Court "Appearance"

"Appearance is everything."

There is a great deal of truth to that statement, especially when it comes to going to court. The judge who is hearing your case will not know you and in all likelihood, has never seen you before. He will make decisions and judgments about you based on a very short period of contact.  Because of this, your overall demeanor and appearance can have a great impact.

This may require that you "act" like you are calm and collected when in fact, you are a nervous wreck. This also may require you to ignore taunts from the other party or their counsel and to refuse to fall into the trap of getting angry or aggressive in response. Don't argue with the attorney, the court or anyone else. And only speak when it is your turn! Blurting out reactions or comments just makes the judge mad. Expect to hear things you disagreed with and that you will be able to dispute when you testify.

You should be respectful and courteous to everyone, even your own lawyer-but most especially to the judge. There should be no arguments in the courtroom hallways. Word of this often gets back to the judge.

You also should appear to be, and actually be, prepared for court. Bring ALL of your information to court with you. You may not need it, but if you do, it is there. Keep your papers neatly organized. I give clients a folder to use, but you may need more storage space. Be certain that your lawyer has all of the information in advance.


You also need to plan to arrive at court EARLY just to make sure that you are not late and so that you can discuss last minute details with your lawyer. Tell your witnesses to do the same.

Do not bring "dates" to court, especially in family law matters. If you need moral support, bring a relative or friend.

Most local courts will not permit you to bring cellphones in. To be on the safe side, leave it in the car, and tell your witnesses to do the same.

Dress in an appropriate manner. Never wear shorts or t-shirts. Avoid jeans. Dress conservatively. Many judges are old men. They do not appreciate trendy styles. Avoid glitzy jewelry. Men should wear dress shirts and dress pants, if possible. No cleavage or extra short skirts for women.

You need to be clean, shaved and well-groomed. No extra cologne or other distractions (for example, if the nose ring can come out, take it out). If you need a haircut, get one before court.

Do not bring children to court unless they are under subpoena and are required to be there. Find a babysitter. Judges hate babies in court.

Even if you look like you are a winner and deserving of confidence, you are not guaranteed to win, but you will not lose because of factors that are completely within your control!

Divorce Mediation Checklist

The following issues are often discussed in a mediation involving  separation or divorce. Please bring any relevant information with you to the mediation to help with  making an informed decision (information regarding bills, debts, value of assets, retirement plans, insurance, etc.).
Parenting Arrangements:

1. Legal Custody (who makes major decisions about the children regarding education, religion, and major healthcare issues)
2. Physical Custody (the times the children will spend with each parent)

• Weekdays
• Weekends
• Childcare plans
• Extracurricular activities
• Holidays
• Birthdays
• Summers
• Extended vacation times
• Travel plans
• Temporary changes to plan

3. Communication (telephone, email)

• Between parents
• Between parents and children

4. Spousal Support and Expenses:

• Spousal Support: amount; method; time
• Health insurance
• Life insurance
• Pension plans
• Educational expenses
• Housing expenses
• Legal expenses

5. Child Support and Expenses:

• Child support: amount; method; time (Virginia Child Support Guidelines)
• Health insurance
• Medical expenses not covered by insurance
• Childcare expenses
• Tax deductions
• Life insurance beneficiaries
• School/college expenses
• Expenses for extras: activities, birthday parties, lessons,  non-essential items

6. Equitable Distribution of Property:

• Determine value of assets and liabilities
• House/property
• Property expenses (mortgage, utilities, taxes)
• Household furnishings
• Motor vehicles (payments, insurance, expenses)
• Savings/checking accounts
• Investments/stocks
• Credit card and other consumer debt
• Personal debt
• Insurance (cash value)
• Tax refunds or payments due
• Bankruptcy
• Business

7. Other

• Moving
• Communication
• Legal expenses
• Resolving future disputes

Mark Chinn's Family Law Blog: WHAT ARE CUSTODY RIGHTS BEFORE THERE'S AN ORDER?

Mark Chinn's Family Law Blog: WHAT ARE CUSTODY RIGHTS BEFORE THERE'S AN ORDER?: Before a court has entered some form of order, each parent has equal rights to custody. Unfortunately, if parents choose to, they can play a...

What Makes A Good Divorce Client?

Divorce is one of the most traumatic events that anyone can go through in his or her lifetime. Not only is it frightening, but it's difficult, to say the least -- even under the best of circumstances. Attorneys and clients usually have a love/hate relationship during a divorce.

Typically clients will need an attorney at the beginning of the case, but by the end of the divorce in many circumstances, the client's attitude -- sometimes justifiably -- is that the attorney didn't do enough for them -- "I'm not happy with your services, and for these reasons, I don't want to pay your bill."

Think of this scenario. A person going through a divorce is in a no win situation. First of all, you don't see your children all the time, even under the best of circumstances, where custodial arrangements range from one parent having primary physical custody and the other parent having very limited time to a 50/50 arrangement. So no matter how you look at it, you will spend less time with your children. Second, one party is paying child support, the other party is receiving child support, and when you split up and set up two separate households, too often there is not enough money to go around. Third, in many cases there is spousal support, which again cuts the marital pie. Fourth, there are the issues of property -- it is divided. You now have half of what you had, you often have more debts, and -- to say the least -- it is too frequently a lose/lose situation. Attorneys end up helping people divide debts, as they have fewer assets, smaller retirement accounts, and houses that are under water.

Finally, to add insult to injury, you have to pay your attorney. So from this attorney's perspective, what makes a good client?

1. Try to be organized. When you are meeting with your attorney, write down your questions in advance. Try to have an agenda, and make sure that your attorney answers your questions.

2. Do not call or e-mail continually because this is how your case will start spinning out of control from a cost standpoint. Most attorneys charge by the hour, and we are not only charging for phone calls, but also for e-mails, because e-mail has now become the preferred method of communication. I find that I have almost no snail-mail in my cases, and everything is done electronically. Save up your questions. If you are going to communicate by e-mail or phone, have several questions at once, rather than doing one now, one later, and having a bombardment of e-mails back and forth on a daily basis, which happens too frequently in cases that are spinning out of control.

3. Remember that an attorney is here to assist you and help you through the legal system. Do not be afraid to feel lost and bewildered, but make sure that you and your attorney are communicating. A good client will ask questions, but not too many.

4. Have reasonable expectations. Be realistic. A good attorney will help you stay reality oriented. Listen to your attorney. Listen to legal advice. Remember that you are trying to resolve issues, not have a war.

5. Try to be reasonable. Don't ask for something that you are not going get. Bear in mind that in negotiations, you should always ask for more than you expect to receive, but don't be off the wall. Have realistic expectations regarding custody and parenting time. Try to be realistic about child support and spousal support. Try to be realistic about property division.

6. Too many clients want the house no matter what. Yes, there is often an emotional attachment, but in many cases, especially if the economics make no sense, it is better to not keep the house. Sometimes it is better to sell it; sometimes it's better for the spouse who has a greater income to keep it. These are all things to consider.

7. Have a game plan and an agenda, but be prepared to be flexible. Remember that life happens, and if things didn't go wrong in your life, you wouldn't be getting a divorce in the first place.

8. Work with a therapist. This is important, because often there are anger issues or feelings of loss, or resentment. Your attorney is not your therapist.

9. Try to have your attorney explain the legal system to you so you know what to expect.

10. It is important to assist your attorney as far as providing documents and information, because the more helpful you can be, the more cost effective your attorney can be, and the lower your attorney fees will be.

11. Don't hesitate to discuss fees, to ask about how much the representation will cost, and do not hesitate to request a monthly billing statement so you know exactly what is going on with regard to billings in your case.

12. Last, but not least, remember that divorce is a process, a transition, albeit a painful one, but it is a step that you will get through. I often tell my clients to think of a 100-yard dash. That is not a divorce. A divorce is more like a marathon, and if you start understanding that, you will get through it. You will also be a better client, and you will understand that there is light at the end of the tunnel.

What are your thoughts? Please share them with us.

By: HENRY S. GORNBEIN
Family Law Attorney & Legal Correspondent
DivorceSourceRadio
40900 Woodward Avenue, Ste. 111
Bloomfield Hills, MI 48304-5116
248/594-3444; Fax 248/594-3222
DivorceSourceRadio.com
hgornbein@familylawofmichigan.com
henry@divorceonline.com

Follow Henry Gornbein on Twitter: www.twitter.com/.

What is mediation, and who can it help?

Linda Gryczan Open Communication |

My husband and I are going through a divorce. A friend suggested we go to mediation? What is it exactly? How does it work?

Mediation is a way to resolve conflict where people who disagree meet with an impartial third party to help them create a mutually acceptable agreement.

Mediation is:

Confidential — You won’t be reading about the results of your agreement in the paper.

Voluntary — You can leave at any time for any reason or no reason at all. Even if mediation is court ordered, if you make a good faith effort to come to agreement, you will fulfill that obligation.

Neutral — A mediator’s job is to create a safe and productive environment, not to decide who is right or wrong.

You have control over the outcome — You do not have to agree to anything that isn’t right for you.

There are two types of mediation practiced in the Helena area, evaluative and facilitative.

An evaluative mediator focuses on the legal rights of the parties and helps them reach agreement according to the legal definition of fairness. The mediator is likely to evaluate how a judge might rule. The meetings are most often held in separate rooms, with the mediator shuttling back and forth. Because of the legal knowledge required to evaluate a case and lawyers’ tradition of meeting separately, most evaluative mediators are attorneys.

A facilitative mediator uncovers the needs behind a stated position and helps the parties find a solution that meets those needs. He or she will help the parties communicate clearly, keep everyone focused, respectful and moving towards a resolution. A facilitative mediator does not make recommendations, offer advice or analyze the parties’ chances in court. Facilitative mediators most often meet with everyone in the same room, with an occasional private meeting with each side. They come from all backgrounds, including the legal profession.

Even if your mediator is an attorney, he or she won’t be offering legal advice, so both styles of mediation encourage the parties to have an attorney review any agreement before signing.

It is important to consider which style of mediation best fits your situation:

• Do you want a process that also works on improving communication in a continuing relationship? Is a “just-the-facts” negotiation style more to your liking?

• Do you want your legal position evaluated by your mediator in the mediation or later by your attorney?

• Do you prefer to meet around the same table or in separate rooms?

• Do you want more or less direction from your mediator?

Who should not mediate?

Because mediation depends on the honest disclosure of financial assets, if there is a concern that someone might be hiding money or property, that issue should be taken to court.

Traditionally mediation has not been used in cases of domestic violence, and attorneys say that Montana law allows domestic violence survivors to opt out of even court-ordered mediation. Some survivors want to have more of a say in the outcome of their divorce. If this is your situation, and you want to mediate, it is important that your mediator understands the dynamics of domestic violence and designs the session to be emotionally and physically safe. Some survivors can comfortably advocate for themselves in the same room. Others need to meet separately, arrive at different times, be behind a locked door or mediate by phone.

You don’t have to go it alone. If it is acceptable to all parties, you may bring in a friend, family member or an attorney to help you negotiate, be an advocate or to help think of new ideas.

Whatever your preferences, there is a mediator who suits your needs and will help you reach an agreement that works for you, taking less time and costing less than a court battle.

Mary G. Commander is a Virginia Supreme Court certified Mediator.

Visit our mediation website: www.mediate-at-candc.com

Points awarded

Other ways to earn

My husband cheated on me can I get alimony? He only works part time.

His lover called me and left a massage on my phone about them.

Spousal support in Virginia is not a punishment for wrongdoing by a spouse , so his adultery alone would not justify a support award. Instead, spousal support is based primarily on one party's need and the pther party's ability to pay.

Spousal support can be awarded in the Juvenile and Domestic Relations District. This court uses a statutory formula for calculating support. The statute provides:
A. There shall be a presumption in any judicial proceeding for pendente lite spousal support and maintenance under this title that the amount of the award that would result from the application of the formula set forth in this section is the correct amount of spousal support to be awarded. The court may deviate from the presumptive amount as provided in subsection D.

B. If the court is determining both an award of pendente lite spousal support and maintenance and an award of child support, the court shall first make a determination of the amount of the award of pendente lite spousal support, if any, owed by one party to the other under this section.

C. If the parties have minor children in common, the presumptive amount of an award of pendente lite spousal support and maintenance shall be the difference between 28% of the payor spouse's monthly gross income and 58% of the payee spouse's monthly gross income. If the parties have no minor children in common, the presumptive amount of the award shall be the difference between 30% of the payor spouse's monthly gross income and 50% of the payee spouse's monthly gross income. For the purposes of this section, monthly gross income shall have the same meaning as it does in section Sec. 20-108.2, as amended.

D. The court may deviate from the presumptive amount for good cause shown, including any relevant evidence relating to the parties' current financial circumstances that indicates the presumptive amount is inappropriate. (Va. Code Section 16.1-278.17)

Spousal support also can be awarded in the Circuit Court as a part of a divorce case. While there is no formula for support, there are statutory factors which the court is to consider. The statute provides:
E. The court, in determining whether to award support and maintenance for a spouse, shall consider the circumstances and factors which contributed to the dissolution of the marriage, specifically including adultery and any other ground for divorce under the provisions of subdivision (3) or (6) of Sec. 20-91 or Sec. 20-95. In determining the nature, amount and duration of an award pursuant to this section, the court shall consider the following:

1. The obligations, needs and financial resources of the parties, including but not limited to income from all pension, profit sharing or retirement plans, of whatever nature;

2. The standard of living established during the marriage;

3. The duration of the marriage;

4. The age and physical and mental condition of the parties and any special circumstances of the family;

5. The extent to which the age, physical or mental condition or special circumstances of any child of the parties would make it appropriate that a party not seek employment outside of the home;

6. The contributions, monetary and nonmonetary, of each party to the well-being of the family;

7. The property interests of the parties, both real and personal, tangible and intangible;

8. The provisions made with regard to the marital property under Sec. 20-107.3;

9. The earning capacity, including the skills, education and training of the parties and the present employment opportunities for persons possessing such earning capacity;

10. The opportunity for, ability of, and the time and costs involved for a party to acquire the appropriate education, training and employment to obtain the skills needed to enhance his or her earning ability;

11. The decisions regarding employment, career, economics, education and parenting arrangements made by the parties during the marriage and their effect on present and future earning potential.

12. Other relevant factors, including the tax consequences to either party.

Virginia Code Section 20-107.1

This response does not create an attorney-client relationship and is intended for general information purposes only.

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Criminal Background Check For Foster and Adoptive Parents

Criminal Background Checks for Prospective Foster and Adoptive Parents

Requirements for Foster Parents
Citation: Virginia Code § 63.2-1721

Foster parents and any adults residing in the home shall undergo background checks prior to approval. Background checks require:

• A criminal history record check
• A search of the central registry for any founded complaint of child abuse and neglect

Conviction of a ''barrier crime'' shall disqualify an applicant. ''Barrier crime'' includes:

• Murder or manslaughter
• Malicious wounding
• Abduction for immoral purposes
• Assaults and bodily wounding
• Robbery, burglary, or carjacking
• Threats of death or bodily injury
• Felony stalking
• Sexual assault
• Arson
• Drive-by shooting
• Use of a machine gun or sawed-off shotgun in a crime of violence
• Pandering, crimes against nature involving children, incest, or taking indecent liberties with children
• Abuse and neglect of children or failure to secure medical attention for an injured child
• Child pornography
• Abuse and neglect of incapacitated adults
• Delivery of drugs to prisoners
• Any felony violation relating to possession or distribution of drugs

A foster home also may be disqualified for:

• A conviction of any other felony not listed above unless 5 years have elapsed since conviction
• A founded complaint of child abuse or neglect

A child-placing agency may approve as a foster parent an applicant who has been:

• Convicted of not more than one misdemeanor not involving abuse, neglect, or moral turpitude of a minor, provided 10 years have elapsed following the conviction
• Convicted of statutory burglary for breaking and entering a dwelling, home, or other structure with intent to commit larceny, who has had his or her civil rights restored by the Governor, provided 25 years have elapsed
• Convicted of felony possession of drugs who has had his or her civil rights restored by the Governor, provided 10 years have elapsed

Guardians Ad Litem For Children

In child custody and visitation cases, it is the practice of most judges to appoint a Guardian Ad Litem (GAL). This person represents the interests of the child(ren). He or she will investigate the facts and will make a report back to the court. The report often will contain a recommendation as to the resolution of the case. The court also can refer the case to CASA (Court Appointed Special Advocates) who will do their own investigation and report.

The quality of the service provided by GALs varies widely. There are statutory requirements relating to their qualifications and duties.

Qualifications/Training
Citation: Virginia Code §§ 16.1-266.1; 9.1-153
The Judicial Council of Virginia, in conjunction with the Virginia State Bar and the Virginia Bar Association, shall adopt standards for attorneys appointed as GALs. The standards shall, as far as practicable, take into consideration the following criteria:

• License or permission to practice law in Virginia
• Current training in the roles, responsibilities, and duties of GAL representation
• Familiarity with the court system and general background in juvenile law
• Demonstrated proficiency in this area of the law

The Judicial Council shall maintain a list of attorneys who are qualified to serve as GALs based upon the standards and shall make the names available to the courts. If no attorney who is on the list is reasonably available, a judge in his or her discretion, may appoint any discreet and competent attorney who is admitted to practice law in Virginia.

The Department of Criminal Justice Services shall adopt regulations governing the qualifications of advocates who shall be deemed to be criminal justice employees. An advocate must be at least age 21, and the program director shall obtain a copy of the advocate's criminal history record and information from the central registry on child abuse and neglect to certify that no records are maintained on him or her.

An advocate shall have no associations that create a conflict of interest or the appearance of such a conflict with his or her duties as an advocate. No advocate shall be assigned to a case of a child whose family has a professional or personal relationship with the advocate.

No applicant shall be assigned as an advocate until successful completion of a program of training required by regulations. The department shall set standards for both basic and ongoing training.

Specific Duties
Citation: Virginia Code § 9.1-153; Va. Sup. Ct. Rule 8:6
The advocate's duties shall include:

• Investigating the case to which he or she is assigned to provide independent factual information to the court
• Submitting to the court a written report of his or her investigation in compliance with the provisions of § 16.1-274
• Upon request of the court, making recommendations as to the child's welfare
• Monitoring the case to ensure compliance with the court's orders
• Assisting any appointed GAL to represent the child in providing effective representation of the child's needs and best interests
• Reporting a suspected abused or neglected child pursuant to § 63.2-1509

The advocate is not a party to the case to which he or she is assigned and shall not call witnesses or examine witnesses. The advocate shall not, with respect to the case to which he or she is assigned, provide legal counsel or advice to any person, appear as counsel in court or in proceedings that are part of the judicial process, or engage in the unauthorized practice of law. The advocate may testify if called as a witness.

The GAL shall vigorously represent the child fully protecting the child's interest and welfare. The GAL shall advise the court of the wishes of the child in any case where the wishes of the child conflict with the opinion of the GAL as to what is in the child's interest and welfare.

Domestic Assault

was arrested for hitting my boyfriend

I came home to a drunk (should have known) then I decide to leave he starts cussing me and calling my daughters very nasty names in my face I hit him. I sit to get my phone he was on top of me trying to take it. He destroyed my things and I called the police. I got arrested and have never been in trouble before. I ended up with a contusion (not sure of the spelling) and very sore. I did have this noted by the doctor that night. What happens in most cases like this?

My rule is that you should never invite the law into your home (with very few exceptions). It is far from uncommon for the one who calls the Police or Social Services to end up with the punishment.
From the facts that you provided, it appears that you both are guilty of assault. Since you were the initial aggressor, you were arrested. You can file a cross warrant against him for the assault. Go and see the Magistrate about this. In most cases like this, the charges will be dismissed if neither party has a record. The final decision, however, is up to the judge.

This response does not create an attorney-client relationship and is intended for general information purposes only.

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What You Don't Know About Divorce Mediation

What Most People Don't Know About Divorce Mediation

Despite divorce mediation's well-deserved reputation as a sensible alternative to fighting it out in court, we find that few people know very much about it.

Divorce mediation is not all that the public seems to think it is. This post aims to clear up some of the common misunderstandings associated with it.

Divorce mediation is for reasonable people who cannot resolve their differences by themselves.
As divorce lawyers, we regularly receive phone calls from prospective clients who explain that they and their soon-to-be exes are seeking a divorce, and that they have already reached a settlement on their own. They go on to tell us that they want to use mediation to conclude their case.

We tell them they do not need a mediator. Instead, they should be looking for a lawyer to shepherd their settlement through the legal system. Their situation does not belong in mediation because mediation helps people resolve disputes; and these callers do not have a dispute, they have a resolution of their dispute. They already have the best that mediation could ever give them. If their wish is to save time and money, their best bet is to take their settlement straight to court for a judge's approval.

Divorce mediation is an out-of-court dispute-resolution tool that helps people settle their differences sensibly and with the legal system having only minimal involvement.

It provides a structured process that minimizes the defensiveness and friction that are normally present during spousal settlement conversations. It does this by creating a non-confrontational atmosphere that encourages the spouses to put their best foot forward when they are presenting their thoughts and concerns to one another.

Mediation employs the use of a neutral and impartial third party -- a mediator -- to help the disputants reach a peaceful compromise that they can both find acceptable.

Mediators are not referees, judges, or arbitrators and they cannot make decisions regarding who is going to win or lose. Their only job is to guide the parties during their negotiations, just as air traffic controllers guide air traffic.

We must be at our very best if we hope to persuade our partner to agree to an out of court settlement that he or she is typically inclined to resist. Accomplishing this is often difficult because divorce tends to put us at our worst. This is where the mediator comes in. He or she directs the interaction and dialogue away from potential negotiation hazards and makes it possible for us to be at our best.

We have all heard of friends, family, or coworkers who have gone through divorce mediation with great success. As mediators ourselves, we certainly attest to mediating many successful divorce resolutions. However, we have our reservations about the effectiveness of mediation during the early stages of divorce.

For mediation to be successful, both disputants must be reasonable people who are motivated to negotiate a final settlement. However, this is not what usually happens during the early stages of divorce.

In the initial phase of most marital break ups, emotions often hinder the participants' ability to be reasonable. In addition, it is also very common for only one partner to be ready to divorce.
He or she wishes to begin settlement negotiations, and the other party wishes to work on saving the marriage. This difference in motivation tends to stymie the chances of mediation's success. It is extremely difficult to negotiate a price with someone who is dead set against buying the item at any cost.

The mediation clients with whom we have had successful results during the initial stages of divorce are the exceptions to the general rule. These are the extremely reasonable people with workable factual situations who are highly motivated to reach a cooperative divorce. Our role as mediator usually involves only minimal guidance to assure the couple that their settlement proposals cover all the bases and do not omit any items of importance.

Many people see mediation as an end-all, attorney-free process. However, in most instances, those with a mediated settlement still have to hire at least one attorney to process the divorce through the legal system. In addition, mediators are trained to recommend to both parties that they consult with their own attorneys before formalizing any agreement reached in mediation.

Divorce mediation is not for every couple, and it is not for every situation. However, it has no down-side and can help people save time, energy, and expense, not to mention wear and tear on the family unit.

J. Richard Kulerski and Kari L. Cornelison are partners in the Chicago area, Oak Brook, IL divorce law firm of Kulerski & Cornelison. You may find them at www.civilizeddivorce.com and at their firm's blog dupagedivorcelawyerblog.com.

Richard is the author of The Secret to a Friendly Divorce: Your Personal Guide to a Cooperative, Out-of-Court Settlement.

Follow J. Richard Kulerski and Kari L. Cornelison on Twitter: www.twitter.com/Chicago_Divorce

Follow J. Richard Kulerski on Twitter: www.twitter.com/Chicago_Divorce