Brooke Wilkins (attorney):
When do you need a lawyer?
- Law cannot heal, only provide measure of safety and security
- Pray and listen for inspiration re: choosing a lawyer
- Divorce, children, property all call for a lawyer
- Never sign any legal docs. without them being reviewed by a lawyer
- Don’t need lawyer to get a protective order, but you might
1st comes a temporary protective order to help in case of threat of harm for emergencies; can determine temporary custody, can restrict a person from coming to your house
A protective order is for when you are living with someone; restraining order is for any other situation
There are filing fees with the court.
Every police dept. has a victim advocate and for free will help you fill out papers. I am the petitioner if I am the person filing the forms.
How do you find a lawyer?
- Go to Utah Bar website and use their referral service (info on length of practice, their locations, etc.) maybe not anymore
- Talk to people for referrals especially; draw from a network of people; pray for inspiration
- Is it true that the better the lawyer, the more you’ll pay generally, YES; still, the advice is to talk to people
- Talk about money and fees right up front
How will I pay you, how do you charge, what’s your retainer, what’s your rate, how will you bill me and what will you bill me for; do you have a paralegal that can do work at a reduced rate? Etc. etc.
- Montgomery is a rating system that can also be looked at (peer-rated)
When you are with a lawyer and working with them:
- Be succinct and organized
- Stick to the facts; lawyers are not good counselors and deal best with facts
- Bring a friend; they can help you stay focused and stick to facts and also process what you hear (it may not be what you want to hear)
- Be honest
- Keep a journal so you can document (considered as court evidence); avoids the “he said, she said” situation; don’t let him know about the journal (guard it and keep it private); email journals are good because they automatically log date and time
- What’s the best way to keep track of child support? ORS (Office of Recovery Services keeps track); deposit check in separate account, keep copies of check; what if they hand cash? Request money orders rather than checks and cash
- There are 2 kinds of custody, legal and physical
Physical means you have the kids and are day to day raising them
Legal custody is about big global decisions and legal responsibility
When journaling, include activities and whereabouts of children all the time (to protect them)
If you don’t want his girlfriend in your child’s life, yet you still want child support, hope his name isn’t on the birth certificate; 12-year-olds cannot decide whom they will live with (at age 16 they can); get written agreement through a mediator to modify the court order if there’s ever abuse that can be proven
Mediation is less costly and will come up with more amenable decisions
Courts make the decision on legal emancipation (re: children petitioning before age 18; there’s usually another support system in the child’s life)
There’s a difference between physical residency and legal custody also; statutes determine visitation according to standardizedrules; go to mediation beforehand to work out something that works best for you
Termination of parental rights: he has to be served properly with notice; if he can’t be reached, public notice can be considered as proper service
Can we use a Bishop’s evaluation as evidence? YES, although it may not carry as much weight as you hope; round up letters of evaluation and testimony as quickly as you can
If father’s income goes down, how would he change the amount of child support to be paid? (Use ORS) Most orders take into account that incomes change; must do a court order; child support must be paid on children until age 18–no difference between men and women
A protective order can provide rules about child support; if you start divorce proceedings when he is in prison, he can be served for sure
How do you pay a lawyer?
- No matter what, you will be paying your lawyer, no such thing as a contingency fee; likely flat rates for simple straight forward situations; most family law is not simple and straight forward
- Retainers are the rule and after it is exhausted, you’ll be billed
- If you fire your attorney, any money that hasn’t been used, is returned to you; contact the Bar Association if this isn’t the case for you
- Once the retainer is used up, refresh your retainer (pay him again, perhaps the same amount or less, but keep putting it in); your relationship will be helped a LOT if you keep your fees paid up
- If you can’t respect your lawyer, the judges don’t respect them, so get another one; always have your attorney that they put things in writing
- Joan advises we look the attorney in the eye and ask him if he has time to do the job well (see the book The Smart Divorce); sign a written fee agreement once you decide whom you will hire, read it carefully
- Lawyers are risk-averse people; how do we know attorneys are doing their job? They usually only use the information you give them (there are services you can pay to check accounts); how do you track an ex’s income goes up (ORS every three years will do a re-evaluation to adjust child support, work with them)
- IRAs are part of the divorce agreement (along with all other equitable divisions); courts decide the division of assets, so you keep track ofall financial records; there is a “discovery” process that helps during divorce proceedings; it can be expensive, but that is how you get financial information
Custody Evaluator is not a lawyer, but a therapist, social worker, counselor and they provide information for the court that is used by the judge to determine custody and they rely heavily on it; their info carries HUGE weight
Guardian Ad Litem talks with children, is a children’s lawyer and represents the children’s interests in court; sometimes they charge and the charge can be shared
Special master is given power to make decisions that deals with the nitty gritty orders of the court regarding children and you have to go to the court to get it changed; court will appoint one (attorney will help you find one ); judge relies HEAVILY on the Special Master’s opinion and report (not always attorneys), just for children’s issues
