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Archive for the 'Divorce Process' Category

How to Prepare for a Child Custody Hearing

Posted by admin on 27th April 2006

Preparing for a child custody hearing is not an easy task. You will need a good lawyer you who view to be fit and up to the task. But you can only talk to the lawyer about you case if you have a budget. It would be best to hire a lawyer to represent you and your case. Be open with the lawyer and tell them what you want to see happen in your case. They will ask you questions and you must be honest.

You will need some character witnesses. These are people who know you will and have known you for awhile. They have witnessed you with your children at normal times. You will have to tell them when the hearing is and help them prepare what they feel is important for the judge to hear. Do not dictate what they say to the judge.

You will need some important documents with you. You lawyer will tell you exactly what documents you need. It varies from state to state.

In court, everyone will have the chance to speak and ask each other questions. You need to prepare yourself for what you want to say and how you should respond. Court is stressful enough let alone going for the sake of your child. You should try to remain calm. Planning ahead will be your key to your success

If you tell the judge what is it you want and why you should have it, and make all your points clear and summarized. You will be understood by the judge more clearly.

Be sure to be on time for the trial and be prepared for court to last awhile because your case my not be the first one called, you may end up being there for quit some time. Dress nicely; dress as if you were going to church or a job interview. Make sure you know where the courtroom is. Be sure to check in at the clerk’s desk. Make sure all your paperwork is in order and neat.

When you enter the courtroom go to where you’re lawyer is and face the judge. Face the judge when he asks you to stand. When the judge asks you to speak address him as “your honor”

When the trial starts, the judge will ask you to speak and it is very vital to your case that you do not argue or be rude with the judge. If he asks you questions that you don’t understand don’t be afraid to say so. Speak clearly and use words you understand. Stay calm no matter what happens during the case and be sure to make you point heard.
Do not talk about the case to anyone outside and remain professional. Most of all be sure to make it clear that you love your children and say why you want to have them in your life.

Posted in Child Custody, Divorce Process | No Comments »

Who Pays Legal Fees?

Posted by admin on 27th April 2006

Most of the time in divorce cases; each person pays for their own attorney separately. But, there are cases where the court may decide to order that both parties share the legal fees equally or one pays more than other, etc,,

Legal fees can be determined in the same ways or similar to the ones used to award alimony. In these cases, the judge would have to decide if a person can pay their legal fees or if the spouse should pay.

In some divorce cases, however, an attorney may ask for some money upfront as a contingency, when this happens you must have some money to give him for him to start working on your case. So, this money you must come up with before you can retain his services. The attorney will use this money for such things as court filing fees, transcripts of testimonies, obtaining records, cost of expert witnesses, travel expenses and other pertinent information.

The best way in which to keep costs low in your divorce or within your budget if you think you will have to pay all of the legal fees and get nothing back from your spouse is to do much of the leg work yourself. You can make copies, run to the courthouse to file papers, etc.

Another way to ensure that the legal fees are equally shared between you and your spouse is to if at all possible sit down and talk with your spouse prior to the filing. Sign an agreement with them pertaining to all aspects of the divorce, compromise as much as possible on this agreement. Things that should be discussed include who keeps the home, the automobiles, has custody of the children, child support, insurance payments, tax payments, and agree that each of you will pay one half of the legal fees. If this is possible you will at least have an agreement, but also remember according to which attorney you both use and their fees the cost can still be tremendous.

If your legal fees are rising because of a stubborn spouse and you are spending more and more money of such things as depositions to proof that you were right and that you never had an affair you may wish to ask the court that your spouse be responsible for the extra that you have had to pay.

In addition, if you are asking for alimony, you may also use this information to ask for help with your legal fees.

Posted in Divorce and Money, Divorce Process | No Comments »

What’s a Trial?

Posted by admin on 27th April 2006

Many people have been to court or have watched a court trial on the television however; they are still wondering or are just not sure how a trial really works? What happens in a trial and what is the process? Well let’s see if we can shed more light about how it all works. A trial is a legal proceedings consisting of the judicial examination, it’s designed to prove and put upon record the blameless characters of judges, advocates and jurors. In order to affect this purpose it is necessary to supply a contrast in the person of one who is called the defendant, the prisoner, or the accused.

Trials are usually heard in official public courts which are established by the lawful local and federal governments with the authority of a public power for the adjudication of disputes, and dispense civil, labor, administrative and criminal justice under the law. Depending on the type of matter to be heard a jury that make decisions about the facts before the court under the direction of the judge; in other courts, such as appellate courts, all decisions are made by judges. In the United States a jury trial is a legal right of its citizens if they choose to request it for their case and the jury will decide if they are innocent or guilty then the judge will decide the punishment.

Here is how the process of a trial usually proceeds: After you plead not guilty, the prosecutor explains the case against you and then brings in their witnesses and asks them questions to prove you are guilty. The witnesses testify by telling the court what they know. Your lawyer will cross-examine each witness when the prosecutor and your lawyer have questioned the entire prosecutor’s witnesses; the prosecution will rest its case. It’s up to the prosecutor to prove to the judge and jury that you committed the crime.
 
Just as it is the task of your lawyer to show that their allegations are not true and you are in fact innocent. If the prosecutor has not proved your guilt you are found not guilty.

Now there will be the final arguments that both your lawyer and the prosecutor will make a last effort summarizing all the facts of why you are guilty and your lawyer will then take a turn telling why you are not. Now the jury will decide based on every thing they have listen to and decide if you are guilty on not guilty and hand the decision over to the judge. The judge will read the verdict and if guilty he will pass sentience that fits the crime, other wise you are free.

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What’s a Motion?

Posted by admin on 27th April 2006

Motions are used for many requests during court trials and hearings, with divorce cases many times motions for temporary support and fees will be filed if one party needs temporary alimony, child support, or perhaps even for their attorney fees. Motions in general are heard between the times the original petition is filed all they way to the final hearing. Motions are actually hearings with in hearings in that the judge will schedule a brief hearing to grant or deny the motion requested and hear short arguments as to why or why not the motion should carry.

Filing for a divorce is a much longer process and is often filled with motions, because the two parties cannot agree so it takes even longer settle the divorce. Most divorces are filed as no fault which is the quickest way to settle a divorce. But if a divorce is filed as a fault divorce it can take quit some time to settle because in this case the fault has to be proven and there will be even more motions used because of the time of the case.

The divorce process begins with one party receiving papers usually by a sheriff or process server indicating that a divorce has been filed. Usually, motions are filed along with the complaint for divorce. The motions are for temporary orders then motions are generally will be heard within a few weeks, which require that both parties and their attorneys head off to court for the better part of a day.

They will first meet with their lawyers and try to come to an agreement on the motions. If the parties cannot agree, then the matter will be heard by a judge who will most likely try to push the parties to an agreement by making an indication of how they will more than likely rule on the motions and if they still cannot come to an agreement, then the judge will make a ruling.

Eventually, if the matter is not settled, after several attempts it will proceed to a hearing and a judge will decide how to divide up the assets. While it is not the quickest or even the best way to get divorced, unfortunately sometimes it turns out to be the only way. Motions are also used for other reasons such as when there are issues about temporary custody of children and where they will live and child support until a finial decree is entered.

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What’s a Deposition and How Do I Prepare?

Posted by admin on 27th April 2006

Depositions put in to basic understanding are simply a series of questions that must be answered truthfully just like you are under an oath. Court stenographers usually are present at the taking of depositions and they simply take down all the parties present at the deposition, and any thing said both questions and answers. Usually the line of questioning is very direct only allowing yes or no answers. These depositions are most often conducted by lawyers before court hearings to find out information, facts, truths, or even lies that sometimes can be found through this line of questioning.

Usually both sides of any court case will have the opportunity to take depositions for any one connected to a case including eyewitness, both friendly and hostile witness and even expert testimony from professionals in fields of expertise that would be relevant to a case. Depositions are powerful tools that can dig down and find the truths and if cases are not settled prior to actual court trials these depositions will be used to keep people testifying from changing their story when they are on the stand.

Once depositions are completed they are transcribed in to booklet that contains all of the questions and answers asked and given. You will receive special instructions to review the transcript for any errors, and what to do if you find any. So now that you understand what a deposition is here is some tips that will help you prepare if you are ever requested to be deposition.  Number one is always telling the truth, this information can be used against you in a court of law and then it’s too late to change your answers.

When you are ask any questions in a deposition, remain calm, and try to keep your answers short as you possibly can, simple yes or no is usually all that’s needed. If it’s a question that (Yes or No) simply wont do, then you might say (I Don’t Know) or (I don’t remember.)  Do not try to explain your answer. If the other attorney wants a better explanation he will ask for one.

Remember never answer any question until your attorney indicates for you to. Above all no matter what you are ask remain calm don’t lose your temper or get angry. When you have to appear for a deposition, dress as you would when applying for a professional job.

Posted in Discovery, Divorce Process | No Comments »

What’s the Role of an Attorney in Divorce Mediation?

Posted by admin on 27th April 2006

You may decide to use an attorney even if you and your spouse have agreed to divorce mediation.  An attorney does have a very important role in your divorce even if you choose the mediation route. You may not desire your attorney to be sitting there in every session, but you should talk with an attorney before you decide on mediation.

What an attorney can do for you and your divorce mediation is, basically, give you advice and help you with the understanding the laws and how they pertain to you in your particular situation. Before you go to your first mediation session, you should consult an attorney. They will give you an overview of the relevant laws and their opinion about how they perceive your case would go in court if you decide to go to court instead of through mediation. This way you understand your options and if the mediation is not going the way you would like you will have an idea of what you would get if you go to court.

You may also need legal questions answered during the course of the mediation process. Not all mediators have knowledge of the law and you may need some answers before you make major decisions. Legal questions regarding pensions and retirement plans can be asked of your attorney before you agree to give away any of your legal rights. Just because the pension plan is solely in your spouses name, does not mean that you may not have any legal rights to a portion of the plan.

After, you and your spouse have your agreement on paper; it would also be wise if you took this to an attorney before it is submitted into court. Your attorney may have questions that are not answered exactly as he believes they should be before presenting it in court. If there are any unanswered questions or areas that can be discussed further you can then take it back to the mediation and correct it.

Remember a mediator is not an attorney and is suppose to be a neutral person to aid in you and your spouse in making decisions that will speed up the process of your divorce and many times save you money. However, they are not up on laws that can pertain to your case. Any time you have legal questions, do not let the mediator and your spouse explain the law to you, ask your attorney.

Posted in Divorce Attorneys, Divorce Process | No Comments »

What Is Divorce Mediation & It’s Advantages and Disadvantages

Posted by admin on 27th April 2006

Divorce mediation is when you find a neutral person, usually an attorney that is willing to mediate or help you with resolving all factors regarding your divorce without going to trial. Sometimes, mediators are not attorneys and have no legal knowledge at all. Mediation can be ordered by the court when the court deems it is necessary for the couple to resolve certain issues pertaining to their divorce. Divorce mediation is a lot expensive than a trial and most judges prefer this to be done. In most divorce mediations, women are not normally pleased about the outcome, because they are not the ones in many cases with the power and money. Therefore, when choosing a mediator you should find one that is not biased as to the person that has the money and power, is sensitive to both people and the children, and has good bargaining skills.

Advantages of Divorce Mediation are:

You make the decisions. You and your spouse can choose when to meet, for how long, what issues need to be discussed, and how you wish to resolve them.

All issues are discussed in private and not in a courtroom for the world to witness.

You can make your agreements fit your family. You will be able to choose your own financial and parenting agreements in which the court could not, because the judge must go exactly by the law. The nesting child custody agreement is a great example, the court cannot give this type of custody but you and your spouse may believe it is in the best interest of the children. Nesting child custody is where the children never leave the home, the parent’s switch homes during their time and this can be divided by time of day, weekly, monthly, and yearly. The decision is yours.

Less money will be spent on attorneys, filing fees, and time in court.

Disadvantages of Divorce Mediation are:

If you are trying to compromise with an unwilling spouse you can become emotional exhausted. Sometimes, even the thought of seeing your soon to be ex-spouse brings angry and resentment. Therefore, mediation can be very trying.
Women may have the feeling that they powerless because they stayed at home and took care of the children. In this type of case, many times, the women just agree with what ever the man has to say.

If any type of domestic violence has occurred in the home, the victim may have a very difficult time speaking up for himself or herself.

Agreeing on all aspects of the divorce can be very difficult as well. Both parents may wish to have custody of their children, but not want joint custody.

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Unbundling of Divorce Legal Services

Posted by admin on 27th April 2006

Unbundling of Divorce legal services may be a new term to many but is beginning to be used by several couples and for good reason. Unbundling is a great way to save hundreds of dollars on unnecessary services that you do not need for your divorce. You will be able to find a coach that can help you with all the legal stuff you will need before going forward.

You will be doing most of the work yourself and only using an attorney when it is absolutely out of the question not to use one. You can also stay in control of your divorce and you make all the decisions what issues need to be negotiated. You are your spouse together can make most of the decisions without paying an attorney to do the work. You may also see that your spouse is spending money on an attorney and this may frighten you a bit. But, it should not when you have questions, you can seek legal advice and pay for what you need only. Your spouse will see that every time he wants to negotiate you come by yourself and your spouse shows up with their attorney. They are the one paying for the attorney’s time, this may make them wish to resolve any issues faster and get it over with when they realize just how much they are spending on attorney fees.

If you do decide to go with unbundling of divorce legal service you will be the one responsible for any filings, gathering information, and showing up in court. You will need to study and get your facts together for court including child custody laws and child support laws if you have children. You will need to come up with a reasonable visitation schedule and child support calculations to show to the court. You can talk with your coach and get all the legal advice you need, but you must be the one to implement them in the courtroom.

If you come into court unrepresented, the judge does not look favorably at you from the beginning, but if you show that, you are prepared and have everything together his respect for you will rise. The worst way to get the judge to look at you unfavorable is to be unprepared with questions and resolutions that need to be discussed.

Talk with your coach and be prepared is the best advice. Ask questions regarding issues you should be careful about in court, find out what you can about your spouses attorney, should you file for divorce first, how often should you talk with your coach, how much will it hurt me in court if I represent myself, find out about the judge, what dates should I watch for, and will I have to go to court.

Posted in Divorce Attorneys, Divorce Process | No Comments »

Tips for Testifying In Court

Posted by admin on 27th April 2006

If all else fails and you and your soon to be ex-spouse can not agree on anything to do with your divorce you will have to go to court. This will begin by you receiving a telephone call from your attorney explaining when the court date is and at what time. Now, you must appear in court and testify about all the facts that led up to your divorce, any and all skeletons in your closet, and a bunch of other questions that your spouse’s attorney will ask. And they will ask plenty to try and show that you are not worthy of spousal support, the division of property the way in which you desire and even that you are not fit to have the children.

The most important thing to remember when going to court is that you must agree to the statement “do you promise to tell the truth, the whole truth, and nothing but the truth?” and if you do not tell the truth you can find yourself in perjury, which can be a jail term. So, no matter what be honest with your attorney and the court.

The tips for testifying in court are pretty basic and use common sense.

Dress for the occasion, dress like you are going to church, a business meeting, or other functions that requires a certain professional look.

Listen to each question that is asked. If you do not understand, ask them to repeat the question.

Think before you answer.

Do not go on and on with your answer, be precise. If you can simple say, yes or no, do so. Do not elaborate.

Never show that you are upset or angry about any question, this will give your spouses attorney some good ammo to use against you.

Watch out for misleading questions or questions that are twofold. Be sure to think before answering these types of questions. They are being asked to trip you.

If the question being asked is giving wrongful information regarding the facts, be very careful how you answer.

Above all, remember most questions that your spouse’s attorney asks he will have some type of proof or speculations regarding the situation. If he ask you if you have had an affair and the answer is no, then you should have proof that your answer is correct. Your spouse may have proof that you did in fact have an affair sometime during your marriage, or he may be just going off the statements your spouse has said with no proof at all.

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Temporary Orders

Posted by admin on 27th April 2006

Lawsuits and divorce cases can take many months to resolve especially if both spouses are not agreement on important issues such as division of property, child custody and so forth. Many times a couple will need fast decisions that cannot wait until the final divorce degree is filed for answers. This is where temporary orders come in. A judge can make decisions with a temporary order that will aid divorcing couples with immediate answers that will suffice until court. These are just temporary and do not mean that this will be the outcome of the final degree.

Many times, temporary orders can be given by the judge in a special hearing and you will not have to wait for a trial. These types of hearings are quick, so you must be prepared to answer fast and give as much information that is necessary for the judge to give a quick decision.

Temporary Orders are used in cases all the time to aid couples that need quick answers. Your attorney can ask the judge for temporary orders to aid with:

Restraining a spouse from contacting the other one, or from the home

Order child custody and visitation

Alimony and child support

Order each spouse not to sell any possessions

Give an order for the possession of the automobiles

Which parent can reside in the home

The best time to ask for a temporary order is the minute that one spouse moves out of the home. You should contact your attorney immediately with your concerns over child custody, child support, and spousal support. You will at this time want to file for custody of the children, the home and any monies that you are entitled to. Also, be sure that the money in all bank accounts cannot be taken out by your spouse leaving you without any source of income. If you file as soon as possible for a temporary order, your spouse will not be able to claim kidnapping charges against you as you will have a temporary order for child custody and child support.

You can talk with your attorney and he can file the necessary papers for a temporary order. You will still need to give him the information that he needs in order to file. These include:
A statement explaining why you need the temporary order, such as money to support yourself and the children, if others also know your circumstances you can also give their statements to your attorney. The forms your attorney will file are called an Order to Show Cause. Your spouse will receive an order to appear in court on a certain date and time and then he will have to show proof why the temporary order should not be put in place.

In most cases, as long as the judge can see that you need the support and the children are with you, you will be granted temporary custody and support.

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