Thursday, July 6, 2017

Divorce and Temporary Orders

Aren't All Divorces the Same?


While it can be said if you have seen one divorce you have seen them all, every divorce has a life of it's own.  Sometimes a client will come in and file for divorce and the whole thing is as smooth as ice. Other times, it's more like jagged as ice.  My point being, ice is ice and divorce is divorce, but that doesn't mean one size fits all.

Divorce and Temporary Orders


Temporary orders are a tool for dealing with complicated divorce and custody issues.  Not all divorce and custody cases will need temporary orders.  They become necessary in order to routinize a child's life during the pendancy of a divorce action.  If the parents cannot work together to develop a schedule that is healthy, consistent and good for a child, your attorney may suggest that you seek temporary orders.

Temporary orders are not the final custody arrangement, they are just what they say they are, "temporary".  These rules give the stability need to your child.  Will the temporary orders become permanent?  It is possible that they may but not necessarily so.  A judge will determine what is in the best interest of your child during the interim between filing for divorce and final decree.  If, in the end, you are unable to agree or negotiate a custody arrangement with your child's other parent and the judge is required to make a decision, he or she will look at the status quo as guidance as to what is in the best interest of the child.

But Who Wants a Judge to Decide?


As always, I advise my clients, they as the parents know what is best for their child.  Even though they are getting divorced, the parents know each other and they know the child.  The best interest of the child is really, in part, the parents agreeing on parenting the child.  If you can come to an acceptable, stable, healthy and consistent agreement about who will have the child when, visitation schedules and the other myriad of issues that go along with child custody, you will not need temporary orders.

Should You Avoid Temporary Orders?


Temporary orders have a time and a place.  When they are necessary, they are a fantastic tool.  They however, can be expensive, and in the end they might set a precedent that you wish they hadn't.  And, as always, if the other side has motioned for Temporary Orders you need to respond in order to preserve your rights.

If you need to speak with a Boise Divorce Attorney, give us a call at 208-473-2383.  You can also visit us our other web page for more information  Give us a call.  You will be glad you did.

Thursday, February 2, 2017

Boise Divorce Attorney Discusses Discovery, Tax Returns and Comingling

Community Property, Taxes and Hiding Assets in Idaho

Idaho is a community property state.  What this means for the divorcing couple is regardless of whether you stayed and home and took care of the kids or you were the "bread winner", you each have an equal interest in the community's money.  What is not included in this is separate property such as property acquired before marriage or property or monies received pursuant to inheritance.  Of course, this can get tricky too when the parties "co-mingle" separate property funds.

How to Find the Goods

When these issues arise in divorce your attorney will take several different angles to try to figure out which monies belong to the community, which ones need to be reimbursed by the community and which ones are separate.  Sometimes it takes some sleuthing to figure this out.  This is called "tracing" and it is done through "discovery". Your Boise Divorce Attorney will look at tax returns, bank account records and other financial information to see who did what with the money and where it was used.

Often times people will ask, "aren't my financial records my own business?"  Unfortunately, when it comes to dividing the community estate, they aren't your own business; they are the business of the community and are required to be available to each other's divorce attorney.

Hidden Assets

Other things that discovery help attorneys uncover is hidden assets or monies.  Sometimes people will claim they only make a modest sum of money, when in reality they make more than what they want you to know.  Tax returns often don't reflect this.  This is where the attorneys need to turn to the bank records.  Of course, nothing is bullet proof and people can still hide money by using cash or "straw men".  If this happens the divorce attorney needs to look at life style.  How were the couple living?  Could their income support that?  Was it all purchased through credit?

Finally, you might ask, "Why would anyone want to hide money?"  Although the question seems obvious, it is for reasons such as wanting to reduce the amount of child support you have to pay or so that you end up with more money or property after the divorce than what you are entitled to.

If you need a Boise divorce attorney, give us a call today and see what we can do for you, (208) 472-2383 or visit us at www.lawboiseid.com

Tuesday, December 20, 2016

Temporary Orders in Divorce - Boise Divorce Attorney's Perspective - (208) 472-2383

Temporary Orders in Divorce - What Do They Do?


Divorce, when contested, can be a very long process.  What happens to everything that you and your spouse had together during the divorce process?  Who do the kids stay with?  Who pays the bills? Who is responsible for getting the kids to and from school or to the doctor?  This is the world of temporary orders.  When the parties to a divorce cannot get along well enough to agree or maybe even discuss daily life, your attorney might suggest temporary orders.

If you need temporary orders your attorney will motion the court and present your case to the judge. This is sort of a mini trial.  The judge will listen to both parties and make the determination of what will happen between now and the actual divorce trial.

Do You Need Temporary Orders?

Often times clients will come in and tell me that their friend, their sister or their cousin had temporary orders in their divorce case and that they want to do the same.  Wanting and needing temporary orders are two different things.  I cannot stress that point enough.  Temporary orders are the judge telling you what to do rather than you and your spouse doing what you know how to do and doing what you have been doing.  Like I have said before about mediation; it simply works better for the parties to work out their own agreement than to have the judge do it for you.  You know what works best for you.

There are situations where one party or the other is being unreasonable and temporary orders are necessary.  They will help make a smooth transition on daily functioning of your life during the divorce process if your spouse is making every little decision into a conflict.

Are There Draw Backs to Temporary Orders?

Like with anything in life and divorce, there are always draw backs.  The first draw back is cost.  It can be expensive to have your divorce attorney put together the motion, the supporting documentation and to have a mini-trial.  Some attorneys will require the money for the motion and hearing upfront because it can be an expensive process.

The other draw back the really sticks out is what is known as status quo.  The status quo refers to the existing situation.  If you are in a high conflict divorce for over a year and you have temporary orders which place the children with mom 90% of the time, a judge is less likely to say, at the time of the divorce trial, "now lets split the custody 50/50".  Likewise, if the kids stay with dad 60% of the time and go to the school in his neighborhood, after a year or more of ongoing divorce proceedings will the judge now say "mom gets the kids 75% of the time and they will go tho her neighborhood school"?  Child custody is determined by the best interest of the child and often the status quo is in the best interest of the child because it is the most stable and consistent thing the child knows in the divorce process.

Again, these two reasons alone (and there are many more) highlight the importance of trying to work things out civilly between the two parties, rather than having a judge decide.  Your family law lawyer is a tremendous resource in this area because they are very familiar with the respect that is given to a stipulation by the judge.  They are also very knowledgeable about what a judge would find important and what they would find questionable.  They, or your mediator, can also help you negotiate terms which you are having difficulty deciding upon. They also help you preserve your rights and your best interest in the divorce. But in the end, it works best for the two parties to come together and decide how things will work during the divorce process.

If you need to speak with a Boise Divorce Attorney give us a call at (208) 472-2383 or click here to visit our website, or click here for more information on divorce in Idaho.

Thursday, September 15, 2016

Divorce Trial or Settlement; Which is Best

Is There Such a Thing as a Quick Exit in Divorce?

Often times people want their divorce to be done quickly.  People want to know the exit point.  They want to get out of dodge quick as possible and move on.  A quick settlement, however, isn't always best.  Marriage brings two seperate lives together and then cements those two lives with property and children.  Sometimes ripping a bandaid off quickly is the best thing.  Other times it is not.

Settlement or Litigation

Whether your divorce will be settled or will go to trial depends on numerous considerations.  There may be complex debt or other money issues such as using seperate property monies to aid the community.  There may be a business that needs to be divided according to community property laws but done in such a way that the business isn't harmed.  There may be issues which effect custody such as continuity, crmininal or drug charges, dui, mental health issues or moving issues.  Each of these situations require careful negotiations between your attorney and the other side.  Often times most of the issues can be resolved outside of the court room and only select issues will go to trial.

Stipulation

If the parties agree on the majority of the issues in the divorce case, the divorce attorneys will draft a stipulation for the parties to sign.  This is like a contract.  It lays out the terms of the agreement.  This may contain all the issues of the divorce, in which case the divorce is settled and the stipulation is attached to the order and decree for divorce.  If it only contains part of the agreement the parties will go to trial to settle whatever issues that remain unresolved.  The judge will listen to the evidence from both attorneys and decide which is the best resolution to the issues.

As with all things in the law, it is generally best to resolve the problem through negotiation.  The parties know how things work in their lives.  They know how they have always dealt with their finances.  They are the experts when it comes to their kids.  When a judge decides he or she works within the confines of the law and the law isn't always rational.  Attorneys are experts at negotiating agreements.  They have the benefit of knowing, in general, what a judge will do so if their client is insisting on something they can inform their client whether a judge would decide for them or against them.  This prevents the client from spending money on a trial when there is little possiblity of a judge finding in their favor.

If you need a Boise divorce attorney please give us a call and see what we can do for you, 208-472-2383 or visit us at www.lawboiseid.com

Friday, August 5, 2016

Divorce, Summertime Custodial Transfers and Conflict

Divorce, Summertime Custodial Transfers and Conflict

Summertime is a time for relaxation, time off from school for the kids and vacation.  Summer can be a time of great stress relief, that is unless you have to make custodial transfers or a change in visitation during this season.

I have spoken before about custodial transfers and the importance of keeping your schedule or, if it must change, the importance of having that in writing.  I want to again, however, stress the point of smooth transfer.  I speak in terms of smooth transfer to create a situation of the least amount of stress on the parties, but more importantly, for the well being of the children.

A lot of my clients and other attorneys' clients think that divorce and the fluid nature of the "new" custody arrangement has little or no effect on their kids.  They think that kids are flexible and mostly unaware of any conflict that happens around them.  There are also those clients who choose to take every situation and use it as drama.  They do this for many reasons: some being control, other's as a tool to try to make themselves look good or to spite the other party.

Folks, I am going to tell you today that if this is the way you think you are dead wrong.  The courts speak of the best interest of the child for a reason.  Today's "children of divorce" are getting the short end of the stick.  Kids are not a bargaining chip, they are not a means of control.  This goes for all aspects of divorce including custodial transfers.

Both parents can be good parents.  That doesn't mean they parent the same.  That doesn't mean they cook the same.  It doesn't mean they do homework the same.  The important thing is that each parent loves their children and each parent gives their child permission to love the other parent.  It is hard for children to go from one parent's home to the other.  If you let your child know it is ok to have fun with the other parent and not make them feel like they are abandonning you or betraying you, you will not only gain your child's respect in the long run but you will help them adjust to the reality of life.

When you next go to make a custodial transfer, don't think about getting back at the other party.  Think about your child and make it easier on them.

If you need a family law attorney or a Boise Divorce Attorney, give us a call and see what we can do for you.  (208) 472-2383

Thursday, June 2, 2016

Divorce, Litigation and Mediation

Can Divorce Mediation Prevent Divorce Litigation?

I have spoken numerous times about the differences between divorce litigation and divorce mediation, but here today I want to expand upon how the mediation can help to prevent litigation.
Divorce can bring on a whole myriad of feelings.  Often, one of those feelings is the desire for revenge.  Too often people are devastated by the feelings of loss and betrayal and the last thing on their minds is to mediate.


What is Mediation and Why Has the Judge Ordered It?

In Idaho, fairly soon after you file for divorce a judge will order the parties to mediation.  The parties choose a mediator or one is ordered for them if they cannot agree.  A mediator is a neutral third party who helps the parties negotiate an agreement that they both can live by. It can cover parenting schedules, child support, debts and assets as well as any other issue specific to the parties. The mediator helps to take the animosity out of the process of working things out.  The judge orders mediation because the parties themselves are the experts on their children and their property.  They know what has worked and what does work for them.  If the parties can come to an agreement about parenting and how to divide the property and the debts, they have solved the problem themselves.  If the judge decides, as he or she would in litigation, you may find yourself with something that doesn't make sense for you, your children and your lifestyle.

What if We Can Only Agree on Some Issues?

During mediation, you will find issues that you agree on or can agree to, but there may be a few issues where you come to an impasse.  Does that mean the whole thing goes to hell in a handbasket? No, it does not.  The mediator will create a document, similar to a contract, where everything you agree to is outlined in detail.  Both parties sign this and this is what the judge will order.  The issues which aren't resolved or can't be resolved are either further negotiated by each party's attorney when it gets closer to trial and circumstances change or those issues are taken to court and individual issues can be litigated (tried) and the judge will decide.


Can You Mediate if You Can't Stand the Other Party?

Divorce can make you hate or resent your soon to be ex spouse.  Perhaps it was the inability of one or both parties to compromise in the first place which has led to divorce.  The fact of the matter is, however, if you have children divorce will make you a single person but it won't take away the fact that you will have a life in common with the other party for the rest of your life.  The very fact of having children with that person will require you to speak to, negotiate with and compromise with at least until your children are emancipated but even likely after.  Think about weddings, college or tech school graduation or the birth of your grandchildren.  In each one of those instances you will once again be in contact with the person to whom you used to be married.  Mediation helps you to negotiate an agreement with a person you do not particularly like for the good of your children and for, hopefully, a smooth transition through life and the repeated interaction with your ex-spouse.

If you are seeking a divorce and need to speak with a Boise Divorce Attorney, please give us a call, 208-472-2383, and see what we can do for you.

Tuesday, March 29, 2016

The Effect of a Felony or Misdemeanor Crime on Custody, Child Support and Spousal Support

The Effect of Crime on Custody and Support

I have had several calls lately about crime, specifically felony crime, in the divorce or custody context and how it effects custody, child support and even spousal support.  In general, people want to use another person's criminal record against them to limit visitation, reduce child support or increase or negate spousal support.


When and Why Would a Criminal Record Effect Custody?

The Idaho Code states that custody pursuant to divorce is to be determined as the court deems proper and necessary in the best interest of the child.  There are several factors the court will consider including whether or not there is domestic violence in the marriage and whether it occurred in the presence of the child and the character and the circumstances of all involved.

While the Idaho Code does not specifically state that a felony is to be construed against a party, there is plenty of case law outlining when a felony can and does effect child custody.  Also, there is plenty of case law showing when and how a particular misdemeanor can and will effect the outcome of a child custody placement.

In general, if the crime in question was something that could potentially negatively effect the child, it will be given serious consideration.  For example, if one party is convicted for manufacturing meth in their home, the court will weigh that heavily against the individual.  If the party has a conviction for forgery from before the child was born, the court will place less weight, if any, on the conviction.


Would the Conviction of a Felony Effect Child Support or Spousal Support?

In general, child support will not be effected by a felony or misdemeanor conviction in the sense that one's obligation would be increased or reduced because of the other party's criminal history. If a party is in prison or in jail due to a crime they have committed, they will not be relieved of their obligation either.

Likewise, spousal support will not be effected by one party's criminal background.  The point of spousal support is to provide material support for the spouse who has foregone their own ability to make a career in favor of tending to the home and children of the couple.  The thought is that the party who stayed at home was never given the opportunity to develop a career and a means of support and therefore because they provided for the community in that way, that until they can get to a point where they can make a decent living, the other party will continue to share a portion of their income with them.  This is no way is effected by one's criminal history.  People often like to use the example of their deadbeat ex who stayed at home and did drugs and they don't want to provide spousal support for them.  In this scenario, that person who stayed at home and did drugs is unlikely to be a good candidate for spousal support in the first place so the argument becomes moot.

When it comes down to it, the best question to ask is, "did the criminal behavior of the party create a situation that was dangerous or compromising to the children?"  If so, then it is a relevant point to bring up in court.  If the criminal behavior did not effect the children or even remotely concern them, there is a high likelihood a judge would not consider that as evidence to determine custody.

If you have any regarding divorce or custody and would like to speak with a Boise Divorce Attorney, please give us a call, 208-472-2383.  You will be glad you did.