 a.m. to 5:00 p.m. on Monday, Tuesday, Thursday and Friday.  There is generally a resource officer on staff and can help you locate the documents needed to file for divorce or parenting on your own.

2.  Nurturing Center

From supervised visits to parenting education, the Nurturing Center provides comprehensive support to families in the Flathead Valley.  Located at 146 Third Avenue West in downtown Kalispell, the Nurturing Center can provide valuable parenting resources to those involved in Kalispell child custody/parenting cases, whether or not an attorney is involved.

3.  MontanaLawHelp.org

Whether or not you live in the Flathead, MontanaLawHelp.org offers free fill-in-the-blank dissolution and parenting plan forms.  While I highly recommend all people looking into filing for a dissolution or parenting plan at least meet with an attorney to discuss their legal options, the Montana Law Help forms can keep the overall cost of your divorce down.

As always, I encourage anyone going through a child custody or parenting case to meet with an attorney to discuss their options.  Even when you may not be able to afford an attorney to assist you throughout your case, an hour consultation is likely worth your time and money.

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.

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. 

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.

QUESTION 2:  HOW MUCH IS THIS GOING TO COST?

Question 2 can be a bit misleading, because the big cost question is a loaded one!  Because most divorce lawyers charge their clients hourly, it can be very difficult to say exactly how much a divorce will cost.  As such, it can be very difficult (nearly impossible) for a divorce lawyer to give you a good estimate on the overall cost of your case.  There are a few things, however, your divorce attorney should be able to tell you about the costs:

(a) the attorneys’ hourly rate ($150-$250 is average for Kalispell divorce lawyers);

(b) the advanced-deposit or retainer that will be necessary (anywhere from $1,500 – $5,000+ for Kalispell divorce lawyers);

(c) if they have paralegals or staff that do work for them, what the paralegal/staff’s hourly rate is; and

(d) will I have filing fees or any costs other than your hourly fees?

Ideally, the answers to all of these questions will be able to be found in the divorce attorney’s Representation/Fee Agreement.  If you decide not to hire the attorney, you may never even get to see the Fee Agreement – all the more reason to ask the questions first!

If you are unsatisfied with any of the answers, ask follow up questions and find out why the office works the way it does.  Is the hourly rate for the attorney higher because they have more experience?  If so, you may feel a lot better about shelling out an extra $50.00 per hour.  Is your case complex?  It may explain an increase in the advance deposit or retainer fee required.  As always, shop around for an attorney until you feel comfortable with one.

Read the full history of the bill, along with the most recent draft here.

The bill goes on to specify what type of counseling would be required, the topics that must be covered, the amount of counseling that must take place, and the type of counselor that must be utilized.

The most problematic aspect of the bill is the proposed subsection 5(b), which states that the counseling requirements do not have to be met “if there has been a claim of physical abuse of one of the parties by the other.  Corroboration is not required for a claim of physical abuse….”  Appropriately, the bill makes room for those that have been physically abused, as I think most would agree that forcing parties to undergo counseling when there has been physical violence is not appropriate.  My concern is that more and more claims of physical abuse will be made, just so that litigants are able to avoid the counseling requirement.  Since corroboration of the claim is not necessary, a litigant would understand that they do not need to have prove that physical abuse has occurred.

Another concern is how the court handles this statute if a party defaults.  If a party fails to respond to the petition for dissolution in an appropriate amount of time, the court may enter that party’s default and grant the dissolution according the petition.  If counseling is automatically required, how does the court grant the dissolution?  And more importantly, if a person does not even respond to a petition for dissolution, is it reasonable to think they will willing go to counseling?   I doubt it.

While I am not particularly a fan of the entire proposal, a better option may be to include a provision that allows the District Court to waive the counseling requirement if appropriate.  It would prevent litigants from being punished for their spouse’s refusal to participate.

Follow this bill here.

A relatively hot topic this session is the oversight of guardians ad litem, including instituting a grievance procedure and training.  Two bills have been introduced regarding guardians ad litem – one in the House, sponsored by Rep. Betsy Hands, and the other in the Senate, sponsored by Sen. Larry Jent.  The Senate bill applies to guardians ad litem appointed during a dependency and neglect case.  The House bill, on the other hand, applies to those guardians ad litem appointed by the court during contested parenting or custody cases.

Montana’s current guardian ad litem statute (M.C.A. 40-4-205) does not include any language regarding the training, experience or qualification of guardians ad litem.  In other words, under the current law, a court could appoint a guardian ad litem without requiring them to attend any sort of training.   While the lack of training may seem like a problem, Montana judicial districts are generally small enough (at least here in Flathead County) that the District Court Judges are well aware of the experience and expertise of those attorneys they appoint as GALs in contested parenting cases.

The House bill also provides a grievance procedure for those litigants that are unsatisfied with the work their guardian ad litem has done, or has not done.

Most importantly, the bill provides for a local guardian ad litem review committee, appointed to serve without compensation and for the purpose of review grievances filed by litigants.  In theory, not a bad idea, but logically, I do not see the resources and time available to make such a committee work.  Our district courts and court staff are incredibly busy as it is and adding yet another committee to their plate is probably not the most effective use of judicial resources.

Read the current text of the House Bill here and the current text of the Senate Bill here.

If you wish to follow other bills introduced this session, you can do so here.