Practice Tips

Practice Tips

Tips Regarding Family Law Services in Hawaii

Child Friendly Custody and Visitation

Custody and visitation schedule should take into account:

  • Child’s age and developmental stage
  • Each parent’s availability and ability to meet child’s needs
  • Child’s temperament and personality

Custody and visitation schedules should evolve over time with:

  • Timesharing gradually increasing as child gets older so child can adjust
  • Assistance of mental health professionals out of Court
  • Input of older children about how they want to spend time with each parent

Tips for Child Friendly Child Custody and Visitation

Generally speaking, child custody and visitation ("timesharing") should consider children's ages and developmental stages. For example, within the fields of psychiatry and psychology, overnights for children under age 3 are widely debated. Joint physical custody for preadolescent children is less controversial. Specific to a family, timesharing should consider a child's needs vs. each parent's availability and ability to meet the child's needs.

Timesharing schedules should evolve from whenever parents physically separate until children graduate from high school. Court orders should provide for periodic reevaluation of timesharing schedules by mental health professionals who can guide parents in revising schedules to accommodate children’s best interests.

Practicing Joint Legal Custody (Joint Decision Making) and Maximizing Parental Contributions to Children's Expenses and Children's Outcomes

Before parents physically separate, they should discuss how they will provide for their children’s health care (orthodontia), extracurricular activities (team sports, private lessons), and education (private school, college).  By having these discussions ahead of time, parents can see if their respective philosophies, goals, and communication styles are compatible for sharing joint legal custody (joint decision making). Parents should also discuss how they will pay for their children’s needs, such as percentage of payment by each parent or setting aside funds for these expenses (college fund).

To the extent that parents are able to start implementing their goals for their children prior to separation, their children benefit post-divorce. For example, enrolling a child in private elementary school prior to separation maximizes the chances that the child’s private education expenses will continue to be paid by the parents in proportion to their respective incomes post-divorce. The late Judith Wallerstein, a world renown psychologist who worked with parents and children from broken families, said that these children are shortchanged when their parents do not sit down to plan for, much less decide how they will pay for, these children’s college expenses. The end result is that children from broken families are less likely than children of intact families to surpass their parents in terms of level of education or income capacity.

Tips For Alimony PayOrs And Alimony Recipients

  • Calculate historical monthly averages of pre- and post-  separation expenses to determine your post-divorce monthly budget
  • Your current expenses should reflect what you want your post-divorce standard of living to be
  • Alimony payors need to work only one full-time job
  • Alimony recipients who have never worked outside of the home should find jobs to get rid of speculation about what they are capable of earning
  • Awarding alimony recipients disparate (more than 50%) property division or non-modifiable, non-deductible and non-taxable, monthly property division payments benefits both spouses, because then neither spouse has to worry about the other spouse modifying alimony payments as to duration or dollar amount.

Choosing A Family Law Attorney

Events that produce family law cases can be traumatic for all family members, especially the adults involved. Family law clients are sometimes at their worst, and they need substituted judgment (they need someone to guide them because their judgment is clouded by emotions). Just like with anything else, a family law client should operate from the premise that he/she knows and cares the most about his/her case (even more than the professional being hired). Family law clients should be knowledgeable about, and actively involved in, what is happening in their cases; they should not just leave it up to their attorneys to get the job done. A family law client can be a very valuable member of the team!  Ideally, resolving a family law case should be approached with the mindset of making a business decision, although this is easier said than done.

Choosing a family law attorney is like choosing anything else of significance, such as a house, a car, a private school. There should be a good "fit" between the client and the family law attorney in terms of their goals, approaches, and philosophies. 

A good attorney's job is to educate clients about likely outcomes in Court and to not just do what clients want.  This prevents clients from wasting valuable energy, time and money pursuing unrealistic goals. Most of all, by not taking losing positions, clients save face and save emotions.   

Often when people get divorced, it is the first time they are working with attorneys. Unlike other professions where the working relationship with the professional is not critical to the job that gets done, the working relationship with the family law attorney is critical to the outcome of the case. This is because there is no other profession in which the team effort of the attorney and the client is scrutinized by third parties, namely: the other spouse and his/her attorney; the Custody Evaluator; and/or, the Judge.

Most attorneys work on their clients' cases on their own without their clients getting significantly involved. Nevertheless, a good attorney works very closely with clients every step of the way. For example, a good attorney tells clients the moment something happens in their cases, and a good attorney involves clients in drafting documents and preparing for Court hearings. The team effort when performing these critical tasks ensures maximum client input and informed clients, as well as faster turnaround time for documents and therefore faster obtaining of out of Court settlements or faster obtaining of Court hearing dates. Knowledge is power, and there is nothing that helps family law clients be less scared about possible outcomes in their family law cases than being actively involved in their family law cases!

Although family law cases result from major life transitions that are often sad and traumatic, family law cases are nonetheless opportunities to learn from past mistakes and to make positive improvements in clients’ lives and the lives of their children.

Preparing For Litigation

Question: What is the best way to prepare for litigation as a client?

Answer: Sufficiently prior to the Court hearing, meet with your attorney to go over your testimony so that you have time to think about your answers and make sure they are what you want to say.  Understand the information your attorney is trying to elicit from the questions that he/she is asking you.  Be familiar with each of your exhibits and each of the opposing party’s exhibits.  Ask your attorney to anticipate potential cross examination questions that you may be asked by the opposing party’s attorney, and ask your attorney what redirect examination questions he/she would ask you in response (to tell your side of the story after the cross examination questions cast you in a different light).   Be sure that you feel comfortable with the level of preparation in your case, and request more time to prepare with your attorney if you need it/want it.  Many attorneys have never gone to Court on their own cases and therefore have no idea how clients feel as Court hearings get closer. 

Question: What else should a client/witness pay attention to
besides his/her testimony?

Answer: A client/witness should also pay attention to his/her demeanor and credibility.

Demeanor means how the client/witness comes across to the Court and everyone else.  When males are scared they often look even more serious than they normally do and they forget to project warmth and to smile. Sometimes, this causes them to look scary.  Know that even attorneys get butterflies right before going into Court, but once people go into Court the butterflies go away and they want to be sure their whole story is heard by the Judge.

Credibility means whether the Judge and everyone else believes the client/witness is telling the truth.  Credibility is determined by:  whether there is consistency between what is written vs. what is said; whether there is consistency within what is written or said; and, the level of detail and examples about the point being made.

Family Court cases often have “he said, she said” versions of what happened.  Although it is easy to react to what an opposing party or attorney said with facial expressions or head shaking, this is not a good idea because it distracts the Judge who is forming his/her own impressions about what was said.  Demeanor and credibility are great tools to determine where the truth lies, although often the truth lies somewhere in the middle of what each party said. 

Question: Is it desirable to have a “day in Court”?

Answer: No. Court should always be the last resort, unless there is an emergency.  The reason is because there is a huge gap between the amount of information that clients know about their cases vs. the amount of information that ends up being presented to the Judge, much less considered by the Judge when he/she makes a decision.  Judges often have more cases on their calendars than they have time to hear.  The question and answer (and objection) format of testifying in Court is not conducive to telling one’s story without interruption.  By the time that cases get to a Court hearing or trial, both sides are so polarized that parties have dug their heels in the ground and started to mudsling back and forth.  In a highly contested case, going to Court ends up being a negative experience even for the attorneys.  Sometimes in the 11th hour before a Court hearing or trial, an attempt is made to settle the case “on the Courthouse steps.”  Parties should welcome this opportunity to take back control over their lives instead of leaving it to a third party decision maker (the Judge) who does not know their families and especially their children as well as they do.

Question: Is it expensive to have a 1 day trial?

Answer: A former Judge used to say that each day in Court costs approximately $10,000 for out of Court preparation time and actual in Court time.  This estimate varies widely depending on the hourly rate of the attorney.  In any event, a 1 day trial is really more like 6 hours of actual in Court time that is divided equally between the parties (3 hours per party), after starting no earlier than 8:30AM and ending by 4:30PM, taking a 1½ hour lunch break, and taking at least two 10 to 15 minute breaks (one in the morning and one in the afternoon).  Paying $10,000 for 3 hours of talking time (to put on the client’s case and to cross examine the opposing party) ends up being quite expensive, which is why only a small percentage of cases (e.g., 5%) end up going to trial.  Cases go to trial because of bad dynamics between the parties (one party does not want to settle) and/or their attorneys (their attorneys start fighting amongst themselves as if it were their own cases), or because the issue is not easily settled (e.g., relocation of the child out of state).

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