Getting Started in Family LawIN NORTH DAKOTA

Me

Greg Liebl Concordia College University of North Dakota School of

Law Severson, Wogsland & Liebl in Fargo,

North Dakota

Overview In the Beginning Pleadings

Summons and Complaint Motion practice

Typical Cases Divorce Residential responsibility/parenting time Contempt Child support

In the End

In the beginning Cold Calls

Theories: The “don’t waste your time” approach

Sell time Don’t spend time on people you may not represent

The “it is an opportunity to market” approach Tell them how much you know Get more accurate information

The Initial Consultation Research what you are going to talk about Jump in!

Retainer Agreement Appendix page 1.

Limit representation (where possible) Withdrawal Fees Interest

Pleadings –Summons and Complaint

Initiating the Law Suit Divorce Paternity/Custody

Beware of the child support order Summons

Appendix page 5. Starts action Gives opposing parties 21 days to Answer Restraining provisions unique to family law

Complaint Appendix page 7. Short and plain statement Allegations/requests for relief Answer and Counterclaim

Service Publication –in certain circumstances Admission of service Process server Sheriff

Pleadings -Motion Practice

Rule 8.2 –Sometimes you just can’t wait… Noticed Motions

Topics to be decided: Support Parenting responsibilities Attorneys fees Use of property

Examples –Appendix page 17. Things to note within the rule –Appendix page 12.

Timing of filings 21 days for movant 14 days for response if new issues 7 days for response if no new issues

Hearing in 30 days Submit affidavit and financial statement

Motion Practice continued…

Rule 8.2 --Sometimes you just can’t wait… Ex parte

Don’t serve Summons and Complaint yet… Standard

Exceptional circumstances: (A) threat of imminent danger to any party or minor child of the

party; or (B) circumstances indicating that an ex parte interim order is

necessary to protect the parties, any minor children of the parties, or the marital estate.

Examples: Endangering child Wasting assets

Order –Appendix page 15. Include provision required by rule!

Motion Practice continued…

Rule 3.2 --“Rule 3.2? I don’t know anything about no stinkin Rule 3.2!” Use:

Sometimes while a case is pending Discovery

Mostly post judgment Motions to modify

Rules: Rule 3.2 –Appendix page 20.

Timing Briefs

Interplay with N.D.R.Civ.P. 6 –Appendix page 21. Examples

Appendix page 23 and 25.

Typical Cases Divorce (1 in 2 marriages)

Property distribution Start at equal, explain any deviation Ruff-Fischer guidelines

Spousal support Ruff-Fischer guidelines Needs and abilities to pay Rehabilitative v. permanent

Independent economic status Attorneys Fees

N.D.C.C. § 14-05-23 N.D.C.C. § 28-26-01 (more for motions…)

Typical Cases continued…

Residential Responsibility Terminology

Residential responsibility = custody Parenting time = visitation Legal custody = decision making

Doesn’t mean anything unless defined

Typical Cases continued…

Residential Responsibility (by Summons and Complaint) Best Interest Factors -N.D.C.C. § 14-09-06.2

Appendix page 27. When can a child choose?

Testify –Reinke (intelligence, understanding and experience) What a court will look at (maturity and reasoning) Still only one of 13 factors and court can give it its appropriate weight

Parenting Investigators Rule of Court 8.6 Neutral third party –lead to settlement Letter sent to clients when one assigned

Appendix page 29. Parental alienation Random visits CYA

Typical Cases continued…

Modification of Residential Responsibility (Motion –post 2 years) N.D.C.C. § 14-09-06.6

Appendix page 32. Two main things to take away:

Prove “prima facie” case to get hearing Two years after judgment entered:

Material change in circumstances Something not known at the time the judgment

entered Best interests of the child

Typical Cases continued…

Modification of Residential Responsibility (Motion –within 2 years) N.D.C.C. § 14-09-06.6 Moratorium within first 2 years

Stability Prevent bandying

Still need to prove: “prima facie” But, within 2 years of previous judgment need to prove:

Interference with parenting time Circumstances endangering child Actual residential responsibility has been changed for over

6 months

Typical Cases continued…

Parenting Time Disputes Obtaining parenting time

N.D.C.C. § 14-05-22(2) Beneficial for child Not harmful to the child

What is “normal”? Motions to modify time with child

Material change in circumstances Best interests of the child Arguments depend on whether you want to

increase or decrease time…

Typical Cases continued…

Parenting Time Disputes Moves out-of-state

Stout-Hawkinson Factors: The prospective advantages of the move in

improving the custodial parent's and child's quality of life,

Testify but verify The integrity of the custodial parent's motive for

relocation, considering whether it is to defeat or deter visitation by the noncustodial parent,

The integrity of the noncustodial parent's motives for opposing the move, and

The potential negative impact on the relationship... Less frequent, but greater duration

Typical Cases continued…

Contempt Recognition of the case 27-10 Definition: “contempt of court” means:

a. Intentional misconduct in the presence of the court which interferes with the court proceeding or with the administration of justice, or which impairs the respect due the court;

b. Intentional nonpayment of a sum of money ordered by the court to be paid in a case when by law execution cannot be awarded for the collection of the sum;

c. Intentional disobedience, resistance, or obstruction of the authority, process, or order of a court or other officer, including a referee or magistrate;

d. Intentional refusal of a witness to appear for examination, to be sworn or to affirm, or to testify after being ordered to do so by the court;

e. Intentional refusal to produce a record, document, or other object after being ordered to do so by the court;

f. Intentional behavior in derogation of any provision of a summons issued pursuant to rule 8.4 of the North Dakota Rules of Court; or

g. Any other act or omission specified in the court rules or by law as a ground for contempt of court.

Sanctions Attorney’s fees Jail Penalty for each day the contempt continues

Typical Cases continued…

Child Support Setting it

Forms -http://www.nd.gov/dhs/services/childsupport/progserv/guidelines/guidelines.html

Programs Modification

N.D.C.C. § 14-09-08.4 Within 1 year = material change in circumstances Post 1 year = a change that results in a different

obligation 36 months CSEU

In The End Closing the File

Letter disengaging representation Provision in stipulation/judgment

Retention Policy Destruction Policy

Contact Information Greg Liebl 4840 Amber Valley Pkwy. Ste. B

Fargo, ND 58104 701-297-2890 greg.liebl@swlattorneys.com

Call or email me with any questions!