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Top 10 List: Top 10 ways to keep your kids out of the middle of your divorce or custody case April 7, 2008

Posted by csstephens in Child Custody, Top 10 List.

We just blogged about the “Top 10 list: Top 10 ways to keep your kids out of the middle of your divorce or custody case”   Please review the full post on this subject at www.oregondivorceblog.com.

Top 10 list: Top 10 questions to ask a divorce lawyer in the first consultation. February 10, 2008

Posted by csstephens in Child Custody, Child Support, Dissolution, Out of State, Property Division, settlement, Spousal Support, Top 10 List.

first meeting with lawyer If you are contemplating divorce, you should consult with an experienced family law attorney. Once you set up a consultation, be prepared for the first meeting, and have a list of questions to ask the lawyer. The following questions should help you understand the divorce process, how your lawyer’s office operates, and if the lawyer is a good fit for you and your case.

  1. How experienced are you in family law? All lawyers have law degrees, but many lawyers practice in several fields other than family law. You don’t want a generalist. Family law is a specialized field, and you will likely be better served by a lawyer who focuses on family law. Make sure that most of their cases are family law cases. Ask the lawyer if they have handled cases like yours before.
  2. What steps are involved in the divorce process? Your lawyer is there to educate you and guide you through the process. Have the lawyer clearly explain the process to you, from filing the petition, negotiating temporary orders, and the trial process.
  3. How will you charge me? If you hire the lawyer, you should expect to sign a retainer agreement that covers how you will be charged. Ask about the hourly rate, and how often you will be billed. Ask if you will be charged for time spent with paralegals and other staff in the office, and at what rate. Ask what will happen if you cannot pay your bill in full every month. Ask if you can pay by credit card, and if payment plans are available.
  4. How will we communicate? Ask your lawyer if they prefer phone contact over email, and how long you should expect to wait for a return call. Is your lawyer tech savvy enough to email you draft documents as PDF files? Is your lawyer’s office set up to scan and email incoming and outgoing correspondence? Do you automatically get a copy? The last three are essential if you live out of state, or a distance from your lawyer’s office. Lawyers ta
  5. How long will the process take? Ask your lawyer about what is their estimate for how long the case will take depending on if you settle quickly, settle after protracted negotiations, or have a trial.
  6. Can you estimate the cost of my divorce? This is an important question, but a very difficult one to answer. Don’t worry if your lawyer is hesitant to answer. The cost of a divorce depends on what you ask the lawyer to do, the level of conflict between you and your spouse, and the reasonableness of your spouse and their lawyer. Many of the cost factors are outside your control.
  7. What kind of resources do you make available to clients to make the divorce process less difficult and painful? Divorce is a difficult time, and good lawyers provide information and resources to help deal with the human side of the impact. Does your lawyer provide information about the process for self education? Are they patient with you? Do they offer referrals to other professional services if you request them? Our firm provides information through this blog, and educational articles on our website. We also maintain a list of recommended reading materials, and a list of qualified counselors and therapists for those who ask.
  8. Do you recommend mediation? Ask your lawyer if your case is appropriate for mediation. Ask about private mediation, and about how often the lawyer uses private mediation with clients. Good lawyers try to settle their cases once they have analyzed the case. A lawyer that does not use private mediation or other alternative dispute resolution tools may be doing you a disservice.
  9. What fees and costs can I expect other than charges for your time? Your local county (Multnomah, Washington, Clackamas, etc.) will charge a filing fee to open a case. You will likely have to pay a process server to server your spouse with divorce papers. Your case may require experts, such as appraisers, actuaries, accountants, social workers, or psychologists. Ask your lawyer what costs to expect, what experts may be needed, and how you will be charged for these additional services.
  10. How would you predict a judge would rule on the issues in my case? While no lawyer can guarantee specific results, listen closely to the analysis behind the lawyer’s answer. Understanding the facts that would make a favorable ruling more likely will help with strategy during the case.

Top 10 list: Top 10 things to NOT do during your divorce. December 14, 2007

Posted by csstephens in Dissolution, Property Division, settlement, Top 10 List.

Divorce is not easy. There are many pitfalls and traps awaiting parties that have not educated themselves about the process. People often make bad decisions under stress, or without the guidance of an experienced lawyer. Don’t be one of them. Divorce law isn’t rocket science, but it isn’t always intuitive. Avoid the following 10 divorce pitfalls to get a better result.

During your divorce, you should NOT:

1. Lie to your lawyer: We are here to help you. Your communication with us is privileged, meaning we can’t tell others about it, except in certain child abuse scenarios. The more we know, the more we can help. We need to know everything, the embarrassing, the ugly, and the secret. If you have a drug, alcohol, or gambling problem, tell us. You have two options: (1) Disclose and likely hear from your lawyer that your secret or problem is irrelevant to the court process, or (2) Fail to disclose and have your case hurt at trial because the other lawyer knows facts you haven’t told your lawyer.

2. Lie to the court: If you have a trial, the result is directly affected by your credibility. Judges are generally experts at determining who is telling the truth, and who is lying. Not only is lying to the court a crime, but your lawyer may have a duty to stop the proceeding and tell the court if he or she knows you are misrepresenting facts! If you have areas of your case that are sensitive, work with your lawyer on what you are going to say, but don’t misrepresent.

3. Involve the kids in the process: If your case involves a custody or parenting time dispute, nothing will draw the wrath of the court faster than involving your kids in the dispute. Don’t talk to them about the case. Don’t use them as pawns in the battle against your spouse. Don’t use them as your therapist, or treat them as your peers. Don’t put your spouse down in front of the kids. You are not only harming your case, you are harming your children.

4. Hide or fail to produce documents: You have an absolute right to see your spouse’s financial documents. Your spouse has an absolute right to see your financial documents. I have seen many cases that could have been simple turn complex and expensive when someone decides to not voluntarily produce records. The court can force you to produce records, and order that you pay your spouse’s lawyer fees incurred in getting the records. Good clients and good lawyers produce documents quickly and voluntarily. I had a case where we asked for some email records from the other side. They did not produce them, and when we filed a motion to compel their production, they tried to tell the court that they had been destroyed. The stunt seriously impacted the opposing lawyer’s credibility with the court.

5. Refuse to cooperate with a court appointed expert: In divorce and custody cases, experts called “custody evaluators” are routinely appointed to gather information about a family and make a recommendation regarding an appropriate parenting plan. If one is appointed in your case, cooperate. Be on time for appointments. Treat the expert with appropriate respect. Ignoring the requests of the evaluator can seriously harm your position and credibility with the court. An evaluator will likely make negative assumptions about you if you cannot comply with a court’s order to cooperate.

6. Settle without analyzing your case: Divorce can be unpleasant and emotionally painful. One reaction is to try to get it over quickly. Do not give into the urge to be done with the case before you have a full understanding of the assets and what a fair distribution looks like. You don’t want to be in a position where you are contemplating settlement and your spouse knows more about the assets than you. Prepare and go over a proposed distribution of assets and liabilities with your lawyer. Make sure you know the nature and extent of the assets, and get additional discovery if you don’t. Do not settle prematurely, before you know what is fair.

7. Fail to try to resolve the case outside of court: Don’t settle early without analysis, but also don’t fail to try to settle. Good lawyers and reasonable people settle most divorce cases without a trial. Many clients benefit from mediation, either through the county courthouse or through a private mediator. Our experience has been that many very difficult cases settle in mediation with the guidance of a trained expert mediator. You should always consult with your lawyer during the process to make sure you are getting a fair result. Settling also means you choose the outcome rather than have a judge impose an outcome on you. Parties that settle are generally happier long term, and have less ongoing conflict. Even if the other side is unreasonable, you should still make an offer to create a record of your position.

8. Take out your stress in unhealthy ways: This is the wrong time to up the drinking or other unhealthy behavior. Expect stress from the conflict and plan for it. Take out your stress in healthy ways, like at the gym, sports, or in talking to friends or a counselor. Don’t take it out on your children, or your body through unhealthy behaviors.

9. Be economically irrational in negotiations: At some point in every case it costs more to continue arguing than what is at stake. Approach your case with a business like mind. Are you really winning if you spend $1000 on lawyers to argue over a $50 lamp? Some (bad) lawyers insist on arguing about every point, without regard to cost. Every issue is a new battle front. A request to resolve one issue results in two more contested issues. In our opinion, these lawyers don’t serve their clients well. Pick your battles. If it costs $1000 to argue over something you can replace at Target for $20, buy a new one, and focus on what is really important.

10. Be your own lawyer if your case is contested and your spouse is represented: Many judges dislike unrepresented parties. Even experienced divorce lawyers hire experienced divorce lawyers for an objective opinion. Many unrepresented people who think they have a great case find out otherwise after a judge rules against them because they can’t tell the judge everything they want to because of the rules of evidence. If you disagree over property or custody, and your spouse has a lawyer, seek representation.

10 things to do if you are going to get divorced. December 3, 2007

Posted by csstephens in Dissolution, Top 10 List.

There is no substitute for planning, and planning for your divorce can make the process go smother, lower your lawyers fees, and help ensure you emerge on the other end of the case ready to move forward, and with the least amount of emotional and financial damage. We put together the following “Top 10 list” for those considering divorce.

  1. Consider your other options: While not appropriate in every case, consider if you really want to be divorced. If not, talk to a marriage counselor or other professional who can explore saving your marriage. If the process works, great! If the process does not work, you can at least get help discovering what went wrong, how to cope, and how best to move on.
  2. Consult with and retain a family law attorney: Clients often make strategic mistakes prior to filing. For example, moving out of the family home, even briefly, can impact a custody and parenting time case. We blogged about the difference between consulting a lawyer and retaining a lawyer before. Make sure you at least consult so you know your rights, and how to avoid shooting yourself in the foot.
  3. Copy documents: Your case will be smoother and your fees lower if you have a copy of all essential documents to provide to your lawyer. Obtain copies of pay stubs, tax returns, retirement account statements, bank statements, car and boat titles, real estate documents, insurance polices, etc. If you or your spouse uses financial software to track expenses, save a copy of the file.
  4. Inventory your personal property: Go room to room and make a list of major items of value. You do not need to inventory every muffin tin, but you may end up out of the house for a period of months while the case progresses, and you may forget what is there.
  5. Get a copy of your credit reports: Getting a credit report is very useful in identifying debt, accounts, and what accounts are open and closed. Pull a copy of your report from each of the three credit bureaus or a tri-merge report and your lawyer will thank you.
  6. Establish your own credit and source of funds: If you do not have credit in your own name, apply for them and get several. You will need to establish your own separate credit history, and do not want to be in the position of having your access to funds cut off. If there is a joint cash account, consider splitting it and transferring ½ to a separate account in your sole name.
  7. Keep the kids out of it: Getting ready for a divorce can take lots of time and energy. Make sure the kids don’t suffer any more than necessary by making them the first priority. Do not put them in the middle. Do not argue in front of them. Do not badmouth your spouse in front of the kids. Keep their routines as normal as you can. Stay connected (or get connected) to their activities at school and after school. Courts take a dim view parents that put kids in the middle of the conflict. Just don’t do it.
  8. Know your finances: Make sure you know what you make and are capable of making, what your spouse makes and is capable of making, and where the money goes each month. What are the credit cards? How much is owed? Where are the retirement accounts? Can you earn enough in your current job or will you need your spouse to support you for a period of time? If your job involves travel, will you need a different job without travel if you don’t have a spouse to watch the kids while you are gone? The more you know about the finances the easier it will be to communicate with your lawyer. Knowing the finances and having a plan helps put you in the best position after the divorce is over.
  9. Manage debt: This could be the worst time to increase your debt level. Unless your lawyer tells you otherwise, don’t make major purchases. Don’t go on shopping sprees. Some lawyers advise their clients to contact joint creditors and have accounts closed, or limits reduced to prevent the accumulation of new debt during the divorce.
  10. Take care of yourself: Divorce can be a very stressful experience. Take care of yourself, even before anyone files. Work out. Find a support group, either through your friends or a formal divorce support group. Consider getting counseling. Many clients choose to get into counseling to help with the process, and report back that it was helpful.