Collaborative Law Comes to Alaska
April 17th, 2008A new group is forming in Alaska to offer clients the option of a collaborative approach to divorce and domestic relations cases. Mendel & Associates is at the forefront of this movement. What is collaborative law? Collaborative family law practice groups are operating in many other areas of the country. The basic idea is that specially-trained collaborative law attorneys agree to work, along with their clients, to resolve family issues in a collaborative, non-adversarial process. Both parties agree not to go to court. The parties and attorneys agree that neither attorney will ever represent the parties in litigation between them. Both parties agree freely to disclose all information that is needed to come to a fair and equitable solution of their problems. Problems are solved in a cooperative, collaborative setting. The clients do not give up their right to litigate, but if they chose that option they must retain different attorneys. The collabortaive option offers clients a way to avoid going to court, without giving up the personal advice and assistance from qualified attorneys that is so important in difficult family law cases. If this is an option that interests you, please contact our office for an appointment.
Why should I hire an attorney for my divorce; can't we just go to mediation?
March 11th, 2008This is a question often asked by people who are thinking of a divorce. Mediation is a wonderful tool that can save money and minimize the conflict that is inevitably involved in a getting a divorce. However, going to mediation without understanding your legal rights first can be very dangerous. A competent mediator will not give either person legal advice about his or her rights. A mediator cannot tell you if some settlement is a good idea for you. So before you go to mediation, you should see a lawyer first, so that you understand what your rights are, and what you might be giving up. Consulting a lawyer does not mean you have to involve the lawyer in the mediation, nor does it mean you will end up in court. It simply means that you will go to mediation with your eyes open.
The kinds of things a lawyer can help you understand before mediation include: What property is considered marital property that the court will divide? What is the likelihood of getting, or being ordered to pay, alimony? How likely is it that a court would order joint custody of the children? What does the law say about child support? If you do not know the answers to these questions, you could end up with a divorce agreement that either gives away things you did not even know you could ask for, or leave problems unresolved that will return to bother you later.
It is also very important that you have all the documents you need before you go to mediation. If you are not sure what property or debts you have, you will not be able to get a good agreement. You should not simply rely on your spouse to tell you what you need to know. Because you are getting divorced, each person has goals and desires that are not necessarily other spouse’s goals and desires. After all, if you agreed on everything, you probably would not be divorcing.
In a custody case, what does it mean if a parent has a "history of domestic violence"?
March 11th, 2008The Alaska statute that governs custody was amended in 2004 to strengthen the protection of children from domestic violence. Because the change is so new, attorneys and judges are still confused about what exactly the statue means. Two recent Alaska Supreme Court opinions have helped to clarify it, but there are still many unanswered questions.
http://www.state.ak.us/courts/ops/sp-6232.pdf; http://www.state.ak.us/courts/ops/sp-6164.pdf
The statute applies to parents who have a “history of domestic violence.” That is defined to mean one serious incident involving physical injury, or more than one other type of incident. Domestic violence is defined elsewhere in the statutes, and includes things like harassment and stalking as well as actual hitting. It is not necessary that the parent ever have been charged with a crime, or even that a domestic violence restraining order have been granted in the past. If the court finds a parent to have a “history,” the court has to restrict that person to supervised visits until the person completes treatment. A person with a “history” cannot be awarded joint or sole legal or physical custody. There are some circumstances under which the court can allow unsupervised visits or even custody, but it must make certain findings if it does.
This change in the statute really raises the stakes in situations where there has been domestic violence, either in the current relationship, or even in a prior relationship. Sometimes both parents have a “history” of violence, often against each other. In these situations, the court is supposed to pick the less dangerous parent, or even award custody to a nonparent. The change in the statute was designed to acknowledge the research that shows that domestic violence is harmful to children even when it is not directed at the children. It was intended to force courts to give careful consideration of the parents’ histories of domestic violence when custody orders are made.
Can I modify my current custody and visitation order?
March 11th, 2008We get a lot of calls from people who are unhappy with their existing custody and visitation orders. Either the order does not reflect what is really happening, the schedule is not working, or there is no schedule at all and the parties are having constant arguments over visitation. The law allows you to ask the court to modify a custody or visitation order at any time, but you must to prove a “substantial change of circumstances.” What does this mean? If one parent is planning to leave the state, with or without the children, this is automatically considered a “substantial change.” The court will determine whether the children should go or stay and what the new visitation will be, if the parents can’t agree. On the other hand, some people have orders that do not specify visitation at all, but say things like “liberal visitation” or “visitation as arranged between the parents.” Orders like this are impossible to enforce, so if you are not getting visitation, you need to ask the court to modify the order to specify what you get. If things have changed because, for example, the children are older the schedule was designed for preschoolers, you can ask the court to change the schedule. Finally, if you think the other parent is harming the children somehow, you can move to modify the custody and/or the visitation. But remember that the change has to be substantial; you will waste your time if you go to court over trivial issues like haircuts or footwear.
Before going to court, or hiring a lawyer to go to court for you, give serious thought to what change you want, and what would work both for you and for the children. The court can only change an order if it is in the “best interests of the children.” You might save time and money by consulting with a lawyer before you decide whether to ask for a modification, even if you decide to do that actual work yourself.