Addressing some common divorce myths....

In a recent online article entitled: "Debunking Divorce Myths"  by David Popenoe, 10 common divorce myths are addressed.  While the information is interesting, and studies that have been completed on particular topics are discussed, it is information that each person can apply appropriate weight to, and take with a grain of salt.

Each person and marriage is different, and you never know what will happen in your own life.  If you have been wondering about particular myths you have heard, this is an article to consider.

Here is Myth #9 from the article:

"9: Marriage Ups and Downs"

"Divorce Myth: Being very unhappy at certain points in a marriage is a good sign that the marriage will eventually end in divorce."

"Fact: All marriages have their ups and downs. Recent research using a large national sample found that 86 percent of people who were unhappily married in the late 1980s, and stayed with the marriage, indicated when interviewed five years later that they were happier. Indeed, three fifths of the formerly unhappily married couples rated their marriages as either 'very happy' or 'quite happy.'"

What is a Qualified Domestic Relations Order (QDRO) in a divorce?

A qualified domestic relations order (hereinafter, "QDRO"), is a document used to divide retirement accounts.

This is a court order that the Judge will sign directing the plan administrator of the husband or wife's pension or 401(k) to distribute a portion of those funds to the other spouse.  (In Montana, how much the portion being distributed will be depends on a number of factors you should discuss with your lawyer.)

Retirement benefits that are accumulated during a marriage are considered to be marital property.  Generally, retirement benefits that are accrued before the date of marriage will be considered non-marital property, which will not be divided between spouses during a divorce.

This allows the funds to be transferred to the other spouse without incurring a penalty or tax payment.

The receiving spouse will ultimately receive his or her own separate account.  If the participant spouse has a traditional pension, the plan administrator will need to establish a separate pension benefit for the receiving spouse. If the participant spouse has a retirement savings in a 401(k) plan, a portion of the plan funds will be rolled over to the receiving spouse, with no tax and no penalty.

Your lawyer will draft the QDRO for you, and the plan administrator for your retirement plan will review it.

Some benefits are not able to be distributed between divorcing spouses, including social security benefits.

How can I keep my lawyer costs and fees down in a divorce case in Montana?

I believe we are all looking for ways (and needing ways) to save money.  Especially in the current economy.

As much as I recommend having a lawyer to represent your interests in a divorce, I also recommend trying to keep those costs to as much of a minimum as possible.

So how do you go about doing that?

Of course you should first ask how much your lawyer charges per hour, and what a retainer may cost.  I would also ask for word-of-mouth from those you know on other lawyers they have used for their own family law issues.  Some lawyers bill more than others.

However, no matter how much you do, the main factor is that the cost of resolving your matters are very dependent on your spouse (or ex-spouse if that's the case).  Spouses and ex-spouses who can agree can keep the process much more simple.

The more time spent arguing over things, and the more time spent in court, means the more you will have to pay your attorney.  Lawyers bill by the hour.  If you are able to agree with the other party, your lawyer can draft documents for you, and finalize these in court, and you can move on quickly with your life.

If at all possible, you should try to agree to the extent that you feel is fair and equitable to the both of you.  You don't want to spend your life savings on a lawyer to argue over something that is going to be worth less than what you paid your lawyer in fees and costs.  Sometimes one should ask themselves, is it worth it?  Sometimes it is, sometimes it isn't.  That's a decision you have to make.  I recommend trying to come to the best agreement possible, and moving on with your life.  If you are forced to compromise, keep in mind the other party is most likely compromising too.

My ex-spouse has violated our parenting plan: how do I hold them in contempt in Montana?

If you and your ex-spouse have a Parenting Plan that has been ordered by a Court, and the other parent is not following the Parenting Plan or has violated the Plan in some way, then you should contact your lawyer.

If the only way to get your ex-spouse to abide by the Parenting Plan is by getting the Court's help, your lawyer can file a Petition for Contempt.  A petition for contempt asks the court to force the other parent to follow your Plan and to punish the other parent for failing to follow the court's order.

Your lawyer will ask you to write an Affidavit, with their help, that will demonstrate to the court how the other parent is failing to abide by your final Parenting Plan.

The other parent will be given the opportunity to show up in court and tell the court why that parent should not be held in contempt.  This opportunity for the other parent is called an Order to Show Cause.

Advice from a Whitefish Divorce lawyer: Listen to your lawyer

The number one piece of advice that I can give is to listen to your lawyer.

Your lawyer is there to help represent your best interests.  If they recommend you do or don't do something, then follow their advice.

Your lawyer will know what will and what won't help your case, and can try to minimize the damage when something is not in your favor.

This especially applies to people with children and parenting issues.  Your lawyer is on your side, and is there to look out for you.

If your lawyer asks you to complete documents by a certain date, that means your lawyer needs these completed. Remember that your lawyer has to abide by the dates required by law for filing documents. 

This means that you need to get the paperwork done in the time frame that they ask.

Allow your lawyer to guide you, and you will be much better off at the end of your case.

How is child support calculated in Montana?

Child support is calculated the same in the state of Montana, no matter where you live.  I mainly do calculations for the Flathead Valley, including Whitefish, Kalispell, and Bigfork, but can do calculations for anyone in Montana.

So how is child support calculated in Montana?  Courts in Montana decide what amount is reasonable or necessary to raise a child or children by looking at several factors:

1) The financial resources available to the child;

2) The financial resources available to each parent (income, pensions, etc.)

3) The standard of living the child would have had if the parents were still together

4) The child's emotional, educational, and medical needs

5) The age of the child

6) The cost of day-care, and

7) How much time the child spends with each parent.

These are all considered in calculating child support.  I would recommend you speak to your family law attorney about how child support is calculated for your specific situation and needs.  It is also possible for your family law lawyer to write up your parenting plan and have MT Child Support Enforcement Division calculate child support.

What if the other parent has violated the parenting plan in Montana?

So, you have a parenting plan set up for yourself and the other parent to follow on caring for your children.  Everything's going to go according to plan, right?  Unfortunately, not always.

What happens if one parent violates the parenting plan?  A parenting plan should address child support.  What if the other parent doesn't pay their child support, thus violating the parenting plan?  Do you still have to follow the parenting plan?

Yes.  The other parent is still obligated to follow the plan, even if one parent didn't return the children on time, or hasn't been paying child support.

Visitation with the children and child support payments are two separate issues in Montana.  Even if a parent never visits their child, they are still obligated to pay court-ordered child support.  If they don't pay child support that has been ordered by the court, the parent is still allowed to see their children.  The other parent cannot withhold visitation time because the other parent hasn't paid their child support.

Contact with each parent and child support are considered children's rights in Montana.

If you think that the other parent has violated the parenting plan, you should contact a family law lawyer.  Violating the plan is punishable by contempt and the offending parent can be subject to arrest and a fine or imprisonment.  You will need to go to court and get an order holding the other parent in contempt for violation of the plan.  In the meantime, if the situation warrants, you can call the police.
I recommend keeping a personal record of violations of the plan.

Best case scenario, you each work together to co-parent, and abide by the parenting plan that you both previously agreed to.  Remember what is best for your children, and try to minimize conflict to the greatest amount possible.

Questions about paternity in Montana

In Montana, the law presumes that any children born during a marriage is the biological child of the husband.

If you are not sure that your husband is the father, you may want to separately establish paternity.  This is something to discuss with your family law lawyer.

If you are not married and have a child, and one of the parties questions paternity, you will need to establish paternity before getting a parenting plan.

Things to think about before meeting with your lawyer for a parenting plan

If you are meeting with a lawyer regarding a divorce with minor children, or meeting with a lawyer where you are not married, but need to have a parenting plan, there are some things to think about before meeting with them to save some time (and saving time is saving money).

Consider a visitation schedule.  What hours do each of you work?  Do you travel for work?  Do you live close to the children's school? Who do you want to be the primary parent?

Consider summer vacations.  If your children are in school, or if they aren't yet but obviously will be before long, you should consider how you want to handle their summer vacations from school.  Summer vacations can be a great opportunity for the child to spend a lot of quality time with each parent once they are in school.

Consider holidays.  Courts generally try to alternate holidays by year to make it equal to each parent.  You should consider what years you want.  You should also consider specific holidays, such as, who wants Christmas Eve and who wants Christmas day? Do you want to alternate these?  Do you each specifically celebrate on one of the specific days? These will help you advise your lawyer what to write in your proposed parenting plan.
Consider frequent contact.  Montana courts presume that "frequent and continuing" contact with both parents is in the best interests of the child.  This does not mean that time spent with each parent has to be equal.  It does mean that when a child resides with one parent the majority of the time, the other parent will be expected to be allowed reasonable contact with the child.

Consider decision making.  Who is going to make decisions on behalf of your children?  There will be decisions about school, religion, and medical care.  Generally, both parents will be able to make emergency decisions and day-to-day decisions when a child is in that parent's care.

Consider conflict.  I prefer parenting plans to be a specific as possible to minimize conflict.  Ideally, the parents will work together on co-parenting and decisions arranging times and places to meet for exchanging children. Unfortunately, this is not always the case.  I recommend specific information on how the children will be exchanged for visits.

Any questions about these topics, as well as any other questions, should be directed at your family law attorney.  They can help you with this entire process.

What is family law in Montana?

You will often hear people refer to the terms "Family Law," "Family law lawyer," and "Montana Family Law Lawyer."  Often, I am asked what family law actually means.  These terms can be confusing.  What does family law refer to exactly?

Family law is a single term to cover several items.  The term "family law" is a broad word that covers a wide variety of topics: divorce, separation, prenuptial agreements, child custody, support, maintenance, parenting plans, child support, property division, and paternity.

Any topic that covers the idea of family is what a family law lawyer/attorney should be able to help you with.

Does the mother always get custody of the child in Montana?

In Montana, courts look at factors to decide what is in the best interests of the child.  See my blog post on the Best Interests of the Child standard in Montana.

Although it seems that mothers are always awarded "custody" (now called parenting or residential parent in Montana), that is not always the case.  Courts are gender neutral.  Montana courts decide what will be in the best interests of the minor child, and award parenting time accordingly.

If a mom is a stay-at-home mom, she may be awarded more time with the child because she doesn't work and is able to spend more time parenting (depending on how equal other factors are, etc.). This is especially true when the child is very young and still breast-feeding, the infant at this time cannot be away from their mother for long periods of time, and thus will spend more time with their mother.

In general, courts in Montana (especially Flathead County) appreciate the need to have both parents involved, and would like to see parenting time divided accordingly.  The least intrusive, easiest transition for the children to have the most time possible spent with each parent, and still be in the best interests of the child, seems to be the best arrangement.

All cases are unique.  Discuss this with your family law lawyer, who can give you advice on your particular case and needs.

You are not alone in divorce: it happens to celebrities too

I think that one feeling that a lot of people experience when they are going through divorce is the feeling of being alone.  Your entire life will change, and you will be adjusting to being alone after any number of years of having your spouse by your side.  You may also feel as though you are the only one going through this hard time.

The important thing to remember is that you are not the only one that is experiencing or has experienced this in the past.  Although unfortunate that many people have experienced the same feelings, the truth is, you are not alone.

Here is a link to a blog written about celebrity divorces, custody issues, paternity, you name it, between their spouses and partners: http://myfamilylaw.com/celebrityblog/.  You can follow the recent issues celebrities have faced while experiencing something that you may be able to relate to.  Knowing that you are not alone can certainly help one manage this difficult time.