Divorced with Kids: Tips for Back to School

Resolve to make each school year better than the last.

Resolve to make each school year better than the last.

It is that time of year again: teachers are decorating their classrooms, parents are shopping for school supplies, and students are enjoying the last few days of summer vacation.  The new school year is about to start.  What are you going to do to make this a great year?

Back-to-school season is even more stressful when your child shares two homes.  Your child’s education is tough enough already–meeting teachers, tracking homework, signing and filling out permission forms, keeping track of extracurricular activities–without having to deal with the extra chores involved in split custody.  Here are a few tips to get your child’s school year off to a good start–

1.  Keep a positive attitude. Your child may be reluctant for the summer to end and for the back-and-forth of regular visitation to resume.  When you keep a positive attitude, it makes it easier for your child to make the adjustment.  Your child will feed off of your emotions.  Don’t let them sense that you are uneasy about your ex-spouse’s visits.  Instead, help your child to look forward to spending time with their other parent.

2.  Don’t let your child hear you talk bad about the other parent. I get it: you and your ex-spouse don’t get along.  There are hard feelings and bitterness.  It is so easy to make snide comments about the other parent.  But don’t.  At least not within the hearing of your child.  Bite your tongue.  If you put the other parent down in front of your child, your child will resent you instead of the other parent.

3.  Don’t make your child be the messenger. If you have information that the other parent needs to know, don’t make your child deliver the message.  Visitation exchanges are hard enough without putting pressure on your child to remember and convey information to their other parent.  It doesn’t matter if the information is trivial or important:  if the other parent needs to know, then you need to communicate directly with the other parent.  If you aren’t on speaking terms, then send an email.  Or write a note, put it in an envelope, and hand it to the other parent during the visitation exchange.

4.  Be involved. Get a copy of your child’s school and extracurricular activity calendar.  Attend programs, open houses, games, and concerts.  Go meet your child’s teacher.  Sign up for the school’s internet portal and check your child’s attendance, grades, and homework.  Help with fundraising activities.  Go to school and eat lunch with your child.  These are great ways to show your child you care, even though the two of you may not be able to live in the same house all the time.

5.  Make an effort to get along with the other parent. Let bygones be bygones.  Bury the hatchet.  Turn over a new leaf.  Be respectful and courteous of the other parent.  When your ex-spouse has a scheduling conflict, needs to change weekends or exchange times, be gracious!  This is not for the other parent’s benefit, but your own and your child’s.  When you can communicate and accommodate with the parent, your stress levels will go down, and your child will feel more comfortable in an unnatural situation.  Do it for you!

This year does not have to be just like last year.  Your child is a year older, and has matured more than you realize.  Make his or her year better by following these tips for a great school year.  You won’t regret it.

Facebook, Infidelity, and Court

An interesting article appeared in SmartMoney today, entitled “Does Facebook Wreck Marriages? This short article examines whether social media–and Facebook in particular–put marriages at risk of affairs.

Author Quentin Fottrell identifies three dangers. First, users who would otherwise remain faithful to their spouses can easily become tempted by the people they interact with online. “The social network is different from most social networks or dating sites in that it both re-connects old flames and allows people to “friend” someone they may only met once in passing.”

Second, even if an affair was not caused by social media, Facebook may lull users into a false sense of security, where they feel safe to post information that might tip off a significant other. “It could be something as innocuous as a check-in at a restaurant, he says, or a photograph posted online.”

Finally, when couples find themselves in divorce court–whether there was an affair or not–information from social media can and will be used as evidence to determine child support, alimony, and even custody. The article quotes attorney Randy Kessler, the current chairman of the family law section of the American Bar Association, that “any pattern of behavior that’s recorded on Facebook relating to parenting skills, excessive partying or even disparaging remarks about a spouse that violates a court order could be admissible in court.”

I encourage you to read the entire article, and to exercise extreme caution in your social media activities.

Calculating Child Support

How much child support will I have to pay? How much child support will my ex-spouse have to pay? These are common questions that need to be answered so that you can prepare for the future after divorce or separation. The calculation of child support is complicated. The Colorado State Judicial Branch has provided lawyers and parents with a worksheet to help calculate support (which is linked below), however, every case is different. The application of your circumstances to the child support guidelines must be considered carefully to make sure that all rules and exceptions are applied. Therefore, it is highly recommended that you consult an attorney to make sure that you do not shortchange yourself.

In Colorado, child support is governed by section 14-10-115 of the Colorado Revised Statutes. This long and complicated section contains guidelines for child support based upon the income of the parents and the amount of parenting time exercised by each parent. While the amount of support will vary depending on the circumstances of the parties and children, the code contains a formula to calculate the child support that is presumed to be in the best interest of the children. A Microsoft Excel spreadsheet containing the formula is available from the Colorado State Judicial Branch, and can be found here– Child Support Worksheet. Instructions on how to fill out the worksheet can be found here–Instructions.

There are two major elements to the child support formula: the parties’ relative income and the amount of time each parent spends with the children. The guidelines will also consider other factors, including the number of other children for which one of the parents owes a duty of support, extraordinary medical expenses, day care expenses, and the cost of health insurance.

With respect to the parties combined income, gross incomes generally include all full-time income from each parent. Some exceptions apply. For instance, overtime is sometimes included in a child support calculation, but sometimes it is not included; it depends whether the job requires overtime or not. As a general rule, a party is not required to work more than one full-time job to support his or her children. If a party is unemployed or underemployed, the Court may treat that parent as though they were working full time at a job for which they were qualified. For example, an executive capable of earning $100,000 per year who would be able to find work in her profession would not be able to quit her job and go to work flipping burgers for minimum wage in order to lower her child support. If she did that then the Court would probably calculate child support as though she were earning up to her potential. If a parent is able-bodied, then absent good cause the Courts will presume that they are capable of earning at least minimum wage and working forty hours per week. Other exceptions and rules apply. Contact the Law Office of Kirk Garner or another attorney of your choice to obtain legal advice.

As stated above, the child support guidelines will also take into account the amount of parenting time that each parent spends with the children. Parenting time is calculated by adding the number of times per year that the children spend with each parent. If the children spend fewer than 92 nights with one parent, then child support is not affected. As the parenting time becomes more equal, and the children spend more than 92 nights with each parent, the amount of child support starts to equalize between the parents. The unfortunate effect of the equalization is that one parent or another may seek more overnight periods of possession than they are really prepared to handle just so that they can lower their child support obligation. Likewise, the other parent may seek to unfairly limit the other parent’s visits to increase the amount of support they receive. Nevertheless, I believe that Colorado’s method of calculation is better than other states’ that only consider the income of one parent.

Child support is generally payable until a child reaches nineteen years old or graduates from high school, whichever occurs later. Child support may terminate earlier in certain circumstances. The law does not require a parent to provide financial support for a child after age nineteen. Thus, parents are not required to pay for their children’s college education.

If you have questions about how much child support you can expect to receive or pay upon divorce or separation, please call Kirk Garner today to set up an appointment!

Now Serving Teller County!

PPCU-300x160The Law Office of Kirk Garner is pleased to announce that we have opened an office in Woodland Park, to better serve clients in Teller County. The office is located on the second floor of the Pikes Peak Credit Union, 720 W. Midland Avenue, Woodland Park, at the intersection of Highway 67 and West Midland Avenue. We have an absolutely magnificent view of Pikes Peak and Woodland Park. There are only a few attorneys who practice family law from Teller County. If you live in Teller County and need an attorney for dissolution of marriage, child support, spousal maintenance, grandparent rights, or a Department of Human Services matter, call us today.

July’s Post of the Month: Testifying in Court

The judge weighs the witness's credibility.

The judge weighs the witness’s credibility.

[The following article was originally published on July 22, 2011, and was the most viewed post that month.]

It can be a scary and intimidating experience to testify in court. Most people don’t have to testify in court very often. It is okay to be nervous. Most people are nervous when they testify.

To some extent, testifying in court is uncomfortable because it is unnatural: Witnesses can’t just come into the courtroom, talk directly to the judge or jury, and say whatever they want. Rather, they have to answer questions posed by a lawyer, while the judge and jury listen to the exchange.

If you are being called as a witness it is either because you are a party in the case or one of the attorneys believes you have important information that the judge or jury needs to consider in making a decision. Whenever I am preparing a witness to testify, I give them the following instructions:

1. Tell the truth, the whole truth, and nothing but the truth. It is very important that you tell the truth, to the best of your ability.

2. Listen to the Question. Make sure you understand the question. If you don’t understand the question, or if the question is vague, ask for clarification. Without being difficult, you may ask, “If you’re asking my ‘X,’ then my answer is ‘Y.’”

3. Answer the Question. Don’t answer the question you wish the lawyer had asked you, answer the question that was asked. Answer only the question asked, without adding information or making commentary.

4. If the question calls for a ‘yes’ or ‘no’ answer, then answer ‘yes’ or ‘no.’

5. On the rare occasion when you can’t answer ‘yes’ or ‘no’ then say so.

6. Even when you are asked a ‘yes’ or ‘no’ question, it may be more clear for you to answer, ‘that is correct’ or ‘that is not correct.’ Lawyers don’t always frame questions precisely. For example, if you are asked, “You did not go to work on Monday, isn’t that true?” You answer, “No.” Are you testifying, “No, I did not go to work,” or is it, “No, it is not true that I did not go to work?” If you answer, “That is correct,” then everybody will understand what you mean.

7. Don’t argue. The lawyer asking you questions may be rude or insulting. She may insinuate things that upset you. Nevertheless, do not become argumentative. This is not your turn to ask questions. This is not time to have a conversation with the lawyer or anybody else.

8. Don’t get smart. When you are on the witness stand, it is not time to crack jokes or be witty. This is not the time to hurl insult or make snide comments. The judge or jury is watching your demeanor and body language, and they will judge your credibility–whether they think you are telling the truth. It is common in trials for two witnesses to give conflicting testimony: the judge or jury must decide whom to believe. If you make inappropriate comments, your testimony may be disregarded.

9. Don’t cop an attitude when the other lawyer is asking questions. Give your spouse’s attorney (or the other side’s attorney) the same respect that you showed when your own attorney was asking questions.

10. Don’t get defensive. Don’t assume the questioner is trying to trap you. Don’t infer a bad motive. The lawyer asking you questions may or may not be trying to imply something by the manner of the questions being asked. Your job is not to be defensive, it is to answer the question.

11. Don’t look for clues or an answer from the lawyer or the audience. Only one witness may testify at a time. When you are on the witness stand, you are the only person who may answer the question. Don’t look to your spouse or anyone in the audience to help you remember something.

12. If you don’t remember, say so. ‘I don’t recall’ is always the right answer if you genuinely don’t recall. If you claim you don’t recall something you should be able to remember, it may appear you are lying.

13. Don’t speculate or guess. Again, if you don’t remember, don’t try to recreate your memory. Don’t be talked into a false memory. If you didn’t see something or didn’t hear it, if you could have personal knowledge of something, then say so.

14. Your own lawyer (or in most cases the lawyer who called you to testify if you are not one of the parties) generally must ask you open-ended questions: Who? What? Why? When? How? The fact that the question is open-ended does not give you the right to go on and on with your testimony. Give a concise answer if possible. It is easier for the lawyer to ask another question if she wants more information than it is for her to stop you when you are giving too much information. Just make sure your answer is not misleading.

15. The other side’s lawyer, or the lawyer who did not call you to testify if you are not a party, may generally ask close-ended questions that call for a ‘yes’ or ‘no’ answer. This is called ‘leading the witness’ because the lawyer is stating the facts and merely asking the witness to affirm or deny those facts. “Isn’t it true that ‘X’?” “It was cloudy that day, wasn’t it?” You may feel that your ‘yes’ or ‘no’ answer is misleading. You may feel the need to explain yourself. This is not the time to do that. If you try to explain your answers, the lawyer asking questions may object and ask that you be directed to simply answer the question. If your attorney feels it would be helpful for you to explain your answers, he may ask you when it is his time to do so. Until then, answer the question you have been asked.

16. During your testimony, a lawyer might object. Something like, “Objection Your Honor, calls for speculation.” When a lawyer makes an objection, stop talking. Do not answer the question until you are told to do so. Generally speaking, if the judge sustains the objection, you will not be allowed to answer the question. If the judge overrules the objection, you will be allowed to answer. In any case, the best thing you can do is sit quietly until you are told to answer the question or the lawyer asks you another question.

17. Sometimes the judge will address you directly. She may ask you are question or give you an instruction. Listen carefully to what the judge is saying and answer the question or follow the instruction. Judges can get quite upset when witnesses refuse to follow their instructions. The judge has the power to hold you in contempt, so it is never wise to make the judge angry.

18. Don’t ask the judge if you have to answer the question. You should assume you have to answer the question unless someone says you don’t have to answer the question. There is an important exception to this rule: You do not have to answer a question that would tend to incriminate you. If you are being asked about something and your answer could be used to convict you of a crime, you may invoke your right against self-incrimination. If you are not being asked about something that could incriminate you, you will have to answer, even if the answer is embarrassing or personal.

19. Don’t talk over the lawyer asking you questions or anybody else. Wait for the lawyer to completely finish the question before you answer. Your testimony is most likely being recorded by a court reporter or a tape recorder. It is very difficult for a court reporter to accurately record what everyone is saying when more than one person is talking at a time.

20. Answer with words. That is, do not nod or shake your head: the tape recorder cannot hear your answer. Do not answer with ‘uh-huh’ or ‘nuh-uh,’ because it is very difficult to tell the difference between those two answer when your testimony is written down.

Following these guidelines will help you to effectively testify in court.

Uncontested Divorce vs. Contested Divorce

It is more likely for your divorce to be uncontested when you know your rights.

It is more likely for your divorce to be uncontested when you know your rights.

When a prospective client calls to discuss a divorce, one of the first questions I ask is whether the case is contested or uncontested.  This is especially true when people want to know how much I charge for divorce.  Uncontested divorces are much cheaper because there are no issues to be decided by a judge or mediator.  Most people hope their divorce will be uncontested, but in reality there are very few truly uncontested divorces.

The Uncontested Divorce. An uncontested divorce is one in which both spouses want the divorce.  They have discussed the issues: how the property and debts will be divided, whether maintenance will be paid and how much, where the children will live, how much child support will be paid, how much parenting time the non-custodial parent will have with the children.  Whatever the issues the soon-to-be ex-spouses face, they have discussed them and have reached an agreement.  It is very helpful for the agreement to be in writing, to prevent miscommunication and misunderstanding.  Uncontested divorces are rare because if the spouses could communicate and reach consensus, the chances are they wouldn’t be getting a divorce.

The Contested Divorce. By contrast, a contested divorce is one in which there is not an agreement on every issue in the divorce.  There are varying degrees of contested divorce.  Couples may be able to agree who will get the house, but they can’t agree where the children will reside.  Sometimes the opposite is true.  In some cases, the parties cannot agree to anything.

Assume the Case is Contested Until It is Not.  Unless I know the spouses have an agreement, it is safest for me to assume that the case will be contested.  I will take measures to safeguard my clients rights and property until an agreement is assured.  I will prepare to present my clients case in court.  By preparing for trial, you actually make it more likely that you can reach an agreement in court.  When you fail to prepare for trial, you weaken you bargaining position and risk an unfavorable result.

Know Your Rights. When discussing the subject of divorce with your spouse, it is important to know your legal rights.  You need to know what you are entitled to so that you can make a fair bargain.  Take advantage of my free thirty-minute consultations for divorce; learn what your rights are; learn what to expect of the process.  Then you can negotiate with your spouse with confidence and you will be more likely to reach an agreement that is in your best interest.  Call me today.

Testifying in Court

The judge weighs the witness's credibility.

The judge weighs the witness’s credibility.

It can be a scary and intimidating experience to testify in court.  Most people don’t have to testify in court very often.  It is okay to be nervous.  Most people are nervous when they testify.

To some extent, testifying in court is uncomfortable because it is unnatural:  Witnesses can’t just come into the courtroom, talk directly to the judge or jury, and say whatever they want.  Rather, they have to answer questions posed by a lawyer, while the judge and jury listen to the exchange.

If you are being called as a witness it is either because you are a party in the case or one of the attorneys believes you have important information that the judge or jury needs to consider in making a decision.  Whenever I am preparing a witness to testify, I give them the following instructions:

1.  Tell the truth, the whole truth, and nothing but the truth.  It is very important that you tell the truth, to the best of your ability.

2.  Listen to the Question.  Make sure you understand the question.  If you don’t understand the question, or if the question is vague, ask for clarification.  Without being difficult, you may ask, “If you’re asking my ‘X,’ then my answer is ‘Y.’”

3.  Answer the Question.  Don’t answer the question you wish the lawyer had asked you, answer the question that was asked.  Answer only the question asked, without adding information or making commentary.

4.  If the question calls for a ‘yes’ or ‘no’ answer, then answer ‘yes’ or ‘no.’

5.  On the rare occasion when you can’t answer ‘yes’ or ‘no’ then say so.

6.  Even when you are asked a ‘yes’ or ‘no’ question, it may be more clear for you to answer, ‘that is correct’ or ‘that is not correct.’  Lawyers don’t always frame questions precisely.  For example, if you are asked, “You did not go to work on Monday, isn’t that true?”  You answer, “No.”  Are you testifying, “No, I did not go to work,” or is it, “No, it is not true that I did not go to work?”  If you answer, “That is correct,” then everybody will understand what you mean.

7.  Don’t argue.  The lawyer asking you questions may be rude or insulting.  She may insinuate things that upset you.  Nevertheless, do not become argumentative.  This is not your turn to ask questions.  This is not time to have a conversation with the lawyer or anybody else.

8.  Don’t get smart.  When you are on the witness stand, it is not time to crack jokes or be witty.  This is not the time to hurl insult or make snide comments.  The judge or jury is watching your demeanor and body language, and they will judge your credibility–whether they think you are telling the truth.  It is common in trials for two witnesses to give conflicting testimony: the judge or jury must decide whom to believe.  If you make inappropriate comments, your testimony may be disregarded.

9.  Don’t cop an attitude when the other lawyer is asking questions.  Give your spouse’s attorney (or the other side’s attorney) the same respect that you showed when your own attorney was asking questions.

10.  Don’t get defensive.  Don’t assume the questioner is trying to trap you.  Don’t infer a bad motive.  The lawyer asking you questions may or may not be trying to imply something by the manner of the questions being asked.  Your job is not to be defensive, it is to answer the question.

11.  Don’t look for clues or an answer from the lawyer or the audience.  Only one witness may testify at a time.  When you are on the witness stand, you are the only person who may answer the question.  Don’t look to your spouse or anyone in the audience to help you remember something.

12.  If you don’t remember, say so.  ‘I don’t recall’ is always the right answer if you genuinely don’t recall.  If you claim you don’t recall something you should be able to remember, it may appear you are lying.

13.  Don’t speculate or guess.  Again, if you don’t remember, don’t try to recreate your memory.  Don’t be talked into a false memory.  If you didn’t see something or didn’t hear it, if you could have personal knowledge of something, then say so.

14.  Your own lawyer (or in most cases the lawyer who called you to testify if you are not one of the parties) generally must ask you open-ended questions:  Who?  What?  Why?  When?  How?  The fact that the question is open-ended does not give you the right to go on and on with your testimony.  Give a concise answer if possible.  It is easier for the lawyer to ask another question if she wants more information than it is for her to stop you when you are giving too much information.  Just make sure your answer is not misleading.

15.  The other side’s lawyer, or the lawyer who did not call you to testify if you are not a party, may generally ask close-ended questions that call for a ‘yes’ or ‘no’ answer.  This is called ‘leading the witness’ because the lawyer is stating the facts and merely asking the witness to affirm or deny those facts.  “Isn’t it true that ‘X’?”  “It was cloudy that day, wasn’t it?”  You may feel that your ‘yes’ or ‘no’ answer is misleading.  You may feel the need to explain yourself.  This is not the time to do that.  If you try to explain your answers, the lawyer asking questions may object and ask that you be directed to simply answer the question.  If your attorney feels it would be helpful for you to explain your answers, he may ask you when it is his time to do so.  Until then, answer the question you have been asked.

16.  During your testimony, a lawyer might object.  Something like, “Objection Your Honor, calls for speculation.”  When a lawyer makes an objection, stop talking.  Do not answer the question until you are told to do so.  Generally speaking, if the judge sustains the objection, you will not be allowed to answer the question.  If the judge overrules the objection, you will be allowed to answer.  In any case, the best thing you can do is sit quietly until you are told to answer the question or the lawyer asks you another question.

17.  Sometimes the judge will address you directly.  She may ask you are question or give you an instruction.  Listen carefully to what the judge is saying and answer the question or follow the instruction.  Judges can get quite upset when witnesses refuse to follow their instructions.  The judge has the power to hold you in contempt, so it is never wise to make the judge angry.

18.  Don’t ask the judge if you have to answer the question.  You should assume you have to answer the question unless someone says you don’t have to answer the question.  There is an important exception to this rule:  You do not have to answer a question that would tend to incriminate you.  If you are being asked about something and your answer could be used to convict you of a crime, you may invoke your right against self-incrimination.  If you are not being asked about something that could incriminate you, you will have to answer, even if the answer is embarrassing or personal.

19.  Don’t talk over the lawyer asking you questions or anybody else.  Wait for the lawyer to completely finish the question before you answer.  Your testimony is most likely being recorded by a court reporter or a tape recorder.  It is very difficult for a court reporter to accurately record what everyone is saying when more than one person is talking at a time.

20.  Answer with words.  That is, do not nod or shake your head: the tape recorder cannot hear your answer.  Do not answer with ‘uh-huh’ or ‘nuh-uh,’ because it is very difficult to tell the difference between those two answer when your testimony is written down.

Following these guidelines will help you to effectively testify in court.

Advice for Parents in the Military

Active military duty is hard on families.  Too often, marriages are a casualty of war.  When our servicemen are deployed for long periods of time, it is not uncommon for husbands and wives to grow apart.  Even when marriages survive, relationships with children can suffer.

If you and your spouse are having marital difficulties, and you anticipate separation or divorce, don’t forget the children.  Your efforts to maintain contact with your child during duty and deployment will directly affect the amount of parenting time you are granted when the divorce is final.  It could even determine whether the other parent is permitted to move out of state with your child.  Here are a few suggestions:

1.  Keep the lines of communication open.   Don’t let communication problems with the other parent keep you from speaking with your child.  Maintain telephone contact.  Utilize video-conferencing such as Skype so that you can see your child and your child can see you–it helps communication tremendously when you can see the other person and read body language.

2.  Don’t forget to write.  Send your children letters and emails often.  If your child is old enough to have a facebook or similar account, check in regularly.  Text them.  Show them you are interested in what they are doing.  Ask them about grades, friends, and activities.

3.  Send cards and gifts.  Make sure to remember your child’s birthday, as well as holidays and special occasions.  If you won’t be home for Christmas, ship gifts home, or buy them in advance and leave them with a friend or family member.  When you return home, bring the children a treat or souvenir from your trip.

4.  Exercise your visitation.  When you are in the country and stationed near your child, don’t neglect your visitation.  See you children every chance you get.  If you have court-ordered parenting time, ask for extra time.  Don’t let the other parent unfairly limit contact with your child.  For example, if you have already separated and you are in a new relationship, and the other parent says you can’t see the child when your boyfriend or girlfriend is around, then send the boyfriend or girlfriend away for the weekend and spend time with your kids!  Show the other parent and the judge that your children are more important to you than your new love.

Helpful links–

SurvivingDeployment.com

DeploymentKids.com

Maintaining a Close Bond During Deployment

Flat Fee Divorce: Know Exactly How Much Your Divorce Will Cost at the Front End!

Divorces can be incredibly expensive.  Most divorce lawyers charge by the hour, and rates range between $200 to $400 per hour, or more!  This means that for a short phone call to your attorney, you will be charged $50, $60, or $100!  Is the advice you receive during that phone call worth that much?  It might be, depending on the nature of the question, but it usually doesn’t seem like it.

There are all sorts of problems created by the hourly fee model:  the lawyer has no incentive to settle your case quickly and efficiently because it means he or she will be paid less.  This model assumes that every minute of a lawyer’s time is of equal value, regardless of the benefit imputed to the client.  In my experience, this is a false assumption:  the amount of time the lawyer spends on the case bears little relation to the actual benefit received by the client.

Fortunately, there is another way: the flat fee contract.  With a flat fee, the lawyer will estimate–based upon his experience and the information provided by the client–how much it should cost to complete the case from start to finish.  The attorney may quote a fee that is somewhat higher than a standard, up front, hourly-fee retainer, where the client makes an initial deposit then pays for attorneys time.  This is because there is a certain amount of risk involved in a flat fee that is not present in an hourly fee contract.  If the lawyer underestimates the complexity of the case, he could end up losing money.  On the other hand, the higher flat fee is often attractive to the client, because he knows the total cost at the front end.  He doesn’t have to worry about being billed $75 for a simple phone call, because phone calls are included in the total fee.

A good flat fee arrangement will set objective measures so that the lawyer and client can tell when the lawyer’s fee is earned.  For instance, the contract may state that the lawyer will have earned a percentage of the total fee as soon as the divorce petition is filed, another percentage after the financial disclosures are completed, another upon entry of temporary orders, and the final balance upon completion of the case.  That way, the unearned portion of the client’s fees may be refunded if the case is dismissed; for instance, if the husband and wife reconcile as soon as the petition is filed.

It should be noted that not even the best attorney can anticipate every issued in a divorce or custody matter.  The amount of time and effort that an attorney must spend on a case is determined not only by the client but also on the other party and opposing counsel.  Therefore, a good flat fee contract will set out what situation will merit an increase of the fee.  For example, if the client hires an attorney for the limited purpose of increasing the other parent’s child support obligation, and then the other parent files for full custody; the flat fee will not cover the custody case.  The lawyer and client will have to renegotiate the fee for representation on the broader issues.

Every system has pros and cons, and the flat fee contract is no exception.  It is not right for every case.  However, when a person with limited resources faces the uncertainty of the legal process, a flat fee contract will provide some assurance that the process will be affordable and efficient.

Keep a Visitation Journal or Calendar!

22888gfb1yh0sed1Honore: We met at nine
Mamita: We met at eight
Honore: I was on tim
e
Mamita: No, you were late
Honore: Ah, yes, I remember it well. We dined with friends
Mamita: We dined alone
Honore: A tenor sang
Mamita: A baritone
Honore: Ah, yes, I remember it well!

(“I Remember It Well,” from the musical Gigi, 1958)

“He said, she said.”  That’s what we call a dispute between two parties when the only evidence is one parties’ word against the other.  When there are two sides of a story, the judge must determine which party to believe: Which party is more credible?  Is there any other evidence which will corroborate a party’s story?

The best way for you to clearly remember events, dates, and times is to write them down.  Keep a diary, log, journal or calendar!  This is especially important when disputes arise over visitation, exchanges of children, and telephone contact.  Take, for example, the following exchange–

Wife:  He was fifteen minutes late bringing Junior back.

Husband:  I was on time!

Wife:  It has happened five times since March!

Husband:  I was late only one time!

Wife:  I keep a calendar, and I write down the time he returns Johnny every time.  See here:  he was at least fifteen minutes late on April 1, April 15, April 30, May 7, and May 28!

Who are you going to believe?  Most likely, the person who has regularly documented the events.

Keeping a journal is also helpful to document specific conversations you have had with your spouse.  What was offered, promised, or threatened?  What was the context?  Your notes will refresh your memory when it comes time to testify six months from now about the conversation you had last night.

Now, I have one caution about keeping a journal:  you are not keeping score.  Parents should learn to cooperate in the raising of their children, including visitation and communication during and after divorce.  Mothers and fathers should learn to give and take.  Be understanding when your spouse has unexpectedly been detained at work and cannot make the exchange on time.  However, when the same party makes a habit out of being continually late, a journal and some documentation can help curb that habit.