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Bauer and French, Attorneys at Law |
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Family Law FAQ
I've heard that Idaho is a "no fault" divorce state. What does that mean? Marriage, divorce and related matters are governed by Idaho state law. The legislature establishes grounds for divorce by statute, and can change these grounds. Idaho specifically provides for divorce on grounds of "irreconcilable differences." Many other states still require some "fault" be proven or that the parties have lived separately for a certain length of time, but nearly all divorces in Idaho are granted without regard to "fault." The Court will decide how your property and debts will be divided if you cannot agree, and determine the custody of your children. If agreements are made, there still is a brief hearing at which at least one witness (usually the Plaintiff) will testify about the agreement and the reasons for the divorce. You will be asked to provide your lawyer with certain relevant information from which we will get the necessary facts for preparing and filing legal documents - a "complaint, " "petition, or "motion" if you are suing, or an "answer" if you have been sued - with the Court. All information provided to us is, of course, confidential unless you authorize its release, or unless the Court determines that certain factual information must be provided to the other side. However, in every court case the parties are permitted to seek "discovery," where each side may request information in writing (called "interrogatories") and may choose to conduct oral examinations of witnesses (called "depositions") in front of a court reporter. Once I file for divorce or modification of a court's custody or support order, then what? Once a case is filed in the courts of southwest Idaho, it is generally three to four months before the Court will schedule a final hearing or trial. In the case of requests to change an existing order, the time might be different but usually is about the same. Other districts in Idaho tend to take less time because there aren't as many family law cases, but that's not always true. Each individual case will vary and these periods could be longer - depending on the amount of fact-finding or "discovery" which is necessary, or whether "experts" such as accountants or psychologists are used. Because a divorce or modification is a lawsuit, any proceedings must follow specific rules or "procedure." After a complaint or petition and summons are filed and served, the opposing party has twenty days initially to file a written response. If an attorney is hired, that initial twenty-day period can be extended. The opposing party has the right to file a "counterclaim" back at the plaintiff, and this is often done as a tactic. Whether a person is a "plaintiff" or a "defendant" rarely makes any difference in the outcome of the case. Once you are designated as a "plaintiff" or a "defendant" though, the designations will continue in any later proceedings. Our law firm will seek to expeditiously handle your case and advise you of your legal rights and responsibilities. If your desires or circumstances change, we, of course, cannot answer for any extra delay which that may cause. We represent you and stand ready to advise you and to take such action as you may instruct us to take. We will notify you of the times and dates of any court hearings that may be scheduled in your case. Statistically, many cases are resolved by agreement at some point in the process, and such agreements can be reached at any time prior to, or at the time of, a final hearing or trial. To us, effective and aggressive legal representation in Family Law means being prepared for litigation, while at the same time being alert to reach advantageous settlements where appropriate and in our clients' (and the children's) best interests. Before a final trial is set, Parties in Family Law cases are also encouraged (and often required) to engage in a process of direct negotiation in child custody matters, known as "Mediation" or guided direct negotiation, which is normally required by the Courts in Idaho and most other states. Mediation is discussed in more depth below. What is Mediation and how does it work? Mediation is a process of direct, guided negotiation between the parties to a Family Law case. Mediation is a process whereby the individual parties sit down to discuss the case (together, or sometimes, in separate rooms) with a neutral "Mediator" or facilitator, who tries to help the parties find common ground, or compromise solutions to the issues which each party identifies as a concern. The practice in the Courts of Idaho is for the parties to attempt mediation without legal counsel present, but to restrict them from making a final agreement until legal counsel has been consulted, if counsel has been retained. In our experience, whether to recommend that legal counsel be present in mediation is best decided on a case-by-case basis. The nature of mediation in Family Law is often misunderstood. The process if often confused with arbitration, in which a hearing officer or judge hears both sides informally and makes a decision. Mediation is very different from that type of process, and the mediator is not a decision maker. The mediator is prohibited by law from giving legal advice to either side, and exists to facilitate the parties in attempting to reach a solution between themselves. Most mediators, who normally have extensive experience with the court system, even if they aren't attorneys, will make observations about likely outcomes in court, as a way of prompting the parties to explore various scenarios. Preparation for mediation is a critical part of any Family Law case, and is equal in importance to preparation for court, in our view. If mediation is contemplated or ordered in your case, we will seek to prepare you to know what to expect in that process, so your legal position can be effectively presented. What is a "Property Settlement Agreement?" Many of the issues that arise in a divorce can be quickly disposed of if they are agreed (settled) between the parties. The matters that are agreed on are then submitted to the Court, usually in a contract signed by husband and wife, called a property settlement agreement. It can deal with property division, support money, custody and visitation, insurance, and any other subject which may be in dispute. The courts regard these settlement agreements very favorably and tend to encourage them where appropriate. If the court accepts the agreement (which will occur unless it is unreasonable or illegal), it will adopt it as part of the final decree of divorce and give the agreement the strength of a court order, enforceable by contempt proceedings. What should I know about divorce before I file?
What if I can't want several months for my divorce to be finalized before I receive financial assistance from my spouse? It is often necessary and advisable to request temporary financial support from a spouse, and temporary custody of children or property as soon as a divorce complaint is filed. In an appropriate case (especially where violence is present or threatened), one party can be temporarily removed from the home or put under a court order to keep them from attacking or threatening you or removing the children. If you think you may need such special relief, always tell us immediately. What can I expect from my attorney? You, as the client of our law firm, are entitled to expect us to preserve your confidential communications and to prosecute your case to the best of our professional ability. Since the facts of each case are so unique, it is critical that you inform us of any changes or developments in your case as we proceed. Frequently, legal aspects of a family law case closely involve other family members and third parties, but we cannot and will not discuss your case with anyone unless you consent. When you have deposited a retainer with us, you have established an attorney-client relationship and we are your legal representatives from that point forward. If your spouse or former spouse has an attorney, we must deal with that attorney, but you have no such restriction concerning direct contact with the other party. Direct contact between you and the other party may be difficult and should be undertaken only with care. What is my part in the legal proceedings? When court appearances are scheduled, we will specifically advise you when to be present at the courthouse. If witnesses are required to be present in your behalf, you will help coordinate everything with them and be certain they know when and where to be. You will likely have to produce records of your total income, whether from wages, fees or investments, and all of your assets, and furnish a complete list of all debts and liabilities, including amounts required to meet all installment payments. Keep complete notes regarding all living expenses for yourself and for any children or other dependents. If you are not able to state exact expenses, you should make your best reasonable estimate. We will provide forms to assist you in this record keeping. Our experience has been that most matters truly necessitating emergency evening discussion are matters involving concern for physical well-being. If there is such a genuine emergency, the best procedure is to call the police directly. Most police agencies are now trained to take domestic matters seriously. Also, our law firm's telephone is answered twenty-four hours a day, so we are always able to receive your message during non-business hours. How do I contact an attorney for assistance? Our office hours are 8:00 a.m. to 5:00 p.m. Generally, attorneys are in our office weekdays from 8:30 a.m. to 5:30 p.m. (telephone 383-0317). Should you not be able to reach me, you may ask for my legal assistant. In addition to our firm's legal fees, you will be responsible under your fee agreement for payment of court costs and other expenses necessary in connection with your case. These go directly to the court and other service providers in your case such as the sheriff, court reporter, filing fees, etc. As established in your initial office conference, your fee agreement will normally require a "retainer" amount which we will hold in our trust account. In handling your legal matters, we will bill you on an hourly basis for our legal services. The hours spent are billed first against any retainer you place with us, and you will receive monthly statements showing the work performed, charges incurred, and amounts due, if any, after application of the retainer. As mentioned, you are responsible for any filing fees, court costs, and itemized costs such as travel expenses, copying services, deposition fees, expert witnesses, property appraisals, evidence-gathering, investigation, or accounting services which may be incurred in the course of your case. We have discussed the factors involved in computing our entire fee. Realizing that the payment of this fee represents the expenditure of considerable funds, we encourage you to be certain of your desire to proceed and emphasize that such action should be taken only after careful consideration on your part. The court might direct your spouse to reimburse a portion, or all, of your legal fees, but you remain primarily responsible. You will not receive credit for payments ordered from your spouse unless and until they are actually received by us. Any payment by your spouse to us will be credited to your billing. Money matters are not pleasant to discuss, but good policy dictates a forthright discussion of the costs at the beginning. In our judgment it is important that you understand the cost to you, the basis for charging, and what you may expect. Thus, any questions should be directed to us immediately as they arise, and not be put off to the end of the case. Your monthly itemized statement is the best place to look for answers, and any questions about the statement or charges should be raised immediately when you receive the statement. If my spouse and I agree, can we hire the same attorney? This firm cannot ethically pretend to contract for representation of both the husband and the wife in a divorce or post-divorce matter. It would be a pretense, for no attorney can truly serve as a conscientious advocate for parties on opposite sides of any case, no matter how "uncontested" it may appear at the outset. In limited cases, however, one party may decline to have an attorney. We may, of course, proceed in those cases on your behalf, subject to the other party's right to decide at any time to have their own attorney. To protect you, we will advise the other party specifically of this right to counsel. Charles B. Bauer, all rights reserved |
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