Month: September 2012

The Truth About Family Law

I am borrowing this from the Pincus Family Law firm in South Carolina (http://pincuslawyers.com/). Their “About Us” section is so amazingly brilliant that I had to repost the entire thing.  So much truth here.

 

ABOUT US

We do not work on the weekends and do not provide emergency numbers for the weekends. There are times we may look at and answer your email over the weekend, but this is generally the exception and not to be relied upon by you that we are accessible on weekends.

Do not think we are perfect. We make mistakes. We are competent attorneys and paralegals, but we make mistakes. We will correct a mistake if we find it or if you point it out. Please do not yell at us, accuse us of not doing our job, or insult us over a mistake.

We will return phone calls in the order they are received and based on the priority of the situation. If you leave a message, your message will be passed on to the attorney. Calling three or four or multiple times in a day will not get your call answered any faster. Email is the quickest way to get a response from an attorney since often we can check email when we are out of the office waiting at the Courthouse–where we cannot call you.

Attorneys work by appointments only. Please do not show up at our offices to speak with an attorney without an appointment.

Please use our paralegals to answer your questions if they can and give you status reports. Our paralegals are very experienced and can, most of the time, respond to your request, but they can never give you legal advice. We bill our paralegal time at less than 50% than what the attorneys charge so take advantage of their experience and knowledge.

About Others:

You may not get any consideration from your spouse for anything you have done or will do because you are nice. You are encouraged to be nice, be cooperative, but don’t expect to get anything favorable in return for it and we cannot control your spouse’s behavior.

Most of the research you do about your case online or the advice you get from friends will be incorrect or not applicable to your case so you should not compare what is happening on your case to what you find online or what friends or family may tell you. As your attorneys, we are the only reliable source of information regarding the process and status of your case.

The opposing attorney may be very aggravating and frustrating to you because he or she may accuse you of things you have not done, may be litigious (wanting to fight about everything), may drag his or her feet with moving the case forward, or may be non-responsive to requests from this office. It is unrealistic to expect that we can control how an opposing attorney handles his or her file or practices law.

The legal pleadings (Complaint, Answer, Counterclaim, etc.) are legal documents filled with allegations that must be stated (and some that are merely made to posture for a client). Do not expend any emotional energy (get angry or upset) on the text of legal pleadings drafted on your behalf or your spouse’s behalf. It is not worth it.

We cannot control the court’s schedule or docket. The courts schedule cases as they are processed and in line with the thousands of other cases filed. You will not be happy with the time it takes your case to get through the system. There are thousands of family law cases filed in Lexington and Richland counties each year and most contested cases take several months, sometimes more than one year, to finish.

COURT APPEARANCES

Pincus Family Law generally works files in collaboration with all of the attorneys although one may be your “lead” attorney. Therefore, at court appearances, it may be necessary for one to cover a court appearance for the other. We will try to give you advance notice if your “lead” attorney will not be attending a court appearance, but sometimes the scheduling decision is made at the last minute.

SUBPOENAS

The other party can send a subpoena to any third party that MAY have information about you, your spouse, your business dealings, your employment, your education, your children and the like.

Banks, lenders, business partners, educational facilities, stock brokers, teachers, churches, etc. can all be issued subpoenas for any records they may have regarding you. We can do the same.

There is very little we can do to stop this so be prepared to deal with the frustration you may experience. If there is a legitimate reason to try and stop the subpoena, which there rarely is, we can file a motion to do so. Unless the information is privileged in some fashion, the third party will have to disclose the information requested.

DEPOSITIONS

The other party can issue a notice of deposition to any third party witness. This means that a third party can be required to give testimony under oath usually in one of our offices.

The purpose of depositions is to find out information and to find out ahead of time what a person may testify to in court. You and your spouse could each be deposed for the same reason. We can issue notices of depositions as well.

A fact witness is entitled to a fee of $25 to appear and professionals (doctors, psychiatrists, etc.) are entitled to have their time paid for to appear (by the party that deposes them). A court reporter must be present and is paid to attend as well. The attorneys are paid to attend as well. Depositions are costly.

NOTHING HAPPENS QUICKLY

Generally, contested cases take several months to move through the court system. A complicated custody or equitable division case can take one, sometimes two, years to complete.

The courts are always full and there are several steps that have to be taken before a trial will be set, for instance, mediation, a guardian ad litem investigation, discovery, depositions, pre-trial hearings and motion hearings. It takes a long time to move a contested case through the court system and this will likely be your number one frustration.

We will do all we can to move the case forward, but you will still be frustrated with the time it takes to finish a case. Please prepare yourself ahead of time and please do not take this frustration out on us or my staff. We are doing everything we can to move the case along.

DISCOVERY

This is the “formal” name for exchanging information through subpoenas, written questions (interrogatories) and request for documents. Discovery has its own set of rules and deadlines which we will inform you about during the process.

SOCIAL MEDIA

This includes Facebook, MySpace, LinkedIn, Twitter and any sites like these.  You should expect any online profile on any social networking site or personal website to be scrutinized.

Once information has been posted online, either by you or by any of your friends, it becomes public.  It is nearly impossible to erase photographs, messages, chats or other posts from the web.  Once information has been posted, it can be captured and produced in court, even if you later remove it from your profile.

Understand the privacy settings of any website or social network you use on the web.  Take the same approach to your online profiles as you would in your public life, because it is just that – public.

Our rule is simple—do not put anything on any of these sites that you would not want a family court judge looking at.  Do not destroy any evidence either.  If it was ever posted, it can be found again.  Better not to put it out there in the first place.

TEXT MESSAGES

Your text messages will come back to haunt you.  Think before you text and if you would not say it in the courtroom in front of the judge, then do not say it at all.  Talk to your attorney instead.

CHILDREN

Marital problems are terribly difficult for children. Do your children a favor and do not “poison” the minds of your children against their other parent.

Do not speak about their parent’s faults to children. Do not complain to your children about how much child support you are paying or how little child support you are receiving.

Visitation with parents is NOT a bargaining chip or game. Each parent is entitled to visitation privileges with their children.

Children are not your property. They are not your pawns. They are absolutely not your messengers. They are innocent individual human beings that need both of their parents, not just the “best” parent.

ADULTERY

Do not become romantically involved with someone other than your spouse if you are still legally married (even if you are separated)! During marital litigation you should behave as though a detective and camera crew were following you and recording you and your conversations at all times.

CHILD CUSTODY CASES

You should behave as though a detective and camera crew were following you and recording you and your conversations at all times. Do not do anything that you would not be perfectly happy with a Family Court Judge seeing, hearing or finding out about when the Judge is deciding your custody case.

ATTORNEY’S FEES

In a child custody case, you could spend the price of a car in attorney’s fees. Most contested custody cases run upwards of $10,000 to $20,000 in fees paid out over the course of the case. This usually includes attorney’s fees, guardian fees, psychological fees and expert witness fees.

In a complicated equitable division case, the cost can be significant and sometimes more than a custody case depending on how much property there is to value and the difficulty of valuing assets. Even a very small business can run $2,500-$5,000 to value if there is a dispute as to the value.

A small equitable division case (which means there is a home, retirement, credit card debt, and other property or debts to divide) can run $5,000-6,000 in attorney’s fees over the life of the case. The most expensive part of the case is going to be trial preparation and attendance costs. That is why a trial retainer (an “up front” payment) is required in all contested cases. You will see this in your fee agreement and we reiterate here that a trial retainer is required for continued representation.

Joint Custody

I realize I talk a lot about “Joint Custody”, and many people may not even know what that is. Alabama Code 1975 30-3-151 defines the common terms:

 

(1) JOINT CUSTODY. Joint legal custody and joint physical custody.

(2) JOINT LEGAL CUSTODY. Both parents have equal rights and responsibilities for major decisions concerning the child, including, but not limited to, the education of the child, health care, and religious training. The court may designate one parent to have sole power to make certain decisions while both parents retain equal rights and responsibilities for other decisions.

(3) JOINT PHYSICAL CUSTODY. Physical custody is shared by the parents in a way that assures the child frequent and substantial contact with each parent. Joint physical custody does not necessarily mean physical custody of equal durations of time.

(4) SOLE LEGAL CUSTODY. One parent has sole rights and responsibilities to make major decisions concerning the child, including, but not limited to, the education of the child, health care, and religious training.

(5) SOLE PHYSICAL CUSTODY. One parent has sole physical custody and the other parent has rights of visitation except as otherwise provided by the court.

 

 

30-3-152 outlines the factors considered when courts award joint custody:

(a) The court shall in every case consider joint custody but may award any form of custody which is determined to be in the best interest of the child. In determining whether joint custody is in the best interest of the child, the court shall consider the same factors considered in awarding sole legal and physical custody and all of the following factors:

(1) The agreement or lack of agreement of the parents on joint custody.

(2) The past and present ability of the parents to cooperate with each other and make decisions jointly.

(3) The ability of the parents to encourage the sharing of love, affection, and contact between the child and the other parent.

(4) Any history of or potential for child abuse, spouse abuse, or kidnapping.

(5) The geographic proximity of the parents to each other as this relates to the practical considerations of joint physical custody.

(b) The court may order a form of joint custody without the consent of both parents, when it is in the best interest of the child.

(c) If both parents request joint custody, the presumption is that joint custody is in the best interest of the child. Joint custody shall be granted in the final order of the court unless the court makes specific findings as to why joint custody is not granted.

 

As always, courts in Alabama use the “best interest of the child” standard in all custody determinations.