Posts Tagged ‘Finding a Lawyer’

Filing for Divorce: Step by Step

Monday, July 13th, 2009

To illustrate the procedure of filing for divorce, let’s outline a typical case step by step:

 

Bill decided he wanted to file for a divorce from his wife, Anne. He contacted and retained an attorney who agreed to represent him. The attorney filled out the necessary forms, which stated that Bill and Anne were married July 20, 1990 in New Haven, Connecticut, that they’d each lived in Connecticut for more than a year, and Anne’s maiden name. It also stated that they have 3 children, Bill Jr., born December 1, 1992, Thomas, born July 5, 1993, and Julie, born September 21, 1995. The forms also stated that no one in the family received welfare assistance during the marriage, and that the marriage had broken down irretrievably (no fault divorce). Bill asked the court to divide their property fairly between the two of them, and for joint legal custody and visitation with the children. He filed a request for temporary orders requesting that visitation be established on an interim basis, since he had already moved out of the house. The attorney arranged to have Anne served with the papers, and when they were returned to the attorney after service, the attorney filed them with the court. This started the case.

 

Cynthia wanted to divorce her husband, Ted. Because she and Ted had no children and little property, she decided she would file the divorce Pro Se, without a lawyer. She purchased a book at the bookstore (oftentimes the courthouse clerk’s office can provide a list of Pro Se books available) titled How To Do Your Own Divorce in Minnesota and followed procedures as stated above. She filled out papers she picked up at the court, arranged with the sheriff service at the courthouse to have the papers served on Ted, and after they were served, she returned them to court with a check for the filing fee. Thus, her case was opened with the court.

 

Does it make a difference who files first?

 

In most cases, it doesn’t make any difference who files first for the divorce. Your rights are not compromised by the fact that you (or your spouse) filed the divorce papers. In the event of a trial, the person who files tells his/her side of the story first, which can be advantageous. Otherwise, it makes no difference who files the papers.

 

If you are the plaintiff and you change your mind about pursuing the divorce, you may stop the process at any time by filing papers to withdraw the case from court. If you are the defendant (your spouse has filed the divorce against you), you cannot withdraw the case without your spouse’s cooperation. In a “no fault” divorce, if the plaintiff represents to the court that the marriage has broken down without hope of reconciliation, the court will grant the divorce even if the other spouse wishes to remain married. For a host of free information about divorce, be sure to see the Peace Talks resource center at http://www.peace-talks.com/resources.php. For a list of terrific books about divorce, see http://www.peace-talks.com/books.php.

 

 

Excerpted from Your Divorce Advisor: A Lawyer and a Psychologist Guide You Through the Legal and Emotional Landscape of Divorce (Simon & Schuster/Fireside 2001). For more information: http://www.yourdivorceadvisor.com/.

 

For more information contact Peace Talks www.peace-talks.com 

(C) 2008  Peace Talks

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Filing for Divorce

Thursday, July 9th, 2009

Once you have everything in order, you can actually file for divorce. To begin, you need to file with the court. Basically, a set of forms need to be filled out, served on your spouse (or you, if your spouse is the one initiating the divorce), and returned to court with a filing fee. The filing fee varies, but is typically under $200 and can be waived by the court if you are unable to pay. You need to fill out a special fee waiver request at the courthouse if you wish to request that the fees be waived.

 

 

Typically, the forms require the date and place of your marriage, the wife’s maiden name, and if there are children, their names and dates of birth, and whether anyone in your immediate family receives welfare assistance. The papers also request information regarding how long you’ve lived in the state, and the grounds upon which you’re seeking a divorce, typically “irretrievable breakdown of the marriage” (no fault).

 

  • The person who files the initial papers is called the Plaintiff.
  • The recipient of the papers is the Defendant.

 

The forms also require you to state in general terms what orders you’d like the court to make. You need to indicate whether or not you’re requesting alimony, a property distribution, custody, joint custody or visitation, and a restoration of the wife’s maiden name (wife’s choice only). You don’t need to state specifically what you’re requesting, just the general categories. For excellent article, plans and checklists, see http://www.peace-talks.com/resources.php.

 

Along with the initial papers, you can file a request to have the court make initial orders concerning custody, visitation, support, alimony and use of certain items which belong to either or both of you. These orders are temporary, and last only as long as the divorce is pending. For excellent divorce information, see http://www.peace-talks.com/divorceinformation.php.

 

 

Excerpted from Your Divorce Advisor: A Lawyer and a Psychologist Guide You Through the Legal and Emotional Landscape of Divorce (Simon & Schuster/Fireside 2001). For more information: http://www.yourdivorceadvisor.com/.

 

For more information contact Peace Talks www.peace-talks.com 

(C) 2008  Peace Talks Mediation Services, Inc.

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Flat Fee Divorces

Monday, June 1st, 2009

If you have hired the lawyer on a flat-fee basis, meaning that you pay one fee for the lawyer to handle the case from beginning to end, find out what will be covered by the flat fee, and what will not be covered. For example, if you pay a flat fee for an uncontested divorce, what happens if you and your spouse cannot agree on whether or not to sell the house, or how to set up a visitation schedule with the children? And, at what point will you be notified that you’re no longer being covered under the flat fee agreement?

 

 

Whether you pay by the hour or on a flat-fee basis, expect to pay a retainer fee, which is a fee paid in advance from which the lawyer’s hourly costs are billed. When the lawyer sets the retainer fee, he or she is trying to guess in advance how long your case will take in billable hours to complete. Most matrimonial lawyers bill cases on an hourly basis, and you are charged for all of the time that the lawyer spends on your case, including telephone calls, travel to and from court, and preparation time. Other lawyers may bill on a flat fee basis, setting one fee for the entire case. All lawyers should provide you with a written retainer agreement that explains in detail how their fees are billed. Read this agreement carefully before signing it.

 

 

Be careful if you price shop for a lawyer. Your divorce is one of the most important events of your life. If you can find a lawyer you think is qualified at a reasonable price, great. But remember, if the lawyer you consulted asks for the lowest retainer fee in town, there’s probably a reason for that. The most experienced lawyers are usually the most expensive and that is no coincidence.

 

If you are concerned about your finances, see http://www.peace-talks.com/finformation.php. For a cost comparison of mediation and litigation which may help you save a great deal of money, see http://www.peace-talks.com/compare.php.

 

 

Excerpted from Your Divorce Advisor: A Lawyer and a Psychologist Guide You Through the Legal and Emotional Landscape of Divorce (Simon & Schuster/Fireside 2001). For more information: http://www.yourdivorceadvisor.com/.

 

For more information contact Peace Talks www.peace-talks.com 

(C) 2008  Peace Talks Mediation Services, Inc.

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How to Find the Right Lawyer

Tuesday, May 26th, 2009

Among the many qualified family lawyers in your community, choosing the right lawyer for your particular circumstances is crucial. In most states, the family laws are not terribly complicated, but the details of how those laws might apply to you and your individual family situation can get tricky. Although many lawyers who are general practitioners do a fine job with divorces, your best bet is to hire a lawyer who specializes in family law. That person is more likely to be up to date on the most recent changes in the law, tax ramifications, the finer points of your states’ divorce laws, as well as the personalities of the judges and courthouse personnel in your area. In addition, that person will spend most of his or her time in domestic court, and your chances of having your matter expedited are improved because your lawyer may be more available to you.

 

Although the law itself may occupy relative few pages in the law books, tricky issues such as whether an inheritance or gift from your family is a marital asset, how best to handle disputes pertaining to children, and how to divide up assets such as pensions are best handled by the specialist practitioner. For more information about divorce in general, which may help you have more confidence in your choice, see http://www.peace-talks.com/divorceinformation.php.

 

Your local bar association has a lawyer referral service. You could also ask your therapist or accountant for a referral. If you know a lawyer, ask him or her for a referral. Lawyers tend to know who among them is the most talented, and most will refer you to someone they respect. Speak to friends or family members who have gone through a divorce for referrals.

 

Remember, however, that the way that person reacted to the process may influence whether he or she gives a lawyer a good review.

 

What should you be looking for in a lawyer?  Obviously, you want to select a lawyer that knows as much as possible about family law in your state. The manner in which the lawyer conducts the interview will tell you a great deal about that, but don’t be afraid to ask questions:

  1. How long have you been practicing in this state?  What portion of your practice is family law?  How do you keep current on changes in the law, taxes, and emerging issues like stock options?
  2. What is your policy on returning telephone calls, fees and billing?   How much will it cost?
  3. How long will this take? What is the basic process?
  4. How is support determined?   What if we can’t resolve custody or visitation?
  5. How do you feel about working with mediators?
  6. What percentage of your cases are resolved without having to go to trial?  If the lawyer tells you that more than 5% of his or her cases end up in a trial, beware. A good, ethical lawyer is able to settle most cases.

Have a list of questions ready to ask your lawyer at the initial appointment. Pay attention to how you lawyer responds to your questions. Does he or she treat your inquiries with respect? Do you get a complete answer in terms that you understand?  If he or she doesn’t know the answer, does the lawyer admit it, and offer to get back to you — and does he or she follow through?  The way in which the lawyer responds tells you a great deal about how the lawyer operates, and how you’ll be treated as your case goes on.

 

Choose a lawyer who is responsive to your questions and needs. Divorce is a very personal process. You are living with the choices that you make in your case. Your lawyer is not. A good lawyer is also a good listener, explainer, advocate, negotiator, and barometer of the pros and cons of the decisions you’ll have to make in your case. If your lawyer doesn’t have time or patience to answer your questions or to explain the legal process to you, then you shouldn’t hire this person. More information is also available at our resource center, http://www.peace-talks.com/resources.php.

 

 

Excerpted from Your Divorce Advisor: A Lawyer and a Psychologist Guide You Through the Legal and Emotional Landscape of Divorce (Simon & Schuster/Fireside 2001). For more information: http://www.yourdivorceadvisor.com/.

 

For more information contact Peace Talks www.peace-talks.com 

(C) 2008  Peace Talks Mediation Services, Inc.

 

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How do I Find, Choose and Use a Lawyer

Thursday, May 21st, 2009

Some people prefer to use a lawyer in their divorce case. Aside from preference, it’s best to be represented by a lawyer from start to finish in your case if you have unresolved custody issues, or if you not have equal bargaining power with your spouse. A good example of this is a spouse who has been dominated or abused by the other spouse. If threats figure into your marriage, you’ll probably need a lawyer in your divorce.

 

Most people fall someplace in between not needing a lawyer at all, and needing to have a lawyer handle the entire case. It’s always a good idea to be informed about your legal rights, and an initial consultation with a divorce lawyer is typically either free or reasonably priced. It’s worth it to find out your state’s child support laws, position on alimony, tax ramifications of your possible asset division and support scenarios, and factors which determine property division. You can consult with several lawyers to get several opinions.

             

You may also be able to find a lawyer who would be willing to review a final agreement or mediation proposal, and to discuss the concrete terms with you in the context of what you are entitled to under your state’s laws, on an hourly basis rather than representing you fully. Of course, such a lawyer will not be as intimately familiar with your individual circumstances as he or she would be if representing you throughout your case, but an ongoing consultation relationship with a lawyer will keep you abreast of the laws and general considerations which affect you. You can then supplement this information with research on your own at the local law library, or with an accountant. For more information about divorce that may help you with your lawyer selection, see http://www.peace-talks.com/divorceinformation.php.

 

You may also wish to hire a lawyer to represent you fully while you pursue different negotiation alternatives. This is a popular divorce attorney/client relationship because it keeps you under the protection of an attorney, yet it allows you to try and resolve your case on your own to the extent you can do so. As issues are resolved outside of the attorney’s office, you can discuss the agreements with your attorney to be sure that they’re fair given your particular circumstances and the law which applies to your case. If you intend to pursue mediation or other out-of-court settlement methods with your spouse, be clear with your lawyer that you don’t want conflicts to escalate in court unless absolutely necessary. Oftentimes clients feel more comfortable having an attorney “on retainer” so that they can call and ask questions, make appointments, or have court papers filed upon request, without having to re-establish a relationship each time a service is needed. If you would like to do more research through reading, a list of good divorce books is available at http://www.peace-talks.com/books.php.

 

 

Excerpted from Your Divorce Advisor: A Lawyer and a Psychologist Guide You Through the Legal and Emotional Landscape of Divorce (Simon & Schuster/Fireside 2001). For more information: http://www.yourdivorceadvisor.com/.

 

For more information contact Peace Talks www.peace-talks.com 

(C) 2008  Peace Talks Mediation Services, Inc.

 

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What Are My Options for Divorce Representation?

Wednesday, May 6th, 2009

Your decision to divorce will involve choosing the type of representation you feel you need. How you divorce will have a large impact on how the divorce impacts you, your spouse and your family. If you are looking for more information, be sure to see our resource center at http://www.peace-talks.com/divorceinformation.php.

In most states there are several options:

 

Pro Se or In Pro Per divorce: you can handle the divorce yourself, without the help of an attorney, or hire an attorney only to review your settlement but not represent you in court.

 

Mediation:  you can use a mediator or arbitrator to settle the case, and either go pro se or hire an attorney to file the papers, review the settlement, and escort you to court for the final uncontested court judgment.

 

Hiring an attorney: you can hire an attorney to represent you in court, from start to finish

 

You can use any or all 3 of these methods in any combination. These days, many people represent themselves or settle cases in mediation rather than hiring an attorney and proceeding to court. As attorney fees rise and court case loads allow less and less time for each case, many people find that settling the matter between themselves saves time, money, and aggravation.

 

If you are trying to choose between mediation and getting an attorney, see http://www.peace-talks.com/proscons.php.

 

 

Excerpted from Your Divorce Advisor: A Lawyer and a Psychologist Guide You Through the Legal and Emotional Landscape of Divorce (Simon & Schuster/Fireside 2001). For more information: http://www.yourdivorceadvisor.com/.

 

For more information contact Peace Talks www.peace-talks.com 

(C) 2008  Peace Talks Mediation Services, Inc.

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