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.

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.

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.

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

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 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

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

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.

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.

Facebook and Divorce - How Can Facebook Evidence Be Used in Court

Divorce and Facebook Evidence 

I have discussed before the admissibility of Facebook evidence in Court.  What I mean by this is using Facebook post by your ex or soon to be ex against them as evidence when you go before an Idaho divorce judge.  As a Boise Divorce Attorney, I have myself used evidence to show questionable character of the other party such as lying, exaggeration or pulling one over on the court.  As the use of Facebook becomes more ubiquitous, the nature of the evidence and its admissibility may be questioned more by the court. 

Facebook Posts and Divorce

It dawned on me the other day that much of what is put on Facebook is what we call in the law, puffery. Puffery is a form of exaggeration; maybe not quite lying but putting forth an image that differs from reality.  I read an article about how the more time people spend surfing social media, the more likely they are to become depressed.  This depression stems from seeing their friends' wonderful, exciting lives.  Their friends are displaying their lives as this fascinating display of vacations, events, awards and so on. 

What does this Facebook puffery have to do with divorce or evidence in the divorce court?  To state the obvious from the view of a Boise Divorce Attorney, overuse of Facebook is a symptom which can lead to issues which can fuel an already failing marriage such as increasing the chance of infidelity or an preoccupied emotionally absent spouse.  The other issue divorce lawyers face is in light of the way people puff their posts, can any or all Facebook posts be used against the side?  An illustrative example might be the divorcing wife who claims that she spends all her time with the child and the husband does nothing but drink, go out to bars and party.  If I, as a divorce attorney, show Facebook posts of the wife drinking and partying does that really show her true character?  What if I show Facebook posts of the husband doing housework and playing with the child?  Does this contradict that evidence? 

Is Facebook Evidence a Smoking Gun?

I believe that while Facebook can provide a source of evidence, it is evidence which will require corroborating evidence to make it stand.  In other words, a Facebook post may or may not be sufficient evidence to establish custody in one party or another, show questionable character, perjury or anything else for that matter. 

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

Boise Divorce Attorney

Boise Divorce Attorney

As a Boise Divorce Attorney one of the most common issues I run into is helping my clients understand what my role as their divorce attorney. Divorce is a very emotionally charged process. Even in an uncontested divorce, people are emotionally disrupted. Let's face it, when you break up with your best friend or your passionate lover, you can and, most likely will be, devastated.

How Divorce Effects Your Emotions

 Divorce can have a huge impact on you as a person. It impacts your thoughts, feelings and your entire emotional well being. It can manifest itself in any number of ways. You may become depressed or angry. You may withdraw, retaliate or simply give up or in. 

If you think about how divorce can impact an adult, think of the effect it can have on children. Although kids are resilient, divorce can have a lasting negative impact on kids. Their future is literally in your hands. How children end up emotionally is hugely effected by how you parent during and after a divorce. 

The Role of the Divorce Attorney

Getting back to my original point is discussing my role as your divorce attorney. It is my job to manage your divorce. I counsel you regarding what is and what will happen in your case, I file the appropriate paperwork, I meet, negotiate and confer with the other attorney and I present your case to the judge. I also help you to best understand what is happening. This all makes sense and is in the scope of my role as your Boise Divorce Attorney. However, often times people want me to be more than their attorney. They look to me to fix their underlying problems, they want me to make the other party behave or worse, they want me to impoverish the other side or destroy any possibility of contact with the other side and their children. Obviously, if their are health or safety, welfare or financial issues, we would take the appropriate steps to preserve the welfare of the children and of the property, but generally these demands come from the emotional rollercoaster the parties are on. These are issues associated with feelings of loss of control and lashing out. I will tell you now, and I always tell my clients, that these psychological issues need to resolved or at least dealt with with a mental health professional. It really is a misuse of your money to pay your divorce lawyer to listen to your need to retaliate against the other side or to micromanage them. I regularly get calls from people wanting to tell me how the other side changed the password on their Facebook account or told their friend that they were something other than they are. Everyone needs someone to talk to especially when they are going through a divorce, but my best advice to you is make sure your intentions are good and you are making use of the proper professionals at the proper time.

If you need the help of a Boise Divorce Attorney, give us a call and see what we can do for you, 208-472-2383.

Boise Divorce Attorney

DUI in Idaho; What You Need to Know

Different Types of DUI in Idaho

As a Boise Criminal Attorney I frequently answer DUI questions.  One very popular question revolves around the different types of DUI and what they means as far as severity and penalty.  The severity of the charge and the penalty depends upon three main things: 1.  How many times have you gotten a DUI?, 2.  How much alcohol did you have in your system? 3. What were the circumstances surrounding your DUI?

When Does a  DUI become a Felony or How Serious is the Charge?
A standard DUI is a misdemeanor.  There are three situations, however, when drinking and driving becomes a felony.  If you receive 3 DUI's within 10 years, the third time will result in a felony charge.  An Aggravated is a felony and a second time excessive charge is also a felony.

The first is as simple as it sounds.  If you are charged with a DUI three times within 10 years, the third charge is a felony.  So what about the other two?  An aggravated DUI means that you caused serious bodily harm, disfigurement or death to another as a result of driving under the influence of alcohol.  It doesn't matter if you have never had a DUI before, if you hurt someone you will be charged with a felony.  An excessive DUI is when you have a blood alcohol content greater than a .20.  If you have at least one other DUI, and you are arrested with a BAC of .20 or greater, you will be charged with a felony.

Blood Alcohol Content

There are a few situations where blood alcohol content can effect the charge against you.  Obviously, the legal limit for alcohol in your system is .08.  This can be different depending upon different situations.  If you are a minor, an alcohol concentration of .02 will get you a DUI.  If you drive a commercial vehicle and are pulled over on suspicion of driving while intoxicated, an alcohol concentration of .04 will result in a DUI.

Circumstances Surrounding the DUI

As noted above there are certain circumstances which can effect the severity and the penalty for a DUI charge.  An aggravated DUI is caused by circumstances surrounding the DUI.  Those circumstances is the driver causing great bodily harm, death or disfigurement to an individual other than him or her self.  Also noted above are situations where the driver is a minor or a driver of a commercial vehicle.

An import circumstance to be noted, however, which is often overlooked is felony injury to a child. If you have a child in your vehicle and you are charged with driving under the influence you will also be charged with felony injury to a child even if the underlying DUI is a basic misdemeanor charge.

DUI is never a fun thing but there are situations that can make the charge worse.  Make sure you know what your risks are before you choose to drive.  If you have been charged with a DUI and you need a Boise DUI Lawyer, give us a call and see what we can do for you, 208-472-2383.

We also offer representation for family and divorce law.  Call today for your free consultation.

Child Endangerment - What it Means to Get a DUI When You Have Your Kids in the Car - Boise Criminal Attorney

What seems to be a fairly new phenomenon is popping up all over the headlines.  Child endangerment. It's not endangering a child that is new, it's just the circumstances surrounding it.  Many parents don't know that you cannot drink and drive with a child in the car and if you do you will be in serious trouble.

It is not unusual to hear about people who go out to dinner or over to friends' houses and have a few drinks. No biggie, right? Wrong.  If you are pulled over and impaired not only will you be cited for DUI, who will be cited for Child Endangerment and you will need to hire a Boise Criminal Attorney. Another situation that seems to be a new phenomenon or at least seems to be gaining traction in the news headlines is women driving while intoxicated with their kids in the car.  Many have heard of the latest series of child endangerment cases involving mothers driving drunk with their kids in the car. 

The law stems from an Idaho Code section which adds additional charges to your DUI if you have kids in the car.  The reasoning behind the law is that you have placed individuals who are incapable of making important legal decisions in a circumstance where they can be seriously hurt or killed.  It is different if you are driving with an adult.  The logic is that an adult should have the ability to say "No, I won't drive in a car with an intoxicated person", and if they do, it is a choice they made themselves.

Driving while intoxicated with kids in the car has is a serious problem and worsening over time.  Between 1985-1996 of the children killed in drinking and driving related accidents 64% were killed as passengers in their impaired parent's car.  That number increased between 1997-2002 to 68%.  Despite these statistics, not all states have child endangerment laws involving  DUI.

Idaho, however, does have a child endangerment law.  Although many individuals do not know it, driving with kids in the car while under the influence is a serious crime.  Whether you learn it here or after the fact from the news, you need to know it is a serious crime.

If you have been charged with a DUI or with child endangerment and you need an Idaho Criminal Lawyer, give us a call, 208-472-2383.  You will be glad you did.

Recreational Marijuana Sales in Washington - What Does it Mean to a Boise Criminal Lawyer

Marijuana Legalization - A View from a Boise Criminal Attorney

Like it or not, marijuana is legally for sale for recreational purposes in Washington beginning today.  Gone is the need for the medical marijuana card.  Gone is the need for the note from the doctor that shows the state that you have chronic pain and therefore qualify for medical marijuana.

Recreational pot use is good news for some.  However, many don't like it. Medical marijuana users, for example, are angry.  They no longer are in a "special" category.  Sure, they can buy pot without the doctor's note but the fact that so can everybody else makes them uneasy about supply.  The state of Washington has limited the amount of pot you can buy per day to 1 gram.  In part that limit is to curb use, but it also reflects that there technically could be a shortage.  The price also reflects that demand is high and supply is low. Others are angry because they still consider marijuana a gateway drug despite the fact that the number of "only" marijuana users (those who don't use any other elicit drugs) has "officially" risen to 38%.  This number increases greatly when you look at the 18-35 year old demographic.  It is not uncommon to hear about "Mommy's for Pot Legalization" or Friends and neighbors who swap babysitting so that the parents can get high without the kids around.  They in turn watch their friends' kids to return the favor.  What I am trying to say is that pot use is becoming common place whether it is labeled gateway drug or not, and it is being legalized whether anyone likes it or not.

Legalized Marijuana Possession - Effect in Idaho

What does legalized recreational pot mean for an Idaho Criminal Attorney?  In reality it may not mean anything different than what medical marijuana has.  Or, it may mean that with greater availability and access more people will feel more comfortable crossing the border, buying pot and returning to Idaho with it.  A user/client I have spoken to recently confessed that he would prefer to drive to Washington, buy the pot legally and return to Idaho illegally with it rather than buy the hooch on the streets, even though right now, street pot is less expensive.

Another consideration for a Boise Criminal Lawyer is sales within Idaho and what that does to an uptick in possession charges as well as drug trafficking charges.  Although the law in Washington states that you can only purchase 1 gram of pot per day, there is not tracking software in place.  While this seems ironic because the legalization of marijuana in Washington is heavily monitored, there is nothing to stop someone from shopping at different stores and stock piling pot.  Although it is currently expensive, one could foresee once supply has increased and the price decreases, stock piling of marijuana could be an entrepreneur's dream come true.

Quickly, another consideration; this time from Boise DUI Lawyers.  I always feel it is important to remind people that possession of marijuana, intent to deliver or possession of paraphernalia are not the only charges they need to be concerned about when it comes to marijuana use and possession.  The Idaho Code includes in the offense of DUI, being under the influence of drugs.  If you are stoned and operating a motor vehicle you can be charged with a DUI. It is distinctly possible that there may be more DUI charges in Idaho as a result of the legalization of recreational marijuana in Washington.  That, however, remains to be seen.

And one final consideration from the perspective of a Boise Divorce Attorney;  Often in divorce cases there are allegations of drug use.  These are used control or eliminate visitation rights.  For example, if one party claims there is drug use in the other party's home, a judge may order a pee test or a hair follicle test.  If they turn up positive the judge has grounds to suspend, reduce or otherwise alter the party's visitation rights.  But what happens if you visit, live, work or in Washington and while in Washington you use marijuana legally? Can the court penalize you if you didn't break any laws?  Will providing the court proof that you were in Washington change the outcome of a family law judge's decision in Idaho?  These are questions which remain to be seen.  It seems that legalized recreational pot use may not only affect criminal law but will also have an affect upon divorce law.

Can You Legally Possess and Use Pot in Idaho?

As a Boise Criminal Attorney I have gotten a few calls from folks wondering about legalized marijuana. They want to know, "if it is legal in Washington and I buy it there, isn't it then legal in Idaho?"  And the answer is "no".  Marijuana possession and use still remains illegal in Idaho.

Again, this is a case of like it or not.  All sorts of Constitutional Lawyers can debate the full faith and credit laws and get no where.  A judge in Idaho won't even consider a person with a medical marijuana card in possession of pot in Idaho a valid defense.  Federal law, in fact, still states that possession of marijuana is a crime even in Washington.  Suffice it to say this topic goes deeply into states' rights v. federal laws which I will save for another day.

If you need a Boise Criminal Lawyer or a Boise DUI Attorney, give us a call (208) 472-2383, and see what we can do for you.