It has been several months since I have blogged about the resources available to those in the process of divorcing or dealing with child custody/parenting issues in the Kalispell area. Whether or not you have a Kalispell attorney to assist you with your Kalispell child custody/parenting case, you may want to look into the following resources, many of which are at little to no cost.
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.
Anyone facing the end of a marriage wants a trustworthy, dedicated family law specialist who has experience with financial advisers, forensic experts and health care professionals. For residents of Missoula or Missoula County, Marybeth Sampsel of Measure Law Office is exactly that.
Not only is divorce incredibly difficult, but it’s also emotional. This is an explosive combination that can make everything worse. An experienced divorce lawyer, in Missoula or the rest of the country, understands that burden and represents all your needs. Sometimes, a guiding hand is as important as technical legal advice. This is the philosophy I bring to all my divorce and child custody cases, and it’s one I know my clients appreciate.
When children are involved, a deft touch is even more important. In cases of child custody or parenting plan modifications, I pride myself on representing my clients by also representing their children. While some lawyers build a reputation on being adversarial “trial lawyers,” I see no reason to create conflict and strife unnecessarily. A good lawyer can be a zealous advocate without adding stress and aggression to an already tense situation.
Although my office is located in Kalispell, I represent divorce clients across the state. Modern technological developments make it as easy to communicate and share documents with clients in Missoula as anywhere else. If you need a Missoula divorce attorney, please call me today at (406) 752-6373 to schedule a consultation.
Halloween is one of the more minor holidays that is often overlooked in a parenting plan. When you have small children, however, Halloween can be one of the most fun and exciting holidays of the year. If you are divorced or separated and you have small children, Halloween is an opportune time to work with your ex on co-parenting during the holidays. Consider Halloween a “practice round” before Thanksgiving and Christmas roll around.
Here are some tips to keep in mind when making Halloween plans this year.
1. Check your parenting plan, then consider scrapping it.
Some parenting plans do include Halloween. Make sure that you check yours to see if there is a Halloween provision. If there is, keep in mind that you are bound to follow the plan UNLESS you and the other parent agree otherwise. If the Halloween provision already in place makes sense, there may be no need for you to communicate with your ex about changing Halloween plans. If, on the other hand, Halloween was overlooked in your plan or your Halloween provision just doesn’t make sense, get in touch with the other parent to discuss a possible change. Perhaps you can figure out a way to share time with your child on Halloween. Maybe Dad can go to the school party and Mom can take the kids trick-or-treating.
Remember, you can’t change a parenting plan without the other parent’s agreement or the court’s consent. Don’t unilaterally make a change to the plan without consulting with the other parent.
2. Don’t put your children in the middle.
As with any parenting dispute, it is imperative not to put the child in the middle. Make the decision as parents and do not force the child to take a side. Don’t say, “don’t you want to spend Halloween with Mommy (or Daddy)?” Asking the child means your child might spend Halloween concerned about which parent they chose to spend time with.
3. Share Time.
If at all possible, try to figure out a way to share the holiday. Long-distance between parents can make this impossible, but if it can be done, try and figure out a way. Of course, both parents want to spend the holiday with the child. Just because parents are separated, does not mean that can’t be accomplished.
4. Be Nice.
Whether or not you and the other parent are able to reach an agreement about Halloween, be nice! Nothing will ruin your child’s Halloween like watching his/her parents fight. Don’t use Halloween as an opportunity to tell your child about what a jerk their other parent is.
5. Plan Ahead.
Make sure you have tackled a holiday issue before it hits you head on. Don’t wait until October 29th to ask the other parent for time on a Halloween. Planning ahead allows you to prepare your children for the upcoming holiday and to manage their expectations in advance. Children need to know what to expect in the coming days, weeks, and even months. By preparing them for Halloween in advance, you decrease the chances of a Halloween Eve meltdown when they realize they are spending the holiday in one place or another.
Whether your child is five of fifteen, going back to school after parents divorce can be awkward for all involved. Who chaperons school trips? Who takes care of science projects and book reports? Who buys school supplies? The questions go on and on. Navigating school issues is just one of the many things divorce parents must work out. Before we dive in, some good news: the first year will be the most complicated, but it is (almost) all uphill from here!
Before reading any further, I suggest you review your Parenting Plan. The “Decision Making,” “Residential Schedule,” and “Child Support” sections will be invaluable when determining how your child’s school schedule fits into your new life as a divorcee. Depending on your parenting plan, you may find that you have the right and authority to make some decisions without involving your ex, or you may discover that the two of you will need to be in constant communication throughout the year.
In the Decision Making section of your parenting plan, you should find how educational decisions will be made. In Montana, our courts generally prefer that the parties make educational decisions together. Where your child will go to school, whether or not your child should be held back, how special education will be handled, and so on, are all issues that would likely be considered ”educational decisions.” If your parenting plan provides for joint decision-making, you and your ex must discuss and agree upon those major educational issues. I know, I know…if you could agree upon everything, you probably wouldn’t be divorced, right??!? Well, your parenting plan probably anticipates there could be disagreements. See your mediation or dispute resolution section. Normally, a parenting plan will require parties mediate disagreements. If you can’t decide where junior will go to school or whether or not your daughter will skip the 5th grade, mediation is your next stop.
In your Residential Schedule, you may find some information about how school activities will be shared. Including this detail is fairly rare, so if you don’t see a provision about school activities, don’t panic! Generally, both parents are allowed to participate and attend the child’s school activities: plays, sporting events, field trips, etc. In some families, mom and dad simply cannot interact with each other. If that is your circumstance, I suggest working out a schedule where you and your ex share school activities. If dad is more into science, maybe he can help with the science fair while mom volunteers for reading group. For younger children who have field trips, taking turns chaperoning might be an option. This sort of thing will require some work on both parent’s part – hopefully the parties can set differences aside to make junior’s first school year after the divorce a smooth one.
You may also find a section in your parenting plan about how to share your child’s extracurricular expenses. Many parenting plans split the cost 50-50, though that isn’t always the case. As such, be SURE to check your Parenting Plan.
Finally, a few things to remember this school year:
- While both parents have the right to receive the child’s school records, report cards, etc., they each have a responsibility to acquire that information. I suggest each parent contact the school and the child’s teacher at the beginning of the year and request that all mailings go to both homes. This way, both parents can stay on top of the school schedule.
- Both parents have the right to attend parent-teacher conferences (unless the court has specifically limited that right in your case). If your relationship with your ex is extremely volatile, separate conferences can usually be accomplished. Call your child’s teacher to find out.
- School issues are one of the most complex issues to deal with when co-parenting. Figuring out how your new relationship will work takes time. Always keep your child’s best interest in mind and keep the lines of communication as open as possible
If you are involved in a particularly complex parenting case in Flathead County or know someone who has, you may have heard of Family Court Services. Much like a guardian ad litem (see my previous posts regarding GALs in divorce cases), Family Court Services is vested with the authority to investigate, report to the Court and make recommendations about parenting. Though Family Court Services is often confused with the Department of Family Services, the two are entirely different. While DFS might be involved in an abuse and neglect case, Family Court Services is strictly involved in cases regarding parenting disputes.
Think of it this way: in a parenting case, there is only so much a judge can do. A judge can’t visit your house, see what is in your cupboards or where your child sleeps. Generally, a judge will never meet your child or see you or your ex-significant other interact with your child. The law expects a Judge to make a decision about the parenting of a child they, frankly, know very little about.
Family Court Services (FCS) allows the Judge to be more informed about a case. FCS can “investigate” a case by meeting with the parties, important witnesses (school teachers, grandparents, counselors, etc.), meeting the child in person, and visiting important places the child spends time (usually both parents’ homes). After that investigation, FCS reports to the Judge, giving far more information to a Judge than he or she would normally see during a hearing. This puts far more information at a judge’s fingertips, enabling he/she to make a more informed decision about parenting.
Though Family Court Services makes recommendations to the Court, a Judge has the power to accept or reject the recommendation. At times, a Judge might decide the FCS recommendation is great and put it into place. In other cases, a Judge may determine that the FCS report was only partially correct or not at all correct.
Family Court Services also has the authority to make interim recommendations pending further order of the court. For example, if there are alcohol/drug issues, FCS may recommend a party participate in random drug or alcohol screening. If there are abuse issues, FCS may recommend parenting time be supervised for a period of time. Because Family Court Services derives its authority from the District Court, parties have the option to have recommendations of FCS review by the judge in their case.
As a practical matter, FCS is largely funded by tax dollars. Unlike a private guardian ad litem (who is paid for by the parties), persons who become involved with FCS generally are not charged for FCS work. At times, FCS will make recommendations that do require payment (i.e. drug/alcohol testing, supervised visits, psychological evaluations, etc). As is the case with so many legal organizations, FCS funding seems to be drying up year after year. As such, FCS can only handle so many cases and our local judges refer cases there as judiciously as possible. FCS often gets only the most complex and litigious of parenting cases.
If you have additional questions about Family Court Services, contact an attorney to schedule an appointment. You can reach my office by calling (406)752-6373.
Sometimes called “alimony” or “spousal support,” maintenance is the word Montana law uses to describe financial support from one party to the other after a dissolution. Though maintenance seems to be more and more rare these days, due in large part to the troubled economy and the decrease in the number of couples that can survive on one income, it remains an issue in a number of Montana divorces.
A recent Montana Supreme Court case discussed spousal maintenance obligations after a spouse remarries. In re the Marriage of Holly Wolf and Walter Wolf, was decided on August 11, 2011. The Montana Supreme Court determined that Montana statute cutting off a maintenance obligation after a subsequent marriage is clear: unless you agree in writing otherwise and it is expressly provided for in the decree of dissolution, the obligation to pay maintenance is terminated upon the death of either party or the remarriage of the party receiving maintenance.”
Unfortunately, Appellee Holly Wolf had to find this out the hard way. According to the Court’s decision, Ms. Wolf was receiving spousal maintenance from her husband Walter in the amount of $4,000 per month until her son graduated high school and then for $6,000 per month thereafter. According to the Dissolution Agreement signed by Holly and Walter, the maintenance obligation was to continue until Holly’s death. The Agreement went on to state that Holly’s maintenance payment would decrease to $2,000 per month if she lived with someone for over 6 months in an intimate way. The Dissolution Agreement, however, did not provide for maintenance after Holly remarried. In 2008, Holly remarried and Walter stopped paying maintenance.
The Montana Supreme Court determined that M.C.A. 40-4-208(4) (which states that maintenance is terminated upon death or remarriage unless expressly agreed otherwise) is serious. Since Holly and Walter did not expressly include a statement about whether or not maintenance should terminate upon Holly’s remarriage, the maintenance obligation terminated upon Holly’s remarriage.
The lesson here is: if you are eligible for spousal maintenance and intend to continue receiving it even after a subsequent remarriage, MAKE SURE you expressly include that language in your Property Settlement Agreement AND the Court’s Decree of Dissolution. If you didn’t make sure to do so, don’t get remarried without thinking through the financial ramifications.
While it is true that the average couple marrying for the first time now has a 40-50% chance of divorce, there are multiple factors that determine what an individuals actual chances of divorce are. According to the 2010 State of Our Unions study by The University of Virginia’s National Marriage Project, for many individuals, the actual chances of divorces falls far below 50%.
Many factors decrease the risk of divorce significantly. For example, earning over $50,000 annually decreases the risk of divorce by 30%. Graduating from college decreases the chance by 25%; marrying over the age of 25 decreases the risk by 24%; and religious affiliation decreases the chance by 14%. In contrast, some of these factors increase an individuals chance of divorce. Making under $25,000 annually, having a child before marriage, and not completing high school are all factors that tend to increase the risk of divorce.
For more information, access the 2010 State of Our Unions study at the link above.
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.
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.
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.
