Q: What's an evidentiary hearing? I was in court yesterday for a motion, and the judge ordered that my husband and I get a date for an evidentiary hearing. I have no idea what that means.
A: An evidentiary hearing is a mini-trial on one issue in a case. It sounds like you may be in a divorce case, so I assume that you and your husband will have a chance to show what "evidence" you have to plead your case.
This might be about custody after the divorce, for example, so this means that you would need to bring (and/or request the other side to bring) evidence to court to show whether custody should be shared, or joint custody. The judge (or a referee, perhaps) will listen to the evidence, perhaps the testimony of the parties, and whoever else the parties might bring to testify. At some point (not necessarily at the hearing), the judge will issue an opinion (another word for his or her decision on this issue), which will be binding on this issue in this case. ** if it is about custody, focus your thinking on the best interests of the child factors, which can be found here:
I highly recommend that you do some discovery in advance of the hearing. If this means hiring an attorney, so be it, because you will only get one shot to make your case. If you aren't prepared for the hearing, and you try to appeal a decision, the appeal can easily be shot down if it's shown that you could have presented the same evidence at the hearing.
Discovery would be gathering evidence you need, either from your own records, or from the husband's records. For example: custody factors include the mental and physical health of the parties. If you want to include that information, you may need to request it from a medical provider. Your attorney would be able to request it on the correct court forms. This would be an advantage if, perhaps, you wanted to argue that your husband's health is too poor for him to be able to care for the children, or that he has mental health issues to the extent that he can't care for children properly, as his own mental health issues may interfere.
Showing posts with label family law. Show all posts
Showing posts with label family law. Show all posts
Monday, September 11, 2017
Thursday, February 9, 2017
Q: What's a reasonable retainer for a divorce?
Q: What's a reasonable retainer for a divorce? Can't I just do this myself in court without an attorney?
A: Thanks for asking. If you are looking to hire an attorney for divorce, expect to hear many different amounts for retainers. Some attorneys will quote higher than they may need to, but will refund the unused portion of the retainer when your case is done.
A retainer is an amount that an attorney estimates toward how much your case might cost, in total, or for a large portion of the case. That doesn't mean that the retainer amount will cover the whole fee for your case. Again, you may have a refund once your case is done, depending on how your case goes, whether a lot of motions are needed, and how much your spouse decides to fight.
Many attorneys will also tell you their hourly rate when you hear their retainer amount. This is because the retainer is a down payment, which usually is placed in an account. The attorney then invoices against the retainer for each hour that the attorney works on your case. For example, if an attorney charges a $3,000 retainer, and has an hourly rate of $200 per hour, your retainer will be gone once your attorney has worked 15 hours on your case.
Your second question was "can I do this myself without an attorney?" Yes, a party can represent him or herself in court. But I ask you: Is this wise? Even if it seems cost effective? Your divorce has to cover many topics, such as child custody, parenting time, insurance, division of assets and debts (including retirement accounts, property, credit card debts), and child support, among others. Do you want to do this without any idea of how to go about it, when you are also feeling emotional and uncertain? Or would it be better to let a professional, who's not married to your spouse, argue for you?
Best of luck in your situation.
Yours,
Nancy
A: Thanks for asking. If you are looking to hire an attorney for divorce, expect to hear many different amounts for retainers. Some attorneys will quote higher than they may need to, but will refund the unused portion of the retainer when your case is done.
A retainer is an amount that an attorney estimates toward how much your case might cost, in total, or for a large portion of the case. That doesn't mean that the retainer amount will cover the whole fee for your case. Again, you may have a refund once your case is done, depending on how your case goes, whether a lot of motions are needed, and how much your spouse decides to fight.
Many attorneys will also tell you their hourly rate when you hear their retainer amount. This is because the retainer is a down payment, which usually is placed in an account. The attorney then invoices against the retainer for each hour that the attorney works on your case. For example, if an attorney charges a $3,000 retainer, and has an hourly rate of $200 per hour, your retainer will be gone once your attorney has worked 15 hours on your case.
Your second question was "can I do this myself without an attorney?" Yes, a party can represent him or herself in court. But I ask you: Is this wise? Even if it seems cost effective? Your divorce has to cover many topics, such as child custody, parenting time, insurance, division of assets and debts (including retirement accounts, property, credit card debts), and child support, among others. Do you want to do this without any idea of how to go about it, when you are also feeling emotional and uncertain? Or would it be better to let a professional, who's not married to your spouse, argue for you?
Best of luck in your situation.
Yours,
Nancy
Friday, August 26, 2016
Free Family Law Seminar: August 29, 2016 (continues monthly)
Tuesday, August 29, 6pm-7:30 pm. Room 107, East Grand Rapids Community Center, 750 Lakeside Dr. SE.
Topics covered: Divorce with minor children: filing the Complaint, requesting temporary relief, planning for your judgment of divorce.
Attendance at this seminar does not create an attorney-client relationship.
Call for details, or to RSVP, as space is limited. 616-406-6451
Topics covered: Divorce with minor children: filing the Complaint, requesting temporary relief, planning for your judgment of divorce.
Attendance at this seminar does not create an attorney-client relationship.
Call for details, or to RSVP, as space is limited. 616-406-6451
Monday, May 9, 2016
Q & A: My son's dad and I broke up. I never want to deal with him again. Can I get him to sign off his rights to our son?
Q : My son's dad and I broke up. We've been living together for 5 years, and our son is 3 years old. I never want to deal with my ex-boyfriend again. Can I get him to sign off his rights?
A: A lot of people have the interesting idea that it's an easy process to change another person's rights to custody, simply because that parent doesn't want to continue any relationship at all with the other parent.
Your question focuses on Family law, specifically child custody, parenting time, and child support. One thing to keep in mind is that Family court is a court that sits in equity. Equity doesn't mean everything is split down the middle, but rather that the court make a decision that's fair to both parents.
If there are no court orders in place, and the couple is not married, the court will place primary physical custody with the mother. The unmarried father will have to assert his right to parenting time, but also be willing to take on the support responsibility, even if no support is ordered.
If either parent has applied for or received State Assistance in the state of Michigan, the office of the prosecutor (in the form of that county's Friend of Court offices) will begin a support action regardless (as the Assistance is paid by other tax payers, the support at that time is to re-imburse the state for that Assistance). The good thing about an action started by the FOC is that it also allows for a father to have reasonable parenting time.
A court will not let a parent "sign off" his or her rights without also making a decision in the custody matter. This goes back to the equity idea: it's not fair to take away one parent's rights simply because the other parent is tired of dealing with him or her.
Ask yourself, as a parent, if "signing off" is what is really best for the child. It's understood that these matters are full of emotion, but it's best if the child has a continuing relationship with the other parent, and that the child will get support financially from that parent as well.
Also, without evidence to the contrary, the court will presume that having a relationship with both parents is in the best interest of the child. The court will do what it can to encourage that relationship through its orders.
If you have other questions, please seek a private consultation with an attorney to determine a legal course of action.
A: A lot of people have the interesting idea that it's an easy process to change another person's rights to custody, simply because that parent doesn't want to continue any relationship at all with the other parent.
Your question focuses on Family law, specifically child custody, parenting time, and child support. One thing to keep in mind is that Family court is a court that sits in equity. Equity doesn't mean everything is split down the middle, but rather that the court make a decision that's fair to both parents.
If there are no court orders in place, and the couple is not married, the court will place primary physical custody with the mother. The unmarried father will have to assert his right to parenting time, but also be willing to take on the support responsibility, even if no support is ordered.
If either parent has applied for or received State Assistance in the state of Michigan, the office of the prosecutor (in the form of that county's Friend of Court offices) will begin a support action regardless (as the Assistance is paid by other tax payers, the support at that time is to re-imburse the state for that Assistance). The good thing about an action started by the FOC is that it also allows for a father to have reasonable parenting time.
A court will not let a parent "sign off" his or her rights without also making a decision in the custody matter. This goes back to the equity idea: it's not fair to take away one parent's rights simply because the other parent is tired of dealing with him or her.
Ask yourself, as a parent, if "signing off" is what is really best for the child. It's understood that these matters are full of emotion, but it's best if the child has a continuing relationship with the other parent, and that the child will get support financially from that parent as well.
Also, without evidence to the contrary, the court will presume that having a relationship with both parents is in the best interest of the child. The court will do what it can to encourage that relationship through its orders.
If you have other questions, please seek a private consultation with an attorney to determine a legal course of action.
Monday, March 31, 2014
How to choose a family law attorney, Part One
In Part One, we will help you work through the process of deciding who to call to start your divorce or custody case (or to represent you if your spouse has already filed for divorce).
Frequently asked questions:
1. Can't I represent myself in this?
A: Yes, you can. But that doesn't mean you should. Going into court and representing yourself is like do-it-yourself surgery performed by an amateur. When it comes to family law, you have a lot of things at stake: ownership of your home, custody of your child(ren), how your personal property might be divided, when and how often you can spend time with your child(ren), are only a few issues that a family law judge will decide for you. It's best to have an attorney, who can present the best side of your case to the judge, and help you get the best result possible.
Read this article for more information on issues that will be part of your family law case, or go to my website.
2. Aren't attorneys expensive?
A: It depends on what you think of as "expensive." Again, this is the most important area of your life, where the most intimate personal decisions in your life have been made. It makes sense to protect these interests, and not doing so may cost you more in the long run. Many attorneys will let you arrange a payment plan, as well.
3. How do I decide who to call?
A: There are many ways to go about this. The internet is the most popular search tool currently. But that doesn't mean you should just pick one of the first-listed attorneys when you type in your search terms.
Fact: Advertisers pay to be listed on Google. This is true for all areas that can be searched on Google, including legal services. The higher-cost advertisers will land on the first page, at the more popular times of the day. It's like having a billboard in rush hour traffic on a busy highway. The lower-cost ads show up less often, and at less popular times of the day. This is like having a billboard in a urban neighborhood.
I recommend good old word of mouth advertising over internet advertising. It's better to get a recommendation from someone who's used that service before you, whether it's a mechanic, or an attorney.
4. Ok, I talked to three or four people and got a short list of who to call. What now?
A: Once you've talked to people you know, you've gotten their feedback about what they liked (or didn't) about their attorney. Use the internet (or do a white pages search) to get that attorney's phone number. Then call the office to set up a consultation.
5. I'm too uncomfortable to talk to my friends and family about this now. How can I get a good recommendation?
A: There are other online services that "rank" attorneys. These are sites like Avvo, and Martindale Hubble, Lexis-Nexis, etc.
Fact: These sites are biased in favor of attorneys who play the game. For example, a lawyer who participates on Avvo (claims their profile, advertises, answers questions) will have a higher Avvo ranking than a lawyer who doesn't. For example, look at the ranking of a prominent national attorney (like Eric Holder, the current US Attorney General). Their ranking might be lower than some attorney who participates a lot on that site.
So go ahead and try those sites (Avvo, lawyers.com, etc.) but be warned that the information there isn't always an accurate reflection of what the attorney is actually like, so take it with a grain of salt. (For more information, read this article from About.com).
Or: if you think the sites might mislead you, or you feel you can't talk about this to people you know because it's too personal, use your local bar association for a referral. Lawyers pay to belong to this referral service, and give part of the fee you pay them back to the referral service. I participate in my local bar association's referral service, and think it's a great service to the public. (State Bar of Michigan referral, Grand Rapids Bar Association Referral).
Coming Next: Part Two: What to Expect in the Initial Phone Call.
Frequently asked questions:
1. Can't I represent myself in this?
A: Yes, you can. But that doesn't mean you should. Going into court and representing yourself is like do-it-yourself surgery performed by an amateur. When it comes to family law, you have a lot of things at stake: ownership of your home, custody of your child(ren), how your personal property might be divided, when and how often you can spend time with your child(ren), are only a few issues that a family law judge will decide for you. It's best to have an attorney, who can present the best side of your case to the judge, and help you get the best result possible.
Read this article for more information on issues that will be part of your family law case, or go to my website.
2. Aren't attorneys expensive?
A: It depends on what you think of as "expensive." Again, this is the most important area of your life, where the most intimate personal decisions in your life have been made. It makes sense to protect these interests, and not doing so may cost you more in the long run. Many attorneys will let you arrange a payment plan, as well.
3. How do I decide who to call?
A: There are many ways to go about this. The internet is the most popular search tool currently. But that doesn't mean you should just pick one of the first-listed attorneys when you type in your search terms.
Fact: Advertisers pay to be listed on Google. This is true for all areas that can be searched on Google, including legal services. The higher-cost advertisers will land on the first page, at the more popular times of the day. It's like having a billboard in rush hour traffic on a busy highway. The lower-cost ads show up less often, and at less popular times of the day. This is like having a billboard in a urban neighborhood.
I recommend good old word of mouth advertising over internet advertising. It's better to get a recommendation from someone who's used that service before you, whether it's a mechanic, or an attorney.
4. Ok, I talked to three or four people and got a short list of who to call. What now?
A: Once you've talked to people you know, you've gotten their feedback about what they liked (or didn't) about their attorney. Use the internet (or do a white pages search) to get that attorney's phone number. Then call the office to set up a consultation.
5. I'm too uncomfortable to talk to my friends and family about this now. How can I get a good recommendation?
A: There are other online services that "rank" attorneys. These are sites like Avvo, and Martindale Hubble, Lexis-Nexis, etc.
Fact: These sites are biased in favor of attorneys who play the game. For example, a lawyer who participates on Avvo (claims their profile, advertises, answers questions) will have a higher Avvo ranking than a lawyer who doesn't. For example, look at the ranking of a prominent national attorney (like Eric Holder, the current US Attorney General). Their ranking might be lower than some attorney who participates a lot on that site.
So go ahead and try those sites (Avvo, lawyers.com, etc.) but be warned that the information there isn't always an accurate reflection of what the attorney is actually like, so take it with a grain of salt. (For more information, read this article from About.com).
Or: if you think the sites might mislead you, or you feel you can't talk about this to people you know because it's too personal, use your local bar association for a referral. Lawyers pay to belong to this referral service, and give part of the fee you pay them back to the referral service. I participate in my local bar association's referral service, and think it's a great service to the public. (State Bar of Michigan referral, Grand Rapids Bar Association Referral).
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