Is an Uncontested Divorce Right for Me?

Is an Uncontested Divorce Right for Me?

People are often unsure of how the whole divorce process works. The term “uncontested divorce” refers to a divorce where the parties do not go to court, and the divorce is submitted solely on the written agreement of the parties. If you retain this firm for an “uncontested divorce,” it will be drafted and sent to you for review. Once you approve in final form, it will be sent to your spouse for their signature. Nothing is filed with the Court until the agreement is complete and signed by both parties, and the Defendant will not be formally served with anything.

This means that you and your spouse must be able to agree on 100% of the terms of your divorce, including custody and visitation, child support, the marital homeplace, and disposition of other assets and debts. If you and your spouse do not agree on these major issues, then an uncontested divorce is probably not for you. I have certainly had clients over the years tell me, “we agree on everything except custody of the children.” Well, child custody is a major issue!

An uncontested divorce also does not afford the opportunity to conduct discovery, so if you don’t know anything about the family finances, then an uncontested divorce is probably not right for you. That being said, a case can start out as contested, and then eventually settle once both parties have the chance to get the information they need.

In sum, unless you and your spouse have open lines of communication, and you have discussed the divorce with them and are fairly certain you can agree, then it may not be wise to invest your valuable time and legal expenses on an uncontested divorce. If you and your spouse have discussed and agreed on the terms, and you feel you have enough information to make an intelligent decision, then an uncontested divorce may be the route for you, as it is typically the quickest and least expensive way to get divorced.

Is Joint Custody Right for My Family?

Is Joint Custody Right for My Family?

Joint Custody is an arrangement where each parent has the children for equal (or close to equal) amounts of time. The most common schedule is that each parent has the children for one week at a time, typically exchanging the children on Fridays or Sundays. If you are considering a joint custody agreement with your soon-to-be former spouse or romantic partner, there are several factors you need to consider:

How do you make decisions?

Can you and the other parent truly cooperate and agree upon every major decision regarding the children? Maybe you can, but there is a distinct possibility you may not be able to do so for the many years to come. If this is a concern, you may need to name a “tiebreaker” parent for major decisions such as religion, education, medical/dental, and extracurricular activities.

Holidays

Each parent is going to want holiday time with the children. There may also be holidays that are important to one parent but not the other parent. For example, one parent may have a big family reunion on July 4th each year, while the other parent does not have any special activities that day. It may make sense for the parent with the family reunion to have that holiday. Other holidays may need to be divided up in a way that is fair to both the parents and the children.

Work and Activity Schedules

You need to be sure that joint custody will work for the work and activity schedules for your family. If one parent works overnight every night, and you have young children, joint custody is probably not appropriate. If the children have an activity that is at 6pm every Wednesday, but Dad always works until 7pm on Wednesdays, he may not need to have them on Wednesdays if he can’t get them to their activity.

Communication and Cooperation

Above all, communication and cooperation are key items in a joint custody arrangement. Both parents will have regular responsibility for making sure schoolwork is completed, medications are taken, and uniforms are sent back and forth as needed. This will require frequent communication and cooperation among the parents. If you cannot put aside your differences enough to work together on this level, then joint custody may not be for you.

What is the Role of a Guardian Ad Litem?

What is the Role of a Guardian Ad Litem?

A Guardian ad Litem’s job is to represent the best interests of the child in any given case, and the Guardian Ad Litem does not represent either of the parents. As such, the Guardian Ad Litem cannot give parents legal advice. Parents must turn to their own lawyers when they need legal advice. If the parents need assistance in presenting evidence, gathering witnesses, etc to advocate for their own position in a case, that is a job for their own attorneys as well, and not the Guardian Ad Litem.

Although the Guardian Ad Litem can make recommendations to the court about custody and visitation in those types of cases, the GAL does not “rule” or make the final decision. Ultimately, only the Court can make the final decision on a case. Of further note is that the Guardian Ad Litem is forbidden from having ex parte communications with the Court. An example of an ex parte communication would be if the GAL had a private conversation with the judge about the case outside of the presence of the attorneys for the parties. As such, the GALs recommendation typically takes the form of a written report that is filed with the Court and thus made simultaneously available to all parties. Some judges do not request recommendations from the GALs and merely expect them to advocate for the child as any other attorney.

In some cases, a GAL may be appointed for a parent or spouse because that person is a minor themselves or is otherwise incapacitated due to mental or physical illness or disabililty. The GAL’s job remains to advocate for the best interests of their client.

Outside of custody and divorce cases, a GAL can be appointed for a minor or incapacitated person in all types of civil lawsuits and their specific role may differ.

Powers of Attorney vs. Health Care Directives

Powers of Attorney vs. Health Care Directives

Powers of Attorney vs. Health Care Directives

Many people are unfamiliar with the legal distinctions between powers of attorney, health care directives, and guardianships/conservatorships.

Power of Attorney

A Power of Attorney is a legal document giving authority to another person to act for you in either specified or all legal and financial matters. The person giving power of attorney must presently have the capacity to do so. That is, they must understand what they are doing and be able to make important decisions. If you are concerned that you may become incapacitated for health or another reason (for example, unavailable due to being out of the country), it is a good idea to give power of attorney to someone that you trust. Note: This person will have the authority to conduct legal or financial transactions as if they are you, with no further notice to or permission from you, so be very careful when granting someone your power of attorney.

Health Care Directive

A Health Care Directive, also known as a living will, personal directive, advance directive, or medical directive is a legal document specifying what actions should be taken for a person’s health if they no longer can make decisions for themselves due to illness or incapacity. In your health care directive, you make decisions about whether you would want to be kept alive by artificial means if you are terminally ill or permanently incapacitated, or whether to allow other treatment which would keep you alive but which could not cure you. You can also designate someone to make those decisions for you if you are unable to do so.

Guardianship/Conservatorship

A Guardianship or Conservatorship is granted only in instances in which an individual is already mentally or physically incapacitated and cannot take care of himself or manage his affairs. There must be medical evidence in support of same presented for the Court to order a Guardianship or Conservatorship. A Guardianship applies to matters affecting the person, and Conservatorship strictly applies to their assets and financial affairs.

Please contact Herlihy Family Law if we can assist you or your family with a Power of Attorney, Health Care Directive, or Guardianship/Conservatorship.

4 Tips for Communicating with a High Conflict Person

4 Tips for Communicating with a High Conflict Person

4 Tips for Communicating with a High Conflict Person

First of all, what is a high conflict person (HCP)? This term often refers to individuals who have diagnosable personality disorders, but divorce and custody litigation are times of high stress that can lead even healthy individuals to be on their worst behavior. HCP is characterized by a pattern of behaviors that serve to increase conflict rather than resolve it. Examples of these behaviors are:

  • All or nothing thinking
  • Unmanaged emotions
  • Extreme behaviors
  • Blaming others

(Source: Billy Eddy, LSCW, JD, www.highconflictinstitute.com)

As a family law attorney with Herlihy Family Law, I frequently have clients who are struggling to communicate with a high conflict person. Some tips I give my clients are:

  1. Don’t try to convince them they are wrong or are being unfair.

    Logic does not work with someone who is embroiled in irrational thinking.

  2. Abandon the goal of “winning” an argument with them.

    HCPs like to argue so continuing to fight will only ensure that you remain trapped in a power struggle with them.

  3. Focus on the ultimate goal.

    If your goal is to coach Susie’s soccer team and they bring up that time you did something they did not like ten years ago, do not respond. Instead, re-direct the conversation back to the topic at hand.

  4. Keep your communication professional.

    Remember, your romantic relationship with this person is over, so it is not helpful to you to approach them on those terms. Remain calm and business-like. If necessary, restrict your communication with the HCP to written-only methods, such as email.

What is a Guardian Ad Litem?

What is a Guardian Ad Litem?

When it comes to divorce, child custody and visitation disputes are no picnic. These events can be a very emotional and intense process. Frequently in divorce, child custody, or visitation disputes a Guardian Ad Litem, also known as a GAL, will be appointed.

In Alabama, a GAL is an attorney appointed by the court to represent the “best interests” of the child or children involved. A GAL’s duty is not necessarily to advocate for what the child wants which can sometimes be opposed to what is in the child’s best interests. The Guardian Ad Litem will often be asked to present a report and recommendation to the Court for consideration at the conclusion of the case, and, while the Court will take into consideration the recommendation of the GAL, the Court is not bound by what the GAL recommends.

A Guardian Ad Litem is not only appointed in divorce and custody cases but might also be appointed in cases such as;
• Minors involved without living parents
• Juvenile Delinquency Cases
• Child Abuse and Neglect cases
• Guardianships, Conservatorships and Decedents’ Estates in Probate Court.
• Civil Suits of all kinds where minors are involved.