Most people find they do not want to go through a divorce without an attorney, particularly those mired in contentious cases.  Yet, in these difficult economic times, they do not want to pay massive legal bills.   There are things that clients can usually do to help control their legal costs.  These are my top five:

1.  Be Proactive.  Be your own detective.  Your divorce attorney will need a great deal of financial information about you and your spouse in order to properly prepare your case and give you advice.  If the attorney has to request this information from other sources, such as your spouse’s attorney, financial institutions and employers, it becomes very time-consuming and expensive.  The more documents you can uncover on your own and provide to your attorney, the better.

2. Be Patiently Organized.  Calling or emailing your attorney immediately with every question that pops into your mind may instantly put your mind at ease, but will likely end up costing you in the long run.  For non-emergency situations, I recommend that clients keep a running list of questions and concerns to bring forward during a phone call or office conference. 

3.  Choose Your Battles Wisely.  As a general rule, the more issues in dispute, the more costly and time-consuming the case becomes.  Think carefully about what is really important to you, and where you want to focus the greatest amount of resources.  For example, rather than fighting over the Tupperware, wouldn’t you rather make sure you get a fair share of your spouse’s 401(k)? 

4.  Cooperate With Your Attorney.  If your attorney asks you for information, provide it.  If your attorney wants to see you, make an appointment.  This may seem like a no-brainer, but often people who do not want to be divorced will try to avoid the entire process.  This can be a mistake for several reasons.  Most importantly (for purposes of this post), valuable resources may be wasted by your attorney trying to pin you down, rather than actually making progress on the substantive issues in your case.

5.  Be On Your Best Behavior.  This is not the time to get a drunken driving ticket, sell your snowmobile to your best friend, or bring your new boyfriend/girlfriend to the dance recital.  Follow your court orders, and don’t give your spouse and/or spouse’s attorney any new ammunition which can be used to fire off a nasty letter, or even worse, schedule additional court proceedings, thereby raising your legal fees and increasing your heartache in the process.

While these tips are usually quite effective, your attorney can advise you on the best ways to save legal fees in your particular case.

Advertisements

What is a Deposition?

June 4, 2009

In contested cases, a great deal of work goes into preparing the case for court.  Sometimes, it is necessary to conduct a deposition.   A deposition is testimony taken under oath (under penalty of perjury) in advance of a trial or evidentiary hearing before a Judge or Court Commissioner.   

Typically, a deposition is taken both to learn information, and to “box” a witness into a story.  Deposition testimony may be may be used against that witness in court.  Therefore, it is a very useful investigative and preparation tool for attorneys.

A deposition is a formal question and answer session.  The subject matter typically relates to the contested issues in the case.  In divorces, depositions often focus on the financial affairs of the spouses and any issues relevant to legal custody/physical placement determinations.  Often, the person being deposed is required to bring certain documents to the deposition.  In those instances, the deponent will almost surely be asked questions about those documents.

The person being deposed is known as a “deponent.”  Depositions may involve only the parties (husband and wife).  In more complex cases, family and friends may be deposed.  If there are any expert witnesses involved in the case, they may be deposed as well.  Experts may include appraisers, accountants and psychologists. 

Depositions are usually conducted at the office of one of the attorneys in the case.  In my office, we hold depositions in conference rooms.  A court reporter is present to transcribe all of the questions and answers for the record.  Court reporters are hired by the attorney requesting the deposition.  More rarely, a deposition is videotaped as well.  If a deposition is videotaped, that is usually done by a professional videographer.

The length of an individual deposition varies.  Generally, the more complex and acrimonious the case, the longer the deposition will be.  There is no Wisconsin law which specifically limits the amount of time a deposition may take.   However, a deposition cannot be taken solely for the purpose of harassment or intimidation. 

Anyone who is part of a deposition may order copies of the official transcript from the court reporter who transcribed the testimony.  A witness is allowed to read and review his or her testimony.  However, the contents of the transcript cannot be changed.

If you are subpoenaed to appear at a divorce deposition, you should consult an experienced divorce lawyer to learn about your rights.

Although most divorce lawyers enjoy going to Court, some clients would rather not go there.  Whether it is due to inconvenience, stress, fear, other reasons, clients often express a reluctance to appear in Court as part of their divorces.  In fact, most people I know would prefer to never step foot in a courthouse.  

It seems in some states, if all provisions are agreed upon by the spouses, paperwork may be submitted by mail and presto!  A divorce is granted.  This is never the case in Wisconsin.  Here, even when all aspects of the divorce are agreed upon, the soon-to-be-exes must participate in a court hearing at least one time, for what is known as final divorce hearing.  The final divorce hearing is the court proceeding in which the Judge formally grants a divorce to the parties.

Other than the final divorce hearing, the number of times a divorcing person appears in Court will depend on many different factors, including the contentiousness of the case and the County in which the case is taking place.   Generally speaking, the more contentious the case, the more likely it is one will find herself in court multiple times – before and after the divorce is granted. 

Sometimes, the number of court appearances has nothing to do with the level of animosity between the spouses.  Some Judges will hold Pretrial Conferences in which the attorneys and the parties to the case must attend to discuss the status of the case.   For some people, circumstances beyond their control, such as a job loss while the divorce is pending, will result in a trip back to Court to change provisions which may have been entered as part of a Temporary Order.

An experienced Wisconsin divorce attorney can help you determine how many Court hearings may be appropriate for your case.

What happens to Spot?

May 21, 2009

For many families with pets, the pets are truly a part of the family.  Unfortunately, the law largely treats animals as nothing more than property.  Despite prior proposals to the contrary, Wisconsin law does not have any special provisions for pet custody.  Divorcing spouses are often unable to agree upon what happens to a beloved pet or pet.  There is no uniform way that Wisconsin courts will handle such a dispute.  As with so many divorce issues, the outcome is going to depend upon case-specific facts.

Even though there are no special provisions in the law, pet custody arrangements may still be enforced by Court order if approved by the Judge assigned to the case.  These are some of the proposed agreements I have seen approved by Courts:

  • Dividing multiple pets between spouses.  This tends to arise in families with more than one cat, and only works well if the pets do not develop separation anxiety due to being apart from one another.

 

  • Having the pet travel back and forth between the parents’ homes with the human children.  This occurs mainly with dogs.  Some parents believe that the consistency of having a beloved dog with a child as she travels is comparable to having one’s siblings with them.  This can be problematic if one parent is not really devoted to the dog, however.

 

  • Giving one spouse the pet, with rights to visitation for the other spouse.

It is important to keep in mind that sharing custody of a pet often entails working out the right to make decisions (such as when it would be appropriate to euthanize a pet), medical issues (are you going to treat the arthritis with prescription medication?) and payments of grooming, boarding or vet expenses.   One can expect to encounter some of the same issues that tend to arise in co-parenting human children.   As a result, sharing pet custody means there must be an ongoing relationship between spouses, even after the divorce is final, and even if there are no children involved.  

Pet disputes are often difficult to resolve even with the assistance of attorneys or mediators.  If negotiation fails, the Court will decide what happens.  However, Courts are often not equipped to decide what is best for pets and will usually simply choose a “winner” – the person who gets the pet.  

In my experience, Judges tend to give weight to the person who has registered a pet, paid the vet bills, or provided the majority of the past care.  Chances are that the person who bore the brunt of the burden of caring for the pet could be awarded the animal as part of the property division.

The law provides no magic solution for couples caught in these battles.  Should the Wisconsin law be changed to provide greater Court authority to determine pet custody issues?

Under Wisconsin law, parents are required to attend at least one session of mediation whenever legal custody and/or physical placement is at issue, with little exception.  The purpose of mediation is to try to help parents resolve their disagreements without having to go through a full-blown custody battle.  

Most parents are able to reach agreement in mediation, which shields children from much of the emotional trauma a prolonged custody battle brings.  To maximize the potential for success, parents need to be prepared to discuss a variety of topics regarding their children at mediation.  At a minimum, parents should be prepared to discuss the following topics:

  • The legal custody arrangement you are requesting, and why you feel it is best for your child.
  • The physical placement (physical custody) arrangements you want in place and why you believe those arrangements are best for your child.  Be thoughtful about a specific proposed schedule and how you suggest transportation be handled.  
  • A holiday and vacation schedule.
  • Your relationship with your child, the activities you enjoy doing together, your philosophy of discipline.
  • The other parent’s relationship with the child.
  • Your child’s personality, routines, likes and dislikes, friends, teachers, activities, health care providers, etc.
  • Where you work and the hours of your employment.
  • Proposed child care providers when you and/or the other parent are unavailable.
  • How the child will be able to contact the other parent, and vice versa during periods of physical placement.
  • How you are following through with the child’s religious commitment, if any.
  • Concerns you have regarding the fitness of the other parent, including any abusive behavior, drinking and drug issues, lack of past contact and concern, etc.
  • Concerns you have regarding any other members of the other parent’s household and how your concerns affect the best interests of your child. 
  • How you intend to address problems you may have had in the past.
  • Actions you intend to take to address concerns raised by either the other parent or the mediators.
  • How you have communicated with the other parent, and how that could change/improve in the future.

Focus on what is best for your child or children.  Try to refrain from bad-mouthing the other parent.  If your circumstances dictate that you must raise serious concerns about the other parent, be prepared to cite specific examples of conduct.

For advice on issues specific to your case, you should contact an experienced divorce and family law attorney.

One of the most challenging projects for couples who are splitting up is the division of household items between them.  While the divorce court evaluates property based upon its fair market value, most people going through a divorce are concerned about the replacement value of these items.  After all, who wants to go through life without a working computer, or proper bath towels? 

Fair market value of used household goods tends to be dramatically less than replacement value.  And so the debate ensues.  In my practice, I typically encourage clients to resolve these disputes on their own, with their spouse.   Judges usually would prefer not to hear disagreements about why it is not fair that the wife got the good set of dishes, or why the husband’s tools are worth more than the Precious Moments collection, even when these items are extremely important to the litigants in their Courts. 

If spouses are unable to work out the division on their own, often a personal property appraiser is retained to value the household items.   An appraiser is an expert in determining the fair market value of an asset.  In this context, the role of the appraiser is to go to all of the locations where the personal property is located, view the items, and submit a report itemizing and valuing “the stuff.” 

With the assistance of an appraisal, the question of what things are worth is usually resolved based upon the appraiser’s opinion.  Even if spouses cannot agree upon the division of items, having the valuation issues resolved greatly reduces the amount of time and effort spent on presenting any necessary issues to the Court for decision.  The cost of an appraisal in my area is typically between $300-500.  Although not a drop in the bucket, when compared with the cost of having the fight, it is money well spent.

Not having their children with them each and every day is often one of the most difficult adjustments divorcing parents must make.  Holidays tend to be difficult for all divorced and separated parents.  Often, family get-togethers serve as painful reminders of what once was, and what has been lost.  This is magnified when a parent must spend a holiday away from a child.  

As part of developing a post-divorce parenting plan, parents (or the Court, if the parents cannot agree) must determine which parent will have the kids on which holidays.  Most people would like to keep as many family traditions as possible intact for their children.  It is important for children to experience holiday traditions on both sides of their extended families.

The holidays that can be addressed in a court order are limited only by the parents’ imagination.  In my practice, parents usually choose to address the following holidays:

  • New Year’s Eve;
  • New Year’s Day;
  • Easter;
  • Mother’s Day;
  • Memorial Day;
  • July 4;
  • Labor Day;
  • Halloween;
  • Thanksgiving;
  • Christmas Eve;
  • Christmas Day;
  • The child’s birthday

There is usually no doubt that mothers will always have the children on Mother’s Day and fathers will always have the children on Father’s Day.  In my opinion, this is as it should be.   These holidays were established so that each family could honor its mother and its father, respectively.  The beauty of this cultural tradition is that in most situations, each parent has a special day with the children.

Once in a while a parent will try to convince the Court that it is/was more important for the child to see an extended family member, rather than the designated, celebrated, parent.  Stepparents and grandparents may be very important influences in a child’s life, and they deserve recognition on Mother’s Day and Father’s Day (phone calls, emails, gifts or cards).  There is a great editorial on newsday.com this morning celebrating the blended family – “The perfect blend for Mother’s Day.”  But, I cannot recall an instance when the Court decided that someone else should have the kids on Mothers Day or Father’s Day.  So for all of the moms out there, have a happy Mother’s Day!