Mar 3 2017

Importance of Understanding the New Idaho Rules of Family Law Procedure

All court proceedings are normally governed by a set of rules.  For example, there are Rules of Civil Procedure, Rules of Criminal procedure etc.  Prior to January 1, 2013, there were no separate rules governing family law procedure and such matters were generally governed by the rules of civil procedure.  However, given that the Idaho Rules of Family Law Procedure (IRFLP) are now effective statewide, it is extremely important for anyone handling family law cases to thoroughly understand these rules and how these rules work.

The Idaho Rules of Family Law Procedure (IRFLP) first started in the 4th Judicial District of Idaho as a pilot project, effective January 1, 2013. The IRFLP have been effective statewide since July 1, 2015 and are applicable in all cases involving divorce, legal separation, child support, child custody, paternity, all proceedings pursuant to the Domestic Violence Crime Prevention Act, all actions pursuant to the De Facto Custodian Act, and all proceedings, judgments or decrees related to the establishment, modification, or enforcement of orders in such action, except contempt.

Here are some noteworthy differences between the practices in a family law court before and after the adoption of the new rules:

Under the new Rule 401, the parties must make mandatory disclosures of specific information within 35 days after a responsive pleading is filed.  These mandatory disclosures must be made even if there are no requests for disclosure.  However, parties may stipulate to an extension of the deadline (stipulation is where both parties agree), or one party may petition the court by filing a motion for an extension of time to comply with the Rule 401.

The new Rule 504 anticipates the court deciding temporary orders based exclusively on affidavits rather than having lengthy hearings with testimony by the parties and witnesses.  This reliance on affidavits alone makes it extremely important to prepare detailed affidavits containing relevant information supporting the motion for temporary orders.  However, at the time of the hearing on the motion for temporary orders, the judge may decide to set a separate evidentiary hearing so that the parties are allowed to present testimony and call witnesses at an evidentiary hearing.  This is often the case where the issues are complex and the judge may have additional concerns for the health or safety of the children.

The new Rule 102.B, is designed to ‘simplify’ the formal and very technical rules of evidence that ordinarily apply in court proceedings.  However, the rule allows either party to request a strict compliance with the Idaho Rules of Evidence within 30 days after a responsive pleading is filed or within 42 days from the filing of the motion or petition in cases where no responsive pleading is filed, or such date as is established by the judge.  Experienced attorneys frequently request strict compliance with the Idaho Rules of Evidence making it much more difficult for people representing themselves to effectively present evidence in court given the technical nature of the application of the formal Idaho Rules of Evidence.

Idaho Rules of Family Law Procedure are often misunderstood by the pro se litigants (people representing themselves without an attorney). Many people do not know that the Rules of Family Procedure even exist or where to search for these rules (See link to Idaho Rules of Family Law Procedure).  People representing themselves without an attorney will be held by a judge to the same standard of expertise as attorneys and are frequently confounded by these rules.

(Idaho Rules of Family Law Procedure)


Aug 30 2013

Discovery – What It Is and Why It Matters

discovery

Discovery is essentially an information-gathering tool in a Divorce Case.  Discovery is how you investigate a divorce case.  Every divorce case has things the parties disagree on and things they agree on. The goal of the discovery process is to narrow the number of the contested issues and discover certain relevant information pertinent to those issues.  In other words, you are trying to find out exactly what everyone is fighting about, and get the evidence that will support your side of the argument.

In a divorce case, one of the most powerful things you can do is discover hidden assets.  However, the rules governing the discovery process are quite technical and difficult to effectively navigate without specialized training. There are several important information gathering tools that an experienced attorney may use in a divorce case:

 

Interrogatories. Interrogatories are a series of questions served on the opposing party that have to be answered under oath.  Interrogatories must be fully answered in writing unless there are legal grounds to make an objection.

Requests for Admission. Requests for admission are served onto the opposing party requiring them to admit or deny a list of pertinent facts related to the case.

Requests for Production. Requests for production are served as a list of individual requests for documents and other physical evidence.  Generally, the requests include things such as banking statements, tax information, and other documents that may benefit a client’s case.

Depositions. Depositions are an opportunity to obtain sworn and recorded statements from parties and witnesses.  Information obtained by depositions often points where to look for additional hidden information.  Sworn testimony can also be used to prove the case in court or impeach testifying witnesses.

Subpoenas. Subpoenas are orders sent by attorneys to obtain information from those who are not a party to the divorce case.  For example you can subpoena bank records, off shore accounts, and even medical records.  The third party must either comply with the subpoena, or file a motion to quash the subpoena and make arguments to the court as to why they should not be required to comply with the subpoena.

 


Aug 15 2013

Pro Se Divorce – Can you and should you handle your own divorce case?

divorce choices

Are you thinking about filing for a divorce or responding to a divorce petition without help of an attorney?  The term “Pro Se” refers to representing yourself in court without the aid of an attorney.  You have the right to represent yourself in court and some people choose that path. Representing yourself in a divorce case sometimes can make sense if it is an uncontested divorce with no children and no marital assets.  Your divorce may be a relatively simple divorce and you may want to save money by not hiring a divorce attorney.  The necessary forms for filing a divorce are not hard to find online.  However, there are several things that you will need to consider beforehand.

You should be aware that the Court will hold you to the same standards as an experienced divorce attorney and you will be presumed to know divorce law and will be expected to follow all of the procedural rules of the court.  That typically means that you will have to spend a considerable amount of time and effort acquiring the necessary knowledge about how to handle a divorce case.  The Idaho State Law Library located in Boise is certainly a great resource for anyone thinking of representing themselves in a divorce case.

You should also consider your own ability to objective in your divorce case, whether you are emotionally ready to handle your case without outside support.  It can be difficult to see things objectively and clearly when you are going through such a particularly traumatic time in your life.  A divorce attorney can give you advice and guidance, and help you evaluate your case carefully and objectively.

Other things to consider before representing yourself in court are:

1.     If one spouse hires an attorney the other spouse is likely to be seriously disadvantaged by pro se representation.

2.     If one spouse is hiding marital assets it may make sense to hire an attorney to help uncover hidden assets.

3.     History of abuse may make it difficult to effectively represent yourself in court since the abusive spouse may take psychological and emotional advantage of you during the divorce process.

For a general overview of the process see Ten Steps of Divorce Case.

 


Nov 9 2012

Have you been served with divorce papers?

Being served with a divorce complaint is always emotionally difficult and sometimes unexpected experience.  The anger, grief and sadness over lost relationship may last for weeks and even years.  You may be blaming yourself and wondering what, when and where went wrong in your relationship. That is perfectly understandable, but unfortunately, the legal system will not allow you the time to grieve.

You must act, and you must act fast.  You only have twenty (20) days to file an answer to the complaint that you have been served with.  Otherwise, you face a default, which means that your spouse wins on a “technicality” and gets everything requested in the complaint without you ever having your day in court.

If you are served with divorce papers you need to get help from an experienced attorney who can help you asses your situation and come up with a strategy that will take into account your priorities and maximize your chances of protecting those things that matter to you the most.

 

Call us today for a free consultation.

 


Nov 9 2012

Ten Steps of a Divorce Case in Idaho

1. Breakdown In The Relationship

It may have come as a surprise to you, but the chances are that something went wrong in the relationship long before the divorce papers were served. Typically we see a pattern of gradual emotional distancing and erosion of trust between the spouses. This is often followed by allegations of infidelity (either real or imagined) and a complete breakdown in communications.

2. Lawyering Up

One side will usually start talking with family and friends about the relationship. Once the big “D” word (divorce) is finally out in the open all sorts of advice (solicited and unsolicited) on what to do and how to choose an attorney will be freely given. Finally, an attorney is often randomly chosen amongst a myriad of names that are thrown out by the family and friends.

3. Filing for Divorce

The Complaint and Summons are filed with the court and are served on the opposing party (the defendant). The party initiating the divorce is the plaintiff and the other party is the defendant. Filing of the complaint initiates the process forcing the other side to act or risk giving the plaintiff everything asked for by default (link). In the Complaint the party filing for divorce essentially makes a list of claims against the defendant asking the court to grant divorce, grand custody and support, and divide the marital property.

4. Answering the Complaint

Although a person served with the divorce complaint is not required by law to answer the complaint, it is always a good idea to file an answer. See here.

5. Discovery Process

Making reasoned and practical decisions about custody and property issues is impossible without first gathering all the information available. The old saying that “knowledge is power” holds true here. This hunt for information is called the discovery process. Both sides will routinely file requests for information in the form of interrogatories, requests for admission, requests for production of documents and depositions.

6. Mediation

Idaho courts in family cases will regularly order the parties to complete a minimum of three hours of mediation in hopes of resolving the case or, in the alternative, narrowing the issues for the upcoming trial. See here.

7. Attorney Negotiations

Aside from the the mediation process that the parties themselves engaging in with the professional mediator, the opposing attorneys are also communicating back and forth amongst themselves trying to resolve a variety of legal issues having to do with discovery, various motions that may be filed in the case and any issues that may have to do with the upcoming trial. The attorneys are also trying to facilitate the mediation process going on between the parties and working with each other on resolving remaining contentious issues that can be resolved.

8. Trial

If the issues cannot be resolved in the mediation process the trial will be necessary and the judge will have the final word on the remaining issues of child custody and property divisions. Trial is a formal process whereby the two adversarial parties present their case to the judge who then makes a decision that is legally binding on the parties as long as the judge acts within the confines of the law.

9. Divorce Decree

A Decree of divorce is a document that includes the exact rights and responsibilities of both parties that carries the force of the law behind it.

10. Enforcement of the Divorce Decree

Having the binding decree is one thing and enforcing its terms is quite another. As many divorced individuals find out to their disappointment, it is sometimes very difficult to enforce the decree and force the other party to live up to its obligations. Such situations often require separate actions, such as motions for contempt of court, in order to enforce the existing legal rights established in the divorce process.


Oct 23 2012

Child Custody: Physical Custody vs. Legal Custody

One of the first things that parents need to understand before making custody decisions is that there are two types of child custody—legal and physical.  Decisions regarding both types of custody are made with the best interests of the child in mind but the things that courts consider in reaching their decisions differ between the two.

Legal custody refers to the power to make important decisions regarding the general welfare of the child, such as: choice of school that the child attends, extracurricular activities, type of religious education and practice, decisions involving medical and psychological needs of the child etc.

Physical custody refers to the actual place where children live on a day-to-day basis.

There are different considerations that the court takes into account when determining legal and physical custody.

As a general rule, courts prefer joint legal custody arrangements so that the decision making process continues to be shared by both parents.  This general rule favoring shared legal custody does not hold in cases involving abuse, neglect or the level of hostility between the parents so great that it makes cooperation on the issues affecting children impossible.

Courts also generally prefer joint legal custody.  However, joint legal custody does not mean that the time that the children spend with each parent will be divided equally.  The way that the joint physical custody often works out in practice is that one parent continues to serve as a primary caretaker of the child because such arrangement is found to be in the best interests of the child.

 


Oct 10 2012

Welcome to our new blog!

We are starting a new blog today to help answer questions related to family law and immigration. Please visit us again to see what is in store.