Most clients have similar fears and questions Many hold beliefs about the legal process in a divorce or about the behavior of the people involved that are not accurate. To address basic issues and help eliminate inaccurate perceptions, we provide here a list of the most common questions that clients ask and the answers.
Am I going to win?
Win what? It has often been said that no one wins in a divorce case. I will attempt to raise all issues structured to your case to your advantage, and make sure you
lose as little as possible. However, if your intent is to punish your spouse or to win by way of an all-out, no-holds-barred victory, then your goal is probably unattainable.
How long will it take?
It is difficult at the onset of a lawsuit to foresee how long it will take to complete. We are better able to give you an estimated time range later when I understand more clearly the facts at issue. The time involved is primarily based on four factors:
a) The number and complexity of the issues that you and your spouse cannot agree upon.
b) The intensity of feelings between the parties and whether there is an inclination to settle;
c) The attitude and tenacity of your spouse; and
d) The tenacity and desire for litigation of the lawyer of your spouse.
How much will it cost?
It is difficult to make a realistic estimate of the total fee even when we know the issues contested, the intensity of the
parties' feelings, and the complexity of the issues. If the parties want to settle, make compromises, and end the matter quickly, they can do so. If the parties do not trust each other, want complete discovery of all assets and liabilities, and argue many issues to the bitter end, the process becomes very long, drawn out, and expensive. Going to trial is almost always more expensive than settling the lawsuit.
When we discuss expensive, you should be aware that you will pay three
ways with your time, the hole in your stomach, and the hole in your pocketbook.
a) Time. You will have to spend your time to prepare your lawsuit. Your spouse does not prepare your lawsuit; your
spouse's attorney does not prepare your lawsuit. Your attorney prepares your lawsuit with your help. You must make a commitment to put time into your case. It takes hard work. If you are not prepared to spend the time and do the work, then your case will not be prepared as satisfactorily or as inexpensively as it will be if you make the expenditure of time. You should weigh the price that you pay with your time, your emotions and your money to determine whether certain issues are worth litigation.
b) The hole in your stomach. Many health professionals will tell you that going through a divorce is one of the most painful experiences you can have. All parties going through a divorce should be in counseling to help with the emotional issues. It is unusual for both parties to want to end the relationship simultaneously. Therefore, one party is often emotionally hurt along the way. If that is you, then divorce can be an extremely painful process. Often one party does not want the marriage to end and will use every way to punish the other spouse. The more issues raised, the more painful the process can become.
c) The hole in your pocketbook. Because preparing and trying a lawsuit is very expensive, we want you to scrutinize the issues at an early stage and determining what issues can be settled. We do not recommend making unreasonable or unnecessary concessions, but we recommend that you look carefully at the issues that separate you and your spouse. You do exercise some control over the issues in your case. Therefore, if there are concessions you can make that would bring your case to a speedy conclusion, and thus reduce your fees, please consider making them. Litigation often begets further litigation. The attorney sells her time. Anytime you can save attorney time, then your money can be more efficiently used.
I need a really tough attorney; are you tough enough?
Some people feel that for an attorney to be a fighter, he or she must (1) be uncooperative with opposing counsel in such matters as disclosing information, disclosing documents, and arranging for convenient dates for meetings, depositions, etc.; and (2) never consider or advise compromise or negotiation with opposing counsel.
This notion is sadly misguided; the time to fight is usually in tough negotiations or in court. Being uncooperative with opposing counsel is not being tough. It is simply increasing attorney time and client cost. Information and documents requested by the other side are ultimately subject to disclosure under the law. An uncooperative attitude serves no useful purpose.
What if my attorney is friendly with my spouse's attorney?
Attorneys in a particular area are likely to have many cases against each other over the years. They are also likely to attend the same professional events and may work on committees together because they deal with each other day in and day out, a camaraderie may develop. Your attorney and your
spouse's attorney may exchange pleasantries, share a joke or even have lunch together. This does not mean the attorneys are being disloyal to their clients. Remember, your attorney is professionally committed to achieve the best result for you given the facts and law applicable to your case. This does not mean that he or she must dislike the other side, or be hostile, rude, or mean to the other side. Such behavior frequently harms, rather than helps, your case.
If the other side suggested it, it must be bad.
It is unfortunately common to believe that if the other side made a suggestion they must have an ulterior motive. Some parties believe that they should automatically do the opposite of what the other side wants. Let your attorney guide you in responding to requests from the other side. A request, suggestion or offer from the other side is not per se
bad. Most attorneys are not out to get, trick, or ruin the opposing counsel or client. Therefore, we do not advise a
knee jerk negative response to any request from the other side.
Other questions that may arise during the pendency of the procedure.
1. May I date?
2. Should credit cards be terminated?
3. Should I use bank accounts?
4. Should I withdraw or sell assets?
Contact your counsel. These are appropriate questions.
What if I have some doubt about the lawyer's handling of my case?
You should raise issues of concern with your lawyer. Explain the concern from your perspective.
Don't wait until you are really angry. Bring your concerns to counsel's attention as soon as they occur.
5. To keep you informed of the progress of your case, we will provide you with copies of all pleadings and correspondence that are either prepared or received by our office. You should read all correspondence received and should keep the copies in a file or binder for future use and reference.
6. Tell us all we need to know. Keep a diary. We cannot help without all the facts. If you are nervous or afraid to tell us, we understand, and it may help to write it down in your diary. You are our
eyes and ears for information. Please keep us informed so we can help you.
7. As problems or questions arise, call the office and state the problem or question to my staff or send a detailed message by Email. Hopefully, we will have an immediate solution or arrange to get back to you. Do not call and leave a message such as
urgent, very important, or must talk to you. This is futile, time consuming, and non productive. If you find yourself calling frequently, you may want to list your questions and save several for one call. Some clients prefer to write to me or fax me regular notes regarding what is happening which is an efficient way of helping me keep up with the case. It is also less time consuming for me, and, therefore, economical to the client. Please know, however, that we will make every effort to be available to you in an emergency.
Family law cases are extremely emotional. For that reason, clients should seek counseling before or during the legal process.
Depending on the client's needs, counseling serves different purposes. One client may benefit from
marriage counseling to improve or reconcile a relationship. Another may need
divorce counseling to help accept that the marriage is over, cope with its demise, pick up the pieces, and go on. Still another will need
stress management to deal with the stress of litigation, particularly if the case has to be tried. Finally, an increasing number of clients are seeking counseling to aid them in communicating with an ex-spouse on co-parenting children after divorce.
A client will often put off going to a counselor because his or her spouse will not go
Don't wait for your spouse to participate. Individual counseling can be extremely helpful and satisfying. Often parents and children attend counseling together. This helps to lessen the negative effects of the divorce or the custody dispute on the children and helps the family to put their lives back together.
How do you find the right counselor? If you do not know where to begin, your attorney will recommend qualified counselors. Your professional, social, or religious contacts also might provide leads.
When you choose a counselor, be selective. Therapists have different styles and approaches.. Inform the counselor at the first meeting about the goal of the session. Also, check your health insurance policy to see if your plan covers any part of the cost.
Counseling will aid you through this difficult time and make your
attorney's job easier.
Most clients come to the attorney's office to seek a divorce. I always encourage clients or potential clients to consider reconciliation before they take the final steps toward divorce. Whenever there is a viable chance to preserve the marriage, I strongly suggest counseling to explore that option.
Sometimes, working at the marriage is easier than severing it, and I feel it is my obligation to point this out to you. If you decide to proceed, I will work actively on your behalf.
For some families, mediation may be an answer. Mediation is a method of dispute resolution that is an alternative to the more traditional courtroom trial. It is the process whereby the parties meet with a trained mediator who attempts to help them reach an agreement. The mediator tries to facilitate an agreement but does not force either party to agree. In mediation, both parties should make a good faith attempt to agree on issues of the marriage, including custodial arrangements and property division, for example. Neither party should feel that the
agreement was forced upon him or her. If it is not possible to reach an agreement, another form of resolution such as trial, is used.
Mediators are usually experienced family lawyers with training in social work or psychology and specialized training in mediation. Many are highly skilled professionals with substantial experience in mediation.
Mediation can run from a one-hour session to several meetings over the course of weeks. The duration depends upon the progress, the cooperative spirit (or lack thereof) exhibited by the parties, the desire of the parties to keep trying, and many other factors. Your lawyer will be involved in the process to keep you informed of your legal rights, but should take a less adversarial role. The goal of mediation is cooperation, not
winning your case.
ACTION = a proceeding taken in a court of law. Synonymous with case, suit,
lawsuit.
ADJUDICATION = a judgment or decree.
ADJUDICATION HEARING = refers to a trial in a juvenile court.
ADULT = an individual 19 years of age or older.
ADVERSARY SYSTEM = the system of trial practice in the United States and some
other countries in which each of the opposing, or adversary, parties has full
opportunity to present and establish its opposing contentions before the court.
AFFIDAVIT = a written statement of fact, signed and sworn to before a person
having authority to administer an oath.
AFFIRM = to assert that the judgment of a lower court is correct and should
stand.
ALIMONY = a sum of money which a court orders a spouse to pay to his or her
separated or ex-spouse for support, aid, or maintenance.
ALLEGATION = the assertion, declaration or statement of a party to an action
made in a pleading, stating what (s)he expects to prove.
ANNULMENT = a court order declaring that a marriage or other agreement or
contract is invalid or not legal.
ANSWER = a written statement of the defendant's case made in response to the
plaintiff's complaint.
APPEAL = the process by which a case is brought from one court to a higher court
for review.
APPELLANT = the party appealing a decision or judgment to a higher court.
APPELLATE COURT = a court having jurisdiction to review and determine whether
the rulings and judgments of a lower court are correct.
APPELLEE = the party against whom an appeal is taken. Also called a
"respondent."
BRIEF = a document prepared by an attorney and filed in court which presents the
law and facts supporting his case.
BURDEN OF PROOF = the obligation of a party to prove facts at issue in the trial
of a case.
CALENDAR = a list a cases arranged for trial in court; a docket.
CASE = any proceeding, action, cause, suit, lawsuit, or controversy initiated
through the court system by filing a complaint, petition, or indictment.
CAUSE = a suit, litigation or action = civil or criminal.
CERTIORARI = a document or action removing a case from a trial court to an
appellate court for review or from an appellate court to the supreme court.
CHILD = an individual under the age of 18, or under 19 years of age and before
the juvenile court for a matter arising before that individual's 1 8th birthday.
CHILD IN NEED OF SUPERVISION (CHINS)- a child who has committed an offense which
if committed by an adult, would not be classified as a crime but who is in need
of care or rehabilitation.
CITATION = a reference to legal authorities and precedents.
CIVIL LAW = law which is not criminal law; usually pertains to the settlement of
disputes between individuals.
CLAIM FOR RELIEF = the facts which make the basis for a case or lawsuit.
CLERK OF COURT = an officer of a court whose principal duty is to maintain court
records.
CODE = an official compilation of all permanent laws in force, classified
according to subject matter.
ENJOIN= to require a person, by writ of injunction issued by a court, to perform
or to abstain from performing some act.
EVIDENCE = any form of proof legally presented at a trial through witnesses,
records, documents, etc.
EXPERT EVIDENCE = testimony given by those qualified to speak with authority
with regard to scientific, technical or professional matters.
EX PARTE = by or for one party; done for in behalf of, or on the application of,
one party only.
EXECUTE= when used in connection with an order of process, the term means "to
carry out, complete or dispose of properly or according to law."
EXHIBIT= paper, document or other object received by the court as evidence,
during a trial or hearing.
FRAUD= an intentional perversion of truth; deceitful practice or device resorted
to with intent to deprive another of property or other right, or in some manner
to do him or her injury.
GARNISHEE = (n) the person upon whom a garnishment is served, usually a debtor
of the defendant in the action; (v) to institute garnishment proceedings.
GARNISHMENT= proceeding whereby property, money or credits of a debtor in the
possession of another, are applied to the debts of the debtor, as in the
garnishment of a person's wages.
GUARDIAN AD LITEM = one who is appointed by a court to manage the interests of
an infant.
HABEAS CORPUS = literally means you have the body." The name of a variety of
writs which require a person to be brought before a judge. In family law it is used to force someone without legal custody to produce a child held from the rightful custodial party.
HARMLESS ERROR= in appellate practice, an error committed by a lower court
during a trial but not prejudicial to the rights of the appellant and for which
the court will not reverse the judgment.
HEARING = appearance before the judge by attorneys and interested parties in a
case, generally open to the public.
HEARSAY= evidence based on what the witness has heard someone else say, rather
than what he has personally experienced.
HOSTILE WITNESS= a witness who is subject to cross-examination by the party who
called him or her to testify, because of his or her evident antagonism toward
that party as exhibited in direct examination.
IMPEACHMENT OF WITNESS = an attack on the credibility of a witness.
INADMISSIBLE= that which, under the established rules of evidence, cannot be
admitted or received in a judicial action.
INCARCERATION = commitment to jail or prison.
INDIGENT= impoverished; needy; poor; without funds.
INFORMAL ADJUSTMENT - a procedure in the juvenile court whereby an intake officer
will delay the filing of the petition based on an informal adjustment if the
child and his parents voluntarily agree to abide by specified conditions. If
these conditions are violated, the intake officer can proceed with the filing of
the formal petition.
INJUNCTION= writ or order by a court prohibiting a specific action from being
carried out by a person or group.
INTAKE OFFICER= an official of the juvenile court who receives and verifies
complaints of children coming under the jurisdiction of the court.
INTERLOCUTORY = provisional; temporary; not final. Refers to orders and decrees
of court.
INTERROGATORIES= written questions developed by one party's attorney for the
adversary in a case who must respond in writing and under oath.
JUDGE= an elected or appointed official with authority to hear and decide cases
in a court of law.
JUDGMENT= a determination by a court of the rights and claims of the parties in
an action.
JURISDICTION= the authority of a court to exercise judicial power.
JURISPRUDENCE == the philosophy of law, or the science of the principles of law
and legal relations.
LAW= rules and principles of conduct promulgated by the legislature, court
decisions, or local customs.
LEADING QUESTION = a question which instructs a witness how to answer or
suggests the answer desired. Usually, prohibited on direct examination.
LEVY= a seizure; the obtaining of money by legal process through seizure and
sale of property, the raising of the money for which an execution has been
issued.
LITIGANT= one who is engaged in a lawsuit.
LITIGATION = a contest in court.
MANDAMUS= the name of a writ which issues from a court of higher jurisdiction,
directed to an inferior court, commanding the performance of a particular act.
MANDATE= a command from a court directing the enforcement of a judgment,
sentence or decree.
MINOR = an individual under 19 years of age who is not a "child."
MOTION = an oral or written request for an action made by a party, either
before, during, or after a trial, upon which a court issues a ruling or order.
MULTIPLE NEEDS CHILD = a child coming to the court's attention who is at risk of
being placed outside the home because of emotional or mental problems, dependency, delinquency, or alcohol or drug dependency and whose needs require
the services of two or more state agencies.
OATH= a written or an oral pledge by a person to keep a promise or speak the
truth.
OBJECTION= a statement by an attorney taking exception to testimony or the
attempted admission of evidence.
OF COUNSEL a phrase used to connote an attorney who is employed by a party to
assist in the preparation or management of a case, but who is not the principal
attorney of record.
OPINION = a statement by judge or a court of a decision reached regarding a case
tried before it.
OPINION, WRITTEN = in appellate courts the decision of judges based on established legal precedents, which is recorded and published.
ORDINANCE = a local law or regulation enacted by a municipal government. It has
no effect outside the jurisdiction of that city or town.
ORAL ARGUMENT = a pleading by word of mouth in the' actual presence of the
court.
OVERRULE = (n) a court's denial of any motion or point raised to the court; (v)
to overturn or make a prior case void.
PARTIES= persons, corporations, or associations who have brought a lawsuit or
who are defendants.
PERJURY = criminal offense of making false statements under oath.
PETITION= original pleading (complaint) filed by the plaintiff seeking equitable
relief.
PETITIONER= person who begins an action seeking equitable relief.
PLAINTIFF = party in a civil suit who files a complaint seeking legal relief.
PLEADINGS= formal written allegations by the parties of their respective claims
and defenses for the judgment of the court.
POWER OF ATTORNEY = document authorizing another to act as one's agent or
attorney.
PRECEDENT= previously decided case which is recognized as the authority for
determining future cases.
PREJUDICIAL ERROR = synonymous with reversible error"; an error which warrants
the appellate court to reverse the judgment before it.
PRE-TRIAL CONFERENCE = a conference called at the discretion of the court prior
to trial to narrow the issues to be tried and to secure stipulations as to
matters and evidence to be heard.
PROBATE = Civil actions involving wills, the settlement of estates and guardianships.
PROCEEDING= particular legal action or cause of action.
PROSE = a short form of "in propria persona" which is Latin for "in one's own
proper person." This refers to a person who represents himself or herself in
court without the aid of a lawyer.
QUASH= to overthrow; vacate; to annul or void a summons or indictment.
QUESTIONS OF FACT - disputed facts which are traditionally left for the jury to
decide.
QUESTIONS OF LAW= disputed legal matters which are traditionally left for the
judge to decide. The occurrence or non=occurrence of an event is a question of
fact; their legal significance is a question of law.
REBUTTAL= the introduction of refuting evidence; the attempt to show that
statements of witnesses as to what occurred are not true.
RECORD ON APPEAL = a copy of the pleadings exhibits, orders or decrees filed in
a case in the trial court and a transcript of the testimony taken in the case.
REDIRECT EXAMINATION = follows cross=examination and is exercised by the party
who first examined the witness.
REMAND= (n) a disposition by an appellate court that results in sending the case
back to the where it was tried so that some action (v) to send back.
REPLY= pleading by the plaintiff in response to the defendant's written answer.
RESPONDENT= party against whom an appeal is brought in the court of appeals.
REST= a party is said to "rest" or "rest the case" when (s)he has presented all
the evidence he intends to offer.
REVERSAL= setting aside, annulling, vacating or changing to the contrary the
decision of a lower court or other body.
REVIEW= to re=examine judicially; a reconsideration. Used especially in the
examination of a cause by an appellate court.
SENTENCE, SUSPENDED a sentence on which execution has been withheld by the court
based on terms and conditions.
SERVICE= the delivery or communication of a legal document in a suit to the
opposite party.
SET ASIDE = to annul or void as in "setting aside" a judgment.
SETTLEMENT = the conclusion of a legal matter, a money than the law
allows. compromise reached by the opposing parties in a civil suit eliminating
the need for the judge to resolve the controversy.
SHELTER CARE = the temporary care of children in group homes, foster homes, or
other non-penal facilities.
SLANDER= to speak base and defamatory words tending to harm another's reputation, business or means of livelihood.
STATUTE = the law as enacted by the legislature.
STATUTE OF LIMITATIONS = the law which specifies the time within which Parties
must take judicial action to enforce their rights or the time within which a
criminal prosecution must be initiated.
STAY = the halting of a judicial proceeding by order of the court.
STIPULATION= an agreement by the attorneys and parties on opposite sides of a
case regarding any matter in the trial proceedings.
SUBPOENA= a document issued by the court to compel a witness to appear and give
testimony or produce documentary evidence in a proceeding.
SUBPOENA DUCES TECUM = literally under penalty you shall take it with you." A
process by which the court commands a witness to produce specific documents or
records.
SUBSTANTIVE LAW = the law dealing with the rights, duties and liabilities, as
distinguished from law regarding procedure.
SUIT = any court proceeding in which an individual seeks a decision (see case).
SUMMONS = a document directing the sheriff or another officer to notify the
person named in an action that (s)he is being sued; document ordering a witness
or juror to duty.
TESTIMONY = any statement made by a witness under oath in a legal proceeding.
TORT= a civil category that includes cases in which an injury or wrong doing has
been committed, either with or without force, to the person or property of
another, not including breach of contract.
TRIAL= an examination of issues of fact and law in a suit before a court that
has jurisdiction over the case.
VENUE = the specific county, city or geographical area in which a court with
jurisdiction may hear a case.
CHANGE OF VENUE = the removal of a suit started in one county to another for
trial, or from one court to another in the same county.
VOIR DIRE = to speak the truth. The preliminary examination of a witness or
juror as to qualifications.
WAIVE = to give up a right, claim, or privilege
WILLFUL = a 'willful" act is one done intentionally, as distinguished from an
act done carelessly or inadvertently.
WITNESS= a person who testifies before a court under oath regarding what he has
seen, heard or otherwise observed.
WRIT= a written court order directing a specific person to perform or refrain
from performing a specific act.
WRIT OF CERTIORARI, PETITION FOR = a petition to the Supreme Court of Alabama
to review a decision of the Court of Criminal Appeal or the Court of Civil
Appeals.
