the fundamentals of family law - University of North Dakota School of
Getting Started in Family Law
IN 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/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
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
