Parenting Time Evaluations - What Are They and Do You Need One?

Mediation

High conflict divorces often translate into high conflict custody cases.  What can you do to help resolve the conflict?  In a divorce where custody cannot be agreed upon by the parties, the courts will almost always appoint a mediator.  In Idaho, you are ordered to attend three mediation sessions.  Some folks can work out the custody in those sessions, others cannot.  So what happens when mediation fails?

Parenting Time Evaluations

If mediation fails, upon the court's motion, upon the motion of one party or the other or by stipulation, the court can order a parenting time evaluation.  The court appoints a parenting time evaluator.  This is an independent party who interviews the parties and observes their interactions with their children.  The evaluator puts together and extensive report for the court making determinations and suggestions on how custody should be structured.

Are There Risks to Seeking a Parenting Time Evaluation?

Parenting Time Evaluations can be extremely helpful in resolving parenting and custody issues.  From a client's perspective, the risk of the evaluation is it will find against you.  Some issues that come up in these evaluations are controlling behavior, overly authoritarian behavior, too little parental involvement or supervision or lack of interest in the welfare of the child.  If you have a health relationship with your children, and your parenting style and behavior falls within the normal and acceptable range of parenting, the risk of getting a "bad" parenting time evaluation is generally fairly low.  Other times clients are unhappy with parenting time evaluations because they think that the other party should have limited visitation or custody of the children and the parenting time evaluator thinks differently.  Something to keep in mind is that the evaluator is seeking to find the custody arrangement that is in the best interest of the children.

If you are seeking a divorce or a modification and need to speak with one of our Boise Divorce Attorneys, give us a call at (208) 472-2383.  You will be glad you did.

The Anatomy of a Divorce Trial

The Great Unknown

Divorce is stressful for all parties involved.  Not only is your marriage falling apart but you are having to live as a single person and a single parent.  Divorce is the "Great Unknown".  Not only is divorce stressful in this context, but it is in the legal context as well.  Most people know the general idea behind the divorce process, but the exact details, the ins and outs and the general minutiae are a mystery to most people.  Today, I would like to jump to the end and talk about the Anatomy of a Divorce Trial.

The Typical Divorce

Most people think that you pay your attorney, file for divorce, fight with each other more and then go to court and the judge decides your fate.  While this is an exaggerated description, it is what most people think.  There is a sense of mystery surrounding working out all the details and getting the parties divorced.

In general, you can have a divorce that goes smoothly and amicably, one that is a knock down drag out fight or, more likely, one where there are details to be worked out, hoops to jump through and negotiating to be done.   It is that type of divorce that I would like to focus on here as it is the most common.

In this type of divorce, the parties generally agree on some things.  Often they will agree on how to split the debts and the property or they will agree on how to parent the kids.  However, even though they have a lot of agreement, there may be sticking points; things they just can't agree to even with the help of mediation.

So what happens then?  If this is the type of divorce you have found yourself in, it is likely that your attorneys will help you negotiate what you can and in the end you may be left with a few issues to present to the judge.  This is where your divorce trial will be.

The Divorce Trial or Trying the Issues

In these situations you aren't really having a full blown trial, you are trying the issues.  Your divorce attorneys will present your issues, along with your evidence to the judge.  Unlike other legal cases, the judge may indicate to the lawyers that he or she will not hear the issue and that the parties need to work it out themselves.  Obviously, if they cannot work them out the judge ultimately decides, but what the judge is saying is, "Come on you guys.  This is your stuff.  Figure it out".  If you get this message from your attorney, it means the judge thinks the parties together would make a better decision than the judge and the judge then is giving you the opportunity to make the best decision.

What type of issues present themselves in a Trying the Issues case?  Really any issue can be a sticking point or be presented to the judge.   You can have child custody issues where the parties can't agree on a visitation schedule.  You can have property issues where the parties cannot agree on a division of the community property.  Often you have matters of principle.  Grounds for the divorce, for example, can be a place of contention.  Sometime a party won't agree to agree unless the other party agrees that the divorce happened because of adultery or extreme cruelty instead of irreconcilable differences.

Trying the issues is by far the most common resolution to a divorce next to the parties actually negotiating an agreement with the aid of their divorce lawyers.

If you are need a Boise Divorce Attorney or have questions, please give us a call at (208) 472-2383 or visit us at our website or our sister site.  You will be glad you did.

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.

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.