Free legal Advice|How to Think Like a Divorce Lawyer.

Free legal Advice | How to Think Like a Divorce Lawyer.

Looking for free legal advice? How to think like a divorce lawyer.

Now is when we really start thinking like a divorce lawyer.

This next phase in your case will help you to develop your positions and move toward settlement or trial. If you do this part of your case correctly, the following phases of negotiations and trial become much easier. Without taking this phase seriously, negotiations and trial could be disastrous.

Going through a family court case, means one or more aspects of your life is in turmoil. There are incidents that happen everyday that cause you stress, mess with your emotions, and can cost you financially. Perhaps the most difficult part of representing yourself is determining what is legally relevant versus what is emotionally relevant.

We have already discussed that Arizona is a no-fault divorce state. That means your spouses bad behavior, which has left you feeling hurt and betrayed, may not be legally relevant to the judge. In family law, determining what is and isn’t relevant to the judge can be a difficult task for attorneys since we are dealing with issues like “Best interest of the children,” which is not exactly a concrete concept. For someone living in the midst of turmoil it can be next to impossible. That your spouse is an abusive alcoholic is certainly legally relevant to child custody issues,that your spouse is a chronic cheater is not necessarily relevant to spousal maintenance, but may be relevant to property division. This section will help determine what is legally relevant to your positions and how you need to prove it.

What is Evidence?

Evidence can be witness testimony or documents and other physical sources of information like photos. You must offer evidence for every element of every issue relevant to your case.

 

Rules of Evidence

In family court, the rules of evidence are relaxed unless one party files a “notice of strict compliance.” Under the relaxed rules, all relevant evidence is generally admissible unless it is repetitive or abusive. Generally, if it is relevant to the issues, a Judge will allow you to use the evidence. If a notice of strict compliance is filed, all of the rules of evidence including hearsay and authentication rules apply. If you are going up against an attorney and they have filed the notice, we suggest you seek advice from an attorney. He or she can help you properly prepare your evidence for submission to the court.

During the next 2-4 months, you will need to identify, compile and organize your evidence. This is a daunting task even for some attorneys, so here, I will give you step by step instructions for what to do.

Step 1: Identify What You Must Disclose and Evidence that You Need

When you argue your case in front of the judge, the judge will look at each legal issue one at a time. Your job will be to apply your specific facts to the existing law. When a judge decides the outcome of your case, it will be issue by issue. For issues such as legal decision-making and parenting time, they are required to make “findings of fact and conclusions of law.” We must keep this in mind when identifying potential evidence and later determining the evidence we will use to prove our case.

The First step in tackling this phase is to figure out what legal issues are relevant to your case, determined the legal elements within the issue, and the corresponding evidence that you need or that you have.

Potential legal issues in the case include:

  • Property division
  • Debt division
  • Alimony or spousal maintenance
  • Child support
  • Child custody legal decision-making
  • Parenting time
  • Attorney fees
  • Enforcement
  • Modification

Start by identifying which issues are relevant in your case. Then look at the substantive law for each issue to determine which elements must be proven. Once you know the elements that you must prove, then you can identify what piece of evidence is necessary to establish a basis for each element.

For example, if child support is a relevant issue to your case, we will look at the child support calculator or read the statute regarding what is necessary to determine child support.

We will find that, at a minimum, to determine child-support you need to I agree upon or prove the following elements:

 

  1. The names and ages of the minor children.
  2. How much income does each party earn?
  3. Who provides health insurance for the children and what is the cost?
  4. Do the children attend childcare? If so, what is the cost and who pays for it?
  5. Do the children have any extraordinary needs for expenses?

 

Then for each of the five elements we have listed above, we can determine whether witness testimony or documents will be used to prove our position. If we start from the very beginning of our case thinking like a lawyer, and organizing our documents and evidence around elements of the issues, it will help us to filter out things that are happening in your day-to-day life that will not be relevant to the judge.

 

Continuing with our example, for element number one, witness testimony will establish the names and ages the minor children. This is almost never in dispute and almost never requires documentation.

 

For element number two, incomes of the parties, proving this element can be simple or complex. Usually, each party’s affidavit of financial information will be sufficient to prove income of the parties. We will talk in depth about the affidavit of financial information later.

 

Element Number three should be fairly simple to prove, using Insurance statements, insurance cards, and paychecks or bank statements to prove the cost of insuring the children.

 

Element Number four relates to childcare. Be prepared to prove where the children attend childcare and how much you pay for it receipts, a written statement from a witness/your childcare provider, you may need a calendar to show the days and times the children attended childcare if this issue is in dispute.

 

The same analysis applies to element number five. If your children have exceptional expenses or needs, be prepared to show that they have these exceptional needs, why the additional expenses are necessary, why your spouse or ex should help you pay for them.

 

How to Put Together Your File

Many people have different ways of organizing a legal file. One popular way is to break down a file into pleadings, court orders or minute entries, correspondence with the opposing party, and disclosures.

While there is nothing wrong with that approach, and it may work for you, I am advocating a different approach.

When organizing your disclosures, keep the end in mind.

At a minimum, have one folder for each legal issue (depending on the size and complexity of the issues, you may need subfolders for each element of each issue). As time goes on and new evidence unfolds (like emails from your ex saying he got a new job making $100k) you can determine which element of which issue the email is relevant to and put it in the proper file or folder.

You will also need a folder for pleadings and orders, but by organizing everything else in relation to how the judge thinks, you can stay focused and save time when preparing for trial.

 

How to Identify Witnesses

 

In most Arizona counties, you will be given very little time to prove your case. Because of that, use of witness testimony is usually kept to a minimum, but can make or break a case. You will need witness testimony if your testimony is not sufficient on the issue or element of the issue, and there is no documentation to prove what you are trying to establish.

 

A witness can be anyone with personal knowledge on a relevant issue. A grandparent or friend could be a witness to an incident of domestic violence. An employer could be a witness on anticipated future income.

 

What about Expert Witnesses

 

Expert witnesses are people with special training or knowledge who are asked to give their opinion on a given issue. Expert witnesses like parenting coordinators, court appointed advisors, or forensic psychologists are often used to provide opinions and facts surrounding issues related to parenting time and legal decision making. They are most often appointment by the court, so there is no need to worry about disclosures.

 

The other type of expert witness frequently used in family law cases are financial experts. A financial expert may be used to testify about the value of certain assets, or the earning capacity of a spouse, or the value of a family-owned business. These experts are you usually hired by one of the parties or hired jointly to render an opinion. If you hire a financial expert or any expert witness that the court is unaware of, you must disclose the name, credentials, and subject matter the expert will testify on 60 days prior to trial. Sometimes you need only the report of the expert and you do not need them to actually appear in court and testify.

 

There are certain types of cases that are very difficult to prove without an expert.

  • If your case involves domestic violence and you don’t have direct evidence of that violence, you should consider hiring an expert or asking that the court appoint an expert for you.
  • If your case involves suspected parental alienation syndrome, these are very difficult to prove, and you will need an expert.
  • If you suspect your spouse has a mental illness but it is undocumented, you will need an and a psychological evaluation to prove the mental illness exists.
  • If your case involves a business and it must be valued, you will need a business valuator to render an opinion of value.
  • If you have already had a temporary order, presented evidence on an issue such as spousal maintenance, and received an unfavorable order, consider hiring an expert witness to offer different facts or back up your claims, at the next hearing.
  • If your case involves separate and community property, co-mingled funds, or other complicated financial issues, consider hiring an expert witness.

 

This is by no means an exhaustive list, just examples for your consideration. Once you have identified each issue and the corresponding elements, and you have determined the evidence that exists for each element, you can evaluate the strength of evidence that you have and consider what role witnesses will play.

 

Given the framework, we can now dive in to disclosures and discovery.

 

Rule 49 of the Arizona Family Law Rules of Procedure lays out what you are required to disclose even without the other party asking for the documents and even if you do not intend to use the documents as evidence. In reality, self-represented litigants rarely follow all of the rules and rarely disclose everything that they need to under rule 49. Rule 49 can help you identify what might be important and what you may need to get from the opposing party.

 

Thankfully, it is also broken down by legal issues.

 

Mandatory Disclosures

 

In Arizona, evidence that is not properly disclosed cannot be used in trial. This means that if you do not follow the correct process for disclosing your evidence, the Judge may refuse to look at what you bring to trial despite all your hard work identifying, organizing, and preparing your evidence. This can be devastating and could mean losing on very important issues like child support or parenting time. It could mean you walk away with less than half of the community property. You could literally lose on every single issue, if you do not take this part of the process seriously and approach it with diligence.

 

Disclosure simply means that you have provided the opposing party a copy of the evidence you intend use. You may find it easier to organize your documents and online files. We do much of our disclosure with their law firm electronically to the opposing parties as well.

 

Disclosure statements are required under the rules and simply act as a guideline and cover page for your disclosures. Within the statement, you will identify the names of the documents, your position on the relevant legal issues, the names and addresses of any witnesses you intend call, Andy’s summary of what you anticipate they will testify to. It can feel very counterintuitive to tell the opposing party exactly what you plan to present to the court. However, it’s not only required under the rules, it should also help you to reach settlement. The idea being that if your ex knows how strong you’re cases for child support there is simply no need to litigate the issue.

 

Completing and filing a disclosure statements also puts the court on notice what you have disclosed and when. This prevents the opposing party for making false claims they have not received your disclosures.

 

You do not have to file your disclosure statements, but you can. You do not file the documents you are disclosing. They are simply given to the opposing party. Your first disclosure statement is due to the opposing party within 40 days after the response has been filed. You may complete several disclosure statements throughout your case since the duty to disclose is ongoing.

 

The Affidavit of Financial Information

The most important and non-negotiable mandatory disclosure is the Affidavit of Financial Information (AFI). If your case involves child support, spousal maintenance or attorneys fees, you and your ex will need to submit a completed and accurate AFI. This is one of the only disclosure documents that must be filed with the court.

It is very important that the information you put on your affidavit of financial information is accurate. Within the documents you will need to identify your household budget, your sources of income, your debts, your assets. We have broken the task down into a three step process.

 

Step 1-Assess Income

 

The first step is to evaluate the total amount of income of the spouses. If one or both people work at salaried positions, this is fairly straightforward.

 

Calculating income can be more challenging, however, if the other spouse is self-employed without a set monthly income. Income from sources other than employment, such as trust funds, retirement accounts, government benefits, and royalties should also be assessed.

 

For several aspects of a divorce, including child support and spousal maintenance, it’s imperative to know the income each spouse receives. If you still have access to the house and all of the documents and accounts, it is very important that we get this information now.

 

Go through the house and identify all of the information you possibly can regarding income. Identify where the accounts are held, the user names and passwords, statements, W2s, tax returns, 1099s etc.

 

Step 2- Document Income

 

Start Printing! There is no telling how long these accounts will be open. Print bank statements, copy W2s, tax returns, profit and loss statements etc.

 

For the self-employed spouse, it includes additional documents such as bank account and credit card statements, business records, and loan applications.

 

Determining the income of a self-employed person is not always simple, but having access to the appropriate documents can make it much easier. Once a spouse moves out, gaining access to those documents can diminish or even disappear.

 

Step 3- Create a Budget

 

After income has been assessed and documented, the final step in figuring out the financial situation involves creating a current and prospective budget. The budget should detail your income and expenses both currently and what you anticipate them to be in the future (if you are married and getting a divorce). The same painstaking detail used in documenting income should be applied here in gathering bills, financial statements, and other documents that show the family’s expenses. This is much easier to do while living in the home and without the possibility of anyone hiding assets or information.

 

You will use the AFI to state both current and future anticipated expenses. This requires planning!

 

This budget can be critically important in determining how much spousal maintenance will eventually be paid or received. The laborious work of creating a thorough budget is well worth the effort, and proving the accuracy of the budget with documents is even more valuable in terms of preventing further conflict.

Consider the free tool Mint.com to help you organize your information and assist with the creation of an accurate budget.

 

The AFI requires asset and debt information as well, however, those sections of the AFI are more important in a divorce than in an action to establish custody for unmarried parents or in a modification.

 

If property division is an issue (because you are going through a divorce), you will need to identify your assets.

 

You should itemize all of the assets on a spreadsheet (use Mint.com for a free resource to build your asset picture), detailing the date the asset was purchased, the purchase price, and the estimated current value.

 

For some assets, such as the home, this is fairly straightforward, while other assets will be more difficult to assess. It’s unlikely that most people have kept records of the purchase date and price of every piece of furniture, collectible, and other home furnishing they own.

 

It’s important to make as complete an itemization as possible, however, remembering to also check the contents of any self-storage facilities or safety deposit boxes.

 

If you don’t have access to information, we will use the discovery tools to request the information from the opposing party.

 

Four categories of assets to consider:

 

  • Marital residence and other real estate including lots, vacation homes, cabins, etc.
  • Intangible assets, such as financial and retirement accounts, stocks, bonds, etc.
  • Business interests.
  • Physical assets, such as furniture, artwork, vehicles, etc.

 

In addition to identifying the assets, you will need to identify the debts.

If you have more than a few debts, you will want to itemize debts on the spreadsheet, detailing the amount of principal owed, interest rate, creditor, and account numbers.

 

Five categories of debts to consider:

  • Mortgages, equity loans and other debts secured by real estate
  • Auto loans and other debts secured by physical assets
  • Credit cards, including store-specific cards and gas cards
  • Student loans
  • Tax liabilities

Some of the records and documents to photocopy:

 

  • Tax returns
  • Pay stubs
  • Statements for all financial and retirement accounts
  • Statements for all loans and credit cards
  • Vehicle titles
  • Photographs of physical assets, such as china, crystal, artwork, furniture, computers, etc.

 

This can be a time-consuming task, but time spent photocopying supporting records and creating a thorough itemization will be a huge advantage.

 

It’s common for the leaving spouse to have limited access to the marital residence and its contents after moving out, which allows assets to disappear or be damaged.

 

The itemization will also prevent additional unscrupulous and unethical behavior on the part of the other spouse, and it will save money by reducing the work to be done by a lawyer who bills for his or her time.

 

 

While you are gathering all this information to complete the AFI, it still represents potential evidence, so you will want to file it away in the appropriate folders within the relevant legal issue.

 

Some evidence will be relevant to more than one legal issue. In that case, I recommend making a few copies of the evidence and placing all relevant evidence in each section of your disclosure/discovery folders.

 

Additionally, you will want to document what you have received and when from the opposing party. You could add a tab to your spreadsheet or simply create a separate folder for what you ex has disclosed and when. You can then take a copy of anything relevant to your issues and place them in the relevant folder.

 

What if you don’t have the information you need?

What if you have done all this work, you have dutifully disclosed and created disclosure statements and your ex is refusing to give you anything! This happens all the time, even when people are represented by attorneys. So, what can you do to get the information you need.

 

First, you can send a letter requesting the information you need and pointing out the mandatory disclosure rules in the Arizona Rules of Family Law Procedure.

 

Next, you can use the following discovery tools to formally demand your ex give you what you need. With most of the tools below, the opposing party will have 40 days to respond to your requests.

 

Finally, if you still don’t have what you need, you can consider filing a motion to compel. Before you are allowed to file the motion to compel you must make a “good faith effort” to resolve the discovery dispute. That means even after you have 1)asked nicely 2)provided discovery requests and 3) waited 40 days, you must still ask again before filing your motion to compel. This could mean you make a call, send an email or write a letter giving your ex a final deadline before filing your motion to compel.

 

If after all of that, your ex still won’t comply and the motion to compel is granted, you will also be awarded your attorneys fees. It is mandatory and not discretionary. Since you are representing yourself, I suggest you request monetary sanctions- the equivalent of your ex paying your attorneys fees. This sort of bad behavior should be punished. You can’t have a fair fight if one side won’t play by the rules. Additionally, the rules are designed to put everyone on an even playing field, working with the same information in order to achieve a fair result. If you can’t get information, it’s difficult to settle a case, forcing you to spend more of your precious resources in the emotional abyss of a family law case.

 

What are the available “discovery tools”

 

You will notice that not everything is covered by the mandatory disclosure rule 49. There may be things you want that your ex is not required to disclose. Use the discovery tools to request anything even remotely relevant to your issues. Which tool you use depends on what you are requesting.

 

Note* These legal documents do not get filed with the court.

 

Interrogatories 

A frequently used and very useful discovery tool is interrogatories. You can send both uniform and non-uniform interrogatories to the opposing party. Interrogatories are questions that must be responded to in writing by the opposing party within 40 days of receipt. This locks in the answer of the opposing party and provides valuable information you can use in making your case. As an example, the uniform interrogatories ask for the party to list all bank accounts, assets, insurance policies, pending litigation claims, etc. If your case has hotly contested issues, consider using the uniform interrogatories as a fantastic discovery tool for your case. The answers are almost ALWAYS useful.

 

Request for Production of Documents

Like the interrogatories, a Request for Production of Documents asks that the other party deliver to you the documents/things you are requesting within 40 days of receipt. You can ask for any and all relevant documents including Quickbooks files, criminal convictions, drugs tests, even medical records. You can even ask for a computer or tablet to have a forensic evaluator search for money or evidence of crimes like child pornography or drug dealing. This is a fantastic tool to accompany interrogatories.

 

Request for Admissions

Requests for admissions are used less frequently than the two tools above, but can provide valuable information and insight for less money than the cost of a deposition. In a request for admissions, the opposing party is asked admit/deny questions and must either admit or deny the questions that you ask.

 

Depositions

Arguably, depositions are the most powerful discovery tool available to you as a litigant. A deposition allows you to ask any question that you would like of the opposing party (with few exceptions) under oath and on the record. This gives you the ability to test out questions and determine the opposing party’s demeanor and ability to answer difficult questions. It also locks down their story. You can depose both parties and witnesses by serving a “Notice of Deposition” upon the party or witness(es) you intend to call. Then, you will want to schedule a court reporter to take the deposition. Give yourself enough time to get the written transcript well before trial.

 

Subpoena

A subpoena allows you to get documents from third parties such as banks, or command a witness to attend a hearing. A subpoena must be issued by the clerk of the court and served upon the intended recipient.

Each discovery tool can help you to achieve a given objective. As always, know your strategy and what you must prove to determine which tools to use. Consider the cost benefit analysis of each decision and take advantage of either a certified legal document preparer, lay legal advocate, or an attorney for further information.

 

What If you don’t want to follow the rules? Here are two client stories related to the disclosure and discovery issues for you to consider.

  1. A client story- undisclosed assets

The client had been married for 30 years. She had raised and home-schooled 6 children and helped build and manage the family business that supported them. She had been a committed and devoted Wife. The “baby” was 10 and still at home along with his sister who was a senior in high school. Honestly, Dad didn’t seem all that interested in the kids anyway. She discovered he had been leading a double life. His online dating profile stated he was 10 years younger and earned $500k/year- twice as much as he actually earned running their dental practice.

We had been working together for a year on her very complicated divorce. She had received her divorce decree, but items were missing. The judge failed to divide all of the property! She was devastated. She just wanted to be done! We had two options: appeal or motion for a new trial on the property issues and ask that the Judge simply divide the assets. We did the latter and the Judge granted a new trial. Ug. This was not ideal.

In the meantime, we kept digging. This is when we found huge amounts of undisclosed accounts. All while Husband was claiming he had no money to pay child support and spousal maintenance, he was sitting on $100k in a hidden bank account!

So, what happens when you find hidden money?

First, you get an emergency order freezing the funds so they cannot be spent by your lying, cheating, no good, dirty, rotten spouse.

Then, you prove at trial that the funds were undisclosed. Because we have done our job and affirmatively played by the rules disclosing everything, and we have sent discovery requests followed by letters requesting all documents, we are given ALL of the money.

That’s right. When one spouse hides money during a divorce we can open the case and be awarded all- not just the community portion of the money.

It was a good day and a great victory for my client.

Billie Tarascio

 

Letter- The Doctrine of “Clean Hands”

 

There is a legal defense known as the doctrine of “clean hands.” It can be most easily translated as “S/he did it too” (insert bratty voice here). Anyone who has children or who has been around children is familiar with the commonly used defense.

Johnny comes to you looking for vindication and says: “Suzy took my blanket and she won’t give it back!” You talk to Suzy who says “But he took my doll!”

This scenario plays out in courts all over the country with a slightly different variation of the facts. The clean hands defense most recently reared its head in a case I was involved in regarding hidden income.

I represented Father. We believed that Mother was hiding thousands of dollars in rental income each month, which should be factored into Father’s child support obligation. Mother owned two homes, a rental and the home where she resided. We believed the rental property was owned free and clear and the residential home carried a mortgage. Mother simply stated she had a net rental income of $50/month. She refused to supply the mortgage documents.

We started our pursuit of discovery with a letter to the opposing counsel requesting clarification on the subject and reminding him that the documents and questions we were asking were well within the mandatory disclosures required under rule 49. When we did not receive an answer to the letter, we sent uniform and non-uniform family law interrogatories clearly and unequivocally requesting that Mother supply us with each property she owned, what was owed on each property, who lived in the property, and a rental agreement for any rental property.

While Mother responded to many of the questions within the interrogatories, she did not answer the questions regarding her properties. At this point, we are very close to proving our allegations that she has the additional income through her avoidance. Our next step is to file a motion to compel. This motion asks the court to compel Mother to hand over the information and answer the interrogatory. If it is granted, attorney’s fees are mandatory, meaning Mother will have to pay Father’s attorneys fees associated with the discovery attempts.

On the day of the hearing, we set out to make our case on both the rental income and why Mother should pay Father’s attorney fees due to her failure to comply with the rules and respond to our reasonable requests. Father offers testimony about why he believes Mother is hiding income and why she has acted unreasonably and cost him additional attorneys fees. We have planned well and executed our strategy and the Judge seems to be aligning with our position. Then Mother’s attorney begins cross-examination of Father. The last question he asks is: “Isn’t it true you also have rental income that you have failed to disclose?” It is clear from Father’s face that he does, indeed, have rental income he failed to disclose. Father attempted to explain that it was only very recently acquired, and, it is only a minimal amount of rental income. But the damage was done. The Judge stated he would use both parties income from their AFI. Father would not get attorneys fees and Mother would not be imputed the additional rental income in the child support calculation.

What is the moral of the story? It is essential that you comply with the rules of procedure in family court. Here is a link to the whole set of the rules. Unfortunately, if you miss something, or fail to comply with the rules, the opposing party may use it as a defense. In this case, my client spent thousands of dollars perusing information and attorneys fees. His failure to mention a $30 rental income on his updated AFI, cost him thousands of dollars in overpaid child support and attorneys fees.

 

Our duty to disclose is ongoing. If something changes, you must disclose.

 

This post was written by Attorney Billie Tarascio of Modern Law. We hope you enjoy the legal information and understand that it is not a substitute for legal advice from an attorney.

 

 

Webinar Replay: “Divorce 101: What You Need To Know Before Filing Divorce”

The webinar “Divorce 101″ aired June 16, 2015

What You Need To Know Before Filing Divorce Papers

View The Webinar HERE

If you’re starting out with a divorce process and doing it yourself, you’ll be learning all kinds of terms and hearing legal mumbo-jumbo that’s going to be overwhelming at first. Family Law Attorney Billie Tarascio presents Divorce 101 what you need to know before filing the divorce papers, to give you a walk through of what you’ll need to know, what other people do during divorce, and what the road ahead will look like.

It’s about an hour long, so you’ll want to save this link and come back to review sections as you need.

This webinar is designed for anyone who is handling their own divorce case as a self-represented party. It doesn’t matter which side you’re on: this video is a MUST-SEE for anyone who is doing their own divorce paperwork.

The webinar will cover things to think about before filing divorce papers. How to create objectives, strategy, how to draft your initial documents, what to expect it a temporary orders hearing, how to conduct discovery and disclosure, and more. You will learn how to prepare for trial, how to identify witnesses, and when you need to seek the advice of an attorney. This webinar is for anyone who has not gone to law school and is going through a family law case in Maricopa County. From start to finish you have a quick rundown of what to expect every step of the way.

RELATED

For a quick review of Divorce 101, check out the article link here.

 

Divorce D-I-Y

Access Legal: Divorce D-I-Y

What’s the new Access Legal Membership I have been hearing about?

There are more than 100,000 people in Maricopa county alone representing themselves every single year. We want to help them all, and we need your feedback to build a better resource for self-representing litigants.

  • SO…what’s the membership option?
    • Unlimited documents
    • Unlimited support from a certified paralegal
    • One low fee of $199 per month.

This is a trial, so you cannot find this option via the website. Contact us directly for the opportunity to try the membership.

Access Legal is a company that grew out of Modern Law specifically to help those people who couldn’t afford an attorney or who were representing themselves in court. This is a “do it yourself” resource, but you can do everything by yourself that you normally would have an attorney to do. Access Legal is a legal doc prep company that comes with resources, documents, support and step by step instructions.

What can I accomplish with Access Legal?

You can do everything you want to do without hiring an attorney to negotiate for you and appear for you in court. You can use Access Legal to negotiate and litigate property division, spousal support, child custody, and child support. You can use it to have your divorce granted by the court. You have the legal right to do all of this yourself without hiring an attorney.

How much does Access Legal cost?

There are a couple of options: the option available to the public right now, allows you to pay for the documents that you need. Most documents are around $100. However, we are running a membership experiment that I can offer you.

If you would like to be a member, the cost is $199/ month and it includes unlimited documents and unlimited support from a certified legal document preparer. I can send you a list of available documents atmhttps://accesslegaldocs.com/documents-and-pricing/

 Access Legal can create documents statewide.

Many resources are free. Documents are all around $100 and come with a free review and consultation with a certified legal document preparer. This is a local paralegal who knows the law and the procedures associated with Maricopa and Pinal county family law cases.

Instead of paying expensive lawyers to plug your financial information into forms, you do it yourself. Instead of paying legal staff to run documents to the courthouse or to your spouse, you do it. We provide the education, forms, and advice and you do the rest. You draft and edit your own documents, negotiate your own deal, and feel the pride and control of knowing you didn’t turn it over to someone who leaves you out of the decision-­‐making process. When it’s over, you can be satisfied and proud that you achieved your divorce resolution at a fraction of the price.

What’s the difference between Modern Law and Access Legal?

A CDLP can give you legal information but not advice. A CDLP cannot represent you in court, negotiate on your behalf or prepare or give “legal opinions.” They can tell you about procedures, what the law says, their personal experience or the experiences of others. They can also advise you when they believe you need the advice of an attorney.

What do I get when I use Access Legal?

  • Divorce and family law documents.
  • Webinars and E-books on representing yourself.
  • You tube instructional videos
  • Articles

Can I really get a divorce without a lawyer?

Many people do. 80% of all divorces are completed without a lawyer. We don’t make any promises other than to answer all your questions, give you the documents you need, and educate you to the best of our ability.

Is Access Legal the right approach for me? Maybe, maybe not, it all depends on you.

  • Are you willing to consider an alternative to the traditional lawyer/client relationship?
  • Are you willing to take on more of the work yourself?
  • Do you have what it takes to manage decisions about your property, children and finances?
  • Can you rise above emotions, make good decisions, and guide yourself to a positive outcome?

If you answered “yes” to these questions, and if you’re willing to do the leg work, edit some basic documents, and negotiate with your spouse, then, yes, the Access Legal system will work for you.

Access Legal is not the solution for everyone. You may need someone to guide you, step-­‐by-­‐step, through the divorce process. Your situation may be complex. Your spouse may be abusive or uncooperative. In those cases, you’re better off having an attorney take control of your case and drive it to conclusion.

 

My Divorce is Finalized, Can I Modify Anything?

My Divorce is Finalized, Can I Modify Anything?

Getting that final divorce decree can result in a wide variety of emotions including relief, sadness, frustration, confusion or regret. If you entered into an agreement, you may wonder if you would have been better off going to trial. If the judge issued a decision, you may think he or she got it horribly wrong. Perhaps you have found new evidence or your situation has changed since the entry of the decree.

Whether you have just received the decree or it has been several years, there are parts of your divorce decree you can change. This article will discuss what you can modify and what you cannot.

1. Property Division

Normally, property division cannot be changed. The exception to the rule depends of whether you have just found newly discovered properties that were not included in the divorce or properties that were discussed in the hearing were not divided in the original decree. If you want to change the division of property, you will need to contact an attorney immediately. Time is of the essence, and remember the general rule is that property division cannot be divided.

2. Child Support

Child support can be modified whenever there is a change in circumstances that would affect the child support amount by more than 15%. You could be entitled to a change in child support if life circumstances change, such as:

  • Income
  • Your ex’s income
  • Health insurance costs
  • Child care costs
  • How many other children you have
  • Parenting time
  • Extraordinary expenses

Something else to keep in mind is that the child support guidelines change every three years or so. In fact, the Arizona child support guidelines are scheduled to change in July 2015. Make sure to consult an attorney or contact the certified legal documents preparer (CLDP) at Access Legal to determine whether you are eligible for a change in child support and what that change would mean for you and your children.

3. Legal Decision Making and Parenting Time

You can seek a modification of legal decision making and parenting time by filing a petition to modify anytime 12 months after the entry of the last parenting time order, or six months after the entry of the last order if your ex is not exercising the parenting plan according to the decree or parenting plan. If you would like to make a change sooner, you may be able to seek a clarification of the existing plan for items that you would like in the plan that have been left off.

  • Other alternatives to modifying legal decision making and parenting time include seeking a specific ruling on an issue that you and your ex do not agree about, or seeking a parenting coordinator if there is ongoing conflict.

4. Spousal Maintenance

Spousal maintenance or alimony may or may not be modifiable depending on the original decree. Many times, an agreement entered into by the parties may be non-modifiable and an order entered by a judge is modifiable under the statute. Under the statute, a change in circumstances for either the payor or the recipient can trigger the possibility of modifying your spousal maintenance. The person seeking the modification has the burden of proof for showing that the modification is necessary.

5. Other Terms

Other pieces of the decree, like a finding of waste or value of a business is not “modifiable” but may be appealable. To seek an appeal, you should consult with an attorney, who can either help you appeal the decision or get you instructions on how to appeal the decree yourself.

 

A final decree is rarely the last step in your family law journey. If you have young children, it is almost certain that parenting time and child support will be modified at some point. The thought of modifying the decree may be overwhelming and daunting. For specific assistance with your modification, contact us today.

Is Hiring a Family Law Attorney a Waste of Money?

 Is Hiring a Family Law Attorney a Waste of Money?

Should You DIY in Family Court?

Between 80%-90% of individuals court represent themselves in family court in Phoenix. Sometimes this works out very well, and other times, when errors or omissions occur in paperwork, it can be disastrous. Hiring a family law attorney is not the right path for everyone, and clearly the majority decide to do without. If you decide to represent yourself, here are our tips for creating the best possible outcome for you and your family.

1. Do the Cost/Benefit Analysis

Say your ex wants to modify your child support order. Should you hire an attorney? Let’s examine the business case. If your ex is asking you to pay an additional $200 per month for your 14-year-old until she is 18, your “maximum exposure” (additional cost) is $9,600.00. Knowing that, you can determine how much you are willing to spend fighting the modification or how much to negotiation to do. You can design a budget to protect your financial interests. It would, of course, be inadvisable to spend $10,000 fighting that child support modification.

2. Take Advantage of Free Resources

Before you file anything, educate yourself about your local laws and procedures. Check out any local free resources geared toward education including seminars, webinars, articles, and/or free consultations with attorneys. Join us for a free upcoming webinar on child support, parenting time and legal decision making. There are also resources geared toward self-represented litigants like Access Legal, where you can create the professional quality documents you need by filling out easy, step-by-step forms. Access Legal provides the actual documents and resources you need when involved in a Phoenix family court case. Arizona has a specific set of laws that dictates the steps of your case, the documents you need and way those documents should look. Be wary of companies simply providing “forms” for all states. They are not likely to offer all of the resources you need in order to protect yourself.

3. Doesn’t Have to Be All or Nothing

Consider using an attorney on a limited scope basis. Just because you decide to represent yourself doesn’t mean that you can’t use an attorney for anything. Many attorneys are now offering “limited scope” or “unbundled” legal services. This means that you hire an attorney for pieces of your case, but not to do everything. This is an excellent option for those who have complicated issues but don’t have $20,000 or more to spend on an attorney. Consider doing the preliminary paperwork yourself, gathering documents and information and then hiring an attorney to represent you in court. By doing some of the work yourself you can cut down on the overall costs and still get many of the benefits of having an attorney involved. You can truly craft this option to your case and budget.

Make sure you find an experienced attorney (one with at least two years experience in YOUR area) and one who is familiar with practicing limited scope legal services. Inexperienced attorneys will not be able to equip you with the knowledge you need when they are not responsible for your case. Likewise, if an attorney is unfamiliar with limited scope legal services he or she may not offer the best resources or parameters for working together.

 

Many of the documents you need for your case can be found at Access Legal Docs, including a modification and response to a child support modification. Consider consulting with an attorney while you DIY. Call us with questions, we’ll walk you through it.

Fatherhood: The Investment You will Never Regret Making

This is a guest blog post from Kent Evans, who is providing valuable insight on our roles as parents.

Have you ever invested in a “sure thing” only to lose your money? Maybe a friend gave you a hot stock tip and you tried to ride the wave. Or, perhaps you found that local startup and jumped in quickly so you could get in on the ground floor. You just knew these were winners! You were glad to invest and eagerly anticipated the return as you leafed through travel magazines and perused new home floor plans. But the returns never came. In fact, it got worse and worse, never better.

The planned gains quickly became losses, and as the daydreams of green turned into nightmares of red, you knew your money was never coming back. You quietly (or loudly) mourned its loss and held a personal wake in honor of the dearly departed dollar bills. For some of us, this has happened on a small scale; but, for others, this approach led to financial ruin.

Even so, we knew there were risks when we invested. We read the prospectus (or maybe just the back-of-the-envelope scrawl penned by the wild-eyed entrepreneur). We have heard the adage that financial investing is all about balancing risk versus reward. The higher the risk, the greater the potential for reward. Every investor searches for the holy grail of low risk and high reward, only to find that these two characteristics hardly ever align.

There is one arena however where this is perfectly true: our investment in our children. This is one place where an amazing economic reality exists – we never end up regretting the time we invested with our children. The returns are often exorbitant, generating immense relational value; and, the risk is completely non-existent. In the end, this investment actually leaves our emotional bank account more full than when we started.

I suppose one could invest so much time with your children that you neglect your spouse or cause your health to fail. You can only eat so many funnel cakes at the state fair before the effects (and the flab) eventually set in.

However, has it become cliche for fathers to over-invest in their children? Are we observing a national epidemic of kids who suffer from over-connection with their dads? Have we amassed statistic upon statistic of the ill-effects on society of all these way-too-fathered children? Hardly.

Fathers, we understand risk and reward. Money given to one thing often means money not given to some other thing. We get that and readily accept it as a cost of doing business. Yet, when it comes to our most precious commodity – our time – why wouldn’t we put that time into an investment with infinite return and infinitesimal risk?

Do we realize that our money may actually be increasing in quantity; but, our time is not. Time is a finite resource. None of us know how much we have left, but there is one thing we each know for sure. The amount of time we have left on this earth is less than we had yesterday. Our time is dwindling, perhaps slowly, perhaps more quickly than we know.

So, let’s commit that while we have our children around, we fathers will back-up our dump truck of time at our front door and unload it completely all over them. We will shovel our currency of time into the lives of those little ones. It is a risk-less investment and once we have made it, we – and our children – will be all the richer for it.

What’s one way you’ve invested in your child lately?

Do I Really Have to Take a Parenting Class?

Do I really have to take a parenting class?

Yes, you do.

In Arizona, every parent with a divorce, legal separation or custody (legal decision making) case has to take a parenting class. The good news is that you can take these at a variety of locations including online.

Topics include:

  • How to talk to your child
  • How to face your own feelings
  • Long distance parenting struggles and how to keep the other parent informed
  • How to build an effective support system
  • How to deal with an uncooperative co-parent
  • How to adjust to an absent parent
  • Bridging the gap for parents who were never married
  • Reduce child support and visitation conflicts
  • Avoiding long, expensive, no-win custody battles.

Most people report satisfaction with the quality of the program and hope and pray that the other parent is taking notes.

For a link to the online class, check out: http://online.divorce-education.com/attorney

It will also cover:

Respectful Communication Skills

Studies show that effective parenting after divorce is directly related to parents ability to respectfully communicate with one another. CIBO identifies 5 major ways to improve communication including: I-Message, Reframing, Self-talk, Stop-Look-Listen, and Active Listening.

Anger Control

Parents who can control their anger are more likely to engage ex’s in a manner that is most likely to lead to amicable results and limit the effects of the separation on their children. By focusing on skills training, CIBO teaches conflict resolution, mindfulness, and self-talk.

Ending Loyalty Conflicts

Loyalty conflicts cause the most damage to children. We focus on how parents involve their children in these conflicts unintentionally, and change that.

For a full version of the handbook, check out:

http://www.superiorcourt.maricopa.gov/SuperiorCourt/FamilyCourt/docs/pipManual.pdf

Divorce 101- What You Need to Know When Representing Yourself

Divorce 101- What You Need to Know When Representing Yourself

This is a follow up to the four part series recently published on How to Represent Yourself in Family Court. That series covered the procedural and practical aspects of representing yourself. Now, we get to the substance of the law. While we recommend you seek legal advice to determine how the law applies to your facts, the more information you have, the better prepared you will be to either meet with an attorney or represent yourself.

Divorce 101

The first question is whether or not their are minor children of the marriage. If you do not have children, the issues to resolve are in list one. If you have minor children from the marriage then you will need to address additional issues within list two.

List One:

Property and Debt Division: All of the property and debt that has been accumulated during the marriage (or co-mingled with community property/debts) will need to be divided and assigned to either party. The general rule of thumb is that each person will take roughly half of the community debts and assets.

Start with a list of all of the property, when it was acquired, and identify its value. Then look at the debts in the same manner. Start brainstorming on ways the debt and property can be divided in line with your objectives for the divorce.

Other ancillary issue that may come up include community waste, separate/commingled property, etc.

Spousal Maintenance: Is one spouse eligible for spousal maintenance or asking for spousal maintenance. This is a tricky legal issue. The court applies a two part test to determine if someone is eligible and, if they are eligible for how much and for how long. While the test is a bit complicated the court is essentially trying to determine 1) does the requesting spouse need spousal maintenance? 2) Does the paying spouse have the ability to pay? 3) How much does the requesting spouse need and what amount/duration is fair under the specific circumstances?

If a couple agrees on an amount and duration the agreement is typically “non-modifiable”. If the court enters an award, that amount and duration are typically modifiable.

Attorneys Fees: Almost everyone requests that their attorneys fees be paid by the other party. The court will order one party to pay all or a portion of the fees of the other based on reasonableness of the parties (or lack thereof) and/ disparity in income between the parties. If you are representing yourself, the court will not award you attorney fees.

 List Two:

Legal Decision Making: Legal Decision Making was formerly known as “legal custody” this refers to who makes the major decisions for the child as to school, religion, medical decisions and personal care. There is a preference for two fit parents to share legal decision making. Exceptions exist where domestic violence and addiction issues are present. Please seek counsel if either addiction or domestic violence are issues in your case.

Parenting Time/Parenting Plan: In Arizona, all parents are granted “parenting time”. Only third parties or grandparents are granted “visitation.” Arizona also requires that a specific parenting plan be put into place that includes a regular schedule, vacation schedule, holiday time, transportation, periodic review of the plan and a way for parents to resolve disputes. You will be required to submit a specific plan. I would encourage you to use the access legal document to assist you in developing your plan. Customize one to fit your needs.

Child Support: In Arizona, child support is ordered for children under 18 yrs of age or those who have not yet graduated high school. The child support calculator will determine the presumptive amount of support. Arizona child support guidelines cover all of the ins and outs of the calculator and can be a very valuable resource.

These constitute the major issues facing a couple going through divorce. Each item has subsets of information and nuances. For more information, contact us directly at info@accesslegaldocs.com.

How to Represent Yourself in Maricopa Family Court Part 4: Negotiations, Trial Preparation, Trial Presentation

How to Represent Yourself in Maricopa Family Court

Part 4: Negotiations, Trial Preparation, Trial Presentation

In Part 1, we discuss what to do prior to filing your family court action, determining your objectives and strategy, how to draft your initial pleadings, how to respond, and whether to request a motion for temporary orders.

In Part 2, we covered how to represent yourself in Default Proceedings and through Discovery.

Part 3 covered the RMC, ERC, ADR, Return Hearings and Status Conferences.

Here, in Part 4 of How to Represent Yourself in Maricopa Family Court, we will wrap up the series by covering negotiations, trial preparation and trial presentation.

Negotiations

Whole books have been written about negotiations. While we can’t get into an in depth discussion about the art of negotiation here, it is important to know about negotiations when representing yourself. Statistically, two unrepresented individuals are actually MORE likely to settle than if you have attorneys involved in your case. It’s hard to know whether that is because the “stronger” party pushes their way into a settlement or because self represented individuals are better at negotiations.

Your Objectives

When entered into negotiations, there are a few things to keep in mind. Think back to your initial objectives (we discussed this in Part 1). Remember what is most important to you, and try to focus as much as possible on what is important and block out the little jabs or disrespect you might be feeling from the other party.

Turn on the charm. Try to be kind and patient, and avoid all snipes, snarky comments, or jabs towards the opposing party. We suggest using a mediator to help the two of you stay focused on what is important: achieving your objectives.

Attorneys Fee and Sanctions

It is important to make attempts at negotiations while you are self-representing in family court, because attorneys fees, or sanctions, are awarded based on two factors 1) Disparity of income (does one party make a lot more money than the other?) and 2) Unreasonableness of the parties.

Most often, Judges find non-disclosure and an unwillingness to negotiate will constitute unreasonableness, which may result in you paying the other person’s attorney fees. Most often, you are better off writing settlement proposals and responding to settlement proposals in a timely manner.

Trial Preparation

The entire process described in parts 1-3 of this series are all a part of trial preparation. In the months leading up to your final hearing you should know the strengthens and weaknesses of your case and have your evidence and witnesses prepared. You should be crystal clear by now of your position on each and every outstanding issue, and you should know where the opposing party stands.

Your Initial Research

To begin trial preparation, identify all remaining issues (such as property division, spousal maintenance, parenting time). Then further drill down into the elements of each of those issues. This requires legal information and analysis. You will need to consult the statutes, a lay legal advocate, a paralegal, a CDLP or an attorney to assist you with each portion.

For instance, if the remaining issue is property division, you need to identify exactly what property is at issue, classify the property as community or separate, and then state the particular facts for your situation that support your position. Next, you will need to identify the evidence (documents and witnesses) that supports and establishes the facts of each element of the issue.

The Pretrial Statement (Prehearing Statement)

This is a very structured way of looking at trial preparation. A good pretrial statement is arguably the most important document in your entire case. You may be ordered to submit a joint pretrial statement, or your may be able to submit separate pretrial statements. If you can spend money on an attorney for any portion of your case, this is the most important time to do so. Your pretrial statement acts as an outline for you and the judge. As an attorney, I use the pretrial statement to help me present my cases.

The pretrial statement will give a brief history, identify the outstanding issues, break down into sub-elements what must be proved under each issue, and then apply your facts and evidence to the various elements. If your case has a lot of outstanding issues, or there are many elements to each issue this could be a very lengthy analysis. Looking at your trial preparation in this way will help you to think like a judge. The judge is only concerned with applying your facts to the law; the easier you can make this, the more persuasive you will be. Your pretrial statement is submitted to the court in advance of trial and read by the judge. A judge may begin the trial with very strong opinions surrounding your case based on what is presented in the pretrial statement,so it’s important to paint the most thorough picture in the statement.

What Should You use for Witnesses and Exhibits?

Ask yourself how much time is set for the hearing. You will be allotted roughly half of the time for your presentation of evidence and cross-examination of the opposing party and witnesses. When selecting which witnesses and exhibits to include, think back to your objectives and consult your pretrial statement. What testimony or documents will help you to prove the statements or arguments you have made in your pretrial? Those are the witnesses and exhibits you should be prepared to use.

Ask friends or family which documents or testimony they find most compelling or convincing. If possible, consult with the most neutral friend or family member you can find. Several items are frequently used as exhibits, including Affidavit of Financial Information for both parties, a child support worksheet, proof of expenses for child-care and health insurance for the children. Proof of any extraordinary expenses incurred on behalf of the children like tutoring or therapy should be included in your exhibits.

Typically, written negotiations are used as well as evidence of your reasonable conduct. Emails can and are often used as exhibits as are Facebook posts, photos, personal logs, and all types of financial documents. The specific facts and issues of your case will determine which documents you use as exhibits. Remember, you must have disclosed them to the opposing party well in advance of trial. Also, you will need to deliver your proposed exhibits and an exhibit list to the clerk of the court approximately 7 days prior to your hearing so that they can be marked. Check with your judge to see if they would like a “bench copy” of exhibits. (A bench copy is simply a copy for the judge.)

Next, you will want to think about and probably write down the questions that you intend to ask your witnesses and the opposing party and their witnesses. You will come up with other questions during the hearing, but good trial preparation includes identifying which questions you would like to ask. Practice with your witnesses, so that they and you will know what to expect.

Trial Presentation

As with anything else, good preparation will make all the difference in the world for your trial presentation. The moving party (petitioner if it’s your initial case, then whoever asked for the modification or enforcement in post decree cases) will present evidence first. Most often, the court uses your pretrial statement as your opening statement, and you will not give an additional opening statement. However, some judges will give you the opportunity. Most often, I recommend skipping the opening statement and getting right down to the presentation of evidence.

What to Expect During Your Family Law Trial

First, the judge will swear you in. Then you will present testimony. As you are offering testimony, feel free to refer to your exhibits and “offer” each exhibit, one by one, as you reference the exhibit. You must explain why you are referring to each document. Do not expect the judge to read or review the exhibit without your explanation as to what the exhibit is and why it is important.

Be sure to refer to your outline so you cover all of the outstanding issues and don’t get flustered as you are speaking to the court. Try and keep your emotions to a minimum and keep your voice level where people can hear you, but you are not yelling.

After you have offered your testimony, the opposing party or their attorney will be able to ask you questions about what you testified to. This is where many witnesses get tripped up. Try and remain as professional as possible and remove any attitude when answering. If you do not understand the question, do not answer it. Do not elaborate on your answers but answer each question as completely as possible while being succinct. You will have the opportunity to clarify any positions on “redirect.”

Then you will call your next witness and follow the established pattern, direct examination (you asking questions,) cross examination (the opposing party or attorney asking questions directly related to the questions you asked on direct) and redirect, your opportunity to ask clarifying questions after cross examination. During this time, you may refer to and offer exhibits into evidence through the testimony of witnesses. The judge will review only exhibits that you “offer into evidence.” When you are finished with your witnesses, you will rest your case and the opposing party will have the opportunity to present their case.

Trials are very, very stressful. Most seasoned attorneys still spend hours or days following a hearing going through a play-by-play of the trial thinking about what was said or questions they should have asked. Be kind to yourself. Presenting a whole life in 90 minutes is extremely challenging for even the most practiced of attorneys.

Objecting to Witnesses or Evidence

If the opposing party offers evidence or witnesses that have not been previously disclosed, you may object simply by saying, “Objection, this witness was not previously disclosed.” The judge may ask for proof that the witness or document was disclosed, and then they have the burden of showing the required disclosure.

Other reasons to object may be that the evidence or witness has no relevant information to provide. Lay witnesses have personal knowledge of the facts, an expert witness testifies based on general theories or scientific principals. They must both be disclosed 60 days in advance of trial.

After both sides have presented evidence, the judge will most likely not offer a ruling “from the bench.” Most Maricopa County family court judges offer an “under advisement ruling” in writing. This can take up to 60 days following the hearing. If that is the case, any previous temporary orders remain in effect pending a final ruling.

After you receive your decree, you may have questions. There are a few options if you are unhappy with the ruling. Consult with your Certified Legal Document Preparer or an attorney about options you may have for clarification, appeal, reconsideration or setting aside the ruling in its entirety.

If you have questions, contact Access Legal directly at docs@accesslegaldocs.com.

How to Represent Yourself in Divorce: Maricopa Family Court Part 3: RMC, ERC, ADR, Return Hearing, Status Conference

How to Represent Yourself in Divorce: Maricopa Family Court

Part 3: RMC, ERC, ADR, Return Hearing, Status Conference

This blog is part of a larger series on “how to represent yourself in divorce” or family court. Some things are specific to Maricopa county, but many are applicable to all family law cases in Arizona.

In Part 1, we discuss what to do prior to filing your family court action, determining your objectives and strategy, how to draft your initial pleadings, how to respond, and whether to request a motion for temporary orders.

In Part 2, we walked you through how to represent yourself in Default Proceedings and get what you need through Discovery.

In Part 3, we cover the RMC, ERC, ADR, Return Hearings and Status Conferences.

1. Resolution Management Conference (RMC):

A resolution management conference (RMC) is scheduled for most initially filed family court cases (either a divorce or an initial action for custody). An RMC is a 30-minute hearing in front of your assigned judge for him or her to review your RMC statements, determine if there are any agreements, and come up with a plan for moving forward with your case.

Prior to the RMC, both parties are required to file resolution statements. Resolution statements are a breakdown of all of your positions on outstanding issues in your case. You are supposed to identify for the judge what the outstanding issues are and how you would like them to be resolved, specifically. For example, the judge will want to know exactly what parenting plan you are proposing, or, if you are not yet proposing a parenting plan, why not.

The judge will review the statements of both parties and see if there are any agreements between the parties. If there are agreements on any issues, the Judge will likely “swear you in” and put your agreements on the record in a binding Rule 69 agreement. These issues are forever “off the table.” If you both agree to a parenting plan or spousal maintenance amount, or who gets which cars, then you’ll be held to that agreement now and required to come up with a plan for the remainder of the issues.

After determining what, if anything, you agree on, the judge will ask how you propose the remaining issues should be determined. Here, the court may send you to a parenting conference, or to ADR (settlement conference), or may appoint a Court Appointed Advisor, Guardian Ad Litem, or for a full blown custody evaluation. The court may set a final hearing date, or may set a status conference for a week or so following an ADR. The court may set a temporary orders evidentiary hearing if necessary. Sometimes, judges will even enter temporary orders, although they really shouldn’t enter any orders that are not agreed to by both parties.

2. Early Resolution Conference (ERC):

If you are not ordered to attend an RMC, you may be ordered to attend an ERC. An ERC is most often set when both parties are unrepresented. In this case, you are ordered to appear at conciliation services and a third party mediator, usually an attorney, presides over your ERC.

You are not in a court room but instead in a small room in the courthouse with the presider (mediating party) and the opposing party. Here, the presider will walk through the issues, one at a time, to see if you are your ex can come to any agreements. These sessions are usually set for three hours as opposed to a half hour ERC. Come prepared for a working session where you really dive into the issues to see what can be accomplished.

3. ADR (Alternative Dispute Resolution) or Judicial Settlement Conference

If you are headed into family court, chances are that you will be ordered to attend some sort of ADR (alternative dispute resolution). In fact, ADR is so common, it’s not really an alternative any more. Instead, it could be called pre-litigation dispute resolution.

Most often, these are ordered when attorneys represent both sides, but if you’re self-representing, it could still be ordered or you may want to request an ADR. If you are assigned an ADR you can expect to be assigned a hearing date (typically with a Judge Pro Tem). The acting judge is not the judge assigned to your case, but a third party neutral. Your conference can take place at the courthouse, at a judge’s office (if you have another attorney acting as a Judge Pro Tem), or at conciliation services.

Most likely you will be assigned to write a confidential settlement conference memorandum that must be submitted to the judge pro tem in advance of the conference. This is NOT shared or disclosed to the opposing party. The settlement conference memorandum should be treated like your pretrial statement (which comes later); it includes not only your positions but also the legal arguments justifying your position and references to your evidence. On the day of the settlement conference you will bring your exhibits and your memorandum and be ready to argue your case. This is an opportunity for you to have a practice run at trying your case and get feedback from a professional on how you are doing and the strength of your case.

When you get to the conference, you will most likely begin with the judge, the opposing attorney and the opposing party all in one room. Typically, the judge explains the grounds rules. The purpose of the meeting is to see what issues can be settled and really drill down within the case to determine the strength of each party’s position. Then the parties’ are separated into different rooms and the negotiations begin. The judge will have reviewed your memorandum and will ask questions anything that is unclear. The judge will likely use their experience and opinions to let each side know where their strengths and weaknesses are. You will have the ability to state your position and convey facts to the judge in an informal setting. Then, the judge will visit the other side to gather their positions and see if an offer can be made.

The judge may go back and forth many times in an attempt to reach agreement and drill down the arguments. This can be a very lengthy process and it typically involves a great deal of waiting. However, they are typically very successful at helping the parties to settle some, if not all, of the pending issues. Even if no agreements are reached, you have had the opportunity to present your case to a judge, and you have likely received valuable feedback. This will no doubt assist in moving forward throughout the process. Also, valuable seeds have been planted in the minds of the parties. Even if no settlements are reached on that day, you may find it easier to settle your case moving forward.

4. Return Hearing/Status Conference

A return hearing is typically set “post decree” (in modification or enforcement actions) in lieu of a temporary orders hearing or RMC. Most often the minute entries setting the return hearing say that “evidence may be taken.” This means you should be prepared to offer testimony and exhibits about the outstanding issues. Have your exhibits prepared and have extra copies available for the opposing party and judge. I recommend disclosing your potential exhibits in advance. With that being said, evidence may not be taken. The judge may simply use the return hearing to figure out what the outstanding issues are and plan a way ahead. A Parenting Coordinator or Special Master may be appointed. The family court often utilizes third parties to help them untangle issues.

A status conference is usually scheduled following an event like a mediation or a certain period of time if the parties have requested an extension, prior to the court dismissing a case.

Final Thoughts

With all of the available pre-trial conferences in family court it can be confusing to know which one means what. I hope this guide gives you a good idea of what to expect prior to your scheduled pre-trial hearing.

If you plan to self-represent, create an account with Access Legal to access dozens of the professional quality documents you’ll need for your case. Some are even available for free, and every document you purchase comes with complimentary access to a Certified Legal Document Preparer (CDLP) who can answer your questions. Access Legal is an easy-to-use platform that guides you step-by-step to create professional quality legal documents for a fraction of the cost of hiring an attorney.

Read Part 4 of this series, we discuss Negotiations, Trial Preparation and Trial Presentation.