Hello Again

Well, it has been almost a year since I posted a blog here. It’s been a year of writing, revising, editing, and the million other things that are involved with publishing a book. But as you can see from the website, the book is out and ready for purchase. I’m hopeful that people that need this book (and you know who you are) will find the book and find it helpful to them in their divorce journey – before, during and after. That has been the plan since the inception of this book.

But now that the print and e-book versions are out, I am now working on the audio version and a companion workbook to help those that need to share their thoughts as they work through their own situation. Both of those should be ready in a few weeks. Please keep an eye out for the big announcement.

And then what? Well, as marketing continues for this book, I will be testing the waters for my next book. Not long ago, I asked a fellow author how in the world do you ever move to the second book when there is so much marketing to do for the first one? Her answer was classic. You hire people to take care of it! I’m sure that is good advice and something I should have thought of first!

My next book/project will be a novel based on a real-life story that I experienced about 22 years ago. You know when you have an experience that impacts you so hard that you never forget it? Well, that is this story. The folks involved are still living with the consequences of that case as I am as well. No lawyer wins every case – no matter what they tell you. This is one I consider a loss and maybe that’s why I can’t put it down and forget it. I think if I don’t write this book, it will haunt me forever. It has to be told and I have to get it to a wide audience. It is that good. I know it.

Time Out

I’m sorry, but I’ve been reading and listening to the news a lot lately as I’m sure most of you have. I’ve also been seeing a lot of posts on Facebook and Twitter as well. This Coronavirus situation is very concerning to say the least.

Being away from my kiddos during this time has been very hard. My oldest is a teacher and the youngest is in the medical field. Both are very vulnerable to being exposed and both live in Colorado. And, of course, both of them say “don’t worry”. But I do.

I’ve seen several posts in the last few days trying to compare this situation to earlier instances of wide-spread flu and similar diseases. Some even had political undertones or blatant political statements. I hope we learn here that politics has no place in these discussions. This virus does not discriminate — it is an equal opportunity invader. And just because you may not know anyone personally that has it, that does not mean it is not out there and may be coming to a home near you. We have to all do our part to stay healthy if we can and help “flatten the curve” so that our healthcare systems are not overrun. If I need to go to the hospital, I want it to be available.

I’m having a really hard time lately focusing on divorce, this blog, or anything else really. So let’s just be patient with one another, check on your elderly neighbors by phone, email, or text to see if they need anything, and don’t be a hoarder! Wash your hands with soap for at least 20 seconds. I can’t believe that has to be said but here we are.

That’s all. Thanks and stay healthy.

Ready for Trial

So you think you have tried everything to resolve this divorce — marriage counseling, mediation, meeting after meeting — nothing has worked. So now you are both hunkered down with your respective lawyers and you are preparing for trial.

Just know that many times it is easy to miss the forest for the trees. The seemingly minutia dwelled on by the lawyers is really important in most cases. Generally, the case will turn on the details. You’ll need to be patient, open, and truthful to get through it.

The trial process is generally hard on everyone. Having minor children makes it even harder; although some of the more difficult cases I had in my practice were the “money” cases. In other words, cases where there were no children or where the custody issue had settled, and the issue for trial was all about the money and who got what. It is easy to become greedy and resentful wanting only the worst for the other party. This attitude will not be helpful long term. You really have to look at this situation as a failed business arrangement and the only thing that is happening now is this: what assets and liabilities are considered “marital” and how is the best way to equitably (or equally in some states) divide that marital property and debt. That’s all it is. Those that can view this process in those terms will be much more successful than those that carry the resentment and hurt throughout the process. The clients that I had that were less emotional by this time and more matter-of-fact had a far better outcome and better state of mind at the end.

By the time your case is ready for trial, the trial itself should be fairly predictable. Through discovery, you and your attorney should be able to learn those things necessary from the other side to put on your case. With experienced attorneys on both sides, there are very few times that I have seen any big surprises during the trial. Both sides have full information about financials, assets, debts, etc. That doesn’t mean that both sides agree to the division — obviously, that is not the case. But the facts should be fairly clear.

Where one or both parties do not have attorneys, it can be a different story. In those cases, parties don’t always feel obligated to share everything or they may not realize that they need to do so. I have seen Judges stop the trial where full disclosures have not been made by both parties and the parties were given explicit directions on what to do and when to come back to court to complete the hearing. If they thought they would be divorced that day, they were disappointed. You don’t want to find yourself in this situation for many reasons. One important reason is health insurance coverage where one party was still paying for the other. If you were counting on that coverage stopping on that day, your financial situation may be adversely affected. Other payments could continue as well such as car payments or credit card payments that you had thought would go to the other party at this point — again affecting your financial situation adversely.

No matter what happens during the trial, your demeanor must be one of respect for the Court, respect for the attorneys, and even though it may be hard to do, respect for the other party. This person is, after all, someone that you once loved or maybe you still do and if there are children, that you chose to be the father or mother of your children. This is not the time or place to vent maliciously or hysterically at the other party or their attorney. The trial should be a professional atmosphere and everyone there should be acting professionally. Follow your attorney’s directions regarding your testimony. If you do not have an attorney, give your testimony as honestly as you can and try to talk about the relevant matters — not about things that are irrelevant to the matter at hand. It won’t help you to try to blame the other party or to try to disparage the other party in front of the Court. If the Judge has to correct you too many times, it could well work against you and your position. Assets and liabilities are not divided based on character flaws so your efforts will not be rewarded.

If you find yourself having to endure a trial to resolve your divorce, basically the best advice I can give you is to grit and bear it. It will be over at some point and life will go on. I know it can seem never ending at times, but it is not. Try to stay as calm and prepared as possible. Being anxious and nervous is normal, but that self-induced stress is not healthy and will affect your ability to listen and comprehend what is happening when you get to the court. Breathe and know you are not alone. With over 50% of all marriages failing and a large slice of those having to have hearings and/or trials of all kinds, thousands of people are in Court regarding their divorces every single day. Sad but true.

Disclaimer:  Nothing herein should be construed as legal advice or as establishing an attorney-client relationship. This post is meant to be informational only.

Get Prepared

If you have decided that you must go forward with the divorce and you have retained an attorney, it is time to get ready for the possible trial, all the while hoping for a settlement. If you have attended mediation already, you might have already done a lot of what I’m about to say. But if not, now is the time to get prepared.

You should immediately gather all information and documents having to do with your income, assets, liabilities, investments of all kinds including retirement accounts, and any pertinent information regarding your and your spouse’s employment and employment benefits. That’s an easy statement to say, but not so easy for clients to do every time. Most states have a process for reporting this information to the court and the more you can gather early on in the process, the easier job your attorney will have and the less your attorney fees will be.

Each party is obligated to truthfully provide his/her own documents and information in a timely manner. It is imperative that you stay in touch with your attorney during this process in order to avoid missing any deadlines and so that the two of you can fully prepare your case. Never — and I mean NEVER — be untruthful with your attorney about anything. If your attorney has been practicing any length of time he/she has heard almost everything anyway. Nothing you could say will shock or outrage him/her. Additionally, there is attorney/client privilege that would prevent the attorney from using the information in any inappropriate or wrongful way or talking about it inappropriately with others.

One day as my client and I were sitting outside the courtroom waiting for the Judge to call us for his permanent order hearing after a difficult negotiation, he casually mentions to me that “Oh yeah, I do have a bank account in New Jersey with $25,000 in it. But we consider that my separate money so I didn’t mention it before.” WHAT!? That was not the time for me to hear about this after having spent hours on this negotiation and finally coming to a settlement with the other side. I felt very lucky that the other side did in fact consider the account his separate property and was not bothered by his blatant omission of the fact. It could have easily gone the other way!! Was this his fault for not speaking up about the account? Or was it my fault for not asking exactly the right question to solicit his answer? Here’s my advice: When the effort is regarding your assets, income or liabilities, just volunteer all information you have. Don’t wait for exactly the right question in order to produce it. Your attorney can’t know everything about you after meeting you for only a few hours. It is on you and your attorney to gather the required information.

When a small business or even a corporation is involved, it can complicate the financial gathering. Sometimes one party knows nothing about the business other than it exists. This can cause the discovery process to go longer than expected, especially if the party with the business is trying to make it look less than successful – which can happen in a lot of cases. If you have a successful business, good for you. You should never try to hide assets or income. Generally, it all comes out in the end and if you have tried to hide that income, you could be liable for the attorneys fees associated with that discovery, or worse. It is just best to be honest from the beginning.

There are probably many examples of clients innocently forgetting or deciding that something was not important. Please let your attorney decide what is important and what is not. That is one thing you are paying the attorney to do so just be truthful with him/her and allow him/her to do their job. You’ll be much happier in the end.

Disclaimer:  Nothing herein should be construed as legal advice or as establishing an attorney-client relationship. This post is meant to be informational only.

Mediation: Will it help?

If you are not aware of mediation, it is a process where both parties, with or without their attorneys, meet with an uninterested mediator in hopes of resolving any outstanding issues in the divorce and/or parenting plan. Parties can meet together with the mediator or separately. The expense of this activity is generally shared between the parties either 50/50 or based on their percentage of income.

The parties can engage in mediation either before the actual divorce process begins or during the process. Because mediation is such an important part of the process, here are my tips on how to handle mediation:

• Both parties must agree on who to use as the mediator. An experienced family law mediator will, in most cases, prove themselves to be worth the money invested. Many courts, through the court clerk or a court facilitator, can provide you with a list of local mediators experienced in family law. If one or both of the parties are represented by counsel, it is likely that the attorneys can agree on a mediator known to both attorneys. Some counties or courts may have low income mediation available through a state agency for those that qualify. If not, some mediators may offer a sliding scale based on the parties’ incomes.

• If both parties are interested in resolving the divorce and parenting issues without the court’s involvement, mediation is an excellent choice and should be completed as soon as possible. However, if one party is being abusive toward the other one or there are safety concerns for either party, it would be a better idea to wait and do mediation during the process of the divorce. In a lot of courts today, mediation is a requirement and must be completed whether or not the parties are able to resolve the issues. In my experience, attorneys can really help the process of mediation go smoother. Many times a party comes into mediation thinking he or she can intimidate the other party into agreeing to their wishes or perhaps they think they can make the other party feel sorry for them and they will get what they want. This is especially true where that party is not represented by counsel. Generally an attorney can set the stage for their client by anticipating what a fair mediated agreement might look like. In general, mediation results in an agreement that each party can live with — not one that gives everything to one party and nothing to the other. Each party should be willing to give when necessary and to take when possible.

• If either party feels uncomfortable being in the same room as the other party, do not hesitate to ask for separate rooms. The mediator would rather go between the two rooms to complete the mediation than have one party feel intimidated or scared the entire time. Additionally, these emotionally charged interactions usually prevent any lasting agreements from being reached.

• In mediation, there are no stupid questions or crazy issues. Each divorce is different and each party has those things they are most concerned about. Be sure to bring up your issues or be sure your attorney knows to do so. I’ve seen issues covering division of movies and photographs, custody and visitation with the family dog, time limits on phone calls with the children, and who would be paying for the next new outfit for the daughter – just to name a few. Money issues are always important and should be discussed thoroughly. Anything can be discussed and included in your agreement. But understand that the more specific an agreement is, the longer it will take to work through all of the required issues. Some parties need more than one session with the mediator to get their agreement finished.

Mediation can be an efficient and less expensive method to resolve the issues faced in a divorce — especially if there are minor children involved. Make use of this opportunity and be prepared. Know what can be compromised on and what cannot. Rely on your attorney and the mediator to help guide you through the maze, but always know what you can live with and what you cannot live with. That will make the negotiations go much faster and easier.

Disclaimer:  Nothing herein should be construed as legal advice or as establishing an attorney-client relationship. This post is meant to be informational only.

Do you need an attorney?

If you have determined that your marriage cannot be saved and that you plan to move forward with a divorce, one of the first things to consider is whether you need an attorney.  The short answer is “probably”.  If you google “do I need an attorney for a divorce”, you will get all sorts of advertisements for services and other people’s opinions of your situation.  But I would encourage you to take your time and make a measured decision on how to proceed.  This is, after all, your life and if there are children, it is their life as well.  It is too important a decision to rush to judgment. 

Hiring an attorney is not something done to spite the other party.  I’ve had potential clients visit my office and say that they felt the other party had hired an attorney just to spite them or intimate them or scare them from hiring anyone.  That is not what hiring an attorney should be about.  Generally speaking, hiring an attorney is to protect your rights and to make sure you get an equitable division of the assets.  Hiring an attorney can also work to protect the children from mistreatment or alienation from the other parent.  Experienced family law attorneys know when the courts should step in and issue orders to prevent wrongdoing or to prevent further damage by one party or the other.  They also know when it is an issue stemming from a misunderstanding that can most likely be worked out through mediation,  (More on mediation in our next post.)

Here are a few items to consider and my take on the issue:

Have you ever hired an attorney before?  This may be your first experience with hiring an attorney for any reason, much less a reason this important.  Call several attorneys – at least 3-4.  Talk to them over the phone if possible and schedule a free consultation so that you can meet that person and determine how you feel talking to him or her.  Communication between attorney and client is ultimately very important.  If you don’t feel comfortable with the person or feel intimated by him or her, go to the next one.  I’ve had potential clients say to me that they wanted someone that could “eat the other side for lunch” (really, that’s a quote).  Or that they wanted a “bulldog” lawyer.  I know that sounds satisfying when you are reeling with resentment and anger, but in the long run those attorneys that portray themselves in those terms may not be able to get you the results you are looking for.  Obviously, there are times that the attorney must be aggressive and assert your position in the strongest terms possible.  Personally, I’ve never met an attorney that could not do that.  But many times, if the attorney is too aggressive, you will just end up in court and you may not like the outcome.  A much better approach is to always be preparing for trial, while hoping for a settlement.

Is this a high asset case?  You may think yours is not a “high asset” case; however, do you own a home?  Vehicles?  Do you have retirement accounts?  Is there inherited funds that might come into play?  Is either party self-employed?  Both parties’ entire financial life must be looked at in a divorce and it is much easier to do that with an attorney that can help everyone see the equities in making that division.

Are there children of the marriage?   Obviously, this is a “yes” or “no” question.  If there are children, the issues that the parties will deal with can be complicated.  Toddlers and very young children have a different set of issues than would a 17 year-old teenager.  The parenting plans will be totally different in most instances.  It is also important to note that the rules surrounding maintenance or alimony and child support can be quite daunting if you are not well versed in your state’s statues.  And even if you are, it is always a better choice to have someone in your corner looking out for you and your children.

Can you afford to pay attorney fees?  Unless there are no children and absolutely no assets, you can’t afford not to pay attorney fees.  When I first started working in law offices in the 70’s, there was a common belief that the wife would get her attorney fees paid for by the husband.   And many times, that would be the order of the court.  That is no longer the case and each party should be able and willing to pay for their own lawyer.  Should there be an opportunity to ask for attorney fees, your lawyer will definitely do so.  Nothing is more satisfying for a lawyer than to get their client attorney fees from the other side. 

However, there are situations where one party of the other is not able to pay a retainer.  In those instances, it is much better to seek the assistance of the local Legal Aid Office or other resources for legal help than to proceed without an attorney.  Although federal funds for these assistance programs have been reduced in recent years, there are still resources available for those that qualify.  Also, many states have their own legal aid program that may be of assistance.  A quick search of the resources available in your area may provide the help that you need.  Do not be afraid to ask.

Disclaimer:  Nothing herein should be construed as legal advice or as establishing an attorney-client relationship. This post is meant to be informational only.

Divorce? Or is it something else?

Before we start talking about divorce, lawyers, and the legal process, we should discuss whether it is really necessary to go down the divorce road. In my practice, when meeting with potential clients, I typically started the conversation by asking if there was any way to save their marriage. Their response would give me a basis to work from and it gave them a chance to voice their situation. Many times within only a few minutes it was obvious that they still cared for their spouse but they wanted things to change and were frustrated waiting for that to happen. Sometimes the potential client had already done marriage counseling. Other times they resisted this idea.

Obviously, if there is physical or mental abuse or unacceptable drug or
alcohol use or any number of other things that put you and/or your children in danger, these are reasons to seek a divorce. This would be especially true if these issues had been addressed with professionals already and the spouse continued the abuse. Of course, that’s not to say that the abusing spouse won’t work to stop the behavior once they are faced with losing their family.  Sometimes drastic measures are necessary and can have good outcomes.

Many times potential clients want to know about financial matters before
they decide whether to go forward with the divorce. This is smart but the
financial matters will be worked out in the divorce process and many times
there are too many “ifs” to be able to give definite answers to those
kinds of questions this early in the process. But certainly finances should be
a consideration early on. This is especially true if you have children and will be moving locally or to another state.

I’ve always encouraged my clients and potential clients to think about how
they want to be living 5 or even 10 years in the future. I know that is not
easy for everyone to do but if you can see yourself 5 years down the road, what would be the ideal living arrangements? If ideally you see yourself still married to your spouse and being happy, there may be hope for your marriage. Or even if you don’t see that now but are willing to work toward that end, there is hope for your family. A family law attorney’s job is not to end your marriage. A family law attorney’s job is to help you untangle the web that a marriage creates in a fair and equitable manner once the marriage is over.

If you are considering divorce for any reason, a good first step is to
contact a marriage counselor or personal or couples therapist before you contact the lawyer. Be sure of the steps before you take them. You made the decision to marry this person and if this marriage can be saved, maybe, just maybe, you should put a little work into saving it. Filing for divorce will always be available to you — saving your marriage might not.

Disclaimer:  Nothing herein should be construed as legal advice or as establishing an attorney-client relationship. This post is meant to be informational only.

Hello world!

Welcome!! I’m Dena Nielson and this is my very first post as a new blogger. The name of this blog – The Unlikely Lawyer – and why I picked that will become clear to you as we progress through these posts together. But the short version is that I am now a retired lawyer that spent almost 25 years in the practice of law. Many times over those years I had to explain that I was the lawyer and that so-and-so here was my client — not the other way around. Even Judges had to have this explanation. More than once.

Background

A little about me: I grew up in south Arkansas. Hence, this accent that I cannot get rid of. Some people think it’s charming. I was unable financially to go to college until I was 33 years old and married to my second husband. I had a new baby and decided to take a couple of classes at the nearby junior college. I took a couple more classes and then a couple more. Pretty soon, I had completed the 2-year Legal Assistant course and had another baby. Those two things are not related but I was pretty happy with all of that. When I was about half way through this course, my Mother told me that she hoped I was able to complete this course but that nothing further should be necessary. I had a family to take care of and I should be focusing on that. She died soon after that conversation. So at first, I thought I should honor her position on things and feel good about this accomplishment. I could just work as a legal assistant.

But shortly, I knew I had to do more. So within 18 months I had completed my undergraduate degree and decided that the University of Oklahoma would be my law school of choice. In 1989, the two main criteria for getting into law school was your undergrad grade point and your LSAT score. My grade point was 3.92 so that was not a problem; however, my LSAT score was probably the lowest of anyone admitted — EVER. They say if you wait long enough, good things will happen. My admission letter came the first week of May, 1990. I had all but given up. But there I was 38 years old and an unemployed Mom of 2 about to enter law school at the University of Oklahoma. I was very excited!!

Law School

I had read all the books about the first year of law school and had been working in law offices for a few years. I had heard a lot of horror stories about law school. But none of that prepared me for the onslaught of work, reading, nerves, and competition that followed. The first year was especially difficult. My children were 4 and 6 and naturally took a lot of attention. My then husband was not especially helpful or supportive so much of the family responsibilities fell to me even though I had more than a full time job. I remember that awful feeling when the first semester grades came out and I did not make all A’s. I didn’t even have all B’s. It’s not important now (right?) but it was quite a shock to my system. I knew I absolutely had to do better. And I did. My grades improved every semester after that. It’s all about learning how to think like a lawyer. That’s sounds trite but it is really true.

I went to law school with absolutely no idea what I wanted to do other than to be a lawyer. But the week prior to the first day of class there was an orientation. A girl spoke about something called the “American Indian Law Review” and the big part was that you didn’t have to grade on — meaning anyone could just join. That sounded great to me as I had become very interested in Indian history during my undergrad classes. I joined right away and by far, it was the best thing I did during law school.

I made it through law school and graduated in May, 1993 at the age of 41. My children were 7 and 9 and my interest in Indian Law had been firmly planted. For the last two years of law school I clerked for a sole practitioner who was Indian and who represented various Indian tribes in Oklahoma and other states. It was a wonderful experience and with him as a mentor, I learned how to practice law and how NOT to practice law as well!

My Experience

After law school and after passing the Oklahoma Bar, I decided to stay and continue in Indian law. However, I also did everything else that came in the door as well — divorces, DUI’s, child custody, adoptions, probates, criminal and any and every other kind of case you can imagine. It was such great experience and certainly gave me a broad base on which to build my career. I was there until 1999 when my law partner passed away. You could say he was still teaching me lessons even in death. We had not foreseen either of us dying and had made no provisions for how to handle anything if that were to happen. I was basically out of a job. The Indian tribes would not honor any of our contracts because after all, I was non-Indian and they didn’t feel they owed anything to me. And maybe they were right. So I moved my practice to another location for a few months but I knew that bigger things had to be coming my way.

An opportunity came along to continue in Indian law but I would have to move to Denver. I was recently separated from my husband but thought this might give me and the children a fresh start. They were now teenagers so I was worried how this move might affect them. They both assured me that they were up for the move so in June, 2000, we became Colorado residents leaving all the hurt and sorrow behind.

Colorado

I moved to Colorado to be “of counsel” to a small firm that focused its efforts on Indian housing issues. Not exactly what I had been doing for the last 8 years, but I needed to be employed and I thought the new area of law would be fun to learn. I could also continue with the clients that I still had from Oklahoma. This worked for about 4 years but then it became apparent that I needed to go out on my own. By this time, I had remarried, my oldest was in college and the youngest would be graduating from high school soon. I was 53 and basically starting over. And since I was starting from scratch, I decided to step away from the Indian law and open a Family Law firm. Family law had been the one constant throughout my practice. So for the next 14 years I was a sole practitioner with a Family law practice in Colorado. I have maintained my license in Oklahoma as well. I did many, many divorces, child support cases, child custody cases, juvenile cases, and on and on.

Retirement

I retired from the active practice of law in January, 2018. I was so looking forward to the days of sleeping in, doing whatever I wanted, no clients calling or emailing, no court dates, but . . . after two years’ break, I’m ready to be productive again. Or at least I think I am. I tried to start a blog for my firm a few years back, but it just never got off the ground. That was probably because I didn’t have time to develop it properly. Hopefully this one will not be like that.

Intent

It is my hope that this blog will be entertaining and useful for those preparing for divorce, going through the proceedings, and even after the divorce is over especially those trying to co-parent their children. I don’t claim to be psychologist but I have seen enough divorces, including my own, that I feel I have something to offer that may help you get through the tough decisions you will definitely be facing. I also plan to include stories from my days as a litigator. You can’t make that stuff up and it can be pretty entertaining.

Thanks for reading. A new post will be here soon.