Covid-19 and the Law

Covid-19 and the Law

Covid-19 has affected every aspect of our daily lives.  The law is no different.  From the practical day to day practice of the law to how a trial is heard has all changed because of the coronavirus, particularly because of the community spread in Boise and the surrounding areas.

Changes in the Practice of the Law

The way we currently practice law has changed because of the Covid-19 virus.  We now rely heavily on the use of remote or tele-visits for consultations.  While some folks find this far more convenient, there are others that miss the one on one visits with their attorney.  We also use software for our clients which allows them to upload and review documents as well as sign them.  

Remote Trials

Another very important change due to Covid-19 is the use of Zoom or other software to hold trials, scheduling conferences, hearings and the like.  In Ada County and most counties in Idaho there are no in person divorce trials.  Everything is done remotely.  If a party does not have a reliable internet connection, the Court provides access for them. Divorce Attorneys try cases from their offices.

Is This All Bad?

Undoubtedly, Covid-19 is a tragic virus running amok in our country.  That, however, isn't to say that there are not good things that have come out of the contagion.  Just one example, from a financial stand point in the legal world, divorce attorneys do not have to travel to different counties to appear in court on behalf of their clients.  That can relieve a very large financial burden on the client.

If you have a legal issue and need the assistance of an attorney, please give us a call at (208) 472-2383.

The Sometimes Frightening Legal World

Sometimes the legal world is flat out frightening.  You can have the sense that you don't know what is happening, what will happen or if there will be unintended consequences. The attorneys at Kershisnik Law know that our clients have these fears and we are here to help with the issues that make the legal world a frightening place.

Often times a new client will call and they are worried because the party on the other side has told them that if they go through with a divorce, they will be sorry because all their deepest darkest secrets will be exposed.  Another common threat is that, "if you divorce me, you will never see your kids again".  And then there is the old, "if you contest the will you will get nothing".  These, in general, are baseless manipulative threats.  No one is perfect and the courts know that.

In a divorce, for example, there are many things that have occurred that resulted in one party or the other or, more likely, both acting in ways that are less than perfect.  People do things that they are embarrassed about.  The attorneys at Kershisnik Law know how to manage these issues.  It isn't covering them up, it is simply bringing to light what the important issues really are and focusing the case on that.

Sometimes people avoid going to the doctor because they are embarrassed to talk about their health issues.  People can be the same way about telling their attorney what is going on.  I always tell people, "you can't shock me" and there is no need to be embarrassed or hesitant.  We are here to help you no matter what your situation is and no matter what you have done or not done.  Whether you are seeking a divorce, custody or modification or if you have a criminal matter, probate matter or will and estate issue, we are here to weed through the threats and the fear and help you resolve your issues.  Give us a call and see what we can do for you, (208) 472-2383.

For more detailed information on divorce please visit us on our divorce page.
For more detailed information on wills, probate and estate planning visit us on our probate page
For more detailed information on criminal law visit our criminal defense page

What do Divorce and Estate Planning Have in Common?

Estate Planning After Divorce

Often the most under appreciated element of a divorce is creating a new estate plan. In martial bliss there is the desire to share all our earthly belongings with the ones we love. When bliss turns sour, the last thing on our minds is to share our possessions, leave the family farm to our ex or to have our ex make our financial or medical decisions for us. Unfortunately, most people don’t bother to make changes to their estate plans after divorce.

Who Gets My Stuff?

Why does it matter? Changing your estate plan matters because if your Will says, “all my possessions to my wife” or “All my possessions to John Q. Husband”, that is who gets your goods, even if you aren’t married any more.  Likewise, a Power of Attorney that says “My agent is Susie Q. Wife” means that that person has been designated as your agent. If you don’t properly revoke the Power of Attorney, your ex will remain the agent and the Power of Attorney effective.

Named Trustee or Beneficiary

Believe it or not, I regularly see clients who have existing Wills and Powers of Attorneys that have their ex spouse as the Beneficiary or the Agent. Had anything happened to them in the interim, their new spouse or their children might have missed out on their rightful inheritance. Another area of concern are Trusts. Many people create Trusts and after the attorney's fee is paid,  don’t give them a second thought. It is important to remember that in a Trust, you name both a Trustee and Beneficiaries. If you don’t change your Trust after you get divorced, your ex spouse, who may have been a named Trustee or Beneficiary of your Trust, may be able to not only benefit from the Trust as a Beneficiary, but may be able to say where your property goes as the Trustee.

If you are seeking a divorce or are divorced and need to change your estate plan, give us a call, (208) 472-2383 for your free consultation. You will be glad you did.

Boise Divorce Attorney, Boise Probate Attorneys

Out of State Divorce

Out of State Divorce

I get a lot of calls from folks who want to know if they can get divorced in Idaho.  The first question is, of course, "why do you want to get divorced here?"  In general what has happened is the couple was married in Idaho, lived here for some time and then moved away either to be around other family, for a job opportunity or even as a desperate attempt to save the marriage.  When the marriage breaks down, one party moves back to Idaho.  Whether their spouse is avoiding divorce or they just want to move on with their lives back in their old home state, they want to get divorced in Idaho and not have the hassle of flying back and forth to a place where they only lived temporarily.  So can it be done?

Domicile and Jurisdiction

The first questions which must be addressed are those of domicile and jurisdiction.  Idaho law requires that you be domiciled, aka "live", in the state for the six weeks immediately preceding divorce.  To support this we look for things like and Idaho driver's license, an apartment lease, utility bills and the like.  If you have lived here for six weeks, Idaho then has jurisdiction over you and the marriage.  What is jurisdiction over a marriage?  That means the state of Idaho can legally say what happens to the marriage, even if the other party isn't here.

Child Custody and Community Property

Here is where out of state divorce can get tricky.  Let's  take the issues one at a time.

Idaho is a community property.  Essentially that means that if it was acquired during the marriage it belongs to both parties equally.  Not all states are community property states.  However, if you have acquired property out of state, particularly real property, such as a house, while that may be community property, Idaho does not have jurisdiction over that property because it is not located in the state.  Unless the other party agrees to a division of the property, an Idaho court won't divide real property located in another state.

For Idaho to have jurisdiction over children, the children must reside in the state for six months immediately before a custody proceeding. Whether your kids stayed with your spouse in another state or they came with you back to Idaho but haven't been here for six months, an Idaho court cannot hear any issues on child custody.  Those must be addressed in the child's home state, which is defined by where the child has lived consistently for the last six months.

Divorce

The long and short of it is, you can get a divorce in Idaho if you have lived here for six weeks.  An Idaho court may not address real property or child custody issues but the marriage can be terminated.  As for the other issues, those must be taken up in the state where the property is located or where the children live.  Some states allow a written agreement between the parties to be presented to the Court and the the Court will honor those agreements.  Other states may require that an actual child custody or property case be initiated.

If you need help with a divorce and want to speak with a Boise Divorce Attorney, give us a call at (208) 472-2383.  You will be glad you did.

How long will it take to get divorced?

Well, it depends. It may take one to two months or one to two years. The length of time from start to final judgment really depends on you, your spouse, and your situation.

What assets and debts do you have?

You will need to determine what items are community property (property eligible to be divided between you and your spouse) and what items are separate property (property not eligible to be divided between you and your spouse). You will want to be sure that your separate property is not being considered as part of the community estate! The overall size of the marital estate will also be a factor impacting how long the divorce will take. If there are business interests, retirement accounts, residential or commercial properties, etc., it can take time to get an accurate value of the assets.

Do you have children under the age of 18?

If so, can you and your spouse agree on a custody arrangement? If not, this issue will likely take some time to be resolved. Having relevant evidence to support your case for custody is very important.

Also, you will be required to attend a Focus on Children workshop. This is a one-time class to educate parents about how the divorce can impact their children. The final divorce decree will not be signed by a judge until the class has been completed. The scheduling of these classes varies by county. Usually, you can expect the classes to be scheduled at least a few weeks after the parties have filed their initial divorce paperwork.

What do you want out of the divorce?

The answer to this question will have a huge influence in terms of how long it will take to finalize your divorce. Do you want the car, house, furniture, motorcycle, etc.? Regardless of what item you really want to keep post-divorce, courts will make sure each party gets a relatively equal share of the estate (Idaho Code § 32-712: “Unless there are compelling reasons otherwise, there shall be a substantially equal division . . . .”). Note, in some cases there are reasons why the assets should not be divided equally. You will want to verify with an attorney whether there are reasons why there should be an unequal division in your case.

Ultimately, you and your spouse can agree to divide your debts and assets any way you want, equally or unequally. Therefore, regardless of how much stuff you own, what you are willing to part with may be the key to resolving the matter quickly. It will be important for you to speak with an attorney to understand what your rights are and what type of a division you should reasonably expect to get out of your divorce.

If you need to speak with a Boise Divorce Attorney, give us a call at (208) 472-2383.  

Divorce; Text Messages and Evidence of an Affair

Evidence of Infidelity in Divorce

In Idaho, as in most state, the most common cause of action in divorce is on the basis of irreconcilable difference.  Why then would I bother talking about infidelity?  Adultery is a cause of action for divorce in Idaho.  When you claim irreconcilable difference there is no need to prove anything.  You simply state that you cannot reconcile.  With adultery, however, you must prove that your spouse committed adultery.  In order to prove something in court, you need evidence.  Text messages provide an abundance of salacious evidence.

Wait, I Deleted Those Messages!

In IT circles the phrase, "things never go away" is very appropriate here.  You may have deleted those love struck musings and deny ever sexting naked pictures of yourself to your crush, but if you did, they are still there and they can be retrieved and used as evidence against you.  

What about your right to privacy?  What about it?  Once you put something out into the "public" sphere you have stepped outside of the realm of privacy. A text message or sexting naked or scantily clad photos of yourself over the "air waves" disqualifies your claim to privacy.

Ultimately Does it Matter?

I wish there was a good answer to this.  Whether you get an unequal division of property or debt or you get a greater amount of alimony is decided on a case by case basis.  It even varies with the same judge.  

Well then, should I even worry?  If your sex life laid out in all its glory in front of your divorce attorney, your family, the judge, the clerk, the marshal, your soon-to-be-ex and his or her family doesn't bother you, then you probably don't need to worry.  For most folks, that is pretty embarrassing.  Perhaps the bigger thing you should be concerned about is what else did you say in those texts which can and will be used?

If you want to speak with a Boise Divorce Attorney, give us a call, (208) 472-2383, and see what we can do for you.

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.