Parenting Plans

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.


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.


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

This post is the second of 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 look forward to Parts III through V over the coming days.


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.


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.


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 .

What to do if you have been defaulted in a Montana divorce or parenting case

If you have ever been served with legal paperwork, you have likely seen and, hopefully, read a Summons.  Though drafted by opposing counsel or the opposing party, a Summons is actually issued by the Clerk of Court.  The Summons announces the deadline by which to respond to the paperwork you were served.  In a divorce/dissolution or parenting plan case, you are allowed twenty days from the date of service to respond to the Petition.  If you fail to respond in twenty days, the opposing party may request the court enter your default.

If your default has been taken and you wish to continue with the case, you will be unable to do so until you first have your default set aside.  This means, you must prove to the court that the default was incorrectly entered against you or you have some reason that you were unable to respond in a timely manner.

Under the Montana Rules of Civil Procedure, the court may set aside a default for good cause.  In order to establish good cause, a defaulting party must show: (1) the defaulting party proceeded diligently; (2) the defaulting party’s neglect was excusable;  (3) the defaulting party has a meritorious defense claim; and (4) the judgment, if permitted to stand, will affect the defaulting party injuriously.  See Mountain Sports, Inc. v. Gore, 85 P. 3d 1286, 320 Mont. 196 (2004).

If successful in having the default set aside, a divorce or parenting case then proceeds normally, as if the default had never happened.  Setting aside a default can be complicated and I am not aware of readily available forms for pro se litigants to use in such a circumstance.  If you have been defaulted in a case, contact an attorney as soon as possible.  If you cannot afford an attorney, contact Montana Legal Services or your self-help law center.

Depositions in Montana Family Law

While many Montana divorces/dissolution or parenting cases are fairly quick and amicable, some cases are very litigious and carry on for months or years.  If a divorce or parenting case is headed to trial, an attorney or party may determine it is necessary to take a deposition of a party to a case or a witness.  Because depositions are relatively rare in family law cases, litigants are often intimidated and unsure what to expect.

A deposition is basically sworn testimony taken outside of the court room.  A court report is present to keep a record of your testimony.  At a deposition, the person being deposed must be sworn, like they would if they were testifying at trial.  This means you are testifying under penalty of perjury and you must answer the questions both completely and truthfully.  It also means that the information you provide at a deposition could be used against you at trial if you testify to different facts at a later time.  Depositions are often used to gather information about a case.  For example, an attorney may choose to depose you if you have not provided answers to written requests for information.

Once sworn in, the attorney that requested the deposition will have the opportunity to ask the witness questions.  Once finished, the other attorney can ask clarifying questions to gather additional information.

Depositions can take a very long time, often more than one day, if there is a great deal of information to gather.  Though they can seem like a marathon, you are entitled to breaks and you may speak with your attorney during the deposition.  Once complete, the court reporter will provide a booklet of your deposition testimony for you to review for consistency.

Planning to Move After a Montana Divorce or Parenting Case

If you have minor children and had a Montana divorce or parenting plan case, you must be aware of the notice requirements under Montana law before you make a residential move that significantly affects your parenting plan.

Under M.C.A. 40-4-217, you MUST provide written notice to the other parent if you intend to make a residential change that will significantly affect the other parent.  Along with the written notice of your intent to move, you must supply the other parent with a proposed revised parenting plan, laying out how the residential schedule should work after your move.  Notice must be provided to the other parent no less than 30 days before you plan to move.  The notice must be provided either by certified mail or by personal service (i.e. served by a process server or sheriff’s officer).  Proof of services must be filed with the court.  Even if it has been many months or years since your dissolution or parenting case was completed, usually you may file the notice under the same cause number.

Once written notice and a proposed amended parenting plan has been supplied to the other parent, you must allow the other parent 30 days to respond to you.  If the other parent fails to respond in 30 days, it is deemed the parent accepted your proposed revised parenting plan.

If the other parent does not agree to your proposed revised parenting plan, the two of you would then need to follow the law for Amendment of a Montana Parenting Plan.

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.

Grandparent Visitation Rights in Montana

In many families, parents and grandparents get along well and share time with minor children without issue.  Because that is not always the case, occasionally a grandparent will find themselves in the unenviable situation of asking a court to grant them time with their grandchild.
In Montana, third party contact is generally within a parent’s discretion.  Provided a parent is fit, the law generally allows a parent to determine whether or not their child has contact with grandparents, other relatives, etc.
Before a Montana court may grant a grandparent’s petition for grandparent-grandchild contact over the objection of a parent, the court must first determine if the parent is a fit parent.  When determining if a parent is fit, the court will examine whether or not a parent adequately cares for the child.

If the court determines the parent is unfit, the court then must make a determination if grandparent-grandchild contact would be in the best interest of the minor child.

If the court determines the parent is fit, a grandparent must show both: (1) grandparent-grandchild contact is in the child’s best interest; and (2) the presumption in favor of the parent’s wishes has been rebutted.

Occasionally,  parents and grandparents will enter into a specific visitation schedule.  Much like a parenting plan, a grandparent visitation schedule outlines specific dates and times the child is to spend with the grandparent.   In the event parents and grandparents make such an agreement, a drawn-out court process may be avoided.

Amending or Modifying a Montana Parenting Plan

Though the goal of a Final Parenting Plan is to provide for the care and support of a minor child for the foreseeable future, there often comes a time when it is necessary to revisit your parenting plan.  As time passes, circumstances sometimes change drastically in a way that your existing parenting plan is no longer in your child’s best interest.
Recognizing this issue, Montana law allows a parenting plan to be amended or modified when a substantial change in circumstances occurs such that a modified parenting plan is necessary to serve the child’s best interest.   In order to determine if a change in circumstances has occurred, the court will look at the facts of the case and determine if facts have arisen since the prior plan was put in place or facts exist that were unknown at the time the plan was put in place.
Many stipulated parenting plans (plans that were put in place upon agreement of the parties) include a provision that requires the dispute resolution process before either party can motion the court for a new parenting plan.  This means that parties must first attempt to mediate the issues and try to come up with an amended parenting plan without involving the court.
Additionally, many stipulated parenting plans include a built-in review date.  For example, your plan might say that the parenting plan can be reviewed “two years from the date of the agreement.”  If that is the case, a showing of substantial change of circumstances may not be necessary, provided that amount of time has passed.
In the event your parenting plan does not have a built-in review date and you have exhausted the dispute resolution provision of your plan, you may look to the court to amend or modify your parenting plan.  At that time, the party seeking to amend the plan must file the appropriate pleadings with the court.   If the court finds from your pleadings that amendment may be necessary, the court will likely schedule a hearing regarding your new parenting plan.
It is important to understand that parenting plan modifications are not simply an opportunity for a parent who did not get the the plan they wanted in the first place to re-fight their case.   Without some new and unforeseen facts, an amendment of your plan may not be appropriate.