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Getting Started in Family Law IN NORTH DAKOTA. Me  Greg Liebl  Concordia College  University of North Dakota School of Law  Severson, Wogsland & Liebl.

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Presentation on theme: "Getting Started in Family Law IN NORTH DAKOTA. Me  Greg Liebl  Concordia College  University of North Dakota School of Law  Severson, Wogsland & Liebl."— Presentation transcript:

1 Getting Started in Family Law IN NORTH DAKOTA

2 Me  Greg Liebl  Concordia College  University of North Dakota School of Law  Severson, Wogsland & Liebl in Fargo, North Dakota

3 Overview  In the Beginning  Pleadings  Summons and Complaint  Motion practice  Typical Cases  Divorce  Residential responsibility/parenting time  Contempt  Child support  In the End

4 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

5 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

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

7 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

8 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!

9 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.

10 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…)

11 Typical Cases continued…  Residential Responsibility  Terminology  Residential responsibility = custody  Parenting time = visitation  Legal custody = decision making  Doesn’t mean anything unless defined

12 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

13 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

14 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

15 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…

16 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

17 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

18 Typical Cases continued…  Child Support  Setting it  Forms - http://www.nd.gov/dhs/services/childsupport/progser v/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

19 In The End  Closing the File  Letter disengaging representation  Provision in stipulation/judgment  Retention Policy  Destruction Policy

20 Contact Information  Greg Liebl  4840 Amber Valley Pkwy. Ste. B Fargo, ND 58104  701-297-2890  greg.liebl@swlattorneys.com greg.liebl@swlattorneys.com  Call or email me with any questions!


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