How Do I Choose a Divorce Lawyer?

Tags

, ,

Often when someone is thinking about the possibility of a divorce, the first basic question they have is “How do I choose a lawyer”? In fact, it is very common for clients, or potential clients, to tell me they do not know any attorneys because they have never needed one before. If you do an internet search for a divorce lawyer you realize there are a lot of them around. Figuring out which one is right for you is an extremely important decision.

I often recommend that potential clients interview two or three attorneys before they decide which one they want to hire. Friends can be a great referral source and can be very helpful in paring the directory listing down to a handful you want to meet with before you make a decision. But every case is unique. Ultimately you need to make the choice that will best meet your needs. So what should you look for? I think there are three areas that you should consider when interviewing attorneys: legal knowledge, personal compatibility and fees. One area which is frequently asked about is results, and I do not think this is particularly helpful at all.

1. Legal Knowledge.

Obviously you want someone who knows the law in your jurisdiction. It may be advisable to hire someone locally who knows the court system where your case will proceed. Many people have a family friend who is an attorney but who does not practice family law. They may not be able to help you with your case, but you can certainly ask them for a recommendation. The attorney you select should have recent experience handling family law cases. If they do not, but you still want to hire them, make sure they will not charge you for time spent educating themselves on family law.

2. Personal Compatibility. 

Far too often this criteria is overlooked in the hiring process. But it may be the most important criteria. You need to feel comfortable talking about your marriage with your attorney. Often times the conversation will be about things you would not want to discuss with your family or closest friends. You will certainly need to be able to speak openly and candidly about financial problems you may be having. If either party had an affair you may have to discuss that matter. If you do not feel comfortable with your attorney you may have problems telling them everything they need to know. In fact, I think it is very possible you would be better off with an attorney with less experience but a better “bedside manner” than the other way around.

It is also important that the attorney’s practice philosophy meshes with your view of the case. If you are hoping to resolve the matter amicably it probably does not make sense to hire a “pit bull” type lawyer who speaks in terms of being aggressive and forcing your spouse to back down. Similarly, if you want to be hyper aggressive because of issues in the case which need to be explored, going to an attorney who focuses on collaborative law or who views themselves as a problem solver more than a street fighter will probably not satisfy you.

3. Fees.

Many attorneys charge on an hourly basis so it is impossible to predict with certainty how much a particular case is going to cost. However that does not mean you cannot get some basic information. How much is the initial retainer? How much does the lawyer charge per hour? DO other attorneys or staff members bill you for their time? If so, what are their rates? Do you pay for copies, mileage, phone calls, faxes and other incidentals? If the attorney is a great fit under the first two criteria, but their fees are out of your price range, you may want to keep looking. You have to be able to pay your bills and support your family long after the divorce case ends.

There are some law firms, including my office, which will represent clients on a flat fee basis. Under this model you pay a fixed price for the divorce, regardless of the time involved. Obviously this solves some problems associated with the traditional fee per hour model. It allows you to know upfront how much you will pay. But that does not mean it is the right model for you. Again, meeting with two or three attorneys can help you find one who will work with you in the way you want your case to proceed.

4. Don’t focus on past results.

An obvious question many people ask is “how often do you win”? This seems like a good way to gauge the attorney you are interviewing. But it has a serious problem. Namely, it is almost impossible to define “win” in a family law case. I have personally seen a case where mom wanted to limited dad to only a few hours of supervised parenting time a week and dad wanted 50-50 parenting time. These two people were about as far apart as the could be on the issue of parenting time. The judge gave mom more custody than dad initially but placed no limits on dad’s parenting time and ordered that parenting time would move to 50-50 in about a year. Both sides where mad at this outcome because neither got what they wanted. So who won? This happens in almost every case – neither side gets everything they want but each side gets some of what they were after. Most family attorneys feel that there is no “winning” these cases, especially with young children involved. But this also means it is easy to manipulate statistics about your results. In the example above either party could claim they “won” because they got more than the other side offered. Both sides could also claim they “lost” because they got less than they demanded. Without a clear guide as to what is a win or a loss, the stats become entirely meaningless.

When Can I Modify Child Support?

Tags

,

One very common question I am asked is “when can I modify an existing child support order?” Either party may want to revisit the child support calculations to see if the order should change. Kansas law provides two times when child support can be modified. First, if it has been more than three years since the last modification or, second, if there has been a material change in circumstances. K.S.A. 23-3005.

Unfortunately, the statute does not explain what a “material change in circumstances” means. For this we have to look to the Kansas Child Support Guidelines. Guideline V of the Kansas Child Support Guidelines explains what is required for a material change in circumstances. First is says anything which would have traditionally been considered by the courts as a material change is still valid. So if the child switches residences or graduates high school, for example. Second, if the new support calculation changes the amount of child support by at least 10% it is defined as a material change in circumstances (the 10% rule). Changes in job status, insurance and day care costs, and income can all be included in this category. However, the Guidelines provide that termination from employment for cause, or incarceration, are not material changes in circumstance and cannot be the basis for a motion to modify. Third, if any child turns 6 or 12, the support order can be modified because Kansas uses three age brackets to calculate support: 0-5, 6-11 and 12-18. So “aging up” into a new bracket is a material change in circumstances. If a child is emancipated by the court or by state law (by enlisting in the military or getting married, for example), it is a material change.  Finally, failing to comply with a court ordered child support adjustment can be basis for a modification. For example, if one parent is given credit for parenting time sufficient to reduce their support obligation but stops actually exercising the parenting time the court can modify support even if it does not result in a 10% change.

So, either party can ask the Court to change the child support order if it has been more than three years since it was ordered, or if there has been a material change in circumstances. The most common material changes are the 10% rule resulting from a change in pay or insurance/day care costs, and aging up into a higher age bracket.

No Fault Divorce Update

Tags

,

In August of 2011 I posted a blog discussing the Kansas no-fault divorce statute. At the time there was some discussion the Kansas legislature would attempt to eliminate no-fault divorce in Kansas. Ultimately the 2012 and 2013 legislative session did not make any substantive changes to the law. However, since the original blog post, there has been a technical change to Kansas family law. The statutes which govern domestic relations cases have been moved in the statute book and our now found in Chapter 23 of the Kansas Statutes Annotated (K.S.A.), rather than in Chapter 60. The actual law has not changed but it is now found in a new place in the books. My original blog referenced the old statutory section in discussing divorce requirements. The section can now be found at K.S.A. 23-2701. The legal analysis of the issue has not changed, at least for now.

The 2014 legislative session is in full swing and a new bill has been proposed to remove “incompatibility” as a grounds for divorce. Kansas law currently list three grounds for divorce: 1. incompatibility; 2. failure to perform a material marital duty or obligation; of 3. incompatibility by reason of mental illness or mental incapacity of one or both spouses. K.S.A. 23-2701(a)(1-3). House Bill 2604 would remove incompatibility from this list and add 8 new grounds. These proposed grounds are: 1. the respondent has been convicted of the crime of adultery; 2. the respondent has been convicted of a felony for a crime against a person; 3. the respondent has been convicted of a felony sex offense; 4. respondent has abandoned the matrimonial domicile for one year and consistently refuses to return; 5. respondent has physically or sexually abused the petitioner or a child of either party; 6. both spouses have been living apart continuously for two years without reconciliation; 7. both spouses have been living apart for one year after a decree of separate maintenance has been ordered; 8. both spouses agree to a no fault divorce.

I have spoken to a couple of legislators and it appears, at this point, the bill will probably not make it out of committee to even get a vote in the house. However, it does appear this is going to be a recurring issue, so it is worth paying attention to going forward.

There has been a great deal of objection to the bill focused on the removal of “incompatibility” as basis for divorce because the proposed grounds require parties to air their disagreements in a public forum. The biggest casualties of this sort of fight would be the children of the marriage. Forcing the parents to allege and prove physical abuse, for example, will escalate the tensions already in existence. This heightened tension inevitably seeps down to the parties’ relationships with their children. And children will probably be called to provide testimony more often as a result.

I also think it is interesting the see what new grounds are listed. For example, adultery itself is not grounds for divorce, only conviction of the crime of adultery is grounds. Adultery is almost never charged as a crime, so this ground would  rarely, if ever, come into play. The criminal conviction grounds both require conviction of a felony. Misdemeanor convictions would not count as a basis for divorce. Under Kansas law, Patronizing a Prostitute is a Class C misdemeanor (K.S.A. 21-3515) and Sexual Battery is a Class A misdemeanor (K.S.A. 21-3517). Conviction of either of these sex crimes would not be grounds for a divorce under this proposed bill. The abandonment grounds requires the respondent to “consistently” refuse to return. Does this mean the party who wants the divorce has to show they  repeatedly begged them to return? It is not at all clear. The abuse grounds does not list verbal, emotional or mental abuse as potential grounds for divorce. The parties can seek divorce if they have lived apart for two years or if they have lived apart for one year after a decree of separate maintenance has issued. This two-year requirement will likely cause more people to actually commit adultery as they will be separated but not divorced. Most people do not wait two years before finding a new relationship. The shortened time frame requires a decree of separate maintenance, which would mean parties would have to go through two court proceedings, pay extra court and attorney’s fees, and make multiple court appearances. This would require additional court time and an expansion of the court’s budget. Finally, the requirement that both parties agree to a no-fault divorce means the party who is not filing has a significant negotiating edge. They could, for example, say “I will only agree to a no-fault divorce if you agree to leave my retirement account alone”.

The goal of “no-fault” divorce is to make the process less about mud-slinging and name-calling. Hopefully, in time, the parties will be better able to communicate regarding the well-being of their children. It is a painful and difficult process; no-fault divorce tries to reduce the pain where possible. The interesting aspect of this proposed bill is that it seems to make marriage less about the loving relationship and more about a contract. If you are no longer in a happy, loving marriage you cannot get out because  you made a deal and now you are stuck with it, at least until one of the grounds applies and you can get out.

I understand the goals of the legislators proposing these revisions. They want to do what they can to preserve marriages and protect the families affected by divorce. However, this bill will not achieve these goals. Unfortunately there is a chance it would actually harm the very people it is intended to protect. I think it is better course for the legislature to decide to stay out of this issue and let people decide for themselves whether or not they should remain married.

Kansas Supreme Court Approves Co-Parenting Agreement in Same-Sex Case

Tags

,

On February 22, 2013, the Kansas Supreme Court granted co-parenting rights to each parent in a same-sex relationship. The children were conceived by artificial insemination and only one of the women was a biological parent. Based on the facts of the case, the Court determined it was in the best interests of the children to have both parents and approved a co-parenting arrangement. This decision surprised many commentators because Kansas is not known for breaking new legal ground. The Court itself, however, went out of its way to apply existing case law and statutes to the facts rather than declaring a new social policy.
The Court focused on two key factors in making its decision. First, the sperm donor was not a parent under Kansas law. (Under certain circumstances Kansas law provides that sperm donors are not considered parents, do not have parental rights and are not obligated to provide child support.) Second, the parties previously signed a co-parenting agreement covering how they would provide for the children if the relationship ended.
The Court applied the Kansas Parentage Act and found that the provision for who is a presumed father can be applied to determining a presumed mother as well. One factor is the potential parent is obligated to support the child under a written promise to do so. A second factor is the parent notoriously and in writing recognizes paternity (or, in this case, maternity) of the child. Because the parties signed a written co-parenting agreement the Court concluded the non-biological mother had notoriously and in writing recognized maternity.
Part of the biological mother’s argument was that this presumed mother status could not trump her constitutional rights as the biological mother. However, the Court noted there are cases where a non-biological parent is nonetheless deemed a father under the Kansas Parentage Act. In fact, it is possible to have multiple presumed fathers under the Parentage Act. The Court expanded this notion to say there can be a presumed mother and a biological mother as well.
The finding of the Court is rather limited. If the biological father had parenting rights under Kansas statutes it is not clear the Court would have reached the same conclusion. Further, without the written co-parenting agreement the Court’s decision may have been different. But, the case is not limited to same-sex relationships. It is not hard to imagine a situation where a man helps raise his girlfriend’s child even though he is not the biological father. If there is no biological father in the child’s life (the father is unknown, deceased or has simply refused all involvement and paternity has not be established), the same rules would apply and the boyfriend could seek parenting time under the co-parenting agreement. The Kansas Supreme Court never discussed this scenario and there is no discussion of equal protection of the non-biological mother’s rights as compared to a non-biological father. But the legacy of this case may well be that it treats non-biological parents equally regardless of gender or sexual orientation.

The case is Frazier v. Goudschaal.

Is Annulment a Better Option than Divorce?

Tags

, , ,

Occasionally someone will ask me about the possibility of getting an annulment instead of a divorce. This is an area where the “word on the street” differs greatly from the actual law. For example, it is common for people to have heard that an annulment is granted if the parties have been married for only a short time. Also, there is a common perception that annulment will be faster and/or easier to get than a divorce. In Kansas, however, annulments are not based on the duration of the marriage and they are not necessarily easier or faster. In fact, because you must prove you meet the required grounds for an annulment, it may be harder to get than a divorce in some cases.
Kansas allows for a marriage to be annulled in two circumstances – if the marriage was void (it violated some legal prohibition) or if the marriage is voidable (some material fact was unknown to one or both parties which, if known, would have led that party to decide against the marriage). If the marriage is not void or voidable, the parties cannot get an annulment not matter how short the marriage.
A marriage is void if there is a legal prohibition against the marriage at the location of the marriage itself. By way of example, it is presently illegal for homosexual couples to get married in Kansas. If a gay couple were to be married here the marriage would be void and the court would grant an annulment. However, if the couple were married in a jurisdiction where gay marriage was legal, the marriage would not be void and Kansas could not grant an annulment on that basis. Other examples of void marriages include close relatives (siblings, cousins, etc.); under age parties or one of the parties being married to someone else (bigamy).
A marriage is voidable if one or both parties did not know a material fact that would have led them to decide against being married. If the husband lies about his financial status and ability to provide for his wife when in fact he is a deadbeat he wants to swindle her family’s money that may be an example of a marriage induced by fraud. Another example is if the wife, prior to the marriage, claims she is pregnant with the husband’s child knowing that either she is not pregnant or the child belongs to someone else that is also induced by fraud. If the court finds the marriage was induced by fraud it must grant the annulment. On the other hand, if there is not a fraud by a only a mistake in fact, then the court may grant the annulment but is not required to under Kansas law. An example of this situation is if one party has a serious, undiagnosed mental illness which only became apparent after the marriage. Alternatively, if the wife-to-be was pregnant at the time of the marriage and both parties believe it was husband’s child, but it turned out to be someone else’s, that would be a mistake of fact and not fraud.
The burden to prove the grounds are met is on the party seeking annulment. This is often a higher burden than what is required to get a divorce. As a result it is incorrect to think of annulment as an easier way to dissolve the marriage- it is not available in most cases and it can be hard to prove in the cases where it does apply. If you have questions about whether you are eligible for an annulment, you should consult an experienced family law attorney in your area to discuss your case.

In a Custody Case the Long Term is Longer Than You May Think

Tags

, ,

I often hear prospective clients say that once the youngest child turns 18 they will never have to deal with the other parent again. As a result they feel comfortable taking aggressive positions against the other parent. For example mom may refuse to switch a holiday or weekend when dad asks for a change, or dad may refuse to allow mom to have the child for an extra few days when mom wants to take a spring break trip. The idea is that it is only a couple of years until the parenting plan does not matter so there is no reason to play nice.
This is a serious mistake. Although the parenting plan may stop when the youngest child is 18, the relationship between the parties will not end. There are going to be college graduations, marriages, grandchildren and holidays even after the child is 18.
What some parties do not understand is the aggressive position you take today may still cause problems years from now. If you refuse to switch a holiday or weekend now the other parent may reciprocate by being difficult when it comes to holidays with grandchildren ten or twenty years from now.
The bottom line is the long run may be longer than you think. It is usually in your best interest to be cooperative with the other parent, even if you do not want to at this moment. If there is a legitimate reason to deny a request then do so; but if there is not a real, legitimate reason then you should try to work together. Ultimately every decision should be guided by answering one question – what is best for the child?

Who decides where a child lives in a Kansas divorce case?

Tags

, , , ,

A common divorce “myth” holds that a child can pick where they want to live, if the child is old enough. Until a child turns 18, however, this is not true. The divorce court has to create or approve any custody arrangement or parenting schedule. By law the divorce court must determine if a schedule is in the child’s best interest before the schedule can be approved.

In Kansas, the “best interests of the child” test requires the divorce court to consider several factors. First, if the parents of the child reach an agreement on a custody or parenting plan, the divorce court is required to presume the agreement is in the child’s best interests. The presumption can only be overcome if the divorce court makes specific findings the agreement is not in the child’s best interests. In other words, the parents have first say over any custody or parenting plan. If the parents agree on a plan the divorce court will usually approve it. Only if the divorce court specifically finds the custody or parenting agreement does not serve the child’s best interests can the judge reject the agreed plan

If the parties cannot reach an agreement the divorce court has to decide on an appropriate parenting or custody plan.  Kansas divorce law lists eleven factors for the courts to consider. The list is not exclusive, the divorce court can consider other relevant factors if appropriate. However, these eleven factors will be considered in every Kansas divorce or paternity case when parenting time or custody is in question. The factors are:

  1. Length of time the child has been cared for by anyone other than the parents.
  2. The parents’ wishes.
  3. The child’s wishes.
  4. Child’s relationship and interaction with parents, siblings and anyone else who can significantly affect the child’s best interests (for example, step-parents, roommates, etc.).
  5. Child’s adjustment to home, school and community.
  6. Willingness and ability of each parent to respect/appreciate bond between child and the other parent, and to allow for a continuing relationship between the other parent and the child.
  7. Any evidence of spousal abuse.
  8. Whether either parent is required to register with the sex offender registry in Kansas or another jurisdiction.
  9. Whether either parent has been convicted of child abuse.
  10. Whether either parent is living with anyone who is required to register with the sex offender registry in Kansas or any other state.
  11. Whether either parent is living with anyone who has been convicted of child abuse.

The sixth factor on the list can be very important and very difficult for parties in a hotly contested divorce case. By law the divorce court is required to examine how the parties are able or unable to work together for the best interests of their child. If one party refuses to cooperate with the other, the divorce court can determine that the best interests of the child are harmed and can adjust parenting time accordingly.

What Does “No Fault” Divorce Mean?

Tags

, ,

I am frequently asked questions about how one spouse’s bad behavior (adultery, alcoholism, abuse, etc.) impacts a Court’s decision to divide the property and debts in a divorce. There has also been some news regarding a proposal being discussed to reconsider Kansas’s “no fault” divorce system. I thought it might be helpful to discuss what “no fault” means and how it relates to the final outcome in a Kansas divorce.

Kansas divorce law applies “no fault” rules in two ways. First, Kansas does not require one party to prove the other caused the divorce by behaving badly. In other words you do not have to show your husband or wife was abusive or had an affair before you can get a divorce.  Instead, Kansas requires one spouse state the parties are incompatible. (Kansas Statutes Annotated 60-1601). The law does allow you to allege failure of one side to “perform a material marital duty or obligation” but you are not required to and very few divorce cases are filed on this basis. Kansas law also states the grounds for divorce should not be detailed in the court documents – you should not air your dirty laundry in the court file. Instead the reason for the divorce should be stated “as nearly as possible in the general language of the statue, without detailed statements of fact.” (K.S.A. 60-1604(c)). Even if one side wrote a detailed list of all the reasons the divorce is the other side’s fault, Kansas law keeps the list out of the Petition for Divorce.

Second, Kansas divorce law generally does not consider bad behavior when dividing assets and debts. Instead the divorce court divides the family’s assets and debts based on the length of the marriage, the ages of the parties and their current and future ability to earn a living, etc. The division of assets and debts in a divorce case is required to be “just and reasonable”; it is not used to punish either side for bad behavior. (K.S.A. 60-1610(b)(1).

There is an exception to the no fault division of assets and debts in a Kansas divorce. If either side has caused a “dissipation of assets”, or has wasted money or given away property, the Court can take that into consideration. For example, if the husband has an affair the Court will not usually consider this bad behavior when dividing property in the divorce case. But if the husband bought expensive gifts for his girlfriend he wasted marital funds and the Court can use that in the divorce. Continuing the example, if the husband bought his girlfriend a car for $25,000 the divorce judge could give the wife the first $25,000 of property in the case and then divide the rest evenly. The husband’s bad behavior, wasting $25,000 of marital funds on his girlfriend, is used by the court to give the wife an extra $25,000 in the divorce to make the total distribution just and reasonable.

I hope this post has helped explain the two ways Kansas uses “no fault” in it divorce laws.

Do I Need a Lawyer For My Divorce?

Financial strain is one of the leading contributors to divorce. Unfortunately, divorce itself usually only increases the strain on already limited family budgets. Between the costs of a second household, lawyer fees, court costs and other new expenses it is easy to see how the situation can go from bad to worse. As a result, many people who decide they need to get divorced are tempted to “do it themselves”.  I am frequently asked “can I represent myself” which is usually followed by “should I?” I will try to give you some insight on those two questions.

1. Can I represent my self in my Kansas divorce?

The answer to this question is a simple and straightforward “Yes”. There is no requirement for a lawyer in Kansas. However, the Court cannot give you any advice or assistance in preparing or filing your documents or help you make or argue your case.  Many times a party in a case will want to bring a friend or family member to court with them. You can have them come with you to court and they can sit in the court room, but they generally cannot sit at the table with you or speak to the court on your behalf. If you decide not to have a lawyer you will be on your own.

2. Should I represent myself in my Kansas divorce?

The answer to this question is not as clear-cut. Each case is unique and a simple yes or no answer would be misleading. I do not know your individual situation so I cannot offer any specific advice but I can give you some things to think about as you consider your options. As a general rule of thumb the more issues involved in the case the more you are likely going to need professional assistance handling the case. If it is a very short-term marriage with no children and little to no property or debt acquired during the marriage, it is more likely that you can successfully do it yourself. However, there are many issues which can be overlooked and the longer the marriage the more issues there are to be considered. For example, do one or both parties have retirement plans? The increase in value of the plans during the marriage is likely to be a marital asset to be divided. If one side does not have a plan, or more was contributed for one than the other, it may be necessary to divide the retirement plans so each side is treated fairly. Dividing these plans can be a long, frustrating process which can have significant tax consequences if not handled properly. Similarly, if there are joint debts (credit cards, for example) it is important to take steps to ensure the debts are handled properly. If the divorce agreement assigns the debt to one party but the debt remains in both names there may be problems. jointly owned assets (house) have other considerations. Finally, matters involving children are often complex and emotional and it may be advisable to consult a knowledgable, neutral third-party to help. Kansas has specific child-support guidelines which have to be considered any time there are children involved even if the parents have reached an agreement on support.

There are options available if you are not sure you can afford an attorney. One option is to meet with an attorney for an initial consultation to at least get some insight into the process involved with your case. Like many attorneys, I offer a free initial consultation to allow someone considering hiring me a chance to meet, ask questions and see if I am a good fit for them. Another option is to hire an attorney to do some limited work on your case. This is a new trend in the law and is sometimes called “unbundled services” or “limited scope” work. The idea is that you can hire a lawyer to do one or two specific things in your case, but not everything. For example, you can hire someone to help you prepare the initial petition and summons, but nothing else. Or you can hire an attorney to prepare the necessary court order to divide a retirement account. Often clients tell me they have negotiated an agreement but do not know how to “put it on paper” – this is another good opportunity to use a limited scope arrangement and hire an attorney to prepare the Separation Agreement which includes the agreements you and your spouse already negotiated. Another option might be to hire a trained mediator to work with you and your spouse to negotiate a settlement.

As you can see, there are opportunities to try to do some of the work yourself without have to go it all alone. However, it pays to be very careful when trying to decide how to proceed. If you are not sure you should ask someone who has experience handling divorce and family law matters. What you do not know can hurt you because, in many case, it is not possible to go back later and fix any mistakes.

Please keep in mind this blog is for informational purposes only and does not constitute legal advice. The choice of a lawyer is an important one and should not be based solely upon advertising.

 

Follow

Get every new post delivered to your Inbox.

Join 327 other followers