Military Divorces and Custody Cases
North Idaho Attorney Kevin J. Waite, P.C. on Tuesday, November 21, 2017
The military service of either or both parties to a divorce, child custody case, or child support case adds an overlay of issues and procedures to consider. It is usually current military service that brings these considerations to the fore, but even cases involving past military service sometimes raise issues such as the appropriate division of a military retirement.
One of the first issues to consider in any new or reopened case is the Servicemembers Civil Relief Act, 50 U.S.C 3901 et seq. Among the protections provided by the Act are a barrier in the path of a default judgment being taken against the servicemember and a stay of the litigation on behalf of the servicemember. It is important to note that these protections are not absolute. There is a procedure for obtaining a default judgment against a servicemember under the right circumstances. There is a fairly technical procedure for seeking a stay, and a standard and evidentiary requirement that the servicemember must meet. There is a great misunderstanding among attorneys and judges on these issues.
Even where a stay is granted, there are exceptions. For example, the other parent may nonetheless obtain a temporary order for child support. There are cases going back to the early 1940's on some of these issues, (Read More...)
Most people have a good general idea of what a trial involves. There are various other hearings before trial in divorce cases (as there are in most cases), however, and many people have little or no idea what to expect at them. This is not an exhaustive list, merely a general discussion of some of the more common pretrial hearings.
The earliest such hearing is usually a scheduling conference, sometimes called a status conference. It is what its name suggests – a conference for the purpose of scheduling a trial date and dates for other, related hearings and deadlines. A scheduling conference is likely to be set up after a response to the petition is filed. Courts need to know how long a trial the parties think they will need – usually one or two trial days but sometimes longer – should the case not settle. The attorneys and their clients are called in to report that information. Judges generally also use the occasion to get a preliminary idea of the issues of the case, to find out if settlement discussions have begun, and to issue various other orders such as for mediation.
Most judges hold a similar hearing closer to trial, usually called a pretrial conference. It is frequently an opportunity for either side to raise specific issues that may need to be addressed before trial. (Read More...)
Informal Custody Trials
North Idaho Attorney Kevin J. Waite, P.C. on Monday, September 25, 2017
Everyone who has watched television knows how trials are conducted, right? Suits, Law & Order, Boston Legal, L.A. Law, Matlock, and for those who remember black and white shows, Perry Mason have all taught us how it's done. Well, maybe not, but that's another topic. This one is on informal custody trials.
The best way to describe an informal custody trial is to contrast it with the traditional trial. In the old tried and true way, witnesses (sometimes many of them) testify in a question and answer format. The lawyer who represents that party or who has called that witness asks generally open-ended questions intended to draw out the story in the witness's own words. Then the witness is cross-examined, a real slash and burn segment when the TV script writers have done a good job. Then there may be re-direct questioning by the first lawyer and possibly re-cross examination. Along the way there are likely to be objections, which are argued and are ruled upon by the judge. If the objection is sustained, the question is not answered or the exhibit is not admitted. If the objection is overruled, the witness gets to answer the question or the exhibit is admitted into evidence. The process is repeated for each witness. It sometimes makes the process seem choppy and the story (Read More...)
After a Complaint or a Petition is filed, it must be served upon the opposing party (Respondent). The client is asked to provide the residential and workplace addresses and other personal information about the other side. One recent client described her ex as "fat, unemployed, always drunk and never out of bed before noon". The more information the better. It is also helpful for the process server if a photograph is provided.
Usually, a local process server retained by the attorney will serve the Respondent at either that party's residence or workplace. Service can also be performed by a friend or family member of the client. It cannot be done by the client. If served at the Respondent's residence it can be served upon anyone 18 years of age or older. At the workplace the papers must be served directly upon the opposing party.
If the opposing party is currently residing out of state, it is not an impossible situation as long as one knows where he or she is living. One then needs only to "Google" process servers in that geographical area. This usually yields a small group of possible servers to choose from based on availability and price. Through email and fax one can quickly send papers and after service is accomplished receive an affidavit of service.
In the worst of (Read More...)
Interrogatories are questions that are served by one party to the other to obtain information. Often they are highly personal and pry into the personal life of the other party. Nonetheless, they have to be answered. As one good turn begets another, your lawyer will send over a similar set to the other side.
Interrogatories have to be answered truthfully and to the best of one's ability and sworn to under oath (with a notarized signature). They are usually accompanied by Requests For Production Of Documents, which can be equally offensive and which also have to be answered.
These papers are frequently served shortly after the Respondent has responded. This process is an opportunity to obtain facts and documents to support one's case and to test the strength of the opponent's case. It is often a useful tool for both sides to have the answers before mediation, so that items such as bank accounts and debts are known in order to get to a fair resolution.
Discovery - another name for this process - is very broad. Information may not be relevant but is still discoverable on the theory that it may lead to relevant evidence. There are occasionally interrogatories and document requests to which an objection can be made (and sustained), but usually this occurs when the requested (Read More...)