Mendel & Associates Attorneys at Law 1215 West Eighth Avenue - Anchorage, AK 99501 Phone: 907-279-5001

Clients often ask us, why shouldn’t they just hire a mediator to do their divorce or other family matter?  Why should they consult a lawyer in addition to or instead of a mediator?  Mediation is often a good way to resolve a family matter such as divorce.  However, a mediator is a neutral person and is not allowed to give legal advice to either party.  The mediator’s job is to find an area of agreement.  If you are unaware of your legal rights — or just do not understand them — you might agree to something that would be bad for you.  Or you might miss a chance to agree to something you had not even thought of.  You will nearly always get a better end result if you consult a lawyer before you go to mediation.  The lawyer can help you figure out whether your issue is appropriate for mediation, or what preparation you ought to do before mediation, or if you should bring a lawyer to mediation with you.  Consulting a lawyer is not a commitment to go to court.  In fact, a skilled lawyer can help you to avoid court.

“Unbundled services” is a relatively new term in the legal field.  It means, basically, hiring a lawyer to do parts of your case, without hiring the lawyer to represent you in all respects of an entire case.  In practice, this sometimes means hiring the lawyer to represent you in one piece of your case, such as establishing child support, when you have represented yourself in a divorce or custody case.  It might mean hiring a lawyer to draft a difficult legal pelading, like a Qualified Domestic Relations Order (QDRO) for splitting retirement.  It can also mean paying the lawyer to help you draft your own pleadings, or to prepare you to represent yourself at a trial or hearing.

Mendel & Associates is one of a number of local firms that offer unbundled services in family matters.  You can get a much better result in many cases if you hire a lawyer to help you represent yourself, since the legal systen is extremely complex and confusing for a layperson.  It will also be much less expensive than hiring a lawyer to do everything in your case.  Some things you should never do yourself, like drafting a QDRO or a military retirement order.

The best way to get satisfactory legal services is to be straightforward with your lawyer about what help you want and can afford.  If you want unbundled services, talk over with your lawyer what he/she can do for you, and what you can do for yourself to get the best result.  Some cases are just too complex or high-risk for you to do yourself.  This is also something you should discuss with your lawyer.

Ten Tips for Divorcing Parents

By Mike McCurley and the American Academy of Matrimonial Lawyers

Divorce is never easy on kids, but there are many ways parents can lessen the impact of their break-up on their children:

1. Nevery disparage your former spouse in front of your children. Because children know they are “part mom” and “part dad,” the criticism can batter the child’s self-esteem.

2. Do not use your children as messengers between you and your former spouse. The less the children feel a part of the battle between their parent, the better.

3. reassure your children that they are loved and that the divorce is not their fault. Many children assume that they are to blame for their parents’ hostility.

4. Encourage your children to see your former spouse frequently. Do everything within your power to accommodate the visitation.

5. At every step during your divorce, remind yourself that your children’s interests—not your own—are paramount, and act accordingly. Lavish them with love at each opportunity.

6. Your children may be tempted to act as your caretaker. Resist the temptation to let them. Let your peers, adult family members, and mental health professionals be your counselors and sounding board. Let your children be children.

7. If you have a drinking or drug problem, get counseling right away. An impairment inhibits your ability to reassure you children and give them the attention they need at this difficult time.

8. If you are the non-custodial parent, pay your child support. The loss of income facing many children after divorce puts them at a financial disadvantage that has a pervasive effect on the rest of thier lives.

9. If you are the custodial parent and you are not receiving child support, do not tell your children. It feeds into the child’s sense of abandonment and further erodes his or her stability.

10. If at all possible, do not uproot your children. Stability in their residence and school life helps buffer children from the trauma of their parents’ divorce.

Often when stressful family problems arise, clients look for an attorney who can be a “bulldog” for them; one who is known as a “barracuda.”  We frequently receive these calls, and we are certainly qualified to act as your bulldog or your barracuda.  But that may not be the best thing for you.  In almost every family legal situation, you will have to continue to coexist with the (former) family members after your court case is over.  It might be helpful to you to learn better ways to communicate with family members you are in a dispute with.  You might want to find ways to work out your differences privately, with professionals who are trained to help families.  Even contentious family problems can be addressed through the collaborative process, through mediation with or without attorneys, through family counseling or family mediation, or any number of alternative routes.  An attorney who knows and understands all these alternatives may serve your needs better than a “barracuda.”  We are here to assist you in finding the right kind of conflict resolution for your personal situation.  It might be litigation, but it might not.

The collaborative approach (for more information on this, go to www.alaskacollaborative.org) is suitable for many legal issues in addition to divorce.  Family legal issues are very sensitive and personal.  Many - if not most - clients would like to address their problems in a way that is less public and less confrontational than going to court.  The collaborative process meets this need.  It can be used to negotiate pre-and post-nuptial agreements; child support; child custody modifications; collegel support issues; and most other family legal problems you may face.  It is also very useful for negotiating relationship contracts and break-ups for couples who are not legally married.  If you find yourself in any of these situations, we would be happy to try to help you.

Allison Mendel served for six years on the Alaska Bar Association Board of Governors, most recently as Board Vice President.  During that time, she had an opportunity to develop her understanding of attorney discipline issues, and how the Bar and the Board deal with those issues.  If you are a lawyer facing ethics, discipline, or fee arbitration issues, please contact us for assistance.

Many clients come to us having been told information about divorce law, custody, separation, that is inaccurate or just plain wrong.  A few of these stand out as myths that we hear over and over.  This is the first installment of a series that attempts to correct some of these myths, so that you can be better informed and prepared to use the legal system.

Myth #1.  “My spouse says s/he will sue me for abandonment if I leave the home to live somehwere else.”  Truth:  There is no such thing as “abandonment” of a functional adult.  You are no more legally responsible for taking care of your spouse than s/he is for taking care of you.  Both of you, of course, have a responsiblity to pay the family bills, and to take care of any children, both physically and financially.  But you do not have to live with your spouse if you no longer want to.  You will not be punished by the law if you choose to move out.  After all, in every divorce or separation, someone must move out.  It would be a very good idea to consult with a lawyer before you move, if possible.  But if your personal safety is at stake, move first and get advice later.  Your safety, and that of the children, is the most important consideration.

Watch this space for infomration on the next divorce myth.

A prenuptial agreement is a contract about what will happen with property, earnings, support and other issues if your planned marriage ends in divorce or death.  A prenuptial agreement is a very good idea if one or both partners have personal wealth before the marriage, if either partner has children before the marriage, or if the partners want to establish a way of deailng with their assets that is different than what the law would impose.  For an agreement to be valid and enforceable later, at death or divorce when it really matters, BOTH partners have to consult lawyers.  An agreement drafted by one partner’s lawyer, and not reviewed by a lawyer for the other, is probably not worth entering into.  Also, both partners have to be willing to give the other full disclsoure of assets and debts; without this the agreement is probably worthless.

Obtaining a a prenuptial agreement need not be expensive and can pay for itself many times over.  Also, negotiating an agreement is a perfect subject for the collbaorative process.  With collaborative lawyers, the soon-to-be married partners can meet together with both lawyers in a civilized and friendly environment to work out the agreement.

Many people fear that entering into a prenuptial agreement will cast a cloud over the upcoming marriage, implying that the marriage won’t last and that divorce is inevitable.  This fear is misplaced.  Talking about finances before the marriage is usually very healthy for the relationship, and may actually prevent problems later on because the partners talk about their financial assumptions in advance.

Consulting a lawyer about a prenuptial agreement is a very small investment in something that could prove extremely valuable later, even if the parties never divorce and the marriage endures the test of time.

In custody cases it is not unusual for a parent to agree to the entry of a custody order they’re not all that happy with because they think that it will be simple enough to change later on.   This isn’t necessarily so.

To change custody so that a new court order is issued, the parent that wants to change it must show 2 things.  The first is that there has been a significant change in circumstances since the last custody order was entered.  The court can be fairly strict as to what amounts to a significant change in circumstances and what doesn’t.  For instance, a change of circumstances the court will consider does not include situations where a parent has simply changed his/her mind and does not like the current custody situation anymore; situations where the child simply says he/she wants to live with that parent; or situations where the parties previously agreed between themselves that custody would somehow change later on.  Some examples of changes in circumstances the court will pay attention to are things like one parent moving out of the state or community; one parent having developed legal problems or substance abuse issues that are bad enough to interfere with his/her parenting responsibilities; or one parent being with a partner who abuses substances or abuses the parent.

If the parent meets the first criteria, the second thing a parent wanting to change custody must establish is that the new custody plan they are offering to the court meets the child’s best interests.  Parents often assume that if they get over the first hurdle, that custody will in fact change.  That isn’t necessarily so.  Courts can and do find that even when it agrees that circumstances have changed enough for it to reconsider custody, the current custody order is still meeting the child’s best interests.  For instance, if the change in circumstance was substance abuse related, the court will look to see if that parent is in treatment or otherwise has the issue under control.  It is not unheard of for parents like these to defeat a motion to change custody if they “rehabilitate” themselves while the attempt to change custody is going on in the court.  These kinds of things can be very frustrating for the parent wanting to change custody.

In a nutshell, the court takes its Orders regarding custody very seriously, and does not review requests for changes in them lightly if the parents do not agree.  Every parent preparing to enter into an agreement about custody that is going to be made an order of the court needs to think about the terms of the agreement they are making, whether they can really live with it, the effect it will have on the child and on them in the future; and whether the agreement will wear well practically and in other ways.  If not, you may want to think again about going ahead with having the court enter that order.

The Alaska Association of Collaborative Professionals was formed in 2008 to provide collaborative family law services to clients in Anchorage and beyond.  Attorneys at Mendel & Associates were at the forefront of this effort.  There are now twenty-five trained members of the Association, including mental health professionals and financial professionals.  You can find complete information on the collaborative process, and links to attorneys in Alaska, on the website of the International Association of Collaborative Professionals (IACP), at www.collaborativepractice.com.