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Posts Tagged ‘Working with Your Divorce Lawyer’

Discovery: Depositions & Subpoenas

Thursday, December 3rd, 2009

Discovery is a legal method for you and your lawyer to obtain information about your case from your spouse or other sources. Discovery mechanisms generally fall into four categories: releases, interrogatories, depositions, and subpoenas.

Depositions

Depositions are sworn testimony taken under oath in an informal setting, such as the lawyer’s office, in the presence of a court stenographer. The stenographer records the testimony word for word and prints a transcript of it. This transcript can be used subsequently at trial in the event that the witness, presumably your spouse in this case, gives a different answer at the trial, or for some reason becomes unavailable to testify at the trial. Like interrogatories, you can basically ask any question that you want which pertains to the marriage. That leaves the field wide open.

Depositions are wonderful tools for preparing cases and for trial. Imagine being able to ask your spouse in advance what arguments he or she intends to use, witnesses he or she intends to call, and what he or she is going to say about you on the stand. Depositions settle more cases than almost any other vehicle available to you and your attorney.

The drawback to depositions is that they are expensive and time consuming. You must decide upon which questions to ask your spouse, and your lawyer will also make a list of questions to ask your spouse. You and your lawyer will need to discuss these questions in advance and make sure you have all the bases covered; your lawyer is then present at the deposition. This adds up to a great deal of legal time.

You also must pay for the court reporter, which is frequently quite expensive. Ask your lawyer in advance to approximate how much the court reporter’s fees will be for a deposition so that you may budget accordingly.

Subpoenas

A subpoena is a legal document which may be issued by the court or your lawyer requesting that certain witnesses or documents be made available on a certain date. Subpoenas generally must be served by a sheriff in advance of the court hearing, deposition or other proceeding at which the witness’ presence is being requested.

Your lawyer will need a certain amount of time prior to the date of your next hearing, deposition, or other proceeding to issue subpoenas and have them delivered to the necessary parties, so you will want to let your lawyer know in plenty of time what information you need and from whom.

The most common use for a subpoena is for wage and pension records. If you believe your spouse has lied (or even has made an innocent mistake) about his or her wages, get a copy of the wage documents from the employer. The second most common use for a subpoena is to obtain bank records. If an account is solely in your spouse’s name, and is not provided as part of a voluntary exchange of documents, you can obtain the missing statements with a subpoena. You can also use a subpoena to double check records received from your spouse which look suspicious; for example, a dishonest but clever spouse with a container of white-out can misrepresent balances or withdrawals. For articles, plans and checklists see http://www.peace-talks.com/divorceinformation.php. Some terrific books are listed 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

Tags: Discovery, Working with Your Divorce Lawyer
Posted in Divorce Settlement | Comments Off

Discovery: Releases & Interrogatories

Tuesday, December 1st, 2009

Releases

In some cases, neither you nor your spouse will be in possession of strategic documents. For example, you may have misplaced tax returns, lost bank statements, or thrown away your pay stubs and pension account statements. If it’s simply a question of copying documents, you can sign a release to have the document copies sent to you or your attorney. For tax returns, the IRS has a standard form release which allows them to send copies of tax returns to you for a fee. Most banks will also send copies of records which have been misplaced. Banks retain records for a long period of time, but for a fee (ask in advance, the fee is not always small) they will provide your records.

Interrogatories

Interrogatories are written questions to which your spouse must provide answers in writing, and under oath. They are often accompanied by “a request for documents”, which is a list of requests for copies of documents to be provided along with the interrogatory responses. Interrogatories may be of any length and there are relatively few rules limiting the content of the questions. Generally, the legal standard is that you may ask any question that would lead to potentially admissible information. Admissible information is information that the court would use in the event of a trial.

Because a divorce case pertains to your entire life during the time that you are married, and in some states it also concerns financial transactions prior to your marriage, interrogatories can be very open-ended. Questions can be asked concerning almost any topic, ranging from finances to children’s report cards to sexual relations. If you are looking over an interrogatory package that your lawyer has sent you for response, and you see questions that don’t look appropriate, consult your lawyer immediately, but be forewarned that almost every subject is fair game. For articles, plans and checklists, see http://www.peace-talks.com/divorceinformation.php. Some terrific books are listed at http://www.peace-talks.com/books.php.

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

Tags: Discovery, Working with Your Divorce Lawyer
Posted in Divorce Preparation | Comments Off

What if My Lawyer Says to Get Tough?

Thursday, November 19th, 2009

You need to determine why your lawyer feels you should be handling your case in a way which feels wrong to you. Ask if he or she feels you are being too passive, willing to accept much less than a court would deem appropriate? Are you being bullied by an abusive spouse into accepting an inappropriate custody and visitation arrangement? The lawyer should be able to outline for you the parameters of the likely outcomes for your case, and together you can match your goals to what the law deems fair. By the same token, after you’ve discussed the likely outcomes with your lawyer, if you decide for your own reasons to accept a low settlement, or to capitulate to a pushy spouse, then it’s your lawyer’s job to follow your wishes.

The most important thing to do for yourself during divorce is to maintain control over your case. You can do that by implementing the planning strategies in this book, and by determining your priorities. Your attorney works for you. He or she has expertise, but that is useful to the extent that it is applied toward making you feel more comfortable about the direction your divorce is taking and helping you to achieve the goals you’ve set for your case — not the other way around. Many clients seem afraid of their attorneys. Others are so afraid they will make a fatal error in negotiation, that they don’t dare re-direct a lawyer that seems to be heading them in a direction they did not wish to go.

If you have doubts about the direction of your divorce is taking, talk over your concerns with your lawyer immediately. If you are not satisfied with the conversation, or if you are afraid to have it, then you need to switch lawyers before more time goes by.

Bonnie wanted to participate in a free alternative dispute resolution program being offered to divorcing spouses with young children. Both Bonnie and her husband Paul expressed their interest, and we made plans to enroll them in the program. Bonnie called back to say her attorney advised her not to participate, playing on her fears that it would result in a settlement less beneficial to her than one he could negotiate. Bonnie could not explain why her attorney felt this way, she just kept whispering that she had to go along with her attorney. Eventually, her divorce became a prolonged legal battle that seemed to emanate from the lawyer’s agenda.

The more you know, the less likely you are to be intimidated by your lawyer. Read up on divorce on the Peace Talks website at http://www.peace-talks.com/divorceinformation.php. Or choose a good book, at http://www.peace-talks.com/books.php.

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

Tags: Working with Your Divorce Lawyer
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Distributing Property in an Equitable Division State

Tuesday, August 18th, 2009

If you had substantial property prior to your marriage, or you inherited substantial property during the marriage, you may be able to preserve this property as your own, separate property even in an equitable jurisdiction state. Be prepared to prove ownership and how you acquired the property, and be sure to give this information to your attorney early in your case.

The following is a checklist of facts and factors for distributing property in an equitable division state:

age
health
education
ability to earn income in the future
ability to accumulate assets in the future
special needs of children
parenting needs of children
contribution to assets
separate property
inheritances, gifts, and family loans
appreciation of joint and sole assets over time
liquidity of funds
tax ramifications
pre-marital contributions
non-monetary contributions

The better prepared you are, the more likely you are to feel that your settlement is fair. For a list off good books on the divorce process, see http://www.peace-talks.com/books.php. Also, be sure to see the Peace Talks resource center at http://www.peace-talks.com/resources.php.

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

Tags: Creating Fair Settlements, Divorce Basics, Working with Your Divorce Lawyer, Your Res, Your Rights
Posted in Property Division | Comments Off

Other Factors Influencing Property Division

Wednesday, August 12th, 2009

Other factors that can influence property division are how long you have been married, how old each of you are, what your health is like, what your educational backgrounds are, your prospects for future income, whether or not the judge thinks that the spouse ordered to pay child support and spousal maintenance will actually pay the orders, and a variety of other factors. Inheritances and money that each spouse contributed to the marriage are often important as well. Be sure to bring these matters up with your lawyer and discuss what they mean in your particular case, given your state’s laws. While each case is decided individually by the court, your lawyer can give you an idea of how judges in your state would consider each factor, and how that would translate into property distribution in your case.

Courts recognize non-monetary contributions to families just as they do monetary contributions. Housewives, stay-at-home moms, stay-at-home dads, and spouses who contributed to the family in non-monetary ways are recognized along with spouses who contributed to the home with salary, inheritance, or savings.

Don’t expect the court to do a dollar-for-dollar accounting of all money earned and spent by each spouse.

Most courts will assume that while you and your spouse were married, you made certain decisions together in the best interests of your family as a whole. The Court will not second guess those decisions by punishing one spouse for not working, or for not earning as much, unless those are material issues in your case. For example, if the reason your spouse didn’t work is because he or she had a drug problem, the Court will likely consider that unfavorably toward your spouse in the property settlement. If your spouse didn’t work because he or she stayed home with the children while you advanced your career, the Court will view that spouse as an equal contributor to your family assets, even though his or her contribution was not monetary. It is not the Court’s purpose to unravel every financial transaction during your entire marriage to decide who contributed exactly how much money, who purchased which item of furniture, and who worked the most hours, thereby creating a disparity in earnings. It may be helpful for you to work with a divorce financial planner. To find one near you, see https://www.institutedfa.com/ReferralSearchPage.aspx. See the financial section on the Peace Talks website at http://www.peace-talks.com/finformation.php.

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

Tags: Creating Fair Settlements, Divorce Basics, Working with Your Divorce Lawyer, Working with Your Spouse, Your Responsibilites, Your Rights
Posted in Property Division | 1 Comment »

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.

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

Tags: Divorce Basics, Finding a Lawyer, Hiring a Lawyer, Working with Your Divorce Lawyer
Posted in Filing for Divorce | Comments Off

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.

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

Tags: Divorce Basics, Finding a Lawyer, Hiring a Lawyer, Working with Your Divorce Lawyer
Posted in Filing for Divorce | Comments Off

Working with your Lawyer

Tuesday, June 9th, 2009

Your lawyer should send you a copy of everything that crosses his or her desk. That way, you can stay up-to-date on what is happening with any pleadings, briefs, documents, letters, and any and all correspondence concerning your case.

Remember, you are the one living with the results of your case, not the lawyer. Therefore, it is important that you feel that you are informed about the facts in your case, the pros and cons of each step that might be taken, including settlement negotiations and other matters in the decision making process.

The most common complaint heard from clients is that the lawyer doesn’t return phone calls. Waiting for a call back when you’re in distress makes minutes seem like hours, and hours like days. You can help your lawyer by being organized:

Write down your questions. Save up several questions to ask your lawyer all at once since he or she may have a minimum charge for phone calls. Leave enough space between questions to write in the answers.

Consider faxing, e-mailing, or mailing your questions instead of telephoning. This gives your lawyer a written record of your question, prompting a clear, well organized written response to which you can refer later.

The more research you can do to help yourself, the better. For a list of good books, see http://www.peace-talks.com/books.php. Also, be sure to visit our resource center at

http://www.peace-talks.com/resources.php.

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

Tags: Hiring a Lawyer, Working with Your Divorce Lawyer
Posted in Divorce Lawyers | Comments Off

Dynamics of When the Retainer Runs Out

Wednesday, June 3rd, 2009

Sometimes the retainer fee paid runs out before the case is completed. The divorce has become more involved or time consuming than originally anticipated, and ends up requiring more time than expected at the outset. Your lawyer is asking you to pay an additional retainer fee, and you suddenly feel like he or she is more interested in money than the progress of your case.

You should expect to pay for the time the lawyer spends, even if your case takes longer than expected. If your retainer has been exhausted, you need to make arrangements with the attorney to continue to represent you. When clients do not honor their obligations to pay fees, loyalties can feel divided. As the lawyer pressures the client to pay the fee, the client may perceive that the lawyer is no longer supportive. Going through a divorce with an attorney is a very personal process. It is not unusual for you to feel very close to your attorney and to feel like your attorney is even more than an advocate. You need to remember that the attorney is a paid professional, and is not representing you as a favor.

Generally, if lawyers are not being paid they can request to withdraw from your case. This kind of withdrawal requires the Court’s permission. Don’t put yourself in the position of begging the court to force your lawyer to stay on your case. You and your lawyer need to work as a team, and underlying money issues shouldn’t get in the way of your relationship. Meet the financial situation head on, and make an honest effort to abide by whatever payment arrangements you and your lawyer negotiate. Prepare yourself by understanding the divorce process. If you need some good books to read, see http://www.peace-talks.com/books.php.

In the event of a dispute concerning your fee, most local Bar Associations have fee dispute committees which will look at fee disputes and determine whether or not the fees charged were reasonable. By the time you get to the fee dispute board, you should question your choice of an attorney. If you are at such odds that you do not understand how the fees are billed or you don’t think your lawyer has earned the fees charged, you should hire a different attorney to represent you. It is very helpful to go into the divorce knowing what to expect so be sure to visit our resource center at http://www.peace-talks.com/resources.php.

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

Tags: Attorney Fees, Working with Your Divorce Lawyer
Posted in Divorce Lawyers | Comments Off

Divorce Attorney Fees

Thursday, May 28th, 2009

When you telephone to make an appointment to meet with an attorney, ask if there is a charge for the initial consultation and be prepared to pay at the appointment if there is a charge. In many communities, free initial consultations are a thing of the past for experienced divorce practitioners. One of the reasons for this is that the initial appointment can often last an hour or more, depending on how many questions you ask and much you need to tell the lawyer at first blush. In addition, once you have consulted with the lawyer, the lawyer cannot then represent your spouse because it would present a conflict of interest for the lawyer.

Often, less experienced practitioners will not charge an initial consultation fee, or even a retainer fee. In some cases, that’s because have not built up a clientele, and would like to encourage business. In other cases, they are simply less experienced. It’s hard to know whether a less experienced lawyer is going to do an extra good job on your case to develop a good reputation and encourage referrals, or whether the less experienced lawyer simply won’t know enough to handle your case effectively. That’s why it helps to get references from friends, family, other lawyers, and the local Bar Association.

Once you have hired a lawyer, ask for a written fee agreement. Most states require that this be done, but even if it’s not required, it helps to have in writing how much money the lawyer needs to get started on your case, how fees will be billed, what kinds of services you’ll be charged for, such as telephone calls or photocopying, at what hourly rate you’ll be charged, and what will be required if the retainer fee runs out. Your lawyer should also send you a monthly itemized bill so that you can keep track of your retainer, and the amount of time your lawyer is spending doing different tasks associated with your case.

If you are worried about your finances, see http://www.peace-talks.com/finformation.php. For a cost comparison of mediation and litigation, see http://www.peace-talks.com/compare.php.

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

Tags: Attorney Fees, Divorce Basics, Working with Your Divorce Lawyer
Posted in Cost of Divorce | Comments Off

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Posts Tagged ‘Working with Your Divorce Lawyer’

Discovery: Depositions & Subpoenas

Discovery: Releases & Interrogatories

What if My Lawyer Says to Get Tough?

Distributing Property in an Equitable Division State

Other Factors Influencing Property Division

Filing for Divorce: Step by Step

Filing for Divorce

Working with your Lawyer

Dynamics of When the Retainer Runs Out

Divorce Attorney Fees